FAMILY LAW - APPEAL – Application to adduce further evidence – application allowed
FAMILY COURT OF AUSTRALIA
FAMILY LAW - APPEAL – From decision of Family Court judge – CHILDREN – Expert Witness – where expert misapprehended the chronology – where misapprehension contributed to adverse conclusions by the expert concerning the credibility of the wife and her mother – role of the expert witness – appeal allowed – matter remitted for rehearing
FAMILY LAW - CHILD ABUSE – Emotional abuse
CDJ v VAJ (1998) 197 CLR 172
Hall and Hall (1979) FLC 90-713
HG v Queen  HCA 2; (1999) 197 CLR 414
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Noetel and Quealey  FamCA 677; (2005) FLC 93-230
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd  FCAFC 157; (2002) 55 IPR 354
LOWER COURT MNC:
(1) That the application to adduce further evidence be allowed.
(2) That the appeal against the orders of the Honourable Justice O’Ryan made on 13 March 2007 be allowed.
(3) That, subject to order 4, the orders made on 13 March 2007 be discharged.
(4) That discharge of the orders made on 13 March 2007 be stayed until the matter is listed before a judge at first instance.
(5) That the matter be listed before a judge at first instance as soon as possible to determine any application for interim parenting orders and/ or other procedural orders necessary for a rehearing by a judge other than the Honourable Justice O’Ryan.
(6) That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal against the orders made on 13 March 2007.
(7) That the Court grants to the respondent husband and the Independent Children’s Lawyer costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the appeal against the orders made on 13 March 2007.
(8) That the Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party and the Independent Children’s Lawyer in relation to the rehearing referred to in paragraph 5 of these orders.
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
REASONS FOR JUDGMENT
- Ms Carpenter has appealed against orders made by O’Ryan J in March 2007 concerning her children, [G] and [I]. The appeal is opposed by Mr Lunn, who is [G’s] father and [I’s] stepfather. For convenience, we will refer to the parties as “the husband” and “the wife”.
- The orders provided for:
- the boys to live with the husband;
- the husband to have sole parental responsibility;
- the wife to spend three hours with the boys on alternate weekends at a supervised contact service (as well as one supervised visit of up to four hours every four weeks away from the contact service); and
- the wife to meet the costs of supervision.
- No provision was made for the periods of time the wife spent with the children to become unsupervised at any time in the future, although the orders did allow the wife such additional time with the boys as the husband might permit after the expiration of 18 months.
- The proceedings were instituted prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 but O’Ryan J delivered judgment after the Act came into effect. The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
- The following background is largely drawn from findings made by his Honour; however, we will also refer to other uncontroversial matters to assist understanding of the relevant chronology.
- At the time of trial, [G] was aged 5 and [I] was 11. The wife was aged 32 and had casual employment [in the hospitality industry]. The husband was aged 34 and unemployed, but planning to resume work as a contractor.
- The wife was born in [a foreign country] but came to Australia before her first birthday. Her mother, [the maternal grandmother], was the daughter of a [senior figure]. Her European father, now deceased, had married her mother prior to the family coming to Australia. We will refer to the wife’s mother as “[the maternal grandmother]”.
- Soon after leaving school, the wife met a [Mr R], with whom she had a relationship for some years. She fell pregnant with [I], but then left [Mr R] and moved to Perth where [I] was born in November 1995. [Mr R] has only ever seen [I] twice. He was aware of the current proceedings but chose not to participate.
- During the time the wife was living in Perth, the husband moved into the Newcastle neighbourhood where [the maternal grandmother] lived. [The maternal grandmother] decided he would be a suitable spouse for her daughter. She arranged for them to meet in late 2000 and they immediately commenced living together in Newcastle The wife fell pregnant soon afterwards and [G] was born in October 2001.
- In April 2002, the wife took [I] to the doctor, claiming the husband had kicked him in the testicles. She also claimed the husband had struck [I], causing him to knock his head against a television. The doctor who examined [I] saw no sign of injury. The husband admits he “kicked [I] in the bum”, but claims he never touched the child again.
- In January 2003, [G] was burned with boiling water which the husband had left in a container on a change table. [G] still bears the scars from his burns today. Although she had not witnessed the incident, [the maternal grandmother] told hospital staff she believed the husband had deliberately injured [G]. An investigation was carried out by the Department of Community Services (“D.O.C.S.”), but nothing eventuated.
- The husband recalls that the parties’ relationship began to “fall apart” after [G] was burned. They separated for about a month in July/August 2003; however, they were able to resolve their differences and were married in September 2004.
- In March 2005, [the maternal grandmother] went to Perth for an extended holiday. The husband and wife ceased cohabitation shortly after her departure, although the husband recalls he had decided to end the relationship prior to her leaving.
- The husband spent time with the boys up until June 2005. He said he continued to see the wife most weekends and telephoned her every night; however, he claims she suddenly became cold towards him around the time [the maternal grandmother] returned from Western Australia in June 2005.
- A week after [the maternal grandmother] returned to Newcastle the wife obtained an Apprehended Violence Order against the husband, arising out of his alleged verbal abuse. The husband was not served with the order until about 7 July 2005.
- On 22 June 2005, the husband’s solicitor wrote to the wife advising that the husband was happy for the children to continue to live with her, but felt it best they find a residence away from [the maternal grandmother’s] “influence”. The husband requested time with the children each alternate weekend and each Wednesday evening.
- On 26 June 2005, the wife told the husband the contact arrangement was not working and he would never see [G] again. On the following day the wife made what his Honour found to be the first notification to D.O.C.S. of alleged sexual abuse of [G]. The husband’s contact with the boys continued into July 2005, but the wife then terminated contact.
- On 25 July 2005, the wife commenced seeing a social worker at Sexual Assault Services. Two days later she signed a statement for the police in which she claimed that the husband had sexually abused her during the relationship and had also sexually abused [G] for three years, as well as physically assaulting [I] in 2003 and 2004. She also said the husband had burned [G] in January 2003 “by pouring hot water on his left arm”.
- The husband commenced proceedings in the Federal Magistrates Court on 8 September 2005. He sought final orders for both [I] and [G] to reside with him and for the wife to have unsupervised contact on alternate weekends, half the school holidays and special occasions. On 22 November 2005 the wife swore an affidavit in which she made a variety of allegations about the husband. The affidavit was drafted by her then legal representative. We were not initially provided with a copy of this affidavit as the wife did not rely upon it at trial. However, his Honour said he proposed to read the affidavit; the Court Expert made reference to it when drawing an adverse inference concerning the wife’s credibility; and portions of the affidavit were put to the wife in cross-examination. In these circumstances, we considered it appropriate, after the conclusion of argument, to obtain a copy of the affidavit.
- In paragraphs 36 to 44 of the affidavit the wife said inter alia:
In February 2004 on a date that I do not recall I had been out side hanging out the washing. As I came back to the house I went to the window to see what the applicant was doing... I observed that [G] was between the applicants legs sucking his penis. I the quickly went into the room and as I entered the applicant pushed [G] off him...On seeing this, I said to the applicant words to the effect, “why is your fly undone?”...The Applicant said nothing in response. I then observed that [G] had a clear jell-like substance around his mouth and a pubic hair on his lips...I then said to the Applicant words to the effect, “what is this, what have you been doing to him?”...The Applicant was again silent and got up and walked out of the house and had a cigarette outside...As the Applicant had left the house, I attended to [G] so I described the smell from [G] as a sexual smell...I did not continue to confront the Applicant in relation to this matter as I am very scared of the Applicant, having observed and had the Applicant’s anger directed towards me in the past. I was very fearful the Applicant would again be violent towards me.
- The wife went on to say in paragraphs 45 to 49:
In January 2005 [later corrected by her to read 2004] on a date that I do not recall, at approximately 7 am, I went in to [G’s] bedroom and saw that the Applicant was in bed with [G]. I observed that [G] had been vomiting in the bed. However, [G] had not been sick in the evening, which made me suspicious as to what it was occurring. When I approached [G] I noticed that a pubic hair was in [G’s] mouth...I am extremely concerned for the safety of both my children and, in particular, [G] as I believe the father has been sexually interfering with [G]...I am also very concerned for the safety and wellbeing of my children because of the abusive and violent nature of the Applicant...Toward the end of our relationship I would not let the father be alone with the children even when we were residing together. I did this because I was concerned about what I believed had been sexual abuse of the children by the applicant and the increasing violent nature of the applicant.
- On 13 December 2005, orders were made for the husband to have a few periods of daytime contact in December 2005 under the supervision of his mother and grandmother.
- On 22 December 2005, the wife made a further report to the authorities that the husband had sexually abused [G]. In early February 2006, the Joint Investigation Response Team (“J.I.R.T.”) wrote to the husband and told him the sexual abuse complaint had not been substantiated. In fact, the Team concluded that [G] was at emotional risk of harm from the wife because of her “queuing [sic] the child to make claims and [her] repeated reports of abuse to the Department of Community Services”. (It is not a matter of controversy that J.I.R.T. includes representatives of D.O.C.S. and [the] Police.)
- On 14 February 2006, orders were made for the husband to have contact with the children for two hours each alternate weekend at a supervised contact service.
- On 27 February 2006 an order was made for the appointment of [a psychologist] as a Single Expert to provide a report for the Court on a variety of matters. [The Court Expert] is a clinical psychologist. We will refer to her as “the Court Expert”.
- In March 2006 [the maternal grandmother] obtained an interim Apprehended Violence Order against the husband.
- On 2 April 2006 the wife took [G] to an after-hours medical service, alleging he had sustained sore ribs and chest after being thrown in the air and caught by the husband during the contact visit on the previous day.
- The parties, [the maternal grandmother] and the boys were interviewed by the Court Expert on 6 April and 14 April 2006. The husband advised the Court Expert he wanted to share the care of the children with the wife on a week-about basis. The wife did not want the husband to have any contact with the children.
- At the time of her first interview on 6 April 2006, the wife provided a handwritten statement to the Court Expert. In that statement she said inter alia:
In 2004 when I was feeding [G] at the table he said “[Mr Lunn] [ie the husband] put his willy in my mouth. I suck [the husband’s] willy”. I took this seriously, and Thinking back, believe it to be True; eg; one time I saw [the husband] & [G] on a Lounge & [the husband’s] fly was open, I smelt [G’s] mouth & I thought I smelt seimen & [G] had a hair in his mouth. I suffered shock & disbelief. [sic]
- On 27 April 2006 the Court Expert telephoned the D.O.C.S. Helpline and expressed concern about the children remaining in the care of the wife. She then contacted J.I.R.T. to advise that she had made a report to the Helpline. The Court Expert was informed that an assessment undertaken in February 2006 had concluded there was no evidence to substantiate the sexual abuse allegations in relation to [G] and that [G] had been found to be at “Emotional Risk-of-Harm” from the wife.
- On 1 May 2006, the Court Expert finalised her report to the Court in which she recommended that [G] be placed with the husband as soon as possible and that the placement of [I] be determined by D.O.C.S.
- The Court Expert concluded in her report that it was “most likely” that the wife and [the maternal grandmother] suffered from a psychiatric condition known as “Shared Psychotic Disorder”. The only other explanation postulated in her report for the “extremely malevolent presentation” of “these women” and their “extraordinarily malicious and dishonest” claims was that they were deliberately alienating the children from the husband with a view to them rejecting him.
- Orders were made on 8 May 2006 requesting D.O.C.S. to intervene in the proceedings urgently. On the following day, orders were made for the children to be removed from the wife’s care. The orders provided for both children to live with the husband and have supervised contact with the wife for two hours each alternate weekend. On 9 May 2008, [the maternal grandmother] was made a party to the proceedings.
- On 5 June 2006, an order was made for [a] consultant psychiatrist, to carry out an assessment of the wife and [the maternal grandmother]. His appointment followed a recommendation from the Court Expert that her diagnosis of “Shared Psychotic Disorder” should be confirmed or refuted by a psychiatrist.
- After assessing both the wife and [the maternal grandmother], [the psychiatrist] concluded that neither suffered from any type of psychiatric disorder or mental illness. He expressed the view that the allegations made by the wife and [the maternal grandmother] against the husband “appear to have been immature utterances at a time of marital turmoil”.
- After receiving a copy of [the psychiatrist’s] assessment, the Court Expert provided a second report dated 27 November 2006. This was prepared after the Court Expert had conducted further interviews and seen the boys again. The Court Expert noted great improvement in both boys following their placement with the husband.
- By this stage, the wife had informed the Court that she was not pursuing her allegations of sexual abuse against the husband. She had also recanted the claim made in the affidavit prepared by her former legal advisors that she had seen [G] sucking the husband’s penis. The Court Expert declared in her second report that she had been “hoodwinked” by the wife and [the maternal grandmother] during the first round of interviews. She recommended not only that the children remain with the husband but that any contact between the children and the wife continue to be professionally supervised.
- The trial took place in February/March 2007. The wife was unrepresented, but had limited assistance from a retired barrister who acted as a McKenzie Friend. The husband was represented by his solicitor and the Independent Children's Lawyer was represented by counsel. The Independent Children's Lawyer joins with the husband in opposing the wife’s appeal.
The Court Expert’s first report
- Although there were many grounds of appeal, counsel for the wife conceded that the outcome would largely turn on whether the trial Judge erred in accepting and/or in giving undue weight to the reports of the Court Expert. As will become apparent, the Court Expert’s views strongly influenced the relief sought by both the husband and the Independent Children’s Lawyer and were of great importance in the ultimate decision. In these circumstances, extensive citation from the Court Expert’s lengthy reports is unavoidable to ensure a proper understanding of the main thrust of the appeal.
- The Court Expert was given detailed and wide terms of reference. These required her to report, inter alia, on the “psychological profiles of the parties”. The Court Expert was also requested to report on:
whether the children are at risk of physical or psychological harm, including sexual abuse, from either of the parties or other persons, including an investigation of the concern expressed by the mother that the children may be at risk of physical and psychological harm, including sexual abuse from the father and ... if the children are at risk of such harm, how to protect the children from that risk.
- The Court Expert’s first report commenced with a “brief history”. This made reference to the parties having separated in March 2005; the husband’s contact with the children ending in June 2005; and the wife’s statement to the Police in July 2005 in which she claimed that the husband had sexually abused [G] for three years. The report went on to record that on 9 September 2005, “further claims of sexual abuse were made”. (We note these further claims were not made by the wife but by [the maternal grandmother] in support of an application for an Apprehended Violence Order.)
- The Court Expert then described her interview with the wife. She said:
[Ms Carpenter] [the wife] was friendly, related warmly and seemed anxious to please. She presented in a very child-like manner, with a regressed voice. She seemed both emotionally and cognitively immature and somewhat lacking in insight. She may have a degree of developmental delay, although no formal testing of this was undertaken.
[The wife’s] narrative was often disorganised and digressive and often contained a lot of repetition and irrelevant detail.
- The Court Expert, having recorded the wife’s version of the parties’ relationship, turned to the allegations of child abuse. The Court Expert’s analysis of these allegations is central to this appeal and we propose to set out this portion of her report in full. (The italicised portions in this and later citations are commentary made by the Court Expert. All underlining, bolding and block capitalisation is that of the Court Expert.)
When asked about their separation so soon after their marriage, [the wife] told me she had been suspicious about [the husband] sexually abusing [G] and, when [G] told her this, she believed him. She said, “I can’t live with a sex offender. It’s not healthy for us to be abused all the time”.
When asked about her “previous suspicions”, [the wife] said that, when [G] was “less than 15 months”, [G] and [the husband] were sitting on a lounge watching a DVD. [The wife] had come in and had seen [the husband’s] fly undone (unzipped). She said, “So, I [grabbed] [G]. I said, “Why is your fly down? What have you been doing?” ([The husband]) walked outside”.
[The wife] said she had smelt [G’s] mouth “and it smelled of semen”. The child also had a pubic hair in his mouth.
I sought to clarify this and asked whether [the husband] had his underpants still on. She replied he had jeans on. When asked if she could see his penis, [the wife] looked very confused, as though she had not expected to be questioned about the details of this incident and so was not prepared for it. After a long pause, she replied, “No. He’s like a fox. He’s very good at it. He’s a perpetrator”.
[The wife] said she knew [G] had been aged less than 15 months at the time of this incident because it occurred before his burns accident at age 15 months. She said [the husband] had inflicted second degree burns on [G] with boiling water “on purpose”. When asked why [the husband] would want to do this, [the wife] replied, “To get rid of him. He didn’t want the child. He wanted to get married first and then have a child”.
When asked why she had married [the husband] knowing that he had physically and sexually abused her child, [the wife] told me, “’Cause I had his child”.
[However, this seems very different to the account [the wife] gave of this alleged sexual abuse incident in her affidavit of 22.11.05, in which she claimed that, in February 2004 she had observed [G] between [the husband’s] legs sucking his penis. She had confronted [the husband], asking him why his fly was undone. She had observed a gel-like substance and pubic hair on [G’s] lips.]
[The wife] then described another alleged incident of sexual abuse of [G] by [the husband] when they were living at [Newcastle]. She said she was up at 5.00 a.m. to do some cooking and had checked on the children, who were sleeping. An hour later, she checked them again, as she “sensed something”. [G] was not in his bed but was in the marital bed with his father. [The husband] was awake and the child had vomited on the bed. She said, “My suspicion is that [the husband] put his willy in ([G’s]) mouth to make him vomit”.
She said she took [G] to the doctor and insisted that [the husband] accompany them. The doctor said [G] was fine. However, [the wife] said, in retrospect, she should have requested a DNA test “to check his semen”.
[The wife] said she now has to have weekly counselling because of these experiences. She said her Counsellor, [“the wife’s counsellor”], had told her the boys also needed such counselling because of what they have experienced. [The wife] began to cry, saying that [the husband’s] abuse of the boys has affected her physically and emotionally.
When asked, [the wife] said she had observed no other abusive incidents. She then immediately said that [G] told her, “[The husband] puts his willy in my mouth. I suck him”. [The wife] had told her Counsellor about this and J.I.R.T. had been contacted. However, when interviewed by J.I.R.T., [G] would not say anything. He would only shake or nod his head.
When asked how such a disclosure had come about, [the wife] said they were sitting at the dinner table when [G] spontaneously came out with these statements. She said the first time he had disclosed this abuse was the same day of the supermarket incident and that [the husband] had sexually abused [G] that morning.
When asked about the number of disclosures [G] has made, [the wife] told me, “He says it a lot. But only in the last couple of weeks. [G] punched [I] here (points to her own genital area) in his ‘private parts’. ([G]) only says it when there is supervised access. Q. After access. Q. He said, ‘I don’t want to suck [the husband’s] willy any more”. [The wife] said [G] first disclosed sexual abuse in 2004 and has done so about twice a month since then. She told me, “Sometimes, he says, when he plays with [I], ‘Suck-a-willy, suck-a-willy’ (demonstrates in singing tones). He doesn’t know what he’s saying”.
When asked whether she thought [G] was still being sexually abused on contact visits, [the wife] told me that, at Christmas, [the husband’s] mother had allowed [the husband] to take [G] to the toilet unsupervised.
As way of explanation, [the wife] said that [the husband’s] mother and grandmother had “been through this” (child sexual abuse) and that it has happened in their family. When asked for details, [the wife] told me, “Once, when [the husband’s] mother and stepfather came over and [the stepfather] said, ‘Don’t hurt [the husband]’. My mother invited [the husband’s] mother for coffee and ([the husband’s] mother) said to my mother, ‘[The husband] has a past with his (biological) father’. My mother said, ‘We don’t want to know about it. It’s the past and [the husband] and [the wife] are getting married for the future!’ ”
When asked, [the wife] said she does not really know what happened because [the husband] will not talk about it. However, [the wife] was convinced that this conversation between the two grandmothers indicated that [the husband] had been sexually abused by his biological father when he was a child.
When asked, [the wife] said she has no doubts at all that [the husband] has sexually abused [G], because, “My child told me and I believe him”.
- The Court Expert then discussed the wife’s version of the husband’s contact with the boys after the separation. Included in this were allegations that the husband had threatened the wife and had squeezed [G’s] neck during a contact visit. The wife also claimed that the husband had admitted to her over the telephone that he had sexually abused [G]. The Court Expert observed that notes made by the wife, which were provided during the interview, indicated that she had reported this alleged admission to the Police on 27 March 2006.
- The wife was also reported as having “earnestly” advised the Court Expert that the husband will “murder us one by one. Even my mother. He called her an evil witch ...” When the Court Expert asked the wife what made her think the husband wanted to kill them, the wife said “Because of all the stuff he said to us ... That he’d hammer my mother. And he had a drill at me when he hugged me. And, on tape, he says ‘You’ll pay for this’ ”. The Court Expert also reported that the wife claimed that the children would be much happier if they did not have to have contact with the husband and she had also said the children did not love the husband.
- The Court Expert’s report then recorded a personal history given by the wife. In speaking of her own mother, the wife said she “had arrived in Australia in a grass skirt and a sarong and her father ‘taught her everything’ ”. The wife said that she still has to help her mother fill in forms.
- After discussing other issues associated with the wife’s personal history, the Court Expert noted:
- [The wife] did not talk with me about 2 incidents of alleged abuse of [I] by [the husband] which have been reported to others, namely:
* [The husband] allegedly kicking [I] in the genitals;
* [The husband] pushing [I], causing him to strike his head.
- However, [the wife] spontaneously, without explanation, gave me a report of the G.P., [“the GP”] (see Appendix 3). In this report, [the GP] states that [the wife] presented [I] on 23.5.05, claiming that [the husband] had physically abused [I] in the ways outlined above. She said these abuses had occurred on 18.4.05 (i.e. 5 weeks previously). The doctor noted no bruising on the child.
- During her oral evidence, the Court Expert corrected the dates she had underlined in the paragraph recited above. The first date of 23 May 2005 was corrected to 21 April 2002 and the second date of 18 April 2005 was changed to 18 April 2002. (We note that 23 May 2005 was the date of the report provided by the doctor and that his report, which was annexed to the Court Expert’s report, clearly indicated that he had seen [I] on 21 April 2002). As a consequence of these corrections, the Court Expert’s comment concerning the doctor’s visit having been five weeks after the alleged abuse also had to be withdrawn.
- The significance of these corrections, inter alia, is that the wife did, in fact, bring to the attention of the Court Expert during interview the allegations she had made about the husband kicking [I] in the genitals and causing [I] to strike his head. We note that these allegations were also contained in the written statement the wife gave to the Court Expert at the interview.
- The Court Expert went on to note that the wife did not tell her she had very recently taken [G] to an after-hours medical service, where she had alleged that the boy had suffered injuries as a result of being thrown in the air during a contact visit. However, the Court Expert did record that the wife gave the relevant medical report to her on 14 April 2006 and that the wife had written on the document that the incident had been reported to D.O.C.S. on 2 April 2006. The report from the Court Expert continued:
3. ...The doctor’s report indicated that, although the mother claimed [G] had sore ribs and chest, when the child was asked by the G.P. where he was sore, he pointed to his abdomen! The GP reports that [I] was also present during this consultation and told the doctor that [G] had been thrown in the air 10 times ...
- The Court Expert went on to record that the wife had also not advised her at the interview that she had reported the husband’s alleged sexual abuse of [G] to D.O.C.S. on 22 December 2005 following a series of supervised contact visits. She also noted that in an affidavit sworn in February 2006 the wife had claimed that [G] had not disclosed the sexual abuse in his interview with a D.O.C.S. worker because the husband had threatened he would kill him with a gun if he told the truth. The Court Expert observed that at no time did the wife tell her that the husband had threatened [G] with a firearm.
- The Court Expert then moved on to her assessment of the husband. She observed that the husband was a “personable young man” and that “his narrative was organised and to the point”. She also noted that he did not seem “overly-negative” towards the wife and seemed “more bemused than angry about the allegations, which he denied”.
- The Court Expert recorded the husband’s version of what had occurred when [G] had been burned with boiling water. He told the Court Expert that “it had been a terrible time for them all but particularly for [G] ... he said he and [the wife] were so upset that they had attended counselling”.
- The Court Expert then set out the husband’s views on matters relating to the relationship, the separation and contact with the children, as well as his views in relation to the abuse allegations.
