Sonny Wilson with rugby league great Darren Lockyer

A western Sydney lawyer has been banned from practising after he falsely invoiced Legal Aid NSW for more than $30,000.

Sonny Wilson, a Liverpool solicitor, charged Legal Aid for barristers’ and translators’ fees on behalf of his clients when no such work was provided.

Between 2012 and 2013, he misappropriated trust funds and made five false certifications to the service, which has struggled with federal funding cuts. Several times Mr Wilson told Legal Aid that barristers had appeared in court when Wilson himself represented his clients.

On Monday, the Civil and Administrative Tribunal found Wilson guilty of “egregious” dishonesty. The solicitor, pictured below with rugby league great Darren Lockyer, had his name struck off the roll of NSW lawyers.

Mr Wilson, representing himself, did not formally oppose the removal of his name but asked for a suspension instead.

“I am willing to learn from my past mistakes and errors,” he said in an affidavit. “Hopefully I can obtain another opportunity in the near future to practice as a solicitor and to be of some use and benefit to others.”

The tribunal found his dishonesty was so extensive they had no option but to remove his name from the roll.

“Despite his good intentions, we are far from satisfied he has achieved this redemption in the relatively short time that has elapsed since his practising certificate was suspended,” the tribunal panel wrote.

But the panel said Mr Wilson’s chance to return to law “may not be lost forever”. He is now studying full-time for a three-year degree in theology at Alphacrucis College in Parramatta.

The tribunal’s decision came one year after the Productivity Commission recommended the Abbott government add $120 million to legal aid services around Australia. The government is yet to respond to the recommendation.

Recent articles confirm that data disclosing the identities of the “anonymous” users of the website Ashley Madison (a website that facilitates and encourages partners being unfaithful to each other), has been leaked online.

Many of these articles speculate that, as a consequence of that information, there will be a serious spike in the amount of family law matters as people learn that their spouse/partner has been unfaithful.

In circumstances where Ashley Madison advertises itself as having 37,565,000 anonymous members, there may well be some truth to the claims. What people may be surprised (and disappointed) to learn, however, even if there is an influx of family law matters, and the release of the Ashley Madison data is the reason for it, the fact that a person has been using the website bears little, if any, relevance to family law matters.

Since 1975, Australia has been a “no fault” jurisdiction. What this means is that, unlike the United States for example, it’s unnecessary to demonstrate to the Court that that one or both parties are at fault in order to dissolve a marriage.

The parties just need to have been separated for 12 months with no prospects of reconciliation. People often believe that unfaithfulness is in some way, disentitling behaviour when it comes to spending time with the children – that’s not the case. The Court’s paramount consideration is the best interests of the children (and unless they have been exposed to some form of unsavoury behaviour, it’s unlikely that a person being unfaithful affects the best interests of the children – at least as far as the Court is concerned).

In relation to property matters, there is no impact upon the way in which assets are divided by one person or another’s unfaithfulness to their spouse (unless there has been extravagant spending on the third party).

In my experience, unfaithfulness is not the main reason that parties separate. It’s certainly one of them, but stands alongside factors such as money difficulties, children, complacency in a marriage and the interference of an extended family.

I have no doubt however that there are over 37 million concerned people who are right now wondering how the Ashley Madison hack will affect their personal lives. Marriages may indeed end as a consequence. However, use of that information to determine what should happen with arrangements for children, or how property should be divided, is likely to have little impact on the way in which that family law matter is decided. 

A lawyer has been ordered to repay more than $100,000 to a family law client after the WA Supreme Court found he charged too much because “he did not know what he was doing”.

The lawyer, identified only as Mr K, represented the client, Mr M, in family law proceedings between November 2008 and April 2010.

He charged the man more than $330,000, for what Supreme Court registrar Christopher Boyle found was excessive, technically deficient and inappropriate work.

Registrar Boyle expressed concern about the records produced by the lawyer to show the work he had done.

He found he seemed to have spent an excessive amount of time doing work of an administrative or clerical nature, while charging $270 an hour.

Registrar Boyle described one charge, for “research”, as disturbing and extraordinary and also noted that in some instances the lawyer charged for up to 20 hours of work in a day.

“The inevitable conclusion is that Mr K’s time records cannot be accepted as uncorroborated evidence even of time spent, let alone whether that time spent was properly chargeable to the client,” he said.