- After acknowledging the difficulties that had existed in the relationship, the husband told the Court Expert that he thought that if he and the wife got married, this would fix their problems, but once they were married, their relationship was “almost over in weeks”. The Court Expert then recorded the following concerning the husband’s account of the separation:
[The husband] told me he had had financial difficulties, so he was working long hours, leaving [the wife] home alone, “bored and annoyed”. She had started “another life” without him and began to socialise.
[The husband] said that [the wife’s] mother went over to Western Australia from January to June, 2005. On the night before she went, [the husband] was invited over to dinner. [The husband] said [the wife] and [the maternal grandmother] were saying “strange” things about him in his presence, e.g. that he had A.I.D.S.; that he was having affairs. He said this was “insulting to my character” and he decided then that he would leave the relationship and he did so in the first week of Mark, 2005. [sic]
- The Court Expert noted the husband’s desire to have “shared parenting of the boys – one week on and one week off”. He told the Court Expert he had only applied for an order for residence because he realised the wife “was trying to cut me out and I thought (the children) could have equal time with both of us then”.
- The Court Expert’s report then turned to matters arising from the interview with [the maternal grandmother]. The Court Expert observed that she “presented as a woman of [foreign] appearance, with [distinctive features]”. She went on to say:
She was friendly but very intense in the way she related. [The maternal grandmother] was extremely obsequious with me and thanked me many times and profusely throughout the morning’s interviews. [The maternal grandmother] appeared to be rather simplistic and primitive in her thinking but did not appear to be formally developmentally delayed, although no formal testing was undertaken. She spoke with a marked accent.
- The Court Expert noted that [the maternal grandmother] had given her a document at the interview. When the Court Expert asked why she thought she was seeing her, [the maternal grandmother] replied “for my grandsons’ safety and protection. They are in danger from this man, [the husband]”. The report continued:
When asked about this danger, [the maternal grandmother] told me that one day (nominated in the document as 19.10.04), she was minding her grandsons while their mother went to the shops. [G] had sat on her lap and began to cry, telling her, “[The husband] is my best friend. I suck his willy and he put his willy in my mouth”.
- The Court Expert acknowledged in her oral evidence that the date nominated in the document provided by [the maternal grandmother] was not 19 October 2004, as she had recorded, but rather 4 December 2004. In any event, the Court Expert noted that [the maternal grandmother] told her the date in question was the first time she had heard of the allegation of sexual abuse. The report continued, “when asked whether she was the first person to whom [G] had disclosed, [the maternal grandmother] said his mother already knew”. She then added that “she and [I] had gone to the Police Station to report this disclosure”. At this point in her report, the Expert interrupted her discussion of the interview with [the maternal grandmother] to note that “Although [the maternal grandmother’s] statement claimed this first disclosure to her was in October 2004, J.I.R.T. records state that this disclosure to [the maternal grandmother] and [the wife] was only made in July 2005”.
- When asked later in the interview why she believed the husband was dangerous [the maternal grandmother] said “The way he treat children. He poured hot water on my grandson (cries). Something in him, it’s evil. You don’t know him.”
- Later in the interview, when asked whether she thought the boys loved their father, [the maternal grandmother] shook her head and said:
I don’t think so. [G] calls him ‘[by his first name]’, not ‘Dad’. [The husband] is not a good Dad. They don’t know him. He abused my grandson. That’s the kind of man he is. I am a Christian. There is some kind of Satan in [the husband].
- The Court Expert then asked [the maternal grandmother] whether she had any fears for her own safety, to which she replied “earnestly”:
I’m very scared. I’m the first one to be murder(ed). He want to kill me. He say he’ll hammer my head. (Q.Why would he say this?) Because I said he done it on purpose and I exposed my grandson. He will get rid of my grandson ‘cause they expose him ([the husband]).
- The Court Expert then noted that when she asked [the maternal grandmother] about the incident when she was allegedly threatened by the husband with a hammer, [the maternal grandmother] responded “with some agitation”:
After [G] was burn(t), he say that. [The husband] is a violent man. (Q.) He punches holes in people’s houses. He done something in my yard. Put his things in it. I told him to take it (out). He got electronic cord and said he’ll wind my neck. And he took off. The words he say, ‘He’ll hammer my head’. ‘He’ll wrinkle my neck’. ‘He’ll murder me’.
- The Court Expert again paused in her recitation of her discussion with [the maternal grandmother] to note:
[[The maternal grandmother] did not appear to see the overt contradictions in some of her accounts, e.g. claiming that [the husband] had threatened her with a hammer after [G] was burnt (2003), although previously telling me that this hammer threat was due to her “exposing” [the husband’s] sexual abuse of [G] (which was not reported until mid 2005).]
- Further into the interview, the Court Expert asked [the maternal grandmother] to clarify the incident when [G] was burned. When she asked whether she had made allegations to hospital staff about the injury being deliberately inflicted, [the maternal grandmother] responded:
Yes, I told the Social Worker but, because I didn’t see it (happen), they can’t judge [the husband]. But, because they want to marry, they didn’t charge [the husband].
I know he did it. I’m a Christian. I can sense (it). He’s a murder(er), an evil Satan, a criminal.
When all this (court case) cool down, he will get us. He will murder me, ‘cause I know him. He doesn’t like me. A person like that never forgets. He will do something. ‘Cause we expose him.
- At the end of her recitation of her conversation with [the maternal grandmother], the Court Expert made the following observation:
[[The maternal grandmother] related her fears of [the husband] as though she genuinely believed them, despite the inconsistencies of some of her claims. She seemed fearful and quite pre-occupied with thoughts for her own safety. [The maternal grandmother] has recently taken out an A.V.O. against [the husband] in relation to these concerns.]
- The Court Expert’s report then turned to her joint meeting with the wife, [the maternal grandmother] and the boys. After making some introductory remarks concerning the boys, the Court Expert recorded that the wife had shown her [I’s] latest school report and told her that she did not understand the marking system notations, “even though to me the reporting system seemed quite simple and was explained on the report”.
- The Court Expert went on to record that [I] was “a quiet, well behaved child, ‘parentified’ in his manner ... [G], on the other hand, presented in quite a chaotic manner, even for a 4-1/2 year old”. Apart from observing that [G] was quite volatile and aggressive she also noted that he had “several prolonged periods of blank staring, which seemed like dissociative episodes”.
- The Court Expert described remarks made to her by both the wife and [the maternal grandmother] in the presence of the children to the effect that the children were in danger when in the care of the husband. When the Court Expert told them it was not good to talk about such things in front of the children, [the maternal grandmother] replied that they did not do so. The Court Expert recorded “the children did not overtly react to such conversation, although it was apparent that [I] was listening intently”.
- The Court Expert then reported on her interview with [I]. She said “there was a joylessness about [I] which was quite concerning”. When she asked [I] if anyone had told him how he should answer her questions, [I] responded “No-one said anything, except [the husband] burnt [G’s] [body]. He had second degree burns”. He also told her that it had been “scary” living with the husband because, on two occasions the husband had “kicked me in the balls with his working boots, then he hit me across the head”. [I] denied ever having had any good times with the husband but did concede that [G] and his father “get on good” and that [G] liked seeing his father. Asked what his mother felt about the husband [I] replied:
(She thinks) that he’s bad, evil. (Q. Why is this?) ‘Cause we go to church every Sunday and he doesn’t want to come. He stays at home and sleeps. (Q. Is that evil?) That’s evil.
- When the Court Expert asked [I] how he felt when [the maternal grandmother] was talking about the husband during the joint interview, he said he had not been listening. The Court Expert paused to note that it seemed apparent to her that he was “listening very closely”.
- [I] went on to speak about his concerns about having contact with the husband. Amongst other things he said, “I have bad thoughts about him ... The ways he might try to kill me ... With an axe or a gun or a piece of wood”. When he was asked whether anyone else knew about these thoughts he said that his mother and grandmother knew about them, but when asked by the Court Expert what they said, he responded that they told him to “think of other things”.
- The Court Expert then recorded observations of her interview with [G], who at the time was only 4½ years of age. When she asked [G] why he was seeing her that day he replied that he needed to talk to her “about [the husband] hurting me”. When asked how he hurt him, he responded “he kick me and scratch me and bite me”. The Court Expert recorded that “despite the content of this conversation, [G’s] affect did not match this and his tone of voice was ‘parrot-like’ ”.
- When the Court Expert asked [G] about the scars on his arm, he responded “[The husband] burnt me. [The husband] poured the water on me and I was crying”. When asked about [I], [G] responded “([I]) likes [the husband] a little bit but I don’t. [I] wants to go to his house.”
- The Court Expert then recorded her observations of her session with the husband and two boys. She observed that [G] was excited and jumped into his father’s arms. [I] on the other hand did not look up when the husband greeted him “warmly” and he looked “joyless”. The Court Expert reported:
The difference in [G] when seen with his father was astonishing. He chatted non–stop to [the husband], with much laughter and smiling. His mood was much more even. [G] was much better behaved and less chaotic than he had been with his mother and even individually with me. There were no episodes of withdrawal or blank staring...
- The Court Expert also noted that [I] gradually moved closer to [G] and [the husband] during the course of the meeting and appeared to want to join in the play. Although [I] remained “very quiet” he “smiled quietly and had some eye contact with [the husband]”.
- The Court Expert next recorded the discussions she had with the wife’s counsellor at Sexual Assault Services and with a worker from D.O.C.S. who informed her of the assessment that had concluded that the children were at risk of emotional harm from the wife.
- The Court Expert then set out her opinion. She began by saying:
This is a case in which the mother claims that she was a victim of domestic violence at the hands of her ex-partner and that this man also sexually and physically abused her children. She is entirely negative about her ex-partner and wants his contact with the children stopped. In this, she is intensely supported by her own mother, with whom she appears to be in a very enmeshed relationship.
There is little evidence to support her claims of maltreatment of herself and her sons by the father and the “evidence” she gives for this is quite implausible. There are many contradictions in her claims and at times she has shown very faulty reasoning to come to conclusions about abuse. However, she seems to have little insight into the flimsiness of and absurdity of some of her claims and seems to hold these with intense conviction.
The father/stepfather, [the husband], presents as a gentle, well functioning young man. While he admits to kicking [I] in his bottom on one occasion (and expresses genuine remorse for this), he denies any other abuse of his son, stepson or [the wife]. [G] appears to have a very strong and affectionate attachment to [the husband] and does not present as having an abusive relationship with him. Although the mother claims the child has disclosed to her occasions of mutual oral sex with his father, [G] has not made these claims during interview with J.I.R.T. (on 2 occasions) or myself. As well, the claims by the mother/grandmother that [the husband] deliberately burnt [G] (then 15 months) by pouring boiling water on him seems absurd. He was treated at the time by a major hospital who made no report to D.O.C.S. about the possibility of non-accidental injury (child abuse), even though the mother and grandmother were claiming to medical staff that this was the case.
- The Court Expert then noted that [G], in particular, “parrots” the allegations of physical abuse and that his narrative had many “rehearsed” qualities to it. She went on:
This is an unusual case, because of the extremes of inconsistencies in the evidence and the very faulty reasoning given by the maternal parties to assert their claims of abuse Their reasoning for such claims seems very primitive and naïve.
- The Expert continued:
As well, the TIMING of such claims is suspicious (see Appendix 1: Chronology). Even though the mother has now claimed that she was aware that [G] was being sexually abused by the age of 15 months, she did not report this at the time. The chronology is very interesting, in that the parents separated while the grandmother – a significant influence on the mother – was away interstate for 3 months. Contact seemed to go well after this. The grandmother then returned on 1.6.05 and, within a week, the mother (unbeknown at that time to the father) took out an A.V.O. against him. This A.V.O. stipulated that [the husband] had verbally abused [the wife]. At the same time, he reported that [the wife] had become “cold” towards him and contact was becoming difficult. [The wife] has stated that [the husband] had his final contact on 5.6.05. [The husband] sought legal advice and, on 22.6.05, a solicitor’s letter was sent to [the wife], requesting that a formal contact regime be set up. Within a few days of receiving this letter, the mother made a very detailed statement alleging sexual abuse of [G] by [the husband]; deliberate burning of [G] by [the husband] in 2003; claims that [the husband] had threatened [the maternal grandmother] with a hammer and that [the husband’s] parents had threatened [the maternal grandmother]. This was very different to the relatively benign claims that she had made to the Police about [the husband] only 5 weeks previously (during which time [the husband] had not apparently had contact with the children).
Over the period of this court case, further claims against [the husband] have been made, even though he has had no unsupervised contact since June, 2005. These include abuses of the children during supervised contact (with the mother making 2 reports to D.O.C.S.) and an A.V.O. being taken out on behalf of the grandmother.
There are 2 alternate explanations for such apparent falsification of claims, with such unusual presentation, although the mother’s/grandmother’s presentations may have elements of both. These 2 alternate explanations are:
- On the surface, this could be viewed as a classic case of “Alienated” children, who claim (when seen individually and with their mother/grandmother) that they want no contact with their father/stepfather, despite showing the opposite behaviour when in his presence. On the surface, it could be suggested that the mother/grandmother are fuelling this “alienation” by their negative talk about the father in front of the children and their “cueing” of the children to reject him. If this was the scenario, then the claims by the mother and grandmother are extraordinarily malicious and dishonest, even for Family Court conflicts. If these are the operant dynamics, then it could be suggested that the unusual transparency of the falsifications may be due to the mother and grandmother’s limited intellectual potential and very primitive thinking. As well, the mother has a criminal record for Deception;
2. The other explanation is that the mother and grandmother have a:
Shared Psychotic Disorder (DSM-IV)
(formerly known as a Folie-a-Deux psychosis). This Disorder revolves around a strongly held Delusion about [the husband], that he has harmed/mistreated the mother, grandmother and children in the past and is now intent on murdering them.
Such systematised beliefs in these women, especially the grandmother, could meet the criteria for:
Delusional Disorder, Persecutory Type (DSM-IV)
[The maternal grandmother] is a woman with rather simplistic and primitive thinking and is a keen member of a fundamentalist church. She appears to genuinely believe that [the husband] is “Satan”. She appears to genuinely believe that he has sexually and physically abused her grandsons. She appears to genuinely believe that [the husband] is intent on murdering her, her daughter and grandsons and is apparently terrified by these beliefs. She appears to believe that [the husband] may kill her himself; hire someone else to do so; or may kill them all in a way that will make it look like an “accident”.
Delusional Disorder is quite different to more classic psychotic disorders (e.g. schizophrenia) in that the delusion is non-bizarre (i.e. involves circumstances that could occur in real life); the person’s behavioural responses to the Delusion are appropriate (if the situation was true); and that other areas of functioning are relatively unimpaired.
The grandmother appears to hold these beliefs about [the husband] with significant conviction. She has little insight into the flawed “reasoning” for her beliefs and does not even try to modify the evidence to increase the credibility of her claims. She seems very fixed in these beliefs and will not brook any arguments to the contrary. The delusions appear to have become dominant in her life and she apparently lives in fear that she will be murdered by [the husband]. As well, [the wife’s] handwritten document (see Appendix 6) which she gave to me gives some indication into the pre-occupying and perseverative nature and intensity of her thoughts about [the husband].
This apparent Delusional belief system about [the husband] appears to have arisen in [the maternal grandmother] but now encompasses [the wife], who now holds similar views about her ex-partner. [The wife] (like [G]) “parrots” many of the descriptions about [the husband] adopted by her mother (see Appendix 6). This apparent “contamination” between the two women has probably arisen because of the closeness of the relationship between [the maternal grandmother] and [the wife] and likely due to [the wife’s] diminished cognitive capacity, her naivety and simplistic mode of thinking.
Delusional Disorder is extraordinarily difficult to treat because the person does not believe they have a problem. The person holds his/her beliefs with intense conviction, regardless of the facts. People with this Disorder tend to seek help from services such as the Police, D.O.C.S. and the legal system in order to “protect” them from their alleged persecutor, rather than from mental health services. This has apparently been the case with this family.
While, in my opinion, these women most likely have a Shared Delusional Disorder, it is essential that this diagnosis is confirmed or refuted by a Psychiatrist and an Opinion is sought from the Psychiatrist about the treatability options. However, if the diagnosis of Shared Delusional Disorder is refuted, then one alternatively is looking at an extremely malevolent presentation to explain such seeming deception in these women.
Unfortunately, in this case, the mother and grandmother talk endlessly about their beliefs and fears to the children. I witnessed the grandmother stating, in front of the children, that [the husband] is going to kill them and then make it look like an accident. Such talk must be terrifying to these children and should be considered as SEVERE EMOTIONAL ABUSE of them.
- The Court Expert then recorded her concerns about the impact on the boys of being “bombarded” with suggestions that they are in danger from the husband. The Court Expert acknowledged there were no concerns about the wife’s physical care of the children or any issues of physical or sexual abuse involving her. However she concluded that “there are major concerns relating to EMOTIONAL ABUSE of the children”.
- The Court Expert concluded:
This is a very difficult case indeed, in that the alienating dynamics seem due either to extreme malice in the maternal family or more likely due to a mental illness primarily in the grandmother but now also encompassing the mother. In either case, such dynamics are not very responsive to treatment.
The situation cannot continue, as both boys are suffering quite severe emotional abuse in the maternal home.
In my opinion, there should be a transfer of residency AS SOON AS POSSIBLE of [G] into his father’s care. There should be no unsupervised contact with the mother/grandmother until the Court/D.O.C.S. are assured that the mother’s/grandmother’s mental state has improved and that they will therefore desist from trying to enmesh the boy in their belief system. [The Court Expert’s recommendation for [I] was that his placement should be determined by D.O.C.S.]
- The Court Expert appended a number of documents to her report. The first of these was a lengthy chronology setting out what she presumably saw as the critical dates. She repeated here the error identified above concerning the date on which the wife told the doctor that the husband had kicked [I]. She also included the following dates:
- 7 June 2005 - “Mother makes first report to [a] Police Station.”
- 22 June 2005 - the letter from the husband’s solicitor seeking regular contact;
- 26 June 2005 - the wife refused the husband contact;
- 27 June 2005 - the wife made a report to the D.O.C.S. Helpline regarding sexual abuse, with the matter being referred to J.I.R.T. on the following day; and
- 26 July 2005 - the wife’s statement to the police concerning sexual abuse of [G].
- As we have already noted, the first report of the Court Expert led almost immediately to the children being removed from the wife’s care and placed with the husband.
Wife’s retraction of allegations
- After the children had been removed from her care, the wife swore an affidavit on 4 September 2006 in which she made comment on the report provided by the Court Expert. It will be noted in the following extracts from the affidavit that the wife emphasised that the allegations of sexual abuse had been made to the Police on 4 December 2004, i.e. before the separation of the parties:
Page 12 Affidavit of 22/11/05 – I didn’t ever say I observed [G] sucking [the husband’s] penis. I suspected [G’s] face was near the unzipped pants & I thought I smelt semen & [G] had a hair in his mouth. I have no record of this affidavit. The person who drafted it must have misunderstood the circumstances.
Also when [G] vomited when he was in bed with [the husband] – on these two occasions I did not really believe, or want to believe, that [the husband] would sexually abuse his own son. It was only after [G] told me and my mother on the same day, that I saw the importance of the other two events.
Page 11 Why did I marry [the husband], knowing he had sexually abused [G]? I married [the husband] in September 2004 and learnt of the sexual abuse in December 2004. I thought things would be better between [the husband] and me when we married.
Page 66 the following was omitted [i.e. from the chronology]:
4th December 2004 – [The maternal grandmother] reports sexual abuse of [G] to [the] Police (see her statement of 12/04/06).
Page 68 25/8/05 – sexual offences on the CHILDREN. I did not at any time say that [I] was sexually abused. My solicitor got this wrong.
9/9/05 this was [the maternal grandmother’s] second complaint to the police re the sexual abuse of [G].
- The wife went on to comment in the following terms on the Court Expert’s opinion that there were only two possible explanations for her allegations:
“There are 2 alternate explanations.” A third explanation would be that [G] WAS sexually abused. This would account for the disorganised, digressive & repetitious and irrelevant material offered to the counsellor in the 1.55 minute interview with me (see page 6 of [the wife’s] interview). I AM UPSET. I have no legal experience. I don’t know what is relevant and what is not. Answering questions on the spot is difficult & to tell you life’s history in 1 hour 55 minutes is impossible. Also I have not got good language skills. Please refer to “Annexure B” for a more accurate account of my background details.
The negative talk between my mother and me is a result of the sexual abuse of [G] and a genuine fear for the safety of the children.
- In Annexure “B” to her affidavit, to which reference was made in the passage above, the wife said inter alia:
On 4th December 2004 I was feeding [G] at the table when [G] said to me “[The husband] put his willy in my mouth. I suck [the husband’s] willy.” The same day my mother minded the children while I shopped. When I returned she told me that [G] said to her “[The husband] say he’s my best friend, he’s my best friend. He put willy in my mouth. I suck his willy.” My mother & [I] went to [a] Police Station. It was unmanned so she rang through to [another] Police Station and reported what [G] had said.
I felt very upset and shocked because as I thought about things I believed that what [G] had said was true. There were many times when [G] was alone with [the husband] and one particular time when [G] was on the lounge with [the husband], [the husband’s] fly was open. I remember thinking that I smelt semen and [G] had a hair in his mouth. At that time I did not even consider the possibility that [the husband] would abuse his own son.
I separated from [the husband] on 25th December 2004 but we continued to live under the same roof until [the husband] found alternative accommodation in March 2005. At that time the boys and I moved into my mother’s house.
- Also attached to the wife’s affidavit of 4 September 2006 was a statement signed by [the maternal grandmother] which appears to have been prepared in April 2006 in support of an application for a restraining order against the husband. In that document she said:
4/12/04 I minded my 2 grandsons ([I] – born [...] & [G] born [...]) while my daughter shopped and her husband was at work. [I] & I were sitting on the lounge when [G] came up to me crying. He said “[The husband] say he’s my best friend, he’s my best friend. He put willy in my mouth. I suck his willy.” [The husband] is his father.
[The husband] came home from work about 3 pm. When he found me there instead of my daughter, [the wife] he was furious. He said he was going to take the boys in his truck. I said “no” because I was afraid that something would happen to them. He picked up shoes and flung them onto the table scattering food everywhere. Then he went out and drove away in his truck. He did not return.
When my daughter came back I told her all and she told me that [G] had told her that morning “[The husband] put his willy in my mouth. I suck his willy.” I immediately went to [a] Police Station. No-one was on duty so I pressed the buzzer and spoke to a man and gave him all the details. No action was taken by the police.
25/12/04 My daughter & her husband separated, but lived under the same roof until he found alternative accommodation in March 05. Then my daughter and the two boys came to live with me...
- On 14 November 2006 the wife swore a further affidavit, in which she claimed that her affidavit of November 2005 had been “inaccurate in many details due to my own inadvertence and lack of legal experience”. She went on to say at paragraphs 2 to 5:
I am not good expressing myself clearly and give a lot of unnecessary details because I do not know what is relevant information in a legal matter. From the large amount of information I gave my solicitor he prepared the affidavit of 22nd November 2005 and he asked me to read it and sign it. I browsed through it and signed it and trusted that it was correct. It was not. ... I was not given a copy of this affidavit at the time. Another solicitor is acting for me now and he gave me a copy of the affidavit on 9th November 2006 ... There are errors throughout this affidavit and the most relevant and important one is in paragraph 37. The truth is that I saw [G’s] head on [the husband’s] lap and [the husband’s] fly was undone. I did not say that I saw [G] sucking [the husband’s] penis. [G] was two years old. At that time I didn’t suspect [the husband] of sexually abusing [G]. It was when [G] said “I suck [the husband’s] willy” that I thought this earlier event was significant. ... The [Court Expert] referred to this incorrect statement and this together with my confusion about dates made me appear to be lying and that is not the case.
- Her affidavit then corrected a large number of errors she claimed had been made in her affidavit of November 2005. For example, she recorded that she should have said she had seen a “hair” in [G’s] mouth, rather than a “pubic hair” (although in cross-examination she once again said it was a pubic hair). She also identified a number of mistakes that suggest lack of attention to detail by her then legal representative and a failure by the wife to read and/or comprehend the document. For example:
- paragraph 7 has the wife saying, “Prior to the birth of [I] the applicant indicated to me that he didn’t want a baby”. [The husband did not know the wife prior to the birth of [I] and the reference should have been to [G].]
- paragraph 6 has the wife saying, “I have another child as a result of a previous relationship. His name is [I], date of birth [sic]”.
There were also numerous other grammatical, spelling and paragraph numbering errors in the document.
- Having set out the long list of errors, the wife said:
In view of the many errors in this affidavit I would respectfully ask the Court not to rely on it but rather accept the Affidavit and Annexures “A” and “B” of 4th September 2006 as my Affidavit evidence...After further legal advice and reconsideration of my position I do not want to pursue the allegation of sexual abuse of [G], because I did not see sexual acts and therefore I am unable to prove they took place.
The Court Expert’s second report
- The Court Expert provided an updated report to the Court in November 2006 after conducting further interviews. By this time, she had received copies not only of [the psychiatrist’s] reports but also the wife’s affidavits of 4 September and 14 November 2006, to which we have just referred.
- The Court Expert described how the wife and [the maternal grandmother] had arrived for their interview with two older women, one of whom was the retired barrister who acted as the wife’s McKenzie Friend at the trial. The wife informed the Court Expert that they wanted the other women to be present because [the maternal grandmother] did not speak good English. The Court Expert informed the wife that based on her previous interview with [the maternal grandmother], she felt that “we could communicate with each other”. The Court Expert refused to allow either of the older women to be present during the interview, notwithstanding an assurance that they would simply “sit there and won’t say anything”.
- The Court Expert then recorded that:
As soon as the interview proper started, [the wife] spontaneously told me, as she consulted notes, “There has been a misunderstanding in my affidavit. I trusted my solicitor. I should have read (affidavit) and I didn’t get a copy of it. There were a few mistakes in it”.
- The Court Expert continued:
[The wife] told me she now has a new solicitor and has made a new affidavit and, as a result of this, “I won’t go ahead with the allegations (of child abuse against [the husband])”.
When asked why she had changed her mind, [the wife] told me it was because she had not WITNESSED the sexual acts, adding, “I have got further advice from my solicitor and I have reconsidered my position. I am taking (solicitor’s) advice”.
[Court Expert]: “Do you believe that the sexual abuse of [G] happened?”
[Wife]: “No. When [G] told me, I believed what [G] said”.
[Court Expert]: “Even though the solicitor has given you this advice, do you believe in your heart that the children have not been abused?”
[Wife]: “They haven’t been. I believed what [G] told me. He just said it. I’ve had further advice. I won’t pursue it”.
[Court Expert]: “What effects do you think your allegations against [the husband] have had?”
[Wife]: “It’s wrong. Maybe it was wrong coming to the court about what was going on. My solicitor said the court had gone the wrong way about it. My son said it”.
[Court Expert]: “You have read my report and [the psychiatrist’s]. We both said we thought that you and your mother had told untruths about these matters”.
[Wife]: “I come to tell you the truth. What my son told me”.
[Court Expert]: “It’s hard to believe that a 3 or 4 year old would say such things. Is there a possibility that these were suggested to him?”
[Wife]: “No. I didn’t suggest it to him”.
[The wife] then gave me an account of how [G] had disclosed the sexual abuse of him to her mother and her independently. She maintained that she had only made these allegations against [the husband] because her son told her that they happened.
I put to [the wife] that she had made some very serious allegations against [the husband]. She agreed with this but expressed no remorse or guilt. I asked her where she now stood about her previous claims that [the husband] had made threats to kill them. She said she was also withdrawing these claims. She had just said this “because of what I was going through in the relationship”. When asked why she had made such serious claims, [the wife] said she believed that, because she and her mother had “exposed” [the husband’s] abuse, he would then hurt her. She added, “So, I won’t pursue this”. She also said she would retract her claims of [the husband’s] physical abuse of her, “’cause I can’t prove the sexual acts”.
When asked if she would, in retrospect, do anything differently, [the wife] told me, “It’s very wrong to do this. I thought I could come to court to protect my son, ‘cause of what he told you”.
When asked why 3-4 year old [G] would tell her such things if they were untrue, she replied, “’Cause he told me”. When asked whether she believed a 3-4 year old could really “make up” such stories of sexual abuse, she replied, “This is from [G’s] heart and mind telling me”.
When asked where a 3-4 year old would get such information about child sexual abuse, [the wife] replied, “[The husband] has been telling him that. (Q) I don’t know. I only know that [G] said this. [G] said [the husband] told him, ‘Tell your mother I hate you’ ”.
I put it to [the wife] that she was not only relying on [G’s] disclosure but that she had told me previously she had witnessed [the husband’s] fly undone and had seen a pubic hair on [G’s] mouth, which “smelled of semen”. She said she had not witnessed [G] sucking [the husband’s] penis but had seen the hair.
When asked why she thought the Family Court had removed the children from her care, she said it was because the courts thought she was lying but she was not. When asked if she thought there may have been other reasons for this, [the wife] said it was because she could not prove the abuse had occurred. When further pressed, [the wife] said the court thought she may have a (mental) problem but this had been disproved by the Psychiatrist.
When asked whether she thought these allegations had affected the boys, [the wife] said they had affected them because the boys had been removed from her. When asked whether she thought the boys were being affected before their removal, [the wife] said it had been “traumatic” for them. She said she could not say how this could be, as she does not speak English very well. [[The wife] speaks English perfectly well and has been in Australia since she was 8 months old, attending school until Year 11.]
When I asked how she felt the boys might have been affected by having to be interviewed about the abuse, taken to the Police Station and D.O.C.S., etc. and of hearing her and her mother talking about [the husband] killing them all, she said she never talked about [the husband] killing them in front of the boys. When I put it to her that her mother had done so in the last family interview, [the wife] changed the subject.
I asked [the wife] about her and her mother’s claims that [the husband] had deliberately burned [G] with boiling water. She replied that she had also changed her mind about this and she now believes it was an accident.
I attempted to explain to [the wife] about the emotional harm that had been perpetrated on the boys by their embroilment in these claims of abuse. She told me, “I love my children. I wouldn’t harm them. My son told me and I just wanted to protect him. I am not pursuing the allegations. I can’t prove them”.
[The wife] said she is now happy to “share” the boys with [the husband]. When asked what she meant by this, she said that she wanted the boys to reside with her and to see their father every second weekend.
- At the conclusion of her recitation of the interview with the wife the Court Expert noted:
When I asked whether she regretted making the child abuse allegations, [the wife] said she did, as it had led to the children’s removal. She apologised to ME but at no time expressed any anguish about the effects on the children or on [the husband].
- The Court Expert then referred to her interview with [the maternal grandmother] and said:
When I raised the issue of all the allegations she had made – I listed these – [the maternal grandmother] agreed that she had made these, “But I didn’t see (the abuse)”. She said she had only believed what [G] told her because he was her grandson.
When asked how she felt the children had been affected by [the sexual abuse] allegations, she said:
[Grandmother]: “It don't effect (them). You say that to me.”
[Court Expert]: “You told me that you thought [the husband] was going to murder you all. Do you still believe this?”
[Grandmother]: “Because he doesn't like us. [G] told us”.
[Court Expert]: “Do you still believe [the husband] will kill you?”
[Grandmother]: “If the children come back to us (he will)”
[Court Expert]: “Why would he do this?”
[Grandmother]: “If the children come back to us, he will get angry with us.”
[Court Expert]: “But why would he kill you?”
[Grandmother]: “When a person gets angry, you don't know what they'll do.”
When I asked whether she understood that she had previously made some very serious allegations in regard to [the husband], [the maternal grandmother] said, “(It was) what [G] told us. We went to court for God to help our grandson”. When asked what she now thought about her previous claims that [the husband] had deliberately burned [G], [the maternal grandmother] said, “I didn't see it”.
When asked what she now thought about her previous claims that [the husband] had deliberately burned [G], [the maternal grandmother] said, “I didn’t see it”.
- The Court Expert also saw both children again. She said “[t]he most striking feature of this interview was the DRAMATIC IMPROVEMENT IN [I’S] PRESENTATION”. She concluded:
Both boys have made outstanding gains while in their father’s care, even with minimal contact with their mother. There is no doubt that they love their mother and that she loves them. However, their RELIEF from being free of her emotional abuse of them is reflected in their dramatic improvements in functioning since being removed from her care.
- The Court Expert went on to recommend the children remain in the care of the husband and continue to have “some contact” with the wife. She cautioned however, “this should not take place unless it can be SUPERVISED BY A PROFESSIONAL”.
- The force with which the Court Expert expressed her conviction on these matters can only be fully understood by repeating all she had to say in the concluding part of her report, which was in the following terms:
These children were removed from their mother’s care in May, 2006, and placed with the father/stepfather. Since then, the mother has had only supervised contact with the children.
The mother and grandmother had previously made allegations that:
- the father had sexually abused [G] on a number of occasions;
- the father had deliberately burned [G] with boiling water when he was 15 months old;
- the father physically abused both boys;
- the father was violent to the mother;
- the father threatened to kill the mother and grandmother.
These allegations seemed flawed and at times absurd, although the children had become highly embroiled in these. D.O.C.S. had completed a Risk-of-Harm assessment, finding that the allegations represented EMOTIONAL ABUSE of the children by the mother. I concurred with this opinion.
At the time I wrote my original report, I was unclear whether these multiple (false) allegations represented malice on behalf of the mother/grandmother or whether they represented a shared Delusional Disorder. I proposed this differential diagnosis because of the unusual (absurd) nature of the false claims and my perception at that time that the women GENUINELY believed themselves to be at risk of being killed by [the husband].
I recommended that both women have a psychiatric assessment to determine the aetiology of these claims and both saw [the psychiatrist], Psychiatrist. [The psychiatrist] found that neither woman had a mental illness and that the false allegations were likely made to gain an advantage in the Family Court situation. I wholly accept these findings of [the psychiatrist].
[The psychiatrist’s] findings have been vindicated by the abrupt withdrawal of the mother's allegations because of “legal advice”.
The mother accepts no responsibility for her previous false claims and blames both her previous solicitor and [G’s] statements for these. Both the mother and grandmother now say they are unable to go ahead with these claims because they were not WITNESSES to the abuse. Both now say they believed what [G] told them about the sexual abuse. However, neither can explain why [G] would say such things. Their explanations for their previous false claims that [the husband] threatened to murder them all and that he had deliberately burned his son seem fatuous.
Of course, such traits are likely to have significant impact on parenting capacity, particularly in the teaching of trust in relationships and in the education of moral values for one's offspring.
Neither the mother nor grandmother has shown any guilt or remorse about the very serious, destructive and false allegations they have made in relation to [the husband]. They are also quite insightless about the effects of such allegations on the children and the emotional harm which has been done to them.
The mother and grandmother just feel the allegations should now be “set aside” and play no further role in these proceedings. They appear to have no insight into the seriousness of their behaviour and the harm and mischief they have perpetrated. Both believe that, since they have obtained a “clean bill of (mental) health” from [the psychiatrist], the allegations should be discarded. They do not accept the reasons for the children being removed from the mother's care.
It is likely that the boys suffered some short-term grief following the change of placement, despite [the husband’s] denial about this. The children, but especially [I], appear to have improved dramatically in their presentations since the change of placement. [I] is no longer depressed, pre-occupied, fearful or hypervigilant. He is much better integrated into school and is involved in outside activities. [I] gives clear messages that he wants:
* to continue to reside with [the husband];
* to have increased contact with his mother but for these visits to be supervised because of the pressure she continues to exert on him to choose her and to reject [the husband].
[G], too, has improved markedly. He no longer hits other people and seems settled in his emotional state and play. He does seem quite inured to being “questioned” (unlike [I]), although he responds temporarily to his mother's cues while in her presence. However, he does not seem as burdened by these as does [I]. This may be due to his younger age.
Even during the session while being interviewed with me, the mother and grandmother continued to subtly pressure the children. The grandmother’ repeated references to the children that they are coming back to their mother were quite inappropriate. [I’s] claims that his mother exerts this pressure (through whispering) even in supervised visits seem credible.
This case has certainly proved the old maxim about “the proof in the pudding”. Both boys have made outstanding gains while in their father’s care, even with minimal contact with their mother. There is no doubt that they love their mother and that she loves them. However, their RELIEF from being free of her emotional abuse of them is reflected in their dramatic improvements in functioning since being removed from her care.
Thus, it is recommended that the boys remain in the care of their father/stepfather, [the husband].
I have little confidence that the mother and grandmother could behave appropriately towards the boys, were they to have unsupervised contact. They are seemingly unable to do so, even under supervised conditions. It is likely that, if the contact was to be unsupervised, the boys would again be under pressure to make further claims of maltreatment by the father.
However, the boys need to continue to have some contact with their mother. This should not take place unless it can be SUPERVISED BY A PROFESSIONAL. These women’s deception at one level is so skilful that untrained supervisors (e.g. church friends) would be, in my opinion, quite out of their depth, with little capacity to set limits.
It may be that the mother may have to pay for such professional supervision (e.g. Centacare), if the public system is unable to provide this.
There should be no telephone contact as this cannot be monitored. The mother should also be advised that she must not approach the children at their schools.
While these recommendations may sound very harsh in relation to the mother, in my opinion, it is the only way that these boys will be able to developmentally thrive, free from the burden of chronic pressure being placed on them.
- A copy of the Court Expert’s second report was supplied to both parties and to the Independent Children's Lawyer prior to trial.
The orders sought at trial
- Both parties substantially amended the orders they were seeking during the proceedings. By the commencement of trial, the husband was seeking orders for sole parental responsibility and for the children to live with him. He proposed the children have contact with the wife for three hours each second weekend at a supervised contact centre, with the wife paying all the costs.
- In paragraph 3.5 of the relief sought, the husband proposed that after a period of 12 months the wife would have unsupervised contact from 10.00 am to 5.00 pm each second Sunday, provided she “shall comply strictly with this order”. By paragraph 3.6, the husband proposed that after two years from the date of the order, the wife would have unsupervised contact each second weekend from 10.00 am Saturday until 5.00 pm Sunday, once again provided she “shall comply strictly with this order”.
- The husband also sought orders preventing the wife from allowing [the maternal grandmother] to come into contact with or communicate with the children for more than an hour during contact visits and “then only in the presence of and under the supervision of a [contact] Centre or of a responsible adult third party known to the father who he shall have approved in writing...” Other injunctions were sought to prevent [the maternal grandmother] from telephoning the children or coming into contact with them other than as the husband had proposed.
- The Independent Children’s Lawyer sought orders along the lines proposed by the husband, but with some significant differences. In particular, there was no proposal for the wife’s contact ever to become unsupervised although it was proposed that the wife have “such other and/or additional time with the children as is agreed in writing between the parents after twelve months from the date of these Orders”. The orders sought by the Independent Children’s Lawyer also proposed that [the maternal grandmother] have supervised contact with the children at the discretion of the contact service for up to four hours on a day when the wife was not having contact. The Independent Children’s Lawyer also proposed both parents be restrained from changing the children’s enrolment at their current school.
- In his final submissions at trial, the husband’s solicitor advised the Court that the husband now supported all of the orders sought by the Independent Children’s Lawyer, save for the restriction on changing the children’s school and save for the order that provided for [the maternal grandmother] to spend time with the children at the discretion of the contact service. In effect, the husband abandoned his application which would have seen the requirement for supervision of the wife’s contact to be removed at the end of 12 months and for the unsupervised contact to be extended after two years.
- The wife proposed the children live with her and spend time with the husband every second weekend and for half of school holidays, as well as on other special occasions. She did not seek any order for parental responsibility.
The trial Judge’s judgment
- The judgment of O’Ryan J was lengthy and it is necessary for us to provide a comprehensive summary of it.
- After recording some brief background information, his Honour referred to the evidence of the Court Expert, noting that she had recorded that the wife and [the maternal grandmother] had previously made allegations that the husband had sexually abused [G] on a number of occasions, had deliberately burned [G], had physically abused both boys, had been violent to the wife and had threatened to kill the wife and [the maternal grandmother].
- His Honour then continued:
- There is an issue as to whether the Mother has emotionally abused the children and if so whether there is a risk of further abuse. [The Court Expert] said that the Mother accepted no responsibility for her previous false claims and blames both her previous solicitor and the child [G’s] statements for these. Both the Mother and [the maternal grandmother] now say they are unable to go ahead with these claims because they were not witnesses to the abuse. Both now say they believed what the child [G] told them about the sexual abuse. However, neither can explain why the child [G] would say such things. [The Court Expert] said that their explanations for their previous false claims that the Father threatened to murder them all and that he had deliberately burned his son seem fatuous.
- His Honour then stated the relevant legal principles to be applied in proceedings for parenting orders. No criticism has been made of his statement of the law.
- His Honour then went on to record a wealth of additional background information extending over some 34 pages of his judgment. The earlier portion of this part of his Honour’s judgment drew heavily on what the Court Expert had recorded from her discussions with the parties. His Honour began with the following caveat, “I will set out what some of the evidence reveals although I caution that at times it is confusing”.
- His Honour made reference to [I’s] visit to the doctor in April 2002 after the alleged assault by the husband. His Honour recorded the husband’s admission to the Court Expert that he had “kicked [I] in the bum” and his assertion that he had never touched the child again. He also noted that the Court Expert had recorded that the husband’s “tone of voice reflected affect consistent with his statements of remorse”.
- His Honour also referred to the occasion when [G] was burnt. He noted the observation made by the Court Expert that there was “no mention in the report from the hospital that the injury was other than accidentally caused”. His Honour did record that unlike [the maternal grandmother], the wife had not accused the husband outright of deliberately injuring [G]; however, he also noted the husband’s contention that the wife “loved her mother and was very supportive of her theories”.
- His Honour went on to note that the wife’s position in relation to the boiling water incident was “contradictory”. He continued:
- ...On 27 July 2005 the Mother signed a police statement and stated that in January 2003 the Father “burnt [G] ... by pouring hot water on his left arm”. The Mother told [the Court Expert] that the Father had inflicted second degree burns on the child [G] with boiling water “on purpose”. When [the Court Expert] asked the Mother why the Father would want to do this, the Mother replied, “To get rid of him. He didn't want the child. He wanted to get married first and then have a child”. In a recent affidavit filed after the first report of [the Court Expert] the Mother said that the child [G] “must have pulled it down on himself”. The Mother also said that the parties were questioned by nurses and social workers who were satisfied that it was an accident and “I still believe it was an accident”.
- His Honour went on to say that it was a matter of particular concern to him that [G] had told the Court Expert that the husband had burnt him by pouring water on him. His Honour noted that when counsel for the Independent Children’s Lawyer asked the mother to identify who it was who had told [G] that his father had poured water on him there was “a significant pause” and that after the mother was asked the same question on more than one occasion she finally responded that she did not understand the question. His Honour then went on to record [the maternal grandmother’s] view of the incident and noted that even in her most recent affidavit she said that she was still not convinced that the accident had happened the way the husband stated.
- His Honour then turned his attention to the allegations of sexual abuse of [G]. He noted the wife’s claim in her affidavit of 22 November 2005 that in February 2004 she had observed [G] between the husband’s legs “sucking his penis”. His Honour said “the question that arises is why the parties would get married given what the Mother contended was the behaviour of the Father” prior to the marriage.
- His Honour continued:
- Then there is the alleged incident on 4 December 2004. In an affidavit sworn on 4 September 2006 the Mother said, referring to her affidavit of 22 November 2005, that she did not ever say she observed the child [G] sucking the Father’s penis and that she suspected that the child’s face was near the unzipped pants of the Father and she thought she smelt semen and the child had a hair in his mouth. In any event in this affidavit the Mother went on to say that on 4 December 2004 she was feeding the child [G] at the table when the child said to her “[The husband] put his willy in my mouth. I suck [the husband’s] willy”.
- [The maternal grandmother] signed a statement on 4 September 2006 and she contended that on 4 December 2004 she was looking after the children while the Mother was shopping and the Father was at work. She said that she and the child [I] were sitting on the lounge when the child [G] came up to her crying and said “[The husband] says he’s my best friend, he’s my best friend. He put willy in my mouth. I suck his willy”. She contended that when the Mother returned she told her what the child [G] had said and she immediately went to [a] Police Station. In an affidavit sworn by [the maternal grandmother] on 5 February 2007 she contended that on 4 December 2004 she went to the Mother’s home at [Newcastle] and the Mother asked her to mind the children while she went shopping. [The maternal grandmother] contended that she did this and while she and the child [I] were sitting in the lounge room the child [G] came out of a bedroom with his blanket and was crying, hitting her lap and was very upset. The child [G] said “[The husband] is my best friend, my best friend, I suck his willy”.
- In her affidavit of 4 September 2006 the Mother contended that on 4 December 2004 when she returned from shopping [the maternal grandmother] told her what the child [G] had said and that the child had made a similar statement to her that morning. In this affidavit the Mother went on to say that the parties were married in September 2004 and she learnt of the sexual abuse in December 2004. Thus the Mother admitted that what she said about abuse in February 2004 was wrong. In any event, she continued and said that she felt very upset and shocked because “as I thought about things I believed that what [G] had said was true. There were many times when [G] was alone with [the husband] and one particular time when [G] was on the lounge with [the husband], [the husband’s] fly was open. I remember thinking that I smelt semen and [G] had a hair in his mouth. At that time I did not even consider the possibility that [the husband] would abuse his own son”.
- In her first report [the Court Expert] dealt extensively with her interview with [the maternal grandmother]. She said that when interviewed [the maternal grandmother] gave her a document. [The maternal grandmother] told [the Court Expert] that the children were in danger from the Father and when asked about this danger [the maternal grandmother] told her that one day, which was nominated as 19 October 2004, she was minding the children while the Mother went to the shops and the child [G] began to cry telling her that the Father is his best friend and “I suck his willy and he put his willy in my mouth”. [The maternal grandmother] told [the Court Expert] that this was the first she had heard this. [The maternal grandmother] added that she and the child [I] had gone to the police station to report the disclosure. When asked to clarify whether the child [G] had first made the disclosure to [the maternal grandmother] or to the Mother, [the maternal grandmother] told [the Court Expert] that the first time was when he told her about it. [The Court Expert] said that although [the maternal grandmother’s] statement claimed that this first disclosure was in October 2004 records from the Department of Community Services record that the disclosure by the child [G] to [the maternal grandmother] and the Mother was only made in July 2005. In cross-examination [the maternal grandmother] said that she still believes that the Father sexually abused the child [G].
- We should note that in paragraph 59, which we have just cited, his Honour made reference to what the Court Expert had recorded in her report had occurred on 19 October 2004, but he omitted to make mention of the fact that in her oral evidence the Court Expert had acknowledged she had incorrectly recorded the date in question and it should have been 4 December 2004.
- His Honour then went on to paraphrase the portion of the Court Expert’s report which we have set out in paragraph 43 above concerning her interview with the wife. In the course of doing so, his Honour observed that the wife’s statement to the Court Expert that [G] was less than 15 months of age at the time of the alleged sexual abuse meant that “according to this version the sexual abuse incident may have occurred in 2002” as it was common ground that [G] was burned in January 2003. In any event his Honour went on to say that he agreed with the Court Expert that the account given by the wife of this alleged incident of sexual abuse was very different to the version given in her affidavit in November 2005, in which the wife had claimed that it was in February 2004 that she had seen [G] sucking his father’s penis.
- His Honour then turned to consider the assertions made by both [the maternal grandmother] and the wife concerning notifications of abuse made in December 2004 and January 2005 following the alleged disclosures by [G] on 4 December 2004. The critical significance of this aspect of the matter will become apparent when we come to discuss the wife’s application for the introduction of further evidence which, it is submitted on behalf of the wife, would provide strong corroboration for assertions that his Honour did not accept. His Honour said this:
- [The maternal grandmother] contended that on 4 December 2004, after the statement by the child [G], she went to a police station and spoke into an intercom. The Mother contended that in early January 2005 she made a complaint or notification in relation to what the child [G] had said on 4 December 2004. There was no evidence from any source corroborating what the Mother and [the maternal grandmother] said in relation to these matters. It was submitted by counsel for the Independent Child Lawyer, and I accept, that it is extraordinary that the child would make the same statement to the Mother and [the maternal grandmother] on the same day in the circumstances outlined and yet nothing happened. The Father and the Mother continued to live together until March 2005 and even then they maintained an association until June 2005.