Registrar Boyle said Mr K was not an accredited family law specialist and he should not have accepted Mr M as a client.

“If he did, it should have been only on the basis that he would engage specialist counsel to provide him with the expertise he lacked,” he said.

He also noted criticisms of Mr K by the Family Court judge who heard Mr M’s case.

That judge expressed concern about the adequacy of the representation provided by Mr K and noted that Mr M and his former wife had accumulated legal fees of more than $1.1 million, which was “staggering” and “totally disproportionate to the pool of [their] assets.”

Registrar Boyle said the fact Mr K did not reflect on and consider his position as a result of those criticisms reflected poorly on him.

Registrar Boyle did accept the case was contentious and difficult and that the conduct of Mr M’s wife and her lawyers significantly increased Mr M’s legal costs because they did not attempt to resolve any disputes between the parties.

However he said it was clear Mr K was out of his depth and floundered in the task of identifying and presenting relevant evidence.

The registrar ruled the fees should be reduced to $220,000 because, in his view, a competent and properly resourced practitioner could have done what was needed for no more than that amount.

“That gives Mr K roughly two-thirds of what he claimed, and I think that properly reflects wasted or otherwise inappropriate work,” he said.

The wife of a millionaire resources boss has been jailed for nine months after admitting claiming tens of thousands of dollars in Centrelink payments while he was earning up to $1.8 million a year during the mining boom.

Julie Bohannan married the former chief executive of Bathurst Resources Hamish Bohannan in 2006, the year after he had made just over $1.8 million in taxable income.

But the Perth District Court was told that for years afterwards she claimed benefit payments under another name, consistently lying to Centrelink about where she was living, to whom she was married and what they were worth.

More than $65,000 was fraudulently claimed over eight years, until a tip off led to Centrelink investigation.

Mrs Bohannan also avoided Centrelink appointments while she was pregnant, and deliberately lied about property ownership and her marriage.

Her lawyers had asked Perth District Court for a merciful sentence, pointing out the debt had been paid more than four years before she was charged with the offences – and outlining her eldest daughter’s severe intellectual disability.

But Judge Andrew Stavrianou said the frauds were planned and deliberate, and therefore an immediate prison term was required to punish and send a message to the community.

“You were not forthright, you were not truthful and you were deceitful,” Judge Stavrianou said.

The court was told Mrs Bohannan claimed more than $65,000 in fraudulent payments up until 2009, despite her husband earning nearly $3.8 million in the preceding five years — a fraud Commonwealth prosecutors said was motivated by “greed not need”.

Prosecutor Sarah Oliver said Mrs Bohannan had begun falsely claiming before she had met Mr Bohannan. In 2004, when they moved in together to his luxury 20ha home, she continued to tell Centrelink she was a single mother, living with her parents with no other source of income.

This included falsifying forms and avoiding Centrelink appointments after she became pregnant again. After some payments were stopped, Mrs Bohannan began claiming family tax benefit for her new daughter Ella, despite her husband’s six-figure salary.

“This was motivated by greed, not need — this is a sustained, deliberate fraud motivated by greed with a high level of deception,” Ms Oliver said.

Defence lawyer David Edwardson pleaded with Judge Andrew Stavrianou to impose a “merciful” sentence on the 42-year-old, describing how she had suffered a chronic depressive illness having cared for her severely disabled daughter for many years.

Mr Edwardson said Mrs Bohannan’s first daughter Georgia was born with severe epilepsy, which at first was thought to have been caused by tuberous sclerosis, a rare multi-system genetic disease that causes benign tumours to grow in the brain and on other vital organs.

Now aged 17, she still needs constant care.

Mrs Bohannan’s family was in court to hear the sentence.

A WOMAN who claimed her partner was her brother has pleaded guilty to defrauding the Federal Government of more than $115,000 in single-parent welfare payments.

Nhu Nguyen, 40, was charged with three counts of fraud, committed between 1999 and 2011.

This included a charge of dishonestly obtaining financial advantage by falsely claiming’ the father of her three children was her brother, when in fact he was her husband, between May 2002 and February 2011.

Ms Nguyen’s lawyer said during sentencing submissions in the Adelaide District Court yesterday that the money was not spent on herself but her children and that she had mental health issues. Sentencing will continue later this month.