- We pause here to observe that his Honour was, by necessity, summarising and paraphrasing the evidence. However, given the crucial importance of the steps the wife and [the maternal grandmother] claim they took after allegedly hearing the disclosure by [G], we consider it important at this stage to set out here in full what [the maternal grandmother] actually said in her affidavit of 5 February 2007 concerning the disclosure and her subsequent visit to the police station. The following passages appeared at pages 3 and 4 of her affidavit:
Alleged sexual abuse – On 4th December 2004 I took some mail to [the wife] to their house at [Newcastle] and [the wife] asked me to mind the boys while she did some shopping. I did this and [I] and I were sitting in the lounge room when [G] came out of the bedroom with his blanket. He was crying and hitting my lap and he was very upset. He told me “[The husband] is my best friend, my best friend he put his willy in my mouth and I suck his Willy.” I was shocked. [I] didn’t say anything. I believed [G] and decided to report it to the police but wait until [the wife] returned.
The kiddies and I were sitting at the table having something to eat when [the husband] arrived home. He was very angry to find me there with the children and that [the wife] was out. I picked up [G] and [the husband] tried to pull him out of my arms. I hung on. I was very afraid. [The husband] let go and picked up shoes and threw them on the table scattering food everywhere. Then he took off in his truck with a big skidding noise.
When [the wife] returned I told her what [G] said and she was very angry and told me he had told her the same thing that morning and she wanted to have it out with [the husband].
[I] and I went to [a] Police Station. There was no-one there but I pushed a buzzer and talked to a man at [another] Police Station. I told him there was sexual abuse and [the husband] will come back to the house so the police will have to go the house. I couldn’t remember the address so I got [I] to say what it was. I took [I] home with me.
The police took no action and I didn’t do anything further because I was frightened [the husband] would do something to me or the family.
In March I went to Perth for four months.
Nothing more was said until [the husband] took Court action in July for contact with the boys. I filled in a statement for the Court because I wanted to protect my [grandchild] and I wanted the truth to be told.
- His Honour next turned to the wife’s allegations concerning the incident in which she claimed she observed that [G] had vomited in the bed and had a pubic hair in his mouth. He recorded what the wife had said to the Court Expert about this, which we have repeated at paragraph 43 above. His Honour then went on to observe that in her affidavit sworn on 4 September 2006 the wife had indicated that she had not believed, or had not wanted to believe, that the husband would sexually abuse [G] and it was only after what [G] had told her and her mother that she “saw the importance of the other two events”. His Honour then went on to refer to the affidavit sworn by the wife on 14 November 2006, after publication of the Court Expert’s first report, in which the wife made corrections to her affidavit of November 2005, including that the incident in the bedroom had occurred in 2004 not 2005 as originally claimed.
- Later in his judgment, his Honour recorded a statement made by [the maternal grandmother] that on 5 June 2005 (i.e. only a few days after she returned from her trip to Western Australia) the husband had arranged to meet the wife and the children at a local restaurant but instead came to [the maternal grandmother’s] home. She had alleged that he looked angry and aggressive and that when she locked the door he broke the wire screen door prior to leaving. His Honour then recorded that a few days later the wife made an application for an Apprehended Violence Order in which she claimed she was fearful of the husband because of his verbal abuse of her but, as his Honour noted, “what is important is that in part of the Complaint and Summons titled “Circumstances of Complaint” the Mother said nothing about physical or sexual abuse of either herself [or] any of the children”. His Honour also recorded that the wife had told the Court Expert that she had taken out the Apprehended Violence Order because the husband had wanted to see [G] but he also observed that in a recent affidavit the wife had said she obtained the order when the husband threatened her.
- His Honour then noted at paragraph 76 of his judgment that “according to [the Court Expert], and it was not disputed, the first notification to the Department of Community Services of sexual abuse of the child [G] was made on 27 June 2005”. He went on to note the statement of the Court Expert that the allegation was “refuted by the Joint Investigation Response Team on 30 June 2005”.
- His Honour also recorded that when the husband had requested a copy of [G’s] birth certificate following the separation he ascertained that the boy’s name was shown as “[G] [Carpenter]” and that the identify of the father was shown as being unknown. His Honour further recorded that the wife had telephoned the husband’s employer and alleged that the husband was abusing her because she felt that she should tell “the Manager what had happened”.
- His Honour then returned to the wife’s affidavit of November 2006 in which she had corrected statements made in her affidavit of November 2005. His Honour recorded his acceptance of submissions made on behalf of the Independent Children’s Lawyer that the explanation given by the mother for the errors in her affidavit “was extraordinary and difficult to accept”.
- Later in his judgment his Honour recorded the observations made by the Court Expert at her interview with the wife, [the maternal grandmother] and the children. His Honour described as “important but disturbing” the portion of the Court Expert’s report in which she described the way in which the wife and [the maternal grandmother] had spoken in the presence of the boys concerning the danger posed by the husband.
- His Honour incorporated into his judgment large portions of the Court Expert’s report concerning her observations of the boys both with their father and with their mother and maternal grandmother, as well as various comments the boys had made during the course of interview. Having noted that the Court Expert’s first report was completed on 1 May 2006 his Honour said “this report ... is very important and I have taken all of what she said into account”. His Honour then went on immediately to recite the opinions expressed by the Court Expert which we have recorded at paragraphs 78 to 82 above.
- Later in his reasons, his Honour recorded advice from the principal of [I’s] school that there had been “a big improvement in attendance” since [I] had been in the care of the husband. His Honour also indicated that he accepted the husband’s evidence about the care he had provided to the children since they commenced to live with him.
- His Honour then turned to consider the evidence given by [the psychiatrist], the psychiatrist who had assessed the wife and [the maternal grandmother]. He noted [the psychiatrist’s] opinion that the allegations made against the husband are “an activity of extreme rarity” and [the psychiatrist’s] view that the history provided by the wife and her mother was “internally inconsistent and implausible”. He further recorded [the psychiatrist’s] opinion that the wife “does not suffer from a psychiatric disorder or mental illness which would explain any falsehood behind her allegations against the Father or which would interfere with her capacity to be a good mother...” He noted that [the psychiatrist] had said that the matter rests on objective truth rather than psychiatric issues, but that any agreement should include very reasonable access for the father because “the allegations appear to have been immature utterances at a time of marital turmoil”. His Honour went on to record that [the psychiatrist’s] evidence was “important” and that he accepted his opinions.
- His Honour then turned to [the psychiatrist’s] assessment of [the maternal grandmother]. In dealing with this, his Honour observed:
123. ...[The psychiatrist] said that anything which was untruthful is not the product of mental illness but would be the product of voluntary fabrication... In summary, [the psychiatrist] found that neither the Mother nor [the maternal grandmother] had a mental illness and that their false allegations were likely made to gain an advantage in the Family Court proceedings. Again, I accept the opinions of [the psychiatrist].
- His Honour continued:
- In her second report [the Court Expert] wholly accepted the findings of [the psychiatrist]. [The Court Expert] said that the findings of [the psychiatrist] had been vindicated by what she described as the abrupt withdrawal of the Mother’s allegations because of “legal advice”. I agree.
- His Honour then went on to consider an affidavit sworn by the wife on 29 August 2006 in which she described allegations allegedly made by [I] during a supervised contact visit. His Honour observed that what the wife had said in that affidavit was “important” and that in his opinion “the Mother was inferring that the Father had sexually abused the children”. His Honour went on to note “the Mother was asked whether or not she was going to continue to pursue the issue of sexual abuse and she responded that she would not press for further investigations because she could not prove it”.
- His Honour then referred to the affidavit sworn by the wife on 4 September 2006 in which she said that she believed the children were “in danger”.
- Later in his judgment, his Honour referred to the Court Expert’s second report. His Honour recited the following parts of the report in which the Court Expert described the conversations she had with [G] and [I] during the second round of interviews.
INTERVIEW WITH [G] (5)
[G] refused to answer questions about contact visits with his mother or what he liked/did not like about residing with his father, answering “don't know” and shrugging.
I told [G] that I was writing a report for the Judge who wanted to know how everyone felt about the boys living with their Dad now and he replied, “Only my Dad”.
When asked what he meant, he replied, “To live with my Dad”. When asked about his Mum, [G] said, “I want to see Mum and talk to her”.
INTERVIEW WITH [I] (11)
[I’s] good mood continued into this individual interview. He related in a warm and friendly manner, smiling a lot and with good eye contact.
When asked why he thought he was seeing me, [I] said he did not know. I told him that the Judge wanted me to see everyone and to see how they felt about the boys now living with the father. [I] replied, “It's fun with Mum AND Dad”.
When asked to explain, [I] said he wanted his parents to live together.
I said to [I] that, last time I saw him earlier in the year, he had seemed to be a very worried boy. He nodded his head vigorously. He told me, “I was worried about Dad. I was scared of him. I'm not scared of him now! (smiles) (Q. What made your feelings about him change?) Now, I'm having a lot more fun. I got surprised that I went to live with him. (Q.) I don't know (why he was scared of him). But I'm not now!”
When asked what difference there were between living with his Mum and living with his Dad, [I] told me, “It's a lot more fun (now). We go to more places”. He could think of no other differences.
I said to [I] that previously he had seemed under “a lot of pressure”. He nodded vigorously. I asked him what this “pressure” was and he told me, “That I had to tell you (assessor) that I want to live with Mum and not with Dad”.
[I] told me that his mother had told him this LAST SATURDAY on the supervised contact visit. He said the “lady at Rainbows” (supervisor) had not heard his mother say this, because his mother had whispered this to him.
The following conversation took place:
[Court Expert]: “You know that I will be putting in a report to the Judge about how you feel about things. Is there anything else you want me to tell the Judge?”
[I]: “I want them (parents) to live together”.
[Court Expert]: “What if this can't happen?”
[I]: “Then I want to see Mum on the weekends, every weekend”.
[Court Expert]: “Where would you want to see your Mum?”
[I]: “Anywhere. At the Rainbow Centre”.
[Court Expert]: “The Rainbow Centre?”
[I]: “Yes. I want to see her there but for longer than 2 hours. And to be every week at the Rainbow Centre and not fortnightly”.
When asked why he wanted visits to occur at the Rainbow Centre, [I] said there was a supervisor there. When asked why there was a supervisor present, he replied, “I don’t know. (Q.) So they don't whisper anything. Mum keeps saying every week, ‘You’re coming home’.
(Q.) It don't like her saying this ‘cause it’s not going to happen”.
When asked about his previous sleeping problems, [I] said he no longer has these and is asleep 5 minutes after going to bed and does not wake up until morning. When asked about the change of school, he told me he liked his old school because his (best) friend, [M], was there. He said his new school is “all right” and he has made new friends there. When asked, he told me proudly that he had missed no days at his new school. When asked if he had missed days at his old school, he told me he used to miss every second Thursday or Friday after his mother got paid. He would accompany her on shopping trips to [a retail centre].
- His Honour also reproduced portions of the Court Expert’s report dealing with the wife’s changed position at the time of the second round of interviews. We have set out the relevant passages in paragraph 95 of these reasons. He then reproduced a portion of the report dealing with the Court Expert’s discussion with [the maternal grandmother] during this round of interviews. We have set out these passages at paragraph 97 of these reasons.
- His Honour then set out in full the concluding part of the Court Expert’s second report, which we have recited in paragraph 100 of these reasons.
- His Honour next described a visit by the wife and [the maternal grandmother] to the supervised contact service in December 2006. The women arrived at the service with a dog as a present for the children. The boys wanted to keep the dog but [the maternal grandmother] told them it would be taken home and they could see it when they visited. His Honour went on to refer to a conversation between [the maternal grandmother] and [I] during the visit before noting that at the conclusion of the visit the children were very happy to see their father and happy to go home with him.
- His Honour next referred to an incident in February 2007 when [I] was suspended from school for two days after he and some other students stole some items and money. His Honour accepted that this was a “blip on the radar” and that the husband had dealt with the issue in an appropriate way. His Honour also recorded the evidence of the principal that [I] was “generally getting on very well” and that there had been “quite a dramatic improvement in the child’s behaviour and he seems to display a far more mature approach”.
- His Honour then turned his attention to the two primary considerations in s 60CC. He found that it was “important for these children to have a meaningful relationship with both parents”. He went on to observe that he would deal with the allegations of emotional abuse later in his reasons but he said that if the wife had emotionally abused the children she would have “failed to recognise and perhaps is incapable of recognising the importance of each child having a meaningful relationship with the Father”.
- In dealing with the second primary consideration, which he described as “a very important matter”, his Honour noted that the wife was no longer seeking to establish that the husband had abused [I] or [G] and recorded his satisfaction that, subject to his admissions about the “incident” with [I], the husband had not physically or sexually abused either child.
- His Honour next referred to the evidence of the Court Expert concerning the alleged emotional abuse of the children by the wife. He found that in the period between the date of separation and their removal from the wife’s care the children were “in a state of fear and distress and that it must have come from the Mother’s household”. His Honour noted that “the evidence of both the Mother and [the maternal grandmother] suggests that they have been either indifferent or completely lacking any insight into the extent to which they communicated such matters to the children”.
- His Honour went on to say:
- Counsel for the Independent Child Lawyer submitted that there are reasonable grounds to believe that the children have been emotionally abused in the Mother’s care and the nature of that abuse included a constant promotion of the idea that the child [G] had been abused by the Father. Further, and much more significantly, there has been a constant promotion to both children of the idea that the Father is a dangerous man who might hurt them or even kill them. I accept these submissions. In making this finding I take into account, amongst other things, the compelling evidence from [the Court Expert].
- I have come to the conclusion, in all the circumstances, on the balance of probabilities having regard to the matters in s 140(2) of the Evidence Act 1995 (Cth) that the Mother and also [the maternal grandmother] have emotionally abused each of the children.
- His Honour then set out a portion of the cross-examination of the wife by counsel for the Independent Children’s Lawyer, which he described as “an important exchange”. Given the importance placed on the exchange by his Honour, we repeat it in full below.
Ms Cleary: When he meets the reality of living with his father, he finds not only is he not scared but that he’s had a good time; you would agree with that?
[The wife]: Yes, because he got the boys. He wasn’t questioned about anything. [The Father] wasn’t questioned about anything. So he automatically he gets the boys and that’s to cover up the truth.
Ms Cleary: So what are you suggesting, that he was monstrous before but he’s just concealing that aspect of himself because the children are living with him; is that it?
[The wife]: I made allegations to protect [G] and [I].
Ms Cleary: And not all of them were true, on your own admission?
[HIS HONOUR]: I want you to answer the first question. Do you want to repeat it Ms Cleary? The inference, the mother’s contention, and it appears in written material, is or was that the father has behaved the way reported by [the Court Expert] to cover up his true character, or words to that effect.
Ms Cleary: Yes, thank you, Your Honour. I think what I said was that he was monstrous previously but he was covering that aspect of himself up now while he had the boys; is that what you believe?
[The wife]: Yes.
Ms Cleary: So he’s simply conned both the children and [the Court Expert]; is that what you believe?
[The wife]: Yes.
Ms Cleary: You must truly think he is an evil person then?
[The wife]: He told [the Court Expert] that me and my mother were mental and that we were lying about allegations.
Ms Cleary: You must think he’s an evil person, do you?
[The wife]: I don’t like him.
Ms Cleary: If the children were living with you or spending time with you, you’d explain to them, wouldn’t you, that their father was a bad person but they were safe now with you? That’s the kind of thing you’d say to them, isn’t it?
[The wife]: Say that again?
Ms Cleary: Yes. If the children came back to live with you or spent considerable time with you, you would tell them that he was a bad person and that they would now be safe with you; that’s what you would say to them, isn’t it?
[The wife]: They would be safe, but I would not – it is better to move on. I will not slander my husband. I will not slander [the husband] in front of the children if I got them back.
- Having recorded this exchange, his Honour immediately went on to say “I am also of the view that there is a very significant risk of further abuse of the children if they spend time with the Mother”.
- His Honour then went on to analyse the meaning of various words and phrases used in the legislation, but as nothing turns on this analysis, we will not set out his remarks in full. It is sufficient to say that his Honour clearly regarded the mother’s emotional abuse of the children as being a very significant factor, regardless of whether it was dealt with as one of the primary considerations or as one of the additional considerations in s 60CC(3).
- His Honour next turned his attention to the “additional considerations”. He found that both children had expressed a view that they would like to continue to live with the husband but also spend time with the wife. In doing so, his Honour recorded the relevant portions of the second report of the Court Expert including [I’s] asserted stated preference for the periods of time he spent with the wife to be supervised. His Honour accepted the submission of counsel for the Independent Children’s Lawyer that both children loved their mother, that [I] was probably distressed when he was removed from her care, that he continued to miss her and would like to see her more often.
- His Honour went on to find that the children had a close and loving relationship with both the husband and the wife and probably had a good relationship with [the maternal grandmother]. However, he found that the relationships between the children and their mother and [the maternal grandmother] had become “abusive”. His Honour also commented on the observations of the Court Expert about the striking improvement in the demeanour of the children following the change of residence to the husband’s home.
- His Honour next found that the wife was not willing to facilitate and encourage a close and continuing relationship between the children and the husband. His Honour went on to say:
- On behalf of the Independent Child Lawyer it was submitted that there were various matters dealt with in the Mother’s cross-examination which are of concern. As I have already said the Mother gave evidence that although she can not prove that the Father abused the child [G] she still believes that the Father did molest the child and whilst living with her she would feel compelled to warn the child if he was going to be in the Father’s care, and to tell him that if the Father hurt him in any way, he was to come straight to the Mother. It was submitted, and I agree, that this kind of approach, especially given the history, where the child [G] is said to be parroting stories of physical abuse, is very likely to fuel further allegations by the child [G] if not both children. It was submitted, and I agree, that there does not seem to be any real understanding by the Mother. The Mother is distressed in having lost the children but is unable to separate her distress from the children’s needs.
- His Honour then recited a portion of the Court Expert’s first report in which she stated her positive opinion of the husband. His Honour then observed:
- On behalf of the Independent Child Lawyer it was submitted that the orders the Father puts forward to progress to unsupervised time the children spend with the Mother, and his evidence about his ability to separate his own feelings about what has happened to him, and his own understanding of the needs of the children to have more time with the Mother, was quite impressive. I agree.
- His Honour also accepted submissions made on behalf of the Independent Children’s Lawyer to the effect that the evidence indicated that the change of residence of the children had a most beneficial impact on them. He accepted that to move the children back to the mother’s home would be “disastrous” and “entirely detrimental”. Amongst other reasons given was the fact that if the children were to be returned to the wife’s home “they would then be reassured that they have escaped from a dangerous situation”.
- His Honour then turned to consider the practical difficulty and expense associated with the children spending time with each party. In dealing with this additional consideration his Honour said:
- On behalf of the Independent Child Lawyer it was submitted that there is a little practical difficulty and expense involved in the Mother having additional time with the children in the event that I made the orders sought by the Independent Child Lawyer. The Mother did give evidence that she is in part time work and could be in full time work. Four hours time at the Rainbow Contact Service would cost $160 every second weekend and I accept that this would be an expensive exercise for the Mother having regard to what she earns. However, it was submitted that there is no doubt that if that is what the Mother had to do then that is what she would do because of her concern about the children. I accept these submissions.
- His Honour also found that the husband was better able than the wife to provide for the physical and intellectual needs of the children.
- His Honour then discussed the capacity of each of the parents to provide for the children’s emotional needs. In doing so he said:
- On behalf of the Independent Child Lawyer it was submitted that it is the capacity of the parents to meet the children’s emotional needs that is most significant in these proceedings. I have already found that the Mother has emotionally abused the children. It was submitted that the Mother’s intense emotional need to have the children back in her household has led to her persuading them at every opportunity to fall into line with that and despite reading what they had to say about what they wanted and despite hearing the expert evidence about their progress she has been unable to retreat from that position at all. I agree. It was submitted that it may be that [the maternal grandmother’s] strong support for opposition to the children having a real relationship with the Father is partly the reason for that as the Mother and [the maternal grandmother] are united and close. I have no doubt that the situation has been made worse by what [the maternal grandmother] has said and done.
- [The Court Expert] said that in her view both the Mother and [the maternal grandmother] would be unable to cease putting pressure on the children both about past allegations and about the need for them to come back into the Mother’s household. In particular, [the Court Expert] said that the child [I] because of his nature and personality would not be able to withstand that pressure and would not, despite the fact that he will be at high school next year, be able to develop. He would not become self protective. He is anxious, compliant and obedient to the Mother and his grandmother. [The Court Expert] suggested that the kind of thing that was happening prior to May 2006 would continue at some level as soon as there was unsupervised time spent with the Mother. There is a significant risk of emotional abuse of the children if they spent time with the Mother.
- In dealing with the maturity and background of the children his Honour discussed issues associated with the fact that [I] was not the biological child of the husband but noted the husband’s evidence that it would be of benefit to [I] to know who his natural father was. His Honour accepted the submission of the Independent Children’s Lawyer that this was an impressive piece of evidence demonstrating that the husband had been thinking about the next stage of [I’s] development.
- His Honour also expressed his satisfaction that the husband had demonstrated an appropriate attitude to both of the children and to the responsibilities of parenthood but found he was not satisfied that the mother had demonstrated such an attitude and he found she had failed to adequately fulfil her responsibilities as a parent.
- His Honour next referred to the submission there has been a “considerable number of family violence orders involving the parties”. His Honour accepted a submission that the chronology relating to one of the Apprehended Violence Orders sought by [the maternal grandmother] had “the look of convenience”.
- In considering whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings his Honour accepted the submission of the Independent Children’s Lawyer that “if there was no supervision of time spent by the children with the Mother it is entirely likely that there would be further applications for the children to be removed from the Father’s care on the basis of allegations of abuse of the children in one way or another”. His Honour also accepted the submission that “supervision would have the secondary effect of protecting the Father in that situation from such further allegations”. His Honour went on to say he accepted there was a possibility of further proceedings if he made the orders sought by the Independent Children’s Lawyer that the children’s time with the wife be supervised and if there was “no provision for this time to become unsupervised or review mechanism or what is described as a ‘sunset clause’ ”.
- Having completed his examination of the primary and additional considerations his Honour then set out his conclusions.
- He first expressed his view that the presumption of equal shared parental responsibility did not apply as he was satisfied that the wife had engaged in “child abuse and neglect”. His Honour noted that if he was in error in relation to the presumption then he would have found that the presumption was rebutted and that it would not be in the children’s best interests for the parties to have shared parental responsibility. He also concluded that it was in the best interests of both children that they live with the husband and, in doing so, he observed that this was also the opinion of the Court Expert.
- His Honour next found that it was in the best interests of the children that they spend “some time with the Mother”. He noted that each of the children wanted to spend time with her and that this was supported by the husband and that it was also the view of the Court Expert that the children needed to continue to have some contact with their mother.
- His Honour then discussed whether or not the children’s time with the wife should be supervised and if so whether he should make an order that “at some point in the future it be reviewed or become unsupervised”. In commencing his consideration of these issues his Honour said:
- The orders first sought by the Father provided for a progression from supervised time to unsupervised time. On behalf of the Independent Child Lawyer it was submitted that long term supervision is not something that is ever regarded as ideal or a solution to conflict between people. However the orders sought by the Independent Child Lawyer do not provide for a progression from supervised time to unsupervised time.
- His Honour then referred to five authorities relevant to the question he was discussing, three of which are decisions of the Full Court. Given the potential importance of this issue in the appeal we set out in full what his Honour said concerning each of these authorities:
- Re C and J (1996) FLC 92-697 Fogarty and May JJ said at 83,341-342:
We do not consider that his Honour is correct in saying that supervised access is “never an appropriate measure in relation to final access orders”. It is unduly restrictive of his discretion in relation to children to approach the matter in that way.
The Court is given a wide range of powers in relation to children both under the previous legislation and the Reform Act. Ultimately the determinant is the best interests of the child. That discretion should not be circumscribed by absolute rules which appear to exclude one of the otherwise available possibilities. In addition, access orders are never “final”. No doubt his Honour was fully aware of that and intended by that comment to indicate that there must be a practical end to litigation and that he was determining the matter at that point for the foreseeable future. But access orders need to be moulded to the particular circumstances of the case and it may be unavoidable in a particular case to make orders for a limited period of time or orders which provide a graduated process and the potential for review depending upon developments. This is especially so in a case of this sort.