Latest figures show there were 86 welfare fraud cases involving SA residents finalised last financial year, a slight increase on the 79 resolved in 2013-14, according to Commonwealth Government records.

Among them was a 32-year-old Davoren Park man who had been on the dole on an “intermittent basis’’ since November, 2004.

An investigation revealed he had failed to declare income on 38 occasions and under-declared his earnings 14 times, meaning he was overpaid almost $27,000. In June he was convicted and sentenced to four months imprisonment.

In July, a 51-year-old Salisbury Downs man was sentenced to three months jail for fraud.

During this time he was paid $8811 in welfare to which he was not entitled.

The Office of the Commonwealth Director of Public Prosecutions said the Department of Human Services has sophisticated capability to detect and investigate frauds and, increasingly fraudulent conduct is detected and referred for prosecution at an earlier stage.

The Department of Human Services records show it completed 185 welfare investigations in South Australia last financial year involving $2.9 million in overpayments.

Of these investigations, 136 were referred to the Commonwealth DPP.

Repayments were issued to 115 women and 70 males.

There were 95 investigations of dole recipients (47 males and 48 females), 44 relating to single Parenting Payment recipients (3 males and 41 females) and 24 into recipients of Disability Support Payment (11 males and 13 females).

“Across many industries we’re seeing the simpler, lower-value activities digitally disrupted,” says Wallace Fan, one of the three co-founders of Greatwill, an app that allows people to tap out their last will and testament on their mobile devices.

“You can record a video of yourself to be played after you’ve gone, you can make as many changes as you like whenever you like to your will at no extra cost, and everything is time-stamped and stored in our secure digital archive. We email users periodically and if we repeatedly fail to get a response we contact their executor. We ask the executor to check on the user and remind them that, if it’s required, we have the most up-to-date of their will available.”

Fan and his partners plan to have 25,000 Australian customers signed up to Greatwill by the end of the year before they expand into Commonwealth countries with similar legal systems and, ultimately, huge markets such as China. “We’re also looking into adding additional documents, such as advance care planning and enduring power of attorney, to Greatwill,” Fan says.

After working as a globetrotting legal counsel for international companies and “emailing clients from my laptop in cafes from Paris to Dubai”, Katie Richards set up Virtual Legal with the intention of capitalising on all the digital world had to offer.

“Let’s say you’re considering buying a franchise,” she says. “You go to the website and choose whichever of our fixed-fee packages is appropriate.

“Then you scan and email us the relevant paperwork, which we forward to one of our team members in the Philippines. They do the basic tasks, such as inputting data and generating initial letters for review, while a lawyer in the Australian office liaises directly with you via phone or email.

“The pay-off for customers is that by doing things this way Virtual Legal only needs to charge around 40 per cent of what a top-tier law firm does, given we don’t have to pass on the costs of exorbitant rents and massive salaries.”

Richards plans to franchise her model to New Zealand next year and list her company by 2018. “When I went about unlearning everything I’d been taught about running a business in this industry, lots of my peers told me I was crazy. Now I get invited to give lectures to industry organisations and am constantly being asked for advice,” she laughs.

Free Will storage on Family Law Express

Like Richards, Andrew Mellett was determined to rip up the rule book when he started his law firm Plexus, as much to offer work-life balance to his staff as to provide reasonably priced legal services to consumers.

As with most things in life that involve love and money, it pays to understand the details, as far too often it is the expectations or details that we leave un-written or un-stated  that end of biting us hard when we least expect it.

The below list of related terms are by no means exhaustive, but they are a good starting point for anyone contemplating either beginning, ending or clarifying a important relationship that either involves us directly, or involves someone we care deeply about.

Appointor

The person who has the power to appoint and remove the trustee of a trust.

Beneficiary

A person who receives a benefit under a will, or from a trust.

Codicil

A document which amends a will.

Deceased estate

This is made up of all of the assets owned by the deceased when he/she dies.

De facto spouse

A person will be a de facto spouse of a testator if they are not legally married and are living together as a couple on a genuine domestic basis.

Executor

The person appointed by the will to administer the deceased estate. The executor holds all of the assets of the deceased until they are distributed in accordance with the will.

If the assets are to pass to a testamentary discretionary trust the executor passes control of the assets to the trustee, although normally the executor and trustee will be the same.

Family provision legislation

This legislation gives certain eligible people the right to claim a share of the deceased estate. The purpose of this legislation is to ensure that families and other dependents of the deceased are adequately cared for out of the deceased estate.

Guardian

The persons nominated by a will to care for infant children if both parents die. While a nomination of guardian under a will is given significant weight, the appointment can be reviewed by the Family Court, on application from a concerned interested party.

Intestate

A person who dies without a will is called an intestate, and an intestacy is created by their failure to dispose of their assets. A partial intestacy can occur when some but not all of the assets are disposed of by the will.

Joint tenancy

This occurs where assets are held jointly by two or more people. Upon the death of one of the joint tenants, their share of the property passes automatically to the other joint tenants (the right of survivorship) regardless of what their will states. The other ownership structure for jointly owned assets is tenants in common.

Personal representative

General term for ‘executor’ and ‘trustee’ or the person appointed to administer the estate. Often the term ‘legal personal representative’ (LPR) is used.

Probate

An order from the Supreme Court which gives the executor authority to administer the estate in accordance with the terms of the will.

Spouse

A person’s spouse is their husband or wife. For succession law purposes, a person whose marriage has been dissolved will no longer be a spouse.

Tenancy in common

This occurs where assets are held by two or more people, in equal or unequal shares. Tenants in common can sell or otherwise dispose of their share of the property. If an owner dies their share of the property is distributed according to their will. The other ownership structure for jointly owned assets is as joint tenants.

Testamentary discretionary trust

A testamentary discretionary trust (TDT) is a trust established by someone’s will and does not come into effect until their death.

Testator

The person who makes the will.

Trustee

The person who is the legal owner of the property in the trust. The trustee holds and administers the property of the trust for the benefit of the beneficiaries, in accordance with the terms of the trust once distributed by the executor. Often the executor and trustee are the same.

Trust property

The property that is held by the trustee of the trust, in accordance with the provisions of the trust deed. If the trust is a testamentary discretionary trust, the provisions of the trust deed are set out under the will.

Some patients have been powerless to prevent details about their past sexual abuse or childhood trauma being aired in court, even in matters where they are not a party to the legal proceedings, a paper published in Australasian Psychiatry says.

The authors claim that solicitors are seeking unfettered access to patient records in civil and criminal cases, regardless of their relevance.

“It appears to have become particularly commonplace for subpoenas to be used during family law proceedings for ‘fishing expeditions’ to ‘dig up dirt’ on estranged spouses,” the paper says. “These subpoenas typically ask for the entirety of the patient’s psychiatric records.”

Subpoenas are legal documents that compel certain material to be brought to court, and failure to comply can be deemed to be in contempt of court, an offence punishable by fines and imprisonment. The practical effect is that it is up to psychiatrists to demonstrate why disclosure of patients’ records should be prevented.

Medical legal advisers said the practice of solicitors issuing broad subpoenas to doctors was becoming more common. MDA National medico-legal advisory services manager Sara Bird said that 8 per cent of calls to the medical defence organisation were from doctors who had been subpoeaned, or called to give evidence in court.

“Particularly with the psychiatrists, who have very sensitive records, the doctors are concerned about releasing the information,” Dr Bird said.

Psychiatrist and study author Yvonne Skarbek said solicitors had threatened to have her arrested if she did not hand over her patients’ records in their entirety. Many of them had postnatal depression and a history of childhood trauma and abuse.

“All of that becomes discussed by the court, and that’s devastating to these women and, in many cases, retraumatises them,” Dr Skarbek said.

One psychiatric patient, who did not wish to be named, said she discovered, in front of a packed courtroom, that a psychiatrist had once described her as having borderline personality disorder. She later discovered that her entire medical file, which detailed childhood sexual abuse, suicidal thoughts and major depression, had been read by everyone in the courtroom.

“I was always assured that whatever was discussed within the four walls [of the psychiatrist’s room] would never be made public, and that’s what gave me the confidence to get help,” the woman said. “My biggest fear was for my secret to be exposed. The fact that I had no control, it’s made my anxieties more profound.”

Co-author and NSW chairman of the Royal Australian and New Zealand College of Psychiatrists Gary Galambos said the practice was a breach of privacy and was traumatic for vulnerable patients.

The former husband of one of his patients had used the information against her by repeating to their children what she had said about them in psychiatric therapy. “This completely destroyed this woman’s relationship with her children,” Dr Galambos said.