The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option.
Kay J did not add anything to the discussion for present purposes.
- In [H v K]  FamCA 687 (per Nicholson CJ, Kay and Mullane JJ) there were allegations that the father sexually abused his child which caused the mother deep distress. Although the trial judge was not convinced the accusations were true, he nevertheless ordered that the father have ongoing supervised contact with the child as to do otherwise would upset the mother too greatly and affect her parenting ability and even the child’s relationship with the father. On appeal the father argued the trial judge erred in finding that a change from supervised to unsupervised contact would cause the mother and the child distress, that his Honour failed to give weight to the submission that the trial process would be a cathartic experience for the mother, and that his Honour erred in elevating the mother’s parental anxiety above the other relevant factors. The Full Court allowed the appeal in part. Relevant for the current purpose, the Full Court noted that the “open-ended nature of the supervision order was somewhat unsatisfactory”. The orders left the parties with no mechanism for moving forward. In order to overcome any problems created by Rice v Asplund (1979) FLC 90-725 the orders were amended to grant liberty to apply to vary the orders.
- In [F v H]  FamCA 477 Dessau J said at : “Supervised contact has obvious limitations. It will frequently be inappropriate or untenable on an on-going basis. But in C and J (1996) FLC 92-697 the Full Court emphasised that the court’s discretion should not be circumscribed by absolute rules, excluding, for example, one of the available possibilities, namely on-going supervised contact.” In [W v W]  FamCA 1167 Dessau J found that the father had sexually abused his four year old daughter but thought supervised contact was appropriate in the circumstances. Her Honour took into account the consideration of making an order that would not lead to the institution of further proceedings in relation to the child and with this in mind, rather than order indefinite supervised contact inserted a review mechanism into the order in light of [H v K]. The father appealed this decision on the grounds that he did not pose an unacceptable risk to his child and did not indecently assault her. The Full Court dismissed his appeal.
- In the recent decision of RG v JR  FamCA 293 the Full Court ordered indefinite supervised contact in the context of a father with mental illness. No general principles were laid down in that case for when such an order may be appropriate, however the Full Court did implicitly accept the trial judge’s considerations of what made such an order suitable in those circumstances. The Full Court also emphasised the value of inserting a review mechanism or “sunset clause” in orders as in the case of [H v K]. The Full Court said at : “We accept that in many cases the effect on children of indefinite, long term, supervised contact, particularly if such contact is to continuously occur in a children’s contact centre, may not be in a child’s best interests”.
- Having made mention of these authorities his Honour continued:
- In my opinion, what has been said in the Full Court decisions I have identified above can only be considered as guidelines and that I have the widest discretion to make whatever orders are appropriate in the best interests of the children in relation to time the children spend with the Mother and that supervision without any review mechanism or “sunset clause” is one option.
- [The Court Expert] was of the opinion that any time the Mother spends with the children should not take place unless it can be supervised by a professional. She said that the deception by the Mother and [the maternal grandmother] at one level is so skilful that untrained supervisors would be “quite out of their depth, with little capacity to set limits”.
- I am satisfied that any time the Mother spends with the children should be supervised and that the supervision should be by a professional. This is a very tragic case in which I am satisfied that there has been significant emotional abuse of the children by their mother and grandmother which has caused them considerable harm. If something had not been done then these children could have suffered irreparable long term harm.
- I am satisfied that the attitude of the Mother and also [the maternal grandmother] towards the Father and his relationship with the children has not abated in any meaningful way. The Mother and [the maternal grandmother] wrongly embroiled the children in their campaign against the Father with damaging consequences. Even after May 2006 the Mother and [the maternal grandmother] have continued to place the children under pressure and the children would be at significant risk of further harm if any time they spent with the Mother was not supervised.
- There was discussion during the hearing about the possibility of the parties involving themselves in some kind of therapeutic counselling to recover from the litigation and also improve their capacity to be able to communicate about matters affecting the children. However, [the Court Expert] was of the view that any “work” that had to be done in that sense is by the Mother and [the maternal grandmother] in coming to terms with the fact that no-one other than the two of them believes that the child [G] has been abused. As counsel for the Independent Child Lawyer submitted, there is little point in forcing people into a situation which is unlikely to lead to a productive result. Importantly, [the Court Expert] made clear that for this and other reasons she did not agree with a specific time frame for progression from supervised time to unsupervised time. In all the circumstances I have come to the conclusion that there should not be such a progression and I do not propose to insert any type of review mechanism or “sunset” provision. It may take some years before the situation is overcome.
- His Honour then recorded that he was going to make one variation to the contact orders proposed by the Independent Children’s Lawyer, namely that the opportunity for the mother to have supervised time away from the contact service would occur on only one weekend in each four week period so as to allow the children an opportunity to have an uninterrupted weekend in the care of the husband.
- His Honour then dealt with the proposal of the Independent Children’s Lawyer that the wife be able to spend additional time with the children as agreed in writing between the parents after 12 months from the date of the orders. His Honour said:
- ...I had some concerns about this proposal, however I will make such an order on the basis that it will be after eighteen months and next on the clear understanding that it is not a review mechanism and will occur solely at the discretion of the Father. [The Court Expert] was pessimistic about anything happening in 12 months. The Father should be able to assess the suitability for the children of any agreement and I have confidence that he would only do what was in the best interests of the children.
- His Honour then dealt with the proposal of the Independent Children’s Lawyer that [the maternal grandmother] have contact with the children at the contact centre at the discretion of the director of the centre and he noted that this was opposed by the husband. In dealing with this matter his Honour said simply “I am going to make an order that [the maternal grandmother] may accompany the Mother on one weekend in each four week period. The Mother should spend time with the children in the absence of [the maternal grandmother]”.
- His Honour then gave brief reasons for refusing to make the orders sought by the Independent Children’s Lawyer restraining the husband from removing the children from their current school. After dealing with two other matters that need not concern us here his Honour concluded his judgment with these words:
- I urge upon the Mother to seek appropriate professional assistance. The future of her relationship with the children lies in her hands. Given the relationship of the Mother and the children it would be a tragedy if the Mother did nothing.
Application to introduce further evidence
- We turn now to consider the wife’s application for us to receive into evidence a document that was not before the trial Judge. The document, which was annexed to the wife’s affidavit sworn 8 June 2007, was obtained by the wife from [the] Police shortly after the trial. It is apparent the document was created by the Police in response to a report made by the wife in December 2005 concerning disclosures allegedly made by [G] after a period of supervised contact with the husband.
- The document raises serious questions about the chronology of events on which his Honour relied in coming to his decision. Given its critical importance, we reproduce most of the content below:
On the 01/01/05 DOCS and JIRT were notified and were involved in the investigation of an allegation of sexual assault upon the victim by his father. This allegation did not result in any criminal charges against the POI. The POI is the natural father of the victim.
On Tuesday 20th December 2005 the child has said to his mother, “I don’t want to suck [the husband’s] willy anymore”. Prior to Tuesday the POI had supervised access with the victim from Wednesday 14th December – Saturday 17th December. The mother has been informed by JIRTS and DOCS that should the victim disclose any further information that she should report it to police.
On Wednesday 21st December the NOK has contacted [the] Police to attend her premises and take a report of this information. Police have immediately contacted the DOCS helpline and made a report of this information. DOCS no.: [...]
This event should be sent to work priority to be transfered to the JIRTS unit for follow up investigation.
[Sgt S] informed of situation. On the 04/01/2005 a report of a child at risk of harm was received at [a] JIRT from the DoCS Helpline, Plan No.: [...] in relation to [G] [Carpenter]. The details of the report are as described in Narrative A. This report is accepted for investigation by JIRT and allocated to Detective Senior Constable [V] for investigation.
- In her affidavit in support of the application to introduce further evidence the wife said that during the trial she heard [the maternal grandmother] being questioned about the report she claimed to have made to the Police in December 2004 concerning sexual abuse of [G]. The wife went on to say in her affidavit that at the time she heard her mother being questioned she recalled she had also reported the incident to the Police but could not remember the date. Accordingly, after the court adjourned that day, she telephoned the relevant police station and spoke to the officer in charge. She continued:
He looked up the record and gave me the incident number and date of complaint, which was 1st January 2005, and he agreed to give phone evidence to the Court confirming this. I told the Judge that the Officer-in-Charge of [a] Police Station would be available to give phone evidence about my report on 1st January 2005, but the Judge did not attach any importance to it.
- Before considering the interpretation each party would have us place on the document now sought to be introduced into evidence, it is appropriate we refer to portions of the transcript of proceedings before his Honour relevant to the wife’s claim that she had reported her concerns to the Police in January 2005, following the making of a similar report by [the maternal grandmother] in December 2004.
- During the course of cross-examination, the wife gave evidence that she first learned on 4 December 2004 that the husband might have been sexually assaulting [G] [Transcript 27 February 2007, page 58 at line 30]. Later in her cross-examination the wife was asked about what had occurred after [G’s] alleged disclosure on 4 December 2004. We set out below the exchange between the husband’s solicitor and the wife [Transcript 27 February 2007, page 70 at line 14 et seq]:
Now, you say that on 4 December 2004 [G] - - -?---[G] told me then.
Bear with me. [G] said these things, but you didn't say anything to [the husband] about it?---I wanted to discuss with him - - -
Would you let me finish, please. You didn't say anything to [the husband] about it until July 2005; is that right?---Yes.
So, what, that's about eight months later. You sat on this information for eight months; is that right?---I - - -
Is that right? You sit on this information and do nothing about it for eight months?---No, we reported it to the police and we made statements in - - -
Who is we?---My mother.
So you know what your mother was saying, do you?---I made my own statement. She makes her statement.
Where is that statement that you gave to the police?---In the - - -
Have you got any evidence of that? Have you got any evidence to place before His Honour about what you did between December 2004 and July 2005 about [the husband] sexually mistreating [G]?---Have I got any - - -
Yes. Did you report it to anyone?---From 4 September?
No. From between December 2004 and July 2005 - pardon me, your Honour. [Ms H] [the wife’s McKenzie Friend] has drawn to my attention an affidavit - could I approach the witness, your Honour?
HIS HONOUR: Yes, of course.
MR COYLE: This is your affidavit that I'm showing you now, [the wife]. That was sworn on 4 September 2006 and filed that same day. [Ms H] has drawn my attention to Annexure A to that affidavit. Are you familiar with that affidavit and what you said in it? Do you remember that affidavit?---Yes.
I'm looking but I can't see anything here that says you took any action – do you want to look at that affidavit - that you took any action between December 2004 and July 2005, although I think I saw a reference to something happening in April, but I'm not sure?---July 2005 I rang - I got the AVO in July 2005 and then I spoke to [Mr P H].
When did you apply for that AVO?---When [the husband] called me the names.
When was that?---July 2005.
And you applied for the AVO because [the husband] called you names?---He threatened me.
But you still haven't told the court, having heard these terrible allegations about what [the husband] was doing to [G] in December 2004, you haven't told the court what you did about it?---What I did about it. I reported it in January 2005 to - - -
Who did you report it to?---To the police station.
Is there anything in your affidavits about that?---And I got the event number.
Is there anything in your affidavits about that?---No, because at the time I had three solicitors.
Did anything happen after you got the event number?---No, they told me to ring the help line.
And you did that?---Yes.
And did anything happen after that?---They said go to [a] JIRT.
And did you do that?---Yes, and then get some counselling for myself through [the wife’s counsellor](?).
You are aware of the fact that [a] JIRT regarded the case as closed? ---Yes.
And took no further action. So when did you do that?---Between January 1st, 2005 - - -
Do you know what date it was?---It was in my paperwork.
Perhaps [Ms H] can help us.
HIS HONOUR: What are you seeking? What are you looking for?
MR COYLE: Sorry, your Honour.
HIS HONOUR: That's all right.
MR COYLE: I'm seeking my thoughts, actually, your Honour.
HIS HONOUR: I mean I wouldn't mind it clarified as well, the chronology of what happened in the first part of 2005.
MR COYLE: I am not aware of any evidence before your Honour that the witness took any action back in December.
HIS HONOUR: Well, it is a bit confusing because I've seen somewhere where, as I understand the chronology, the mother and the maternal grandmother contend that in December 2004 the child makes a disclosure of sexual abuse. Then in March 2005 the maternal grandmother goes to Perth. After the maternal grandmother leaves, the parties separate.
MR COYLE: Yes, your Honour.
HIS HONOUR: The father contends that from that point, that is separation in March '05 until about June '05, the parties saw each other from time to time, he saw the children and that they had an amicable relationship.
MR COYLE: Yes, your Honour.
HIS HONOUR: Then the maternal grandmother returns on 1 June 2005 and on 7 June 2005 the first complaint is made for the issue of an apprehended violence order. But somewhere in there, and I would like it clarified, the mother contends she commenced seeing a social worker at Sexual Assault Services being referred by someone at Centrelink and as well saw a counsellor from First Steps Parenting. Now, I would like to know when that started.
MR COYLE: Yes.
HIS HONOUR: Do we know? Do we have some records from the Department of Community Services?
MR COYLE: We have no - my client is unaware of any such activity, your Honour.
WITNESS: First Steps Parenting is in [the Court Expert’s] file. Your Honour, may I get it?
HIS HONOUR: Yes, of course. If there is something you want to get, you are free to leave the witness box. I understand where it is in [the Court Expert’s] report but I want to know if any of the records you've produced, you've had subpoenaed, what they show.
MR COYLE: Of course I don't think the DOCS records have arrived yet, have they.
HIS HONOUR: No.
MR COYLE: They may assist. I wonder if your Honour could assist me. I am just trying to find it in [the Court Expert’s] report. I thought I knew where it was. Page 53.
HIS HONOUR: Yes. I will give that back you to. I am aware of that. It doesn't tell me when, you see. What I'm anxious to know is when did all this start, that's all I'm saying. Anyway, it doesn't matter. Let's move on. Hopefully we can clarify it.
MR COYLE: Just to complete what I've been putting to you and again if I may approach the witness, your Honour.
HIS HONOUR: Just pausing there, can I tell you one of the reasons I am anxious to resolve it is because somewhere there is this contention that it was in April '05 the mother commenced seeing a social worker at Sexual Assault Services, but as I understand it there was no complaint of sexual assault or abuse at the time of the issuance of the first complaint. Is that right?
MR COYLE: That's so, your Honour.
HIS HONOUR: So it might be that in fact that commencing to see the social worker didn't occur until afterwards, that it wasn't April 2005. Otherwise one would have expected if you were seeing Sexual Assault Services it would be in the complaint. Anyway, let's keep going.
- Cross-examination by the husband’s solicitor continued concerning what the wife had said (or failed to say) in the application she made for an Apprehended Violence Order in June 2005. In the course of this the following exchange occurred:
Let me finish. You didn't tell them that [the husband] had been making [G] suck his willy, did you? You didn't tell that to the police, did you?---No.
What, did you forget about that?---No, I didn't tell them until - because I was getting help and counselling, until [G] - - -
But didn't you think that was important? If [the husband] was doing this - - -?---But I rang and told them.
Let me finish. If [the husband] was doing this dreadful thing to your son, didn't you think it was important you should tell the police about that?---Yes. We reported it that day, on 4 December 2004.
Well, there is no evidence before the Court that you did that. All we have is your word for it?---My mum reported it with [I].
Well, we'll see what your mother has to say about that?---And I reported it in January and got an event number.
What is the event number?---It is in my bag.
Could the witness get that?
HIS HONOUR: Yes, of course.
WITNESS: From [the wife’s counsellor], joint investigation, police, [a health service], and again.
MR COYLE: Your Honour, the witness has given me a piece of paper and on it is written the words “Event number [...]”. She has also given me some business cards and I might ask her some questions about that.
HIS HONOUR: Is there anything on the records that indicates any relevant date?
WITNESS: Between - - -
HIS HONOUR: No, I'm just asking Mr Coyle.
MR COYLE: There are dates on the business cards and I intended to ask the witness questions about those, but the piece of paper with the event number on it has a mass of detail on it.
HIS HONOUR: No, that's all right.
MR COYLE: I might return that to [Ms H].
HIS HONOUR: Yes. Thank you.
MR COYLE: Again could I approach the witness?
HIS HONOUR: Yes, of course.
MR COYLE: [The wife], you just gave me some business cards. Now, one is from [a health service] and it has a date on it, 25 July '05 and it also has the time, 11 am in one place, and there is another date, 25 August, at 12.30? ---That was to see my solicitor.
You agree with me that those dates are on this card?---Yes.
And the earliest date on that card is 25 July 2005, is that right?---Mm.
These are the documents that you gave to me to indicate when you did something about these allegations that had been made; is that right?---We reported it.
You gave me these cards to indicate to me or to the Court when these things happened; is that right?---Yes.
Okay. So we have dealt with the [a health service] card. There is another piece of paper here, it is from [another health service] and it concerns an appointment on 22 September 2005; is that right?---Yes.
That's the only date on that document?---Yes.
There is another business card from [W], the policeman. It has 131444.
Is that the event number?---No, all the event numbers are on - - -
That's a phone number?---That's the phone number, yes.
And the only date it has is June '05?---Yes.
Is that right?---Mm.
Then there is a card here from the Joint Investigation Response Team?---Yes.
That's when I had to see - - -
No, just let me ask the questions, please. Would you agree with me it has no dates on it?---No date on it, but I had to see - - -
Please, just answer my question. So that has no date on it?---No.
Thank you. Could I have that back? And we have another business card from [a health service] and it has a date on it Thursday 8 September '05; is that right?---Yes.
It doesn't appear to have any other dates on it; is that right?---No, just event numbers.
If those documents could be marked for identification.
HIS HONOUR: Yes.
MR COYLE: I will show them to my friends.
HIS HONOUR: Just having seen those documents, ma'am, do any of those prompt your recollection of when it was that you first made a complaint to the police service in relation to the alleged sexual abuse on [G]?---[G] told us, told me 4 December 2004, that morning, and then I was shocked and all that and I was very shocked and then my mum knocked on the door - - -
I don't - - -?---Well, my mum reported it that afternoon. I was waiting for [the husband] to come home.
You say your mum reported it?---Yes.
Did you report it?---No. I was waiting for [the husband] to come home - - -
When did you first report it?---1st of January, between 1st of January and - - -
Who did you report it to?---To the [local] police station.
Are you sure about that?---Yes. If I talk to [the husband] about it, discuss it - - -
The police service records tomorrow might clarify it because the evidence at the moment before me, subject to someone finding it for me, would appear to indicate that the first time, but it is subject to those records, that it was raised with the police service was in the mother's statement which is attached to the father's affidavit which was sworn on the date of one of those cards, 27 July. Is there something else, Ms Cleary?
MS CLEARY: Your Honour, the only reference I can see is in the grandmother's affidavit.
HIS HONOUR: Yes, I understand that. Yes, go on, Mr Coyle
- On the resumption of the trial the following morning, there was discussion between his Honour and the husband’s solicitor concerning the whereabouts of documents produced under subpoena. It was noted that the Police records to which his Honour had made reference the previous day, which he hoped might clarify when the wife first made an allegation concerning abuse to the Police, were not amongst the documents produced. His Honour drew attention to the fact that Court records revealed that such documents had been produced by the Police Service in September 2005. Counsel for the husband advised his Honour that “my friend” (by which he presumably meant counsel for the Independent Children’s Lawyer) had informed him that she had photocopies of the “Police material”.
- His Honour then stood down to allow counsel to inspect the documents that had been “sent down from Newcastle” and advised the wife that she was also entitled to look at the documents - to which she responded that she had already seen them. Following the adjournment, the husband’s solicitor sought to tender various documents. There was no reference during the course of the tendering of those documents to any Police documents. The cross-examination of the wife then resumed on other issues.
- It was the wife who later endeavoured to return to the issue which had clearly been troubling his Honour concerning the date on which she first made an allegation to the Police concerning sexual abuse. We reproduce below the relevant portion of the transcript.
MR COYLE: [Ms Carpenter], there are a number of affidavits that you filed in these proceedings which were not read initially, aren't there? Do you remember that?---Mm
You remember his Honour said that he would read your affidavit sworn 22 November and you recall swearing that affidavit, do you?---Yes, and I feel the need to explain some things, Mr Coyle.
Please do?---I feel the need to explain some things, Mr Coyle, that we talked about yesterday. I rang [a] police station last night and spoke to Senior Constable [WN].
MR COYLE: I think I have to object to this, your Honour, if we are going to have hearsay evidence.
HIS HONOUR: It sounds like it is something you should respond to. Even though he invited you to, which is always dangerous, when all your cross-examination has finished, remember I said I'll ask you is there anything you want to explain arising out of the questions and then we can deal with this. So just remember that, all right?---Mm.
- The wife was next cross-examined by counsel for the Independent Children’s Lawyer, but was not taken to the issue concerning the reports allegedly made to the Police in December 2004/January 2005. After the Independent Children’s Lawyer had completed her cross-examination, his Honour asked the wife a number of questions, at the conclusion of which the following exchange occurred:
Right. All right. There's nothing further I want to ask you. Now, you remember that I told you both yesterday and again today that once the cross-examination had completed by Mr Coyle and counsel for the independent child lawyer, if there was anything arising out of either the questions you were asked or the answers you gave that you think requires some explanation, amplification, correction or the like, now is your chance to do it. It doesn't enable you to give further, what we call evidence-in-chief, but if there's something that arose out of those matters. Now, is there anything that arose that you wanted to talk about?---Yes, your Honour.
Yes, what is it?---Just read it please?
All right. You start and read it and we'll see where we go?---Okay.
Are you referring to the document you endeavoured to read this morning?---Yes.
All right. Go on?---I feel the need to explain some things. [The wife’s former partner] has a criminal record and has served time in [a gaol] and he has a parole officer. I rang [a] Police Station last night and spoke to Senior Constable [WN] and he told me to tell the Court they can ring the station officer today to confirm this information.
Now, [the wife’s former partner] is [I’s] father?---Yes.
He's the man that at one point your mother took out an apprehended violence order against?---Yes.
He's the man that at one point, whilst you were living with him, was on weekend detention?---Yes.
He's the man that you wanted to go with you to Perth?---Yes.
And he's the man that you've now resumed seeing? Not on an intimate
relationship - - -?---No.
- - - or anything like that?---No.
But you and your mother now see him, is that right?---I've seen him.
I see. Right. Keep going?---And the report, even[t] number is - I gave it to you yesterday.
Yes?---1 January 2005 about [G] my son just told me things. No action had been taken on my mother's complaint on 4 December 2004. Police said you need proof. I said; I don't have any so they rang - so I rang the Help Line. When I rang the Help Line I told them my concern.
Now pausing there; you're referring to the Department of Community Services Help Line?---Yes.
Are you going to put before me the records of the Department of Community Services in relation to the notifications that were made and the outcome of the joint investigation response team investigation? Ms Cleary?
MS CLEARY: I've got the photocopied records, yes, your Honour. It's very scanty but there is some information there.
HIS HONOUR: Okay. I should indicate - and I'll come back to it with you and Mr Coyle and the mother later - I want to try and put some dates on some various things that at the moment I'm a bit lost about. Right. Keep going ma'am?---They didn't seem to take me seriously so I rang Centrelink so they gave me a social worker's name, [the wife’s counsellor] and I had counselling with her on 25 July 2005. [The wife’s counsellor] put me on to [R] and [Ms J] at [a] JIRT when they talked to [G]. [G] wouldn't say anything. September 2005 [the husband] took action in the Family Court for contact. He was granted supervised access with his maternal - with his mother and grandmother and when he came home [G] made more statements:
I don't want to suck [the husband’s] willy any more.
I reported this to police on 14 December 2005 and I have the event number for that. And I reported this to [Ms J](?) at [a] JIRT. Mr Coyle said I harmed the boys by making that allegation. I made the allegation to protect [G]. After [G] told me on 4 December 2004 I didn't leave [the husband] alone with him at any time. I didn't have to take any more action against [the husband] until he applied for contact. Then I made my first affidavit of 9 November 2005. It was the first affidavit I have ever made and I was angry and upset. I just browsed through it and trusted it would be right. I didn't get a copy of it and it was not until I got all my papers when Legal Aid cut out. I read the affidavit properly. I immediately went to [Mrs H] and we corrected it with affidavit of - - -
Pausing there. I should tell you, you've already said that. There is already an affidavit before me which you've read, in which you say that there were many errors in your November '05 affidavit?---Yes.