He wants the federal government to make patients’ psychiatric records privileged, unless there are compelling reasons to disclose them, such as a medical emergency, or significant risk of harm to a child.

The Australian Medical Association’s position is that doctors should only disclose patients’ medical records where the public benefit outweighs the risk to the patient.

Dr Galambos said most psychiatrists complied with demands for patients’ records because it was impractical to go to court to fight every subpoenathey received. “The problem is that the bar has been lowered,” he said. The Lawson Clinic in Gordon, where he works, receives about six subpoenas a month.

In hospitals, patients and their psychiatrists are not necessarily told when a subpoena has been issued, and they may not be aware that the records have been handed over until after the fact.

Psychiatrist and psychotherapist Janine Stevenson said the profession was constantly debating the best way to protect patient confidentiality when solicitors made demands.

“When you provide details, and sensitivities are revealed before the court, it can put therapy back years and years,” Dr Stevenson said. “It can be very detrimental to the relationship with the patient because how can they trust you?”

Same-sex parents are the most resilient, have the highest self-esteem and the greatest social support of the eight family cohorts investigated by Edith Cowan University researcher Bronwyn Harman. Their satisfaction with their lives is only marginally less than that of parents with large families.

Dr Harman spent five years interviewing hundreds of parents from a range of family set-ups to ascertain what life is like for different families, and how resilience, social support and self-esteem contribute to parents’ happiness.

Participants filled out questionnaires that scored their resilience, perceived social support, self-esteem and life satisfaction. Dr Harman then ranked the different groups of parents based on their scores.

Parents with four or more children were the most satisfied with their lot, enjoying, rather than feeling overwhelmed by, the chaos of a big family.

Although they said they have to deal with comments such as “are they all yours?” or “do they all have the same father?”, large families benefit from lots of support from each other, and are rarely bored. Children learn responsibility from an early age, and older ones help out with their younger siblings.

“[The parents] usually say they always wanted a large family, it was planned that way, and it was a lifestyle they’d chosen,” Dr Harman said.

As the issue of gay marriage dominates political discussion, same-sex parents are also very happy with their lives, which Dr Harman attributes to greater social acceptance of lesbian, gay, bisexual and transgender people.

“As we move towards the idea of same-sex marriage as something we should have, the stigma around [same sex] parents is being reduced,” she said.

Same sex parents have battled against stigma and discrimination because of their sexuality, which has made them less concerned about public perceptions and the most resilient of parents.

“They have to go to a lot of effort to get these children, so these children are very, very much desired,” Dr Harman said. “Often when same-sex parents do have a child they feel like they’ve hit the jackpot because they didn’t think it was going to be possible because of their sexuality.”

Single fathers are the parents least satisfied with their lives because they feel like they’re perceived to be the lesser parent. They can be blocked from seeing their children, left out of the loop with communication about school and medical matters, and excluded from family celebrations. Single dads said they were often mistakenly viewed as the instigator of the family break up, and they struggle to get time off work to look after their children because “a good father is a breadwinner not a homemaker”.

“There is this perception that mothers are the real parents and fathers just sort of help,” Dr Harman said. “There is still no understanding in 2015 that fathers are co-parents that have just as much responsibility for kids.”

However single fathers whose children were now adults said it had been worth going through all the difficulties to maintain a strong relationship with their children.

Dr Harman said government services for families did not take into account that not all families were the same. “We need to remember that different groups of parents have different needs to contribute to their life satisfaction,” she said. “It would be much better if we were able to separate the needs of different families and tailor services towards those individual cohorts.”

Families speak:

Single dad: “I am broken and struggling with bitterness – and I struggle daily with the hurt”

Same-sex parents: “I feel more and more people are coming to realise that having same sex parents is not the worst a child could do in life”

Large families: “Our house is a joyful house. Our children all bring unique skills and personalities to our family”

Residential property prices have risen so sharply in the past 12 months – up 13.1 per cent in Sydney, and 4.7 per cent in Melbourne – exes are being forced to find creative ways to keep a roof over their heads.

Family lawyer Jacqueline Dawson says recent spikes in the market have contributed to more people deciding to continue living in the same house post-break-up.

“Particularly in Sydney, we see more separations under the one roof … I think that’s to do with the cost of rehousing,” says Dawson, solicitor director at Sexton Family Law in Sydney.

“I’ve also seen a rise in people taking on boarders.”

The housing boom has given warring parties even more to argue about, with valuations barely keeping pace with sale prices in some areas.

Buying the other party’s share of the family home has slipped out of reach for many.

Meanwhile, real estate agents and lawyers are reporting increased tensions over the timing and asking price of home sales, particularly for mid-range houses in suburbs that have experienced huge price hikes.

Some couples – particularly those with young children and strong ties to the local community – might even be dissuaded from splitting up because of the high cost of establishing two separate households.

“In terms of what I see at the coalface, it’s changing the way people think about a settlement because of the increasing unaffordability of that house,” Dawson says.

“I think there’s also a bit of nervousness, with people thinking ‘Do I want to pay this high price? What if there’s a fall in the market?'”

A recent New Zealand media report suggested divorcing spouses were deliberately delaying their settlements in order to cash in on soaring house prices. It cited NZ’s lowest divorce rate on record last year.

Some former spouses were even demanding multiple valuations to maximise their payouts so they could afford to buy again.

The latest Australian divorce statistics predate some of the most dramatic housing price hikes: the divorce rate fell by 4.6 per cent in 2013 to 2.1 people per 1000, compared to 2012 figures.

Family lawyer Susan Pearson of Sydney firm Pearson Emerson Meyer says factors contributing to this decline include mandatory early counselling for couples with children, the extension of rights under the Family Law Act to de facto couples and the increasing number of people living together before marriage.

In her view, while there may be some spouses who would seek to delay proceedings to take advantage of the rising property market, such manoeuvring is unnecessary because of delays in  Australia’s court system.

“It could take three years or more for a contested case to reach a final hearing and longer if one of the spouses is dissatisfied with the judge’s decision and there are grounds for an appeal,” Pearson says.

“This can influence couples to reach agreement to sell real estate to take advantage of a high market.”

Unlike in New Zealand, Australia also has in place a system to appoint an independent single expert to value real estate in a property settlement, dramatically reducing the role of adversarial experts.

In practice, separating couples typically seek a valuation before commencing negotiations and then update the valuation for the final hearing.

Simon Doak​, senior sales agent at McGrath in Edgecliff in Sydney’s eastern suburbs, says clients in the process of splitting up are regularly surprised by how much their family home has grown in value.

“They’ve often tried to buy each other out but the growth, particularly this year, means there’s too much of a gap,” Doak says.

He has witnessed several relationship breakdowns where the former partners started out amicably, living under the same roof while going through the separation.

“The parameters change when it comes to selling the house, with one party more motivated to sell … Then it comes down to price.”

Doak says disagreements over price make it hard for agents to arrange a quick sale.

“It creates a lot of angst.”

The Status of a Video Will : Succession Act 2006 NSW, ss 6 and 8

A digital video disc (DVD) recording of an oral statement of testamentary intentions, deliberately recorded as a “video will”, with an intention on the part of the speaker that it take effect as a will:

does not satisfy the formal requirements laid down by section 6 of the Succession Act 2006 NSW for a valid will; but

does constitute a “document” as defined by section 3(1) of the Succession Act 2006 for the purpose of section 8 of the Succession Act, by reference to section 21 of the Interpretation Act 1987 NSW, and, as such, may be admitted to probate as an “informal will” under section 8 of the Succession Act: Cassie v Koumans; Estate of Cassie [2007] NSWSC 481 at [9]; Alan Yazbek v Ghosn Yazbek [2012] NSWSC 594 at [80]-[81]; Mellino v Wnuk [2013] QSC 336; In the Estate of Wilden (Deceased) [2015] SASR 9 at [10]-[12] Cf, Treacy v Edwards; Estate of Edwards (2000) 49 NSWLR 739 at 743[20] – 746[31]; NSW Law Reform Commission, Report No. 85, Uniform Succession Laws: The Law of Wills (1998), para 3.12.

Although, as a matter of jurisdiction, a testamentary statement in the form of a video will satisfies the requirements of section 8, the nature of the informality attending an oral statement of testamentary intentions might, in practice, present an impediment to the Court being satisfied that the requirements of the section have been met (as Cassie v Koumans [2007] NSWSC 481 at [14]-[15] illustrates); the transaction costs of satisfying the Court that those requirements have been met may be an unnecessary burden on the will-maker’s deceased estate (as the present case demonstrates); and the informality of expression that commonly characterises an oral statement may be productive of uncertainty as to the terms, or proper construction, of a video will, with a consequential, heightened risk of litigation following the death of the will-maker. On that account, a casual approach to recording testamentary intentions in a video will is not recommended.