And you corrected it. So don't tell me things I already know?---Okay, thank you.
- The wife then went on to give further evidence in re-examination about having confronted the husband, following the separation, with [G’s] disclosures. She said that the husband had denied the allegation and requested contact with the children, which she refused. After the wife completed her own re-examination, his Honour invited both the husband’s solicitor and counsel for the Independent Children’s Lawyer to ask any further questions arising out of the “fresh matters” but both elected not to do so.
- [The maternal grandmother] was cross-examined after the wife. She gave clear evidence that the date on which [G] had made the alleged disclosure to her was 4 December 2004 [Transcript 28 February 2007, page 155 at line 40 et seq]. [The maternal grandmother] was strongly challenged on her assertion that any disclosure was made on that day. We repeat below a portion of the cross-examination:
I'm asking you whether this is the first time that you suspected or believed that [the husband] had been sexually abusing [G]? Was this the first time you knew anything about that?---I believe [G] told me that first time.
That's on 4 December 2004, is that right?---Yes.
So you didn't think that had happened - you didn't think about it before then, did you?---When [G] told me I believe.
I know that, but before 4 December 2004 did you ever think that [the husband] would do such a terrible thing to his son?---I believe what [G] told me.
No. Before 4 December did you ever think that [the husband] would do such a terrible thing to his son?---But I don't know him. I don't - - -
No. Did you ever think that before 4 December? Fathers don't normally do that to their children?---But I don't know [the husband] so I can't say anything.
So you think he might have?---I don't know.
You don't know. I put it to you again that [G] said no such thing?---I believe what [G] said.
You say he did say that. So what did you do - tell me, on that day, 4 December, where was [the maternal grandmother] when [G] said this to you?---I got - - -
Oh, sorry, I'm getting my names mixed up, sorry, start again. Where was [the wife] on that day when you say that [G] said this?---I got the mail from my house. I went to give it to [the wife] and [the wife] told me she have to go shopping.
- It will be observed that although in the latter portion of this part of the cross-examination the husband’s solicitor asked [the maternal grandmother] what she did following the disclosure by [G], he did not give her an opportunity to answer that question, but rather asked another, namely where the wife was at the time the disclosure was made. At no stage in his cross-examination did he return to the question of whether or not [the maternal grandmother] made a report to the Police on 4 December 2004 following the alleged disclosure.
- On the next day of trial, proceedings commenced with the tender by the husband’s solicitor of documents relating to applications for Apprehended Violence Orders, but there was no tender of any documents relevant to the question of when the wife first made a complaint to the Police about alleged sexual abuse.
- During the course of the resumed cross-examination that day, [the maternal grandmother] was taken to the allegation that had been originally made by the wife that she had seen [G] sucking the husband’s penis. The following exchange then took place between the husband’s solicitor and [the maternal grandmother]:
Did you discuss that event with your daughter?---With my - my daughters.
Yes. Did you talk to her about it?---Yes, we're talking about it.
Okay. And did your daughter say that was true or not true?---It's the truth.
She said that was true. Are you sure about that? This is in February, it's not in December?---Yes, I know.
And that's what she said?---It's the truth.
Do you believe that to be true?---Yes.
The only reason you believe that it's true is because your daughter said it, isn't it?---No, what [G] say to me.
No. That was in December?---Yes.
I'm talking about February that year. In February that year, or some time after that your daughter said this happened in February 2004, didn't she?---I – when [G] told me - - -
Could you please answer my question, [maternal grandmother]. I don't want to be rude, but my question was you agreed with me that you had read that affidavit, you knew that your daughter said that, and you believe it to be true. That's what you said in answering my questions, didn't you?---Yes.
Okay. And do you still believe it to be true?---Yes, because [G] told me.
You say that because 12 months later [G] said the same thing, that's why you believe it to be true, is that right? Is that right?---Yes, I believe my grandson.
Okay. But in February 2004 your grandson hadn't said anything to you, had he? Is that right? Your grandson - you say your grandson said something in December. Your grandson hadn't said anything back in February, March, April or May, had he? Is that right?---Yes.
Okay. But you believed it then because your daughter said it?---My grandson said - - -
No, but your daughter said she saw this. That's what the evidence was then. Your daughter said that she saw [G] between [the husband’s] legs sucking his penis. That's what your daughter said, isn't it?---Yes.
Okay. And you believed it, even though you hadn't spoken to [G] about it, didn't you?---[G] told me and I believe - - -
No, I'm talking about before December. Before December you had not spoken to [G] about it but you say you still believed it, is that right?---I believe [G].
Okay. And you don't speak pidgin?---No.
No? I was tempted to use - okay. I withdraw that, your Honour. Okay. So you believed that back in early 2004. Did you do anything about it in 2004? ---Yes.
You believed that [G] had been sucking [the husband’s] penis, is that right?---I can't prove it but I believe - - -
You believed it. What did you do about it in 2004, before December?---We reported to the police.
When did you report it?---December '04.
Not before December '04, is that right? Is that the first time you reported it to the police, on 4 December 2004?---When [G] told me I went and reported it straight - - -
That was in December 2004 - - - ?---Yes.
- - - wasn't it?---Yes.
But you'd say that you'd learned of this thing some time earlier that year, hadn't you? If [the wife] saw [G] sucking [the husband’s] penis I think it's likely she would have come and told you quick smart, wouldn't she? She would tell you straightaway, wouldn't she?---No.
She wouldn't? That's a terrible thing for a father to do to his baby son. So at that stage [G] would only have been two and a bit, wouldn't he?---When he told me?
This is - no, in February 2004 [G] was 2-years-old, two and a bit, wasn't he?---Yes.
And you were told by [the wife] that this 2-year-old baby was sucking his father's penis, is that right?---One on December 4.
And you didn't get around to telling the police about it till December, is that right?---No. He – [G] told me December 4, '04 - - -
All right. Well, we won't - - - ?--- - - - he told me.
All right. When you went to report it to the police station, the police station was closed, wasn't it?---Yes.
So you had to talk to a machine, is that right?---Yes, I took in [I].
So you took [I] with you, did you?---Yes.
And [I] heard what you were saying to the policeman, is that right?---No, I didn't talk to a policeman. I - - -
You talked to the machine?---Yes, a machine.
And what did you say to the machine?---They have to go to their address, [the wife’s] address.
And did you say why, why they had to go to the address?---Yes.
Did you? What did you say to the machine because when you're talking to the machine you're talking to the police, aren't you?---Yes.
Because they will listen to it?---Just abuse.
Tell me - just try to remember the exact words you used. What did you say, the best you can remember?---Sexual abuse.
Did you say that [G] has been sucking his father's penis?---No.
You didn't say that to police?---Sexual abuse.
That's all you said?---Yes.
You had [I] with you at the time?---Yes.
And [I] heard that?---[I] heard it from [G] when [G] tell me.
I see. Okay?---Sit in my lap on the lounge room.
Was he also at the police station when you left the message for the police? [I] was with you, wasn't he?---He was – [G] told us in the house, me and [G] - - -
Would you please answer my question, madam. When you went to the police station - - - ?---Yes.
- - - [I] was with you?---Yes.
And you got [I] to talk on the machine, too, didn't you?---Give the address to their mother.
Okay. And [I] heard everything you were saying?---He heard it from the [Newcastle] house.
Yes. When you were at the police station [I] could hear what you were saying, couldn't he? That's a simple question, madam?---Yes, I went to babysit - - -
Can you answer “yes” or “no”. Was [I] - - - ?---Yes.
He was with you. Thank you. Did you think it's a good idea that [I] should hear you saying that to the police?---[I] is already hear what [G] told us first.
Did you think it was a good idea, madam? Did you think it was a good idea that [I] should hear this? I suggest to you that as a responsible grandmother you would make sure that your grandchildren don't hear things like that? ---[G] already told - - -
Do you agree with what I just said?--- - - - us.
Do you agree with what I just said to you or not?---Mm.
Do you think that as a responsible grandmother and a Christian lady that you should have children listening to that sort of thing, or would it be better if you didn't take him along? Which would be best? He hears it or he doesn't hear it?---He hear with [G] already.
Which is best? He hears it, or he doesn't? Or doesn't it matter if he hears it? ---It matter.
It matters. He shouldn't hear it, should he?---He will not hear it, but he already hear from his brother.
Now, why did you take [I] with you when you went to the police station? ---Because he have to come with me because he was throwing all the food all over when [G] told us. I (indistinct) we were sitting down in the lounge room. [G] told us, “[Mr Lunn] is my best friend, my best friend. I suck his willy. He put his - he put his willy in my mouth and I suck his willy.” That's [G’s] words.
I put it to you he said no such thing, and that you're lying?---I am not, sir.
Now, you say that [I] was present when that was said?---Yes.
I put it to you that he wasn't?---It's the truth.
Ma'am, do you think it's a good thing that [I] should hear that?---It's not good.
What did you say to [I] about that? Was he upset?---He's upset because his brother told us.
Yes. Okay. Did he say anything about it?---He was very shocked and he doesn't like it.
I see. Okay. But, anyway, you went to the police station on 4 December 2004 and that was the first time that you said anything to the police about [the husband] sexually abusing [G], is that right?---Yes.
- It will be apparent from the above that the wife and [the maternal grandmother] were steadfast in their evidence that [G] had made a disclosure on 4 December 2004; that [the maternal grandmother] had gone to the police station on the same day in order to make a report; and that some weeks later, after hearing nothing from the Police, the wife herself had gone to the Police or made a report to the D.O.C.S. Helpline. Although the wife had made clear to his Honour that she was in a position to call (albeit by telephone) a Police Officer who would be able to corroborate her claim, this was not pursued during the hearing. It will also be apparent from the above passages that the wife and [the maternal grandmother] were continually challenged by the husband’s solicitor concerning the veracity of their claim that they had made these reports.
- It will also be apparent that on many occasions during the course of the hearing his Honour indicated his concerns that he was not being given a full and accurate chronology. He even sought the assistance of the Court Expert in assisting him to complete the record, as the following excerpt from the transcript demonstrates [Transcript 1 March 2007, page 212 at line 26 to line 46]:
HIS HONOUR: Can I just ask you a couple of things, [Court Expert]. These are just [at] random. First, you may have in your possession or control copies of notes of parts of the Department of Community Services files which unfortunately we don't have?---Yes.
In fact I hasten to say that the material I have from that source is sparse to say the least but could you help me with a bit of chronology. Your inquiries reveal that the first notification to the Department in relation to the issue of sexual abuse occurred, was it June or July 2005, or am I wrong?---(Indistinct) with the DOCS - - -
Yes, I would be grateful if you could help me with that?---The first notification was on 27 June 2005.
I'll just make - pardon me a moment. And that was made by - does it identify the notifier? It ordinarily doesn't but it might?---Um - - -
Anyway, it doesn't matter. In any event, the first notification to the Department of the sexual abuse was on 27 June 2005. That was then investigated by the JIRT team as they're called?---Yes, and they rejected it on the 30/06.
- The exchange between his Honour and the Court Expert continued a little later as follows [Transcript 1 March 2007, page 213 at line 29 et seq]:
At some point and I think the mother may have been in error as to when it started, the mother in your first report you said commenced seeing a social work at Sexual Assault Services. And in the report you said that was in about April 2005. Now, I'm worried is that right about the date because that means she started to see this social worker before the first notification or do you think that April is in error?---I can just - could you point it out in the report where I refer to the social worker?
I would have thought she wouldn't start seeing someone at that service until after DOCS had become involved?---Well, that would normally be the course of events.
Yes?---I actually talked to that person but I didn't check the date.
No, well for the moment I'm going to tell everybody, unless they can clarify I'm going to assume it occurred after the notification because I don't understand why and there's no explanation been given to me as to why that type of counselling would occur before a notification was made to the Department. I'm throwing it over to you all. That then leads me to this, which you've just referred to. You did attach to your first report - well, it may not be an attachment, it was a summation of a conversation you had with a case worker I think. Page 53, here we go, [wife’s counsellor]?---Yes.
Now, you contacted her and [the wife’s counsellor] told you she was seeing [the wife] in relation to domestic violence issues and as a mother of a child who had been sexually abused. Again that's a reason why I draw the inference that April might be wrong but in any event. You go onto say:
She did not question the [veracity] of the allegations and arranged for the mother to be linked to other appropriate services.
Pausing there, I understand that, that is to say, my understanding is that persons who are part of that sexual assault services and it occurs also with children as well as adults, their task is not to make an assessment of the truth of the allegations, their role is solely to provide a counselling role and hence they don't inquire into the truth or the [veracity]. In other words it's not an assessment role, do you understand?---Yes, I do and this is why it is a little bit puzzling because usually referrals are made to sexual assault services once the disclosure has been obtained - - -
Yes, that's been my experience?---My other - in knowing [the wife’s counsellor] and where she works, I know that in the past she has worked within different services and I'm wondering whether the mother may have been referred to her as part of a generalist counselling service or domestic -alleged domestic violence.
Yes, although she does refer - - -?---And other sexual assault issues come up in the - - -
I think I'm sort of -what I'm doing is I'm trying to get some more specificity about when things happened and we're all struggling with that.
- Once again, it is evident from this passage of transcript that his Honour was, as he said, “struggling” to obtain a clear picture of the relevant chronology. He was not assisted by the fact that the Court Expert’s first report had recorded that the wife had said she started to see someone at Sexual Assault Services in April 2005, when in her evidence at trial the wife recalled that the first attendance at that service was in July 2005.
Submissions on further evidence application
- We will turn now to consider the submissions made on the application to adduce further evidence. To put these submissions into context it is convenient to repeat his Honour’s findings in paragraph 62 of his judgment in relation to the claims made by the wife and [the maternal grandmother] that the alleged disclosure by [G] was reported to the authorities in December 2004/January 2005:
- [The maternal grandmother] contended that on 4 December 2004, after the statement by the child [G], she went to a police station and spoke into an intercom. The Mother contended that in early January 2005 she made a complaint or notification in relation to what the child [G] had said on 4 December 2004. There was no evidence from any source corroborating what the Mother and [the maternal grandmother] said in relation to these matters. It was submitted by counsel for the Independent Child Lawyer, and I accept, that it is extraordinary that the child would make the same statement to the Mother and [the maternal grandmother] on the same day in the circumstances outlined and yet nothing happened...
- Counsel for the wife submitted that the evidence the wife now seeks to have admitted was not contentious, was not available at the time of the hearing and, may, if available, have influenced the trial Judge in his findings. She argued the critical factor was the subject matter of the appeal and referred to the judgment of the High Court in CDJ v VAJ (1998) 197 CLR 172 as authority for the proposition that the Court will more readily admit further evidence where the rights of third parties, such as children are at stake.
- In his written submissions, the husband’s solicitor argued that the test was not whether the further evidence would have “influenced the trial Judge in his findings” but rather the test was to be found in the judgment of Gaudron J in CDJ v VAJ where her Honour said:
- When applied to an order as to the parent with whom a child is to live, the concept of the child’s “best interests” necessarily looks to the future, with all the uncertainties that that involves. In that context, it seems to me that the more pertinent question is not whether the evidence would have produced a different result at the trial but whether, having regard to that further evidence, there is a real risk that the order under appeal is not in the child's best interests. If there is no risk of that kind, then there is no reason to interfere with the order. On the other hand, if there is such a risk, there is good reason why the order should not stand.
- The husband’s solicitor went on to submit:
15. The evidence sought to be relied upon –
(a) could have been adduced at the interim [sic] hearing, but was not;
(b) raises matters of controversy to the extent that it might contain material that is inconsistent with his Honour’s findings at page 62 of the judgment;
(c) is inconsistent with the mother’s evidence given at the trial and
(d) does not demonstrate that, if it had been available to the learned trial judge, it would have resulted in the making of different orders.
- The material the mother now seeks to adduce was available evidence, if admissible and relevant.
- The mother offers no explanation as to why the evidence she now seeks to adduce was not led before his Honour.
- Notwithstanding these written submissions, the husband’s solicitor advised in his oral submissions that the application to introduce further evidence was not strongly opposed, although he said it was evidence that would have been unlikely to have affected his Honour’s decision.
- Counsel for the Independent Children’s Lawyer in her written submissions submitted that the document proposed to be introduced into evidence was “internally quite confusing”. She submitted that the date mentioned of Tuesday 20 December 2005 “is perhaps given in error and may be intended to read 20 December 2004 but it is uncertain on the face of the document. It is also inconsistent with the evidence of the mother about when the report was made”.
- We do not accept this proposition. The submission does not take account of the fact that 20 December 2005 was indeed a Tuesday as stated in the document whereas 20 December 2004 was not a Tuesday. More importantly, the husband was not having “supervised access” with [G] in December 2004, which was before the separation. The allegation mentioned in the Police statement as having occurred on 20 December 2005 clearly relates to events that occurred after the making of the orders on 13 December 2005 for the husband to have supervised contact. Furthermore, the submission of the Independent Children’s Lawyer overlooks the fact that the wife alleged that disclosures were made by [G] in both December 2004 and December 2005.
- In any event, counsel for the Independent Children’s Lawyer went on to say in her written submissions that the document did not appear to be inconsistent with the finding made by his Honour in paragraph 62 of his judgment. Counsel submitted that:
The further evidence sought to be relied on, confirms the evidence of the mother that DoCs and JIRTS were notified and were involved in the investigation of an allegation of sexual abuse upon the victim by his father. This allegation did not result in any criminal charges. The balance of the report is inconsistent with the mother’s evidence about when the child made the allegation of abuse. Even if the date of Tuesday 20 December 2005 was read as Tuesday 20 December 2004, it is inconsistent with that evidence.
Ultimately, since there was evidence before his Honour that there had been a JIRT investigation in 2005 and that nothing had flowed in 2004 from the disclosure that the mother asserted, there does not seem to be in the document sought to be relied on, material that would have caused his Honour to take a different view of the evidence.
- Counsel for the Independent Children’s Lawyer went on to say in her written submissions that the wife gave evidence:
that her mother and she had made some kind of report to the [local] Police Station on 4 December 2004 and/or 1 January 2005 and had been advised to contact the DoCs Helpline, which they did, which ultimately led to a JIRT enquiry. Counselling was offered as a consequence of that referral. An event number was provided by the mother during cross-examination. The further evidence sought to be relied on does not appear to go beyond what was presented at hearing.
- In her oral submissions, counsel for the Independent Children's Lawyer submitted that the evidence clearly given at trial was that [the maternal grandmother] had gone to the Police on 4 December 2004 and that when nothing happened the wife herself reported the matter to the Police. She initially submitted that all his Honour was therefore saying in paragraph 62 of his judgment was that it was extraordinary nothing had been done in response to these complaints to the police. However, later in her submissions, counsel for the Independent Children's Lawyer accepted that his Honour’s finding in paragraph 62 was “ambiguous” and acknowledged that it could properly be interpreted as a rejection of the evidence that the complaint had been made at all.
- Counsel for the Independent Children's Lawyer acknowledged that if indeed his Honour had disbelieved the wife concerning the making of the reports to the Police, it would be unfair to allow his finding to stand in light of the further evidence. She further conceded that the finding must have had some impact on his Honour’s decision, albeit she submitted that what must have weighed most heavily with his Honour was the affidavit that was sworn and subsequently retracted.
Conclusion on further evidence
- We are unable to accept that all his Honour was saying in paragraph 62 of his judgment was that it was extraordinary nothing was done in response to the allegations the wife and [the maternal grandmother] had made to the police in December 2004 and January 2005. Reference to the sustained cross-examination of both the wife and [the maternal grandmother] demonstrates that this was a highly contentious issue and it is clear to us his Honour rejected their evidence.
- We are strengthened in our view of the proper interpretation to place on paragraph 62 by reference to what was said during the following exchange that occurred between counsel for the Independent Children's Lawyer and his Honour during closing submissions [Transcript 1 March 2007, page 229 at line 17 to page 231 at line 19 – the bolding of portion of the text is ours]:
MS CLEARY: ... In relation to paragraph (m), this is a matter your Honour where a serious sexual abuse allegation is made but in these circumstances where the parties are married in September 2004, the mother and her mother say that independently without either of them speaking to each other [G] tells each of them on the same day a story of his father having oral sex with him or forcing the child to have oral sex with him. The mother says that the child came out with the story, she then went out without telling her mother. [G] tells the story to the grandmother independently in the afternoon, the grandmother takes [I] to the police station to report the incident and then nothing happens.
The parties stay together until [they] separate in March, the father has regular contact with the children or perhaps irregular contact with the children, mostly on Sundays for about three or four months, and in June - early in June, the mother goes to [a] police station to make a complaint about the father. The first report to DOCS is apparently also in June about the allegation of sexual abuse. So, six months later, and it's dismissed. There's then an AVO brought by the mother and some very explicit and worrying allegations are made in a statement by the mother on 26 July 2005.
In December 2005, the JIRT team see [G] and apparently the matter is - - -
HIS HONOUR: Can I ask you this. Am I right that I see that the JIRT reference was made on 30 June was it? Yes, that's right, yes. Yes, that's what [the Court Expert] said didn't she?
MS CLEARY: I think she said, your Honour, that the call was made to DOCS on 27 June and it was rejected by JIRT on the 30th.
HIS HONOUR: Yes. The only reason I'm raising it with you is because going through that chronology and jumping ahead the mother takes out the complaint and summons for an apprehended violence order on 8 June.
MS CLEARY: Yes, your Honour.
HIS HONOUR: And in that part of the documentation dealing with the circumstances of complaint, there's nothing said about physical or sexual abuse of either assault on any of the children.
MS CLEARY: That's so, your Honour, but the - - -
HIS HONOUR: So, to that point the issue of sexual abuse has not arisen in any formal public sense.
MS CLEARY: Other than at the police station perhaps through the intercom.
HIS HONOUR: Yes. But there's no corroborative evidence of it.
MS CLEARY: No.
HIS HONOUR: Then - - -
[THI WIFE]: Excuse me, your Honour.
HIS HONOUR: Yes, of course.
[THE WIFE]: I did report the sexual abuse on 1 January 2004.
HIS HONOUR: You can make a response. We've got no - I haven't seen any documentation corroborating any complaints about sexual abuse until the mother's statement to Sergeant [W] in preparation for the apprehended violence order proceeding in September, is that right?
MS CLEARY: That's it, your Honour. I haven't - there's no other document - - -
HIS HONOUR: The only evidence I've got of that issue being raised before that statement of witness is what [the Court Expert] told me this morning because she believes the notification was made prior to that statement of witness and the contentions of the mother and the maternal grandmother about the reports they made in - on 4 December and early January.
MS CLEARY: Yes, your Honour.
HIS HONOUR: Go on, Ms Cleary.
MS CLEARY: Your Honour, there's then the statement of witness by the mother, 26 July 2005, the kind of allegations that your Honour would have perhaps expected to see immediately reported to DOCS on the day that they were said to be revealed but there's been - what's also absent is any evidence of medical examination of the child. Him being taken to a GP prior to this date, of even a conversation with a GP of him participating in any kind of program in the way that is sometimes recommended. Nothing. There's no - there's not even a reference to we were vigilant about listening to him or watching his behaviour, we saw it, nothing like that. Of course, it comes on top of the extraordinary affidavit filed in support of the application made on 1 December 2005 which spells out graphic sexual abuse and is then withdrawn. And the solicitor is blamed.
HIS HONOUR: Well, it's not withdrawn until after the report of [the Court Expert].
MS CLEARY: That's so, your Honour. But the only explanation that's given, the only explanation that's given is that the solicitor must have got that wrong and that the mother hadn't read through the affidavit, she just signed off on it and even that was the solicitor's fault because he'd put it in front of her and she just had to sign it. Quite an extraordinary piece of evidence given the detail that the affidavit provided of what was seen. It would be, having seen both the mother and her mother, in my submission, impossible for your Honour to accept that if the mother had seen something like that in February 2004, she would have told a great many people but most particularly her mother.