Compliance with formal requirements for the making of a will (presently found principally in section 6 of the Succession Act) may involve unwanted expense and inconvenience for a prospective will-maker but, if the task of compliance is not confronted in life, intended beneficiaries, and potential claimants on an estate, may be forced to bear a heavy burden after a will-maker’s death.

In the modern administration of the Court’s probate jurisdiction a premium is placed upon substance over form in ascertaining the testamentary intentions of a deceased person, and in seeing that his or her beneficiaries get what is due to them. This is consistent with the governing purpose of the jurisdiction: the due and proper administration of a particular estate, having regard to any duly expressed testamentary intention of the deceased and the respective interests of parties beneficially entitled to his or her estate: In the Goods of Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192; Estate Kouvakis; Lucas v Konakis [2014] NSWSC 786 at [211].

Nevertheless, the interests of all concerned in the administration of a deceased estate (not limited to the deceased and his or her beneficiaries, but extending also to anybody interested in an orderly succession to property) are generally best served by compliance with the formalities prescribed by section 6 for the making of a valid will. They are not intended to be onerous or to do otherwise than to facilitate the orderly administration of probate law.

An Interested Witness to the Making of a Video Will : Succession Act, ss 8 and 10

A person present at the time a “video will” is recorded, for the deliberate purpose of witnessing the will-maker’s statement of testamentary intentions and assisting in the recording of that statement, is “a person… who attests the execution of the will” within the meaning of section 10 of the Succession Act 2006, which governs the circumstances in which an interested witness can benefit from a disposition under a will.

Section 10 applies to the making of a will admitted to probate under section 8 of the Succession Act. It is not limited in its operation to wills that comply with section 6 of the Act.

This is because:

section 10 appears in a part of the Succession Act (Part 2.1) that addresses the making (et cetera) of “wills” and, by virtue of section 10(1), applies to a disposition “given or made by will”.

an informal will, admitted to probate under section 8 of the Succession Act, is expressed by section 8(2) to “form” the deceased person’s “will” or part thereof.

the subject matter of section 10, indicated by the interrogatory heading to the section (“Can an interested witness benefit from a disposition under a will?”), is directed to all “wills”, whether compliant with section 6 or admitted to probate under section 8.

in the context of section 10(1) the expression “execution of the will” refers back to a beneficial disposition “given or made by will”.

the concept of “execution” of a will is not intrinsically limited to the “signing” of a valid will (as contemplated by section 6) but is capable of application to the process by which a beneficial disposition is “given or made by will” by operation of section 8.

in the context of a video will admitted to probate under section 8 the “execution” of the will is the creation of the video (by force of statute, a “document”) purporting to state the testamentary intentions of a deceased person in a form intended to be his or her will, or part thereof, thereby carrying those intentions into effect.

the concept of “attestation of the execution” (making) of a video will is, in principle, capable of application to a person present at the time the will is made, for the deliberate purpose of witnessing the will-maker’s statement of testamentary intentions and (as in the present proceedings) assisting in the recording of that statement.

the beneficial purpose of section 10 (ensuring the integrity of the process of will-making and that a disposition given or made in favour of a person directly involved in that process is that of a free and capable testator) would best be served by a construction of the section (consistent with the Interpretation Act 1987, section 33) that recognises that it applies to all wills within the purview of Part 2.1, whether falling within the operation of section 6 or that of section 8.

the criteria for which section 10(3) provides are not oppressive of any person, but appear fairly to accommodate the perspectives of a will-maker, his or her beneficiaries and the public interest concern to ensure that a testamentary disposition is that of a free and capable testator.

the construction to be given to section 10(3)(c), which requires the Court to be satisfied that the testator knew and approved a disposition and gave or made it freely and voluntarily, is, in substance, one which applies the general law for determining the essential validity of a will (summarised by a Young J in Woodley-Page v Symons (1987) 217 ALR 25 at 35) to a testamentary gift to an interested witness: see his Honour’s judgment in Miller v Miller; Estate Miller (2000) 50 NSWLR 81.

the practical