- The wife was clearly aware at the time of trial of the grave implications for her case if his Honour continued to hold the view that she was not to be believed that she had made an allegation to the authorities in January 2005. It is noteworthy that the first thing she said in her brief closing submission, after hearing the above exchange between his Honour and counsel for the Independent Children's Lawyer, was “Your Honour, I did report the allegation of sexual abuse on 1 January 2005”.
- The scope of the discretion of the Full Court to allow further evidence pursuant to s 93A(2) of the Act was considered by the High Court in CDJ v VAJ (supra). We refer in particular to the following passages from the joint judgment of McHugh, Gummow and Callinan JJ:
- In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors...
- Other features of the statutory regime laid down by Pt X also distinguish the power to admit evidence under s 93A(2) from that existing at common law. Unlike courts in banc hearing applications for new trials, the Full Court of the Family Court can evaluate the facts of the appeal for itself and in many cases is in a position to evaluate the further evidence and take it into account in considering the appeal without the necessity to have the proceedings re-heard.
- The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way. In particular, the subsection contains no requirement, comparable with that often found in statutes conferring power on an appellate court to receive further evidence, that “special grounds” or “special leave” be shown before the evidence can be adduced...
- When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation. That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered... Although the discretion to admit further evidence is not attended by any express words of limitation, the subject matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
- One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures...
- Another consideration is the effect of the principle that a provision conferring judicial power upon a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by the legislature...
- Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original. In Attorney-General v Sillem, Lord Westbury LC pointed out that “[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below”. Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a “trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence”. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
- No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
- Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
- The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
- We recognise that much of the document now sought to be adduced in evidence relates to a report about sexual abuse made to the police in December 2005. However, the first and last paragraphs of the document provide corroboration of the claims made by the wife and [the maternal grandmother] that a different report was made to the authorities at around the time they alleged – i.e. January 2005. His Honour did not accept their evidence because of lack of such corroboration. The rejection of their evidence led his Honour to conclude that the Court Expert had been right in proceeding on the basis that the first notification to D.O.C.S. was not made until 27 June 2005, whereas the document now provided by the wife indicates that the Joint Investigation Response Team received a report on 4 January 2005.
- As the High Court has said, the power to admit further evidence exists to serve the demands of justice. We are conscious that the admission of such evidence may lead to a new trial and that in such circumstances the interests of justice would not ordinarily be served unless we were satisfied that the evidence would have produced a different result if it had been available at the trial. However, for reasons we will later explain, if the further evidence is accepted, the wife has a strong basis for submitting that the entire proceedings below were infected by a fundamental misapprehension, first on the part of the Court Expert, and then on the part of his Honour. This misapprehension must have had at least some impact on his Honour’s assessment of the credibility of the wife and [the maternal grandmother]. It must also have had some impact on the Court Expert’s assessment of their credibility, their motives and their likely response to any therapy. In our view, the interests of justice require the introduction of the further evidence.
Grounds 1 and 2 –weight given to reports of Court Expert
- We turn now to consider the grounds of appeal.
- Counsel for the wife submitted that the appeal would turn on the merit of the first two grounds by which it is asserted his Honour erred, firstly in allowing the Court Expert’s reports into evidence and secondly by giving them undue weight.
- Counsel submitted there were three reasons why the reports should not have been admitted. First, the facts upon which the opinions of the Court Expert were based “were not identified, proven and established facts”. Secondly, the opinions “were not wholly or substantially based upon the expert’s relevant specialized knowledge” but rather “on a combination of speculation, inference, personal and second-hand views as to the credibility of [the wife and the maternal grandmother] and a process of reasoning which went well beyond the field of expertise”. Thirdly, the Court Expert “failed to provide a report within the parameters of that requested of her”. Overall, it was argued that the Court Expert had “exhibited bias and a barely concealed antipathy” towards the wife and that his Honour erred in accepting the reports “in total and uncritically”.
- The husband’s solicitor correctly noted that no objection had been taken at trial to the admissibility of the reports and that the expertise of the Court Expert had not been challenged. He submitted that the Court Expert had provided an extensive and detailed account of the material upon which her opinions were based. He further submitted there was ample evidence on which his Honour had relied in addition to the reports and that the absence of any criticism of the reports in the judgment was not to be interpreted as total and uncritical acceptance of her evidence.
- Counsel for the Independent Children’s Lawyer’s also noted the lack of objection to the reports at trial and submitted that his Honour was entitled to give weight to the reports, in particular to the dramatic changes the Court Expert had observed in the children following the change of residence.
- In considering the admissibility issue, we turn first to the statutory framework. Notwithstanding a submission to the contrary made by the husband’s solicitor, the provisions of the Evidence Act 1995 (Cth) applied to these proceedings, since s 69ZT(1)(c) of the Family Law Act 1975 does not apply to proceedings commenced prior to 1 July 2006 (unless the parties consent to it applying).
- Section 76(1) of the Evidence Act 1995 provides that “evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. However, there are exceptions, one of which is contained in s 79 which provides that “if a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge”. Section 80 also provides that “evidence of an opinion is not inadmissible only because it is about ... a fact in issue or an ultimate issue ...” Section 135 nevertheless gives the Court discretion to exclude otherwise admissible material “if its probative value is substantially outweighed by the danger that the evidence might ... be unfairly prejudicial to a party”.
- Counsel for the wife relied on both s 79 and s 135 in support of her submission that the Court Expert’s reports should not have been admitted. She also made reference to the principles stated in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and HG v Queen  HCA 2; (1999) 197 CLR 414.
- In Makita, Heydon JA (as he then was) distilled the principles relevant to the admissibility of expert evidence in the following terms:
...if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen  HCA 2; (1999) 197 CLR 414 (at 428 ), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.
- Whilst the “Makita principles” have been frequently adopted, we respectfully agree with the following observations of Weinberg and Dowsett JJ in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd  FCAFC 157; (2002) 55 IPR 354:
- The use of the phrase “strictly speaking” in the last sentence [of the above citation from Makita] should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However, many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. There will be cases in which it would be technically correct to rule, at the end of the trial, that the evidence in question was not admissible because it lacked one or other of those qualities, but there would be little utility in so doing. It would probably lead to further difficulties in the appellate process.
- We should add one rider to these observations. As Heydon JA pointed out in his reasons at , there are difficulties in cross-examining upon a report which does not provide detail as to the way in which particular opinions have been formed. Increasingly, courts seek to facilitate cross-examination by practice directions and other devices designed to ensure that expert evidence is presented in the most effective way, having regard to the purpose for which it is presented. However such procedures are not designed to avoid the testing of expert evidence in cross-examination, nor is it expected that they will obviate the need for evaluation of the evidence, having regard to qualities such as those discussed by Heydon JA. ...
- In Sydneywide Distributors Pty Ltd, Branson J described the statements of Heydon JA in Makita as “a counsel of perfection” and noted that, in practice, evidence of an expert ruled as being admissible at an early stage in the proceedings:
will later be found by the trial judge to be without weight for reasons that, strictly speaking, might be thought to go to the issue of admissibility (eg that the witness’s opinion is expressed with respect to a matter outside his or her area of expertise or is not wholly or substantially based on that expertise).
- Bryant CJ and Boland J discussed these authorities and their application to family law matters in Noetel and Quealey  FamCA 677; (2005) FLC 93-230.
- Returning to the matter before us, we note that at the commencement of the hearing, his Honour advised the wife she could object to the receipt of the reports into evidence [Transcript 27 February 2007, page 2 at line 46]. The wife said she had no objection [Transcript 27 February 2007, page 10 at line 28]. Although she was unrepresented, the wife did have the benefit of a McKenzie Friend, who was a retired barrister.
- In any event, we consider his Honour had no alternative other than to accept both reports into evidence. The principal reason was that the Court Expert had not only had extensive conversations with the children and the significant adults but had also observed the presentation of the children prior to and subsequent to their removal from the wife’s care. The Court Expert’s evidence concerning the children’s views and her observations of the changes in their demeanour were of great importance. Had his Honour, of his own motion, rejected the reports in their entirety, he would have been denied potentially vital evidence.
- We accept it was an option for his Honour to receive only portions of the reports of the Court Expert. However, in the absence of any objection, we do not consider it was incumbent upon him to dissect two very long reports to determine whether some parts should have been excised for the reasons now advanced by counsel for the wife.
- In our view, the real matter for determination in this appeal is the weight his Honour gave to the opinions expressed by the Court Expert. Before turning to discuss this issue, we think it worthwhile to refer to Division 15.5.5 of the Family Law Rules 2004, which deals with the duties of expert witnesses.
- Rule 15.59(3) provides inter alia:
(3) The expert witness has a duty to:
(a) give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(d) consider all material facts, including those that may detract from the expert witness’s opinion;
(e) tell the court...if a particular question or issue falls outside the expert witness’s expertise...
- It was submitted on behalf of the wife that the Court Expert had failed in her duty to remain impartial. Attention was drawn to opinions such as the following, which was contained in the first report:
In my opinion, the mother and grandmother’s claims of physical and sexual abuse of the children, domestic violence perpetrated on [the wife] and threats to [the maternal grandmother] and [the wife] are fatuous. They are riddled with major inconsistencies, absurd claims and illogical reasoning, in a way which is unusual even for “false claims” within this legal milieu.
- The Court Expert did express her opinions with considerable force. By way of further example, we refer to the second report which was prepared after [the psychiatrist] had rejected the Court Expert’s hypothesis that the wife might suffer from a psychiatric illness. In this report the Court Expert acknowledged that it was “unusual” to have suggested that a “Delusional Disorder” could be the reason for making false allegations and went on to explain her initial position in this way:
In the main, I did this because I misjudged the sincerity of the mother's and especially the grandmother's affect, i.e I was “hoodwinked” by their false displays of emotion, in spite of the apparent falsity of the claims. I had at that time believed they genuinely feared for their lives, such was their convincing performance as terrified people. In this deception, they were extraordinarily skilful, despite the cognitive simplicity of their claims. There was deception not only in the words but in the convincing nature of their false affect (expression of emotion). This was somewhat analogous to the deception of the skilled “conman”. As well, the mother, [the wife], has 2 criminal convictions for Deception, so such deception and manipulation may well be part of a pattern of her interaction with others.
One has to then consider that we are looking at a highly deceptive and manipulative dyad, despite the couple's rather (cognitively) naive narratives. Both the mother and grandmother are not highly sophisticated at one level (the words) but are quite skilful in their overall deceptions...
- Counsel for the Independent Children's Lawyer conceded that the language employed in the reports was “somewhat florid”. We do not, of course, suggest that an expert has failed in their duty to give “an objective and unbiased opinion” simply because their views are firmly expressed and are highly prejudicial to one party. We must say, however, that the Court Expert’s views here were expressed with a forcefulness of language that we found surprising and in a way which invited suggestion she had not provided her opinion in the objective and impartial manner mandated by rule 15.59(3)(a). Furthermore, we are not persuaded that the Court Expert’s strongly expressed opinions were based on her “specialised knowledge” gained from “training, study or experience” as a psychologist, but rather were based on her assessment of the veracity of the parties and [the maternal grandmother].
- Whilst it is inevitable that a Court Expert will form views concerning the veracity of those they interview, it is nevertheless important for experts to appreciate it is unlikely they will have all of the relevant information and that they do not have the opportunity of observing the parties and witnesses under cross-examination. The following observation made by the Full Court in Hall and Hall (1979) FLC 90-713 concerning reports prepared by court counsellors has equal application to Court Experts:
[T]he counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
- These remarks highlight the fact that it is the task of the trial judge and not the Court Expert to make findings concerning the credibility of the parties and their witnesses. As a minimum, the observations in Hall and Hall demonstrate why it would be desirable for an expert, pending determination of the facts by the trial judge, to consider the possibility that any view they may have on credibility could be mistaken. Eileen Munro in her work on child protection has observed that “[t]he single most important factor in minimising errors is to admit that you may be wrong”: Munro, E, Effective child protection, SAGE Publications, London, 2002, at p 141.
- The assessment of credibility of witnesses, at least in our experience, requires a thorough appreciation of the relevant chronology of events. In the present matter, the Court Expert made three acknowledged errors in identifying dates. These appear to have arisen from her misreading of documents. One of the errors in particular must have contributed to the overall negative impression she formed of the wife and [the maternal grandmother]. Another, much more serious, error arose from factors beyond her control, as we will demonstrate later in this discussion.
- It will be recalled that at trial the Court Expert had to correct her report concerning the visit to the doctor after the husband allegedly kicked [I] in the genitals. The Court Expert believed (based on her misreading of the medical report) that the wife had made this allegation to the doctor very soon after the separation, when in fact the incident had occurred years earlier. The Court Expert was aware that the husband had admitted kicking [I] “in the bum” in 2002, but given her confusion in relation to the date, understood this to be an entirely different event. The possible impact of her mistaken belief that the allegation was made after separation will be appreciated when considered in the context of the more serious error to which we will come shortly.
- The Court Expert also did not have the benefit of reading the unchallenged affidavit by the doctor who saw [G] following the kicking incident in 2002. The information contained in that affidavit [AB 139 to 140] would have provided further context in which to consider the motivations of the wife and [the maternal grandmother] when they came to make a further allegation of inappropriate conduct by the husband a few years later. His Honour made no reference to the doctor’s affidavit in his reasons, but we think it worth repeating the following extract (bolding added):
On the 21/4/2002 [the wife] brought her son [I] to see me to ensure that he had not suffered a significant injury because he had been struck by [the husband] on the 18/4/02. [The wife] stated that as a result of the blow [I] had fallen against the T.V. knocking his head. He had then been kicked in the testicles by [the husband] who was wearing his work boots. Examination of [I] revealed no injuries and there were no bruises evident. [The wife] did not want to involve any government agencies as a result of this incident. She and her mother [the maternal grandmother] have a strong Christian faith and they had arranged for [the husband] to receive counselling about his behaviour through their church.
- Another acknowledged error in the Court Expert’s understanding of the chronology related to the date nominated by [the maternal grandmother] as the occasion when [G] made his “disclosure”. The Court Expert believed the date stated was 19 October 2004, notwithstanding that [the maternal grandmother] had clearly said in a document provided to the Court Expert that the date was 4 December 2004. We accept that even had the Court Expert not made this error she would still have been sceptical, because she noted that J.I.R.T. records indicated that the disclosure had not been made until July 2005.
- This brings us to what we regard as the most serious of the errors in the Court Expert’s understanding of the chronology. She had been told by both the wife and [the maternal grandmother] that [G] had made a disclosure of sexual abuse in 2004, prior to the separation. She clearly did not accept this could be the case, as the information she had received indicated that the authorities had not been alerted to this disclosure until July 2005, following the separation. The further evidence we have allowed to be introduced would suggest that the information was incorrect and that the report to D.O.C.S. was made prior to separation, just as the wife and [the maternal grandmother] have steadfastly maintained.
- The Court Expert therefore arrived at her assessment in the mistaken belief that the reporting of the disclosure of sexual abuse was prompted by the receipt of correspondence in which the husband’s solicitors sought regular contact with the children. The wife attempted in her cross-examination of the Court Expert to point out that the report was made prior to separation but the Court Expert maintained her view that the wife’s motivation in making the report was to gain an advantage in the Family Court proceedings [Transcript 1 March 2007, page 218 at lines 16 to 39].
- There is no doubt that the wife and/or her original legal advisers must bear a large portion of responsibility for the Court Expert having proceeded on the basis of such a serious misunderstanding. The wife had made a number of allegations concerning sexual abuse in her affidavit of November 2005. That affidavit, however, made no reference to the alleged disclosures by [G], or to the reports made to the authorities in December 2004/January 2005.
- The wife realised, after the first report was published, that the Court Expert had proceeded on an incorrect understanding of the chronology. She attempted to correct the record in her affidavit of 4 September 2006. Not only did she give precise dates relating to the reporting of the allegations to the Police (which corresponded with the correct date given by [the maternal grandmother] in the document the Court Expert had misread) but she and [the maternal grandmother] gave further evidence, which in our view was of considerable importance. This additional evidence related to the impact the alleged disclosures had on the parties’ relationship, leading to what the wife said was a separation under the one roof. These claims were not inconsistent with the account given by the husband to the Court Expert relating to the period leading up to the physical separation in March 2005.
- The Court Expert did not pay any attention in her second report to the efforts the wife had made to correct the chronology. Instead, she proceeded on the basis that “the abrupt withdrawal of the mother's allegations” demonstrated that all that the wife and [the maternal grandmother] had alleged was untrue. Indeed it will be recalled she said that the withdrawal of the claims vindicated [the psychiatrist’s] opinion that it was likely the wife had made false allegations “to gain an advantage in the Family Court situation”. As we will later discuss, [the psychiatrist] had not said this – and in any event anything he might have thought about the veracity of the wife and [the maternal grandmother] would have been infected by the same misunderstanding of the relevant chronology.
- It is true that by the time of the second round of interviews with the Court Expert, the wife had said she did not wish to pursue the allegation of sexual abuse, but she made it clear she did so on the basis she had not seen any “sexual acts” and was unable to prove anything had occurred. Neither she nor her mother withdrew their claim that [G] had made disclosures which had led them to make statements to the appropriate authorities.
- We are left to speculate on the impact on the Court Expert’s assessment had she been privy to all of the information now known to us. Given that the wife and [the maternal grandmother] reported [G’s] alleged disclosures prior to the separation; given that they acted immediately on those disclosures; and given that the marriage arguably broke down almost immediately as a consequence, the Court Expert would surely have given consideration to explanations other than malice or mental illness for the allegations being so strenuously maintained.
- In our view, there was a third possibility which was entirely overlooked by the Court Expert, namely that [G] had indeed made statements to the wife and [the maternal grandmother] which they treated in good faith as being a disclosure of sexual abuse. In our experience, this is a possibility that almost always has to be considered when determining the vexed issues surrounding “disclosures” by young children. This third hypothesis could have explained why someone as experienced as the Court Expert had originally been so convinced that both women were “genuine”, “sincere” and their affect “convincing”. Furthermore, if the Court Expert had the benefit of an accurate appreciation of the chronology she may not have been so ready to conclude that the claims made by the wife and [the maternal grandmother] were “riddled with major inconsistencies, absurd claims and illogical reasoning”.
- We also consider there is substance in the submission that the Court Expert did not allow sufficiently for the possibility that the actions of the wife and [the maternal grandmother] might be traced to what the Court Expert herself labelled as “diminished cognitive capacity”, “simplistic and primitive thinking” and possible “developmental delay”, rather than being evidence of a “highly deceptive and manipulative dyad”. In our view, if the Court Expert had an accurate understanding of the chronology, it is possible she might have placed more emphasis on the deficits in the thought processes of the wife and [the maternal grandmother], rather than looking for a more sinister explanation to explain the discrepancies in their accounts.
- We also consider the Court Expert gave inadequate consideration to the reasons the wife advanced for withdrawing one part of one of her allegations and electing not to pursue others. The Court Expert was arguably too hasty in declaring she had been “hoodwinked” when less sinister explanations were available. The wife had said she was not pursuing her allegations on the basis of legal advice. Her legal advice presumably not only took into account the Court Expert’s damning first report but also the fact that she had withdrawn the claim that she had seen [G] sucking the husband’s penis. Once that allegation was withdrawn, the wife had no evidence of sexual abuse – save for a claimed disclosure by a young child, plus some suspicions arising from two events long past. It is not at all difficult to accept that the wife legal advisors would have given such advice.
- The wife’s ready acceptance of such advice should then have been considered in light of the fact that she had seen her children abruptly removed on the basis of the Court Expert’s finding that her claims were entirely “fatuous”. In our view, the recanting of one element of one allegation by the wife should also have been assessed, inter alia, in light of the fact that it was included in an affidavit that not only contained many errors, but which showed a marked lack of attention to detail by the practitioner involved.
- The wife’s claimed motivation for the change of tack in her case was contained in a document she apparently prepared for her own solicitor but which she handed to the husband’s solicitor on 21 August 2006. The document was in evidence before his Honour and read as follows:
Re my “apology” to [the husband]
I did not want to apologise to [the husband] because I truly believe he sexually abused [G].
My understanding of the very strong legal advice given to me was:-
(1) Here is an empty cup. What was in it is impossible to prove. Similarly, it is impossible to prove that [the husband] had oral sex with [G], because I did not see it happen. So.
(2) If I wanted to get my children back in the shortest possible time it would be better to apologise to [the husband] (ie drop the child abuse allegation) and rely on the favourable psychiatric report, and the newly introduced Family Court procedure.
This advice has back-fired. Because of my “supposed” apology. I am now regarded as admitting that I made a false accusation against [the husband]. I think the circumstances of my “apology” should be made known to [the husband’s] solicitor and the solicitor acting for the children. Otherwise, they will use the “apology” as evidence against me ...
- It is also a matter of concern that in arriving at her original hypotheses the Court Expert apparently did not give the wife opportunity to comment on what the Court Expert properly perceived as an important discrepancy between what the wife had said in her affidavit and what she said to the Court Expert about the incident in which [G] had his head in the husband’s lap. Had the Court Expert drawn this discrepancy to the wife’s attention during interview, rather than merely commenting on it in her report, the wife would have had an early opportunity to retract what she later acknowledged was an incorrect statement.
- Furthermore, if the Court Expert had given the wife the opportunity to retract her claim and she had done so, the Court Expert may have understood why the wife “looked very confused, as though she had not expected to be questioned about the details of this incident” when she asked the wife if she could see the husband’s penis. In the absence of a transcription of precisely how their conversation proceeded, it is possible the confusion the Court Expert observed could have related to her having framed questions based on an assumption that the wife had alleged she had seen [G] sucking the husband’s penis, whereas the wife claims she was taking part in the interview on the mistaken understanding she had said no such thing.
- We accept that innocent errors are from time to time made in the preparation of affidavits, especially where the deponent has poor literacy, poor legal representation and/or a long and confusing “story”. If an expert proposes to draw a serious adverse inference based on a discrepancy between information provided at interview and information contained in another document, it would be desirable for them to draw that inconsistency to the attention of the party being interviewed. It is then a matter ultimately for the trial judge to determine whether any apparent inconsistency has been adequately explained. The inconsistency here was particularly important because, as was submitted by counsel for the wife, it was the one inconsistency which could be perceived as having “brought the wife down”.
- We are also concerned about the extent to which [the maternal grandmother’s] poor command of the English language may have contributed to the Court Expert’s conclusion that the allegations were “riddled with major inconsistencies, absurd claims and illogical reasoning”. In this regard it will be recalled that the Court Expert made particular comment in her report about apparent discrepancies in the history provided by [the maternal grandmother]. It will also be recalled that the Court Expert did not consider [the maternal grandmother’s] fluency in English was an issue at the time she refused her request for a support person to be present during the second round of interviews.
- We note that in his affidavit sworn on 6 February 2007, [the maternal grandmother’s] longstanding doctor noted in passing that “as indigenous of [a foreign country] her knowledge of the English language is basic...[and] she finds it difficult to express herself...” [AB 143]
- The extent to which [the maternal grandmother] struggles with English seemed evident to us from perusal of the transcript of her oral evidence. The following transcript entry demonstrates how the scene was set at the commencement of her evidence [Transcript 28 February 2007, page 147 at line 34]:
Your occupation? Home duties, or what? --- I clean my house.
- Later in [the maternal grandmother’s] cross-examination the following almost incomprehensible exchange occurred [Transcript 28 February 2007, page 149 at line 34 et seq]:
So why did you take out an apprehended violence order against him?---Because I took it - he was done something wrong and then he have to get out from that place so I have to move my curtains and then because - to take it to my house because he had to get out from that house where they lived because he was violent for the people house.
Was he doing something to you?---No.
So you had no reason to be frightened of him, did you?---I just don't really know him, that's all.
But do you understand that you can only apply for an apprehended violence order if you apprehend violence. By "apprehend" means fear or harassment or some misconduct by the person you're getting the order against. You've got to have grounds for an AVO. What were your grounds?---I took my curtains from that house and he doesn't like take the curtains off. That's why he was angry.
- Although we have other reservations about the Court Expert’s reports, we will conclude our discussion by making reference to a statement made in her second report about [the psychiatrist’s] opinion and which found its way into paragraph 123 of his Honour’s judgment. For convenience, we will repeat that paragraph of the judgment in its entirety:
- In his report in relation to [the maternal grandmother] [the psychiatrist] said that there was no objective evidence of anxiety, depression, psychosis, substance abuse or organic mental disorder, or put in an other way, there was no evidence of any mental illness including a psychotic illness. He said that anything which was untruthful is not the product of mental illness but would be the product of voluntary fabrication. He said that [the maternal grandmother] does not require psychiatric treatment because she is not mentally ill. In summary, [the psychiatrist] found that neither the Mother nor [the maternal grandmother] had a mental illness and that their false allegations were likely made to gain an advantage in the Family Court proceedings. Again, I accept the opinions of [the psychiatrist].
- Reference to both of [the psychiatrist’s] reports indicates that he did not, in fact, say that the allegations of the wife and [the maternal grandmother] were made in order “to gain an advantage in the Family Court proceedings”. Rather, he said that “the allegations appear to have been immature utterances at a time of marital turmoil”. His Honour was misled into summarising [the psychiatrist’s] evidence in this fashion by what the Court Expert had said in her second report. It was she who said that “[The psychiatrist] found that neither woman had a mental illness and that the false allegations were likely made to gain an advantage in the Family Court situation”. It is one thing to say that an utterance was made at a time of marital turmoil. It is an entirely different matter to say that it was made in order to gain an advantage in court proceedings.
- His Honour clearly gave considerable weight to the reports of the Court Expert. The material drawn from her reports provided much of the framework of his judgment and his Honour accepted her findings and opinions in their entirety. He said her first report was “very important and I have taken all of what she said into account”. He described her evidence as “compelling”. The Independent Children's Lawyer now properly concedes that the analysis of the Court Expert was incomplete and we have also concluded that the reports were based on a fundamental misapprehension of the chronology. This misapprehension, in our view, has infected the entire assessment of the wife and [the maternal grandmother]. It may also have resulted in the Court Expert not having been sufficiently thorough in her assessment of the husband.
- In these circumstances we have concluded there is substance in the complaint that his Honour gave too much weight to the reports of the Court Expert. In our view, his Honour’s substantial reliance on and acceptance of the Court Expert’s reports is unsafe in light of the further evidence and the other errors in the reports we have identified.
- Whilst we consider the appeal must succeed on the basis identified in the previous paragraph, it is important we record that his Honour was alert at all times to the importance of a proper understanding of the chronology. In particular, his Honour appreciated the importance of ascertaining at what time the wife made her first public report of the alleged disclosure by [G]. He consistently sought assistance to ensure he had such an understanding. Although the wife did her best to assist, she did not provide his Honour with sufficient evidence to persuade him that she should be believed. As his Honour said in his judgment, the evidence concerning the abuse allegations was given in a “particularly confusing” fashion and it is little wonder he was led into error. If his Honour had the benefit of the information we now have, we consider it is likely he would have approached the reports of the Court Expert quite differently.
- For the sake of completeness we should record that we have perused the documents produced in evidence by D.O.C.S. and that we accept there was no reference in any of them to any involvement with the family in January 2005. There is also no reference to “Plan No: [...]” referred to in the Police document which we have allowed to be adduced into evidence. We do observe, however, that the documents produced by D.O.C.S. under subpoena were provided under cover of a letter dated 12 December 2005, which was received into evidence and which contained the following statement (bolding added):
The documents produced are in the attached envelope. These are the documents produced without objection. Other documents are held, which contain notifications of abuse or reports of suspected risk of harm. These are not produced. In accordance with section 29(1)(e), Children and Young Persons (Care and Protection) Act 1998, it is not possible to compel production of these documents and they are not admissible in any proceedings other than care proceedings ...
- We are left to speculate whether the documents not produced to the Court were those relating to the “report of a child at risk of harm received at [a] JIRT from the DoCS Helpline, Plan No.: [...]” on 4 January 2005.
Ground 3 – Inadequate evidence to support findings
There was no and/or no sufficient evidence upon which the learned trial judge could find and/or make the undermentioned findings, alternatively, that the learned trial judge gave excess weight to such findings:
(a) That the mother emotionally abused each of the children (paragraph 150);
(b) That concluding that there was a very significant risk of further abuse of the children if they spend time with the mother (paragraph 152);
(c) That the mother’s conduct does not fall within the ordinary meaning of abuse ... (paragraph 153 -156);
(d) That the mother does not have the appropriate willingness and ability to facilitate and [encourage] a close and continuing relationship between each child and the father (paragraph 166);
(e) That the mother failed to fulfil her responsibilities as a parent (paragraph 168);
(f) That the father is better able to provide for the needs of each child including their physical and intellectual needs (paragraphs 175, 180 and 183);
(g) That the mother does not have the capacity to provide for the physical and intellectual needs of each child as well as the father can and that the mother does not have the capacity to provide for the emotional needs of the child;
(h) That there would be further proceedings if there was no supervision of the time spent by the children with the mother (paragraphs 178, 196, 197 and 198); and
(i) That the mother had made false allegations to gain advantage in the Family Court proceedings (paragraph 123).
- In responding to these grounds, the husband’s solicitor submitted there was a wealth of evidence, including the sworn testimony of the wife, to establish that much of the wife’s evidence was false, and noted that some of her earlier evidence was retracted. Similarly, counsel for the Independent Children’s Lawyer submitted there was ample evidence, mainly from the wife, that she had sworn affidavits which included incorrect information alleging abuse by the husband, which she substantially retracted. Neither of these submissions directly addressed the specific findings challenged by the wife.
- In her written outline of argument, counsel for the wife made the following preliminary submission in support of these grounds:
The findings made by the trial Judge had far reaching and serious consequences. There is little doubt that his findings were largely based upon the two reports of the court appointed expert. It if is accepted that the expert’s reports should have been rejected or should have been given little weight, the Appellant mother submits that there was no evidence and/or no sufficient evidence upon which the trial Judge could have based his findings.
- Given the view we have already formed in relation to the earlier grounds, we do not consider it necessary to discuss in any detail to what extent each of the findings under attack was influenced by his Honour’s acceptance of the Court Expert’s reports. Ground 3(i), for example, is clearly made out, as it was based on an inaccurate statement made by the Court Expert. The important finding challenged by Ground 3(a) was made, in part, on the basis of what his Honour described as the “compelling evidence” of the Court Expert. Ground 3(h), on the other hand, was a finding open to his Honour without any regard to the Court Expert’s evidence. All of his Honour’s findings, however, were made in the shadow of an inaccurate perception of the chronology and most were influenced by the opinions of the Court Expert who had the same erroneous understanding.
Ground 4 – failure to take relevant considerations into account
The learned trial Judge failed to take into account the following relevant considerations or failed to give proper weight to the following considerations:
(a) The cultural background of the children; and
(b) The cognitive and developmental level of the mother; and
(c) The evidence of the children (paragraph 157).
- His Honour noted he was required to consider the culture and traditions of the children; however, there was no evidence to assist him to assess these matters other than that:
- the wife and [the maternal grandmother] were born in [a foreign country];
- [the maternal grandmother] said her mother was a [person of high social standing] and her father was a [senior figure]; and
- [the maternal grandmother] may or may not understand pidgin English – depending on which of two contradictory answers she gave in cross-examination was accurate [Transcript 1 March 2007, page 169 at line 44 and Transcript 1 March 2007, page 176 at line 44].
- There is therefore no substance in Ground 4(a).
- There is also no basis for the assertion in Ground 4(c) that his Honour failed to take into account or give proper weight to the wishes expressed by the children. His Honour found that both boys wanted to continue to live with their father but also wanted to spend time with their mother. His Honour’s orders provided for that outcome.
- In our view, however, there is substance in the assertion in Ground 4(b) that his Honour failed to take into account or to give proper weight to the cognitive and developmental level of the wife.
- In support of this ground, counsel for the wife submitted that the difficulties the wife had in understanding the proceedings were evident from her affidavits and from perusal of the transcript. The extent to which the wife struggled with what might appear to be straightforward documentation should also have been apparent from the comment the Court Expert made about the wife’s inability to comprehend [I’s] “quite simple” school reports.
- In our discussion of Grounds 1 and 2 we made mention of the failure of the Court Expert to consider explanations for the wife’s conduct other than malice/mental illness and in that context we discussed the possible significance of the wife’s cognitive immaturity. For similar reasons we there expressed, we are of the view his Honour also failed to give proper weight to the wife’s cognitive deficits in assessing her credibility and her motivations in making allegations she ultimately did not pursue.
- We note that in assessing credibility, his Honour made no specific mention of the view expressed by the Court Expert that the wife’s two criminal convictions for deception, meant that “deception and manipulation may well be part of a pattern of her interaction with others.” His Honour nevertheless effectively adopted the Court Expert’s report and made no reference to the fact that the wife’s convictions were in 1993 and were described by her, without challenge, as being related to one incident at the mall when she was 18 years old.
- The wife cross-examined the Court Expert about the fairness of her reference to the 1993 convictions. The Court Expert said she had not held that against the wife and that “having two convictions for deception would not preclude parenting” [Transcript 1 March 2007, page 218 at lines 41 to 48]. However, the Court Expert’s reference to the convictions appeared immediately prior to her statement in her first report that it was necessary to consider that “we are looking at a highly deceptive and manipulative dyad”. It is difficult to resist the conclusion that the convictions played a part in the formation of her poor opinion of the wife.
- The point in his judgment when his Honour made clear that he doubted all of the wife’s evidence was when he was considering (at paragraph 94) the withdrawal of her claim in the November 2005 affidavit that she had seen [G] sucking the husband’s penis. We accept the submission of counsel for the wife that this was the only occasion when the wife ever made such a claim. She did not, for example, make that claim in her statement to the police in July 2005. She did not make such a claim when giving details of the incident to the Court Expert.
- Although his Honour did (at paragraph 93) recite the wife’s explanation for what she claimed was an error (i.e. her inadvertence/lack of legal experience etc) he did not assess that explanation in light of the Court Expert’s evidence that the wife presented in a very child-like manner; was cognitively immature; may have a degree of developmental delay and gave a narrative that was often disorganised and digressive and contained a lot of repetition and irrelevant detail. Given these observations by the Court Expert, it must have been feasible that the inclusion in the wife’s earlier affidavit of a claim she later repudiated was due to a breakdown in communication with her solicitor and her failure to read or comprehend all of the affidavit when it was presented to her for signature.
- The wife’s cognitive deficits may also have explained some other confusing and sometimes contradictory aspects of her evidence. We consider that if his Honour had the benefit of the further evidence we have admitted, he may not have adopted the Court Expert’s opinion that the wife’s allegations could be explained only by malice. His Honour might then also have considered and given weight to the wife’s evidence about how she had behaved after the alleged disclosure was made by [G]. In particular, he may have considered her assertion that she never allowed the husband to be alone with the children after the disclosure and that she accompanied the children at all times when they were with the husband, even after the separation. This evidence may have gone some way toward explaining why matters concerning the abuse allegations only came to a head at around the time the husband began agitating for significant contact with the children.
- The wife’s evidence about the way in which she ensured the children were supervised at all times after [G’s] disclosure was not challenged by the husband. Her evidence can be found at paragraph 65 of her affidavit sworn in November 2005 (the affidavit was withdrawn but the information concerning contact was referred to and corrected in paragraph 6(u) of her affidavit of November 2006) and in her oral evidence at trial [Transcript 27 February 2007, page 77 at line 47 and Transcript 28 February 2007, page 142 at lines 24 to 26].
Ground 5 – treatment of the wife and her mother as a “package”
Having made a finding that “the situation has been made worse by what [the maternal grandmother] has said and done”, the learned trial judge has taken into account irrelevant matters, in his failure in the proper exercise of his discretion to properly consider the mother’s evidence in isolation to what [the maternal grandmother] has said and done to make the situation worse and to properly determine the issues for the purposes of making a decision in the best interests of the children (paragraph 195).
- Counsel for the wife submitted that in accepting the Court Expert’s reports totally and uncritically, his Honour “fell into error by blending the behaviours, comments and intentions purported to the grandmother as if they were the mother’s”. She submitted further that the trial Judge failed to critically assess and consider the evidence presented by the wife in isolation to that of [the maternal grandmother]. She also submitted that his Honour “was unfairly prejudiced by the grandmother in his assessment of the mother’s evidence in reaching his findings”.
- Counsel for the wife drew attention to the fact that in some parts of the Court Expert’s reports (for example at page 60 of the first report) the Court Expert reported on the behaviour of the “mother/grandmother” interchangeably. She also drew attention to the fact that when the wife was seen with the children during the second round of interviews, she was not seen on her own with her children but was seen in company of her mother.
- In our view, there is some substance in the submission that the wife and [the maternal grandmother] were, in effect, treated as a “package” (albeit we accept that his Honour ultimately made orders which differentiated between the two). The wife had made claims in her evidence, which if believed, would have led his Honour to conclude that there was a much greater degree of independence than the Court Expert believed existed between mother and daughter. For example, in her affidavit of 4 September 2006 the wife said, “We are close & Mum has helped me by minding the children from time to time. But we are not in an unhealthily close relationship. I lived in Perth from 1995-2000 and then with [the husband] until 2005, and then the boys and I lived in a unit at [a place], where I still live. I am my own person and live independently of my mother”. [The maternal grandmother] gave evidence in her affidavit [AB 121] that she had been unhappy when the wife and the husband commenced living together because of her strong Christian beliefs but said she did not interfere because “it was their business”. She also said during cross-examination by the husband’s solicitor, “We don't spend lots of time together. She live her life, I live my life”.
- It would, of course, have been open to his Honour to reject such assertions, but there is no indication in his Honour’s judgment that he gave consideration to them. Furthermore, his Honour made no reference to the comment volunteered by the husband in cross-examination that he believed that [the maternal grandmother] “is largely the instigator of the abuse” [Transcript 27 February 2007, page 34 at line 18]. Counsel for the Independent Children's Lawyer did ask the Court Expert about the possibility of the children being under less pressure if the wife were to have contact with the children in the absence of [the maternal grandmother]. The Court Expert responded that “the grandmother is a very influential person in terms of the mother’s attitude” and said she didn’t consider that bringing [the maternal grandmother] to the contact visits was going to “dramatically change the situation”. [Transcript 1 March 2007, page 210 at line 21 et seq].
- The wife gave a great deal of evidence which might have suggested there was a better prognosis for her than there was for [the maternal grandmother] of behaving appropriately during periods of contact. She also made repeated (admittedly self serving) statements concerning her understanding of the necessity to put the abuse allegations behind her and to “move on”. We have in mind her evidence about the way she claimed to have gone to considerable lengths to comply with restrictions associated with her periods of time spent with the children after they were removed from her care. We refer, by way of example, to paragraphs 8, 9 and 11 of the wife’s affidavit of November 2006 and page 2 of her affidavit of 5 February 2007; the undertaking volunteered by the wife at the conclusion of her cross-examination of the husband [Transcript 27 February 2007, page 24 at line 34]; the wife’s evidence at Transcript 27 February 2007, page 47 at line 50 to page 48 at line 1; Transcript 28 February 2007, page 108 at line 5; and at least some portions of her evidence given at Transcript 28 February 2007, page 124 at lines 7 to 44. The wife’s closing address, albeit pitifully brief, was in large part directed to her acceptance of the necessity of “moving on” and explaining why she would not pursue her allegations and not make any more inappropriate remarks about the husband to the children [Transcript 1 March 2007, page 239 at line 20 to page 240 at line 5].
- His Honour would have been entitled not to accept the wife’s assurances but her claimed insight and ability to move on were arguably in contrast to the position adopted by [the maternal grandmother]. This highlights why it was important, in our view, for the two women to be assessed in their own right and not as part of a “package”. In this regard, it is noteworthy that until the closing stages of the trial the husband recognised it was important not to lump the wife and her mother together. Amongst other things this can be seen from the following facts:
- After separation the husband was content for the children to live with the wife, but thought it best that they reside away from “the influence” of [the maternal grandmother];
- At the time of the first interviews with the Court Expert the husband was still proposing the children spend half their time with the wife and only amended his application to seek indefinite supervised contact after he had read the Court Expert’s reports;
- At the commencement of the trial the husband further amended the relief sought to indicate that he was agreeable to the wife having unsupervised contact after the expiration of 12 months, provided she had complied with conditions which involved [the maternal grandmother] having only limited and supervised contact.
- In our view, the acceptance by his Honour of the Court Expert’s opinion that the wife and [the maternal grandmother] could only be seen as “a highly deceptive and manipulative dyad” has led to a failure to give more proper consideration to the impact on the children in the event they spent unsupervised periods of time with their mother in the absence of their grandmother.
Ground 6 – cost of supervised contact
That the learned trial judge failed to take into account a relevant matter, that being the financial position of the mother when making a decision in relation to the nature and extent of the restrictions upon supervised contact of the children by the mother (paragraphs 215 and 177).
- The evidence at trial was that the wife was working part-time and could work full-time. There was no evidence of how much she earned but given the nature of her work it would be reasonable to assume she was not highly paid. There was no evidence of other aspects of her financial position except that she paid rent of $190 per week.
- His Honour found that four hours supervised contact each fortnight would cost $160, which he accepted would be “an expensive exercise” for the wife. Nevertheless, he accepted the Independent Children’s Lawyer’s submission that the mother would find the money because of her concern about the children. The wife had said in cross-examination that she could not afford the expense of supervision [Transcript 28 February 2007, page 112 at line 17] but when pressed seemed to indicate she would be able to find the necessary funds for 6 or 7 hours of supervised contact a fortnight [Transcript 28 February 2007, page 112 at line 44]. In light of that concession, albeit arguably extracted a little unfairly, we do not consider there is any merit in this ground.
- We should note we were informed during the course of argument that the wife has only been required to pay $20 per fortnight for the supervision provided “on-site”. That is a modest expense which the wife has apparently been able to afford; albeit there was no indication that this subsidy would be available indefinitely.
Ground 7 – failure to apply presumption of equal parental responsibility
That it was unreasonable or plainly unjust and a failure to properly exercise judicial discretion in failing to find the presumption of equalled shared parenting responsibility applies in the circumstances, particularly having regard to the following matters:
(a) That the children have a close and loving relationship with the mother (paragraph 203);
(b) That it is in the best interests of the children that they spend some time with the mother (paragraph 203);
(c) That there was no evidence that the rights and interests that constitute parental responsibility will not be exercised in the best interests of the children by the mother.
- The presumption referred in this ground is to be found in s 61DA(1) of the Act, which provides as follows:
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
- It is unnecessary for us to consider whether the presumption had any application to [I], who is not the biological child of the husband. His Honour was of the view that the presumption did not apply to either child because of his finding that the wife had engaged in “child abuse and neglect”. Even if the presumption did apply, it was well open to his Honour, on his view of the evidence, to conclude that it would not be in the best interests of the children for the parties to have equal shared parental responsibility.
Ground 8 – failure to include a “sunset clause”
The learned trial judge, when determining the final contact order, erred in failing to make an order that included a review mechanism or “sunset clause”.
- It will be apparent from our review of his Honour’s judgment that he gave careful consideration to whether there should be a review mechanism or “sunset clause” in relation to the order requiring the time the wife spent with the children to be supervised. His Honour reviewed the authorities and correctly identified the width of the discretion available to him in determining whether to include such a provision. His Honour gave clear and cogent reasons for his decision to require the time spent with the children to be supervised indefinitely. Were it not for the fact that we considered his Honour erred in placing weight on the reports of the Court Expert, we would have concluded that his Honour’s decision on the issue was within the range of discretion. However, the fact that the Court Expert’s report was flawed meant that inadequate consideration was given, for example, to the amenability of the wife to therapy. This in turn impacted upon his Honour’s assessment of whether a “sunset clause” would be in the best interests of the children.
Ground 9 – leaving future decisions to the husband
The learned trial judge, when determining the final contact order, erred in leaving to the father, the decisions as to future contact with the children.
- Counsel for the wife submitted it was highly irregular to leave decisions about contact arrangements to one of the parties to the litigation and that unless the husband permitted it, the wife would have to demonstrate a change of circumstances before she could see her sons unsupervised.
- We do not consider there is any merit in this ground. His Honour determined the amount of time the children would spend with the wife and the circumstances in which that contact would occur. By indicating that the husband could allow additional periods of time, his Honour gave the husband no more authority than he would have had he said nothing. Although the Court can make orders specifying the time children spend with each parent, the reality is that parents can – and frequently do – vary arrangements after orders have been made. (See also s 64D(1) which makes provision for parenting plans that vary orders).
- His Honour formed a favourable view of the husband and expressed confidence in his ability to make decisions in the best interests of the children. We see no error in his Honour giving the husband authority to allow the children to spend more time with the wife than had been permitted by his orders.
Ground 10 – failure to afford procedural fairness
The learned trial judge denied procedural fairness to the Appellant by failing to afford the Appellant an opportunity to present evidence or to argue the issues raised by the failure to include a review mechanism or “sunset clause”.
- Counsel for the wife submitted that the serious consequences of making an order for supervised contact without a review mechanism or “sunset clause” constituted a breach of procedural fairness in circumstances where the wife was not given an opportunity to be heard in relation to that order. In her oral submissions, counsel for the wife informed us that the wife was unaware she could make submissions concerning the proposal that there be no review mechanism or “sunset clause”.
- It is most unfortunate that the wife did not have representation, but that is a matter over which his Honour had no control. He gave the wife ample opportunity to present any evidence she considered relevant. He placed no restriction on the submissions the wife could make. The wife was on notice that both the Independent Children’s Lawyer and the husband were seeking supervised contact without a review mechanism and there can be no suggestion she was denied procedural fairness. We therefore consider there is no substance in this ground.
Ground 11 – failure to make order in children’s best interests
That the learned trial judge failed to make an order for contact of the children by their mother in a manner that would be in the child[ren]’s best interests.
- Given the decision we have reached on the earlier grounds it is unnecessary for us to consider this ground.
Discussion and conclusion
- It will be apparent from the discussion above that we consider the proceedings before his Honour were fundamentally flawed as a result of the misapprehension by the Court Expert of the relevant chronology of events and his Honour’s acceptance of that chronology and of the opinions of the Court Expert based on that chronology.
- In determining whether or not appellate intervention is warranted in light of this misapprehension we will be guided by the remarks of Gibbs J (as he then was) in De Winter and De Winter (1979) FLC 90-605 where his Honour said:
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth  HCA 25; (1953) 94 C.L.R. 621, at p.627, that recognise that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge. ... The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
- In our view, the decision his Honour reached (at least in relation to the question of the parent with whom [I] and [G] should live), was “plainly right” on the evidence he accepted. However, the misapprehension of the chronology which we have identified with the assistance of the further evidence is of such significance that we consider all of his Honour’s orders should be set aside.
- Regrettably there is no alternative than to order a rehearing before a Judge other than O’Ryan J. In coming to this decision, we must again stress what we said in paragraph 253 concerning the repeated efforts his Honour made to ensure he was not led into error on the very issue which has caused this appeal to succeed.
- We recognise that the Court Expert may be required as a witness at the rehearing; however, we consider it would be unsatisfactory for her to be reappointed as the Single Expert, even if this means the boys will have to be interviewed again by a different person. The social science literature highlights how important it is for professionals to avoid the tendency to make early judgments when dealing with complex situations and then organise subsequent events and information to confirm the original judgment (see, for example, English, D, & Pecora, P, ‘Risk Assessment as a Practice Method in Child Protective Services’, Child Welfare, vol 73 no 5, 1994, 451; Munro, E (supra) at 149-151). The Court Expert has already expressed her opinion with such force that we consider she would be placed in an untenable position were she to be reappointed.
- We express the hope that those responsible for listing of matters in the [Family Court] registries will give the rehearing such priority as can be reasonably accommodated. We also express the hope that both parties will have the benefit of full legal representation at the rehearing.
- Even though in allowing the appeal we must formally discharge his Honour’s orders, we nevertheless propose that the orders should remain in place at least until such time as the matter can be listed again before a judge at first instance.
- All parties sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 in the event the appeal succeeded. The appeal has succeeded on a question of law and in our view it is appropriate that costs certificates be granted, both for the appeal and the rehearing.
I certify that the preceding three hundred and eight (308) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Date: 19 August 2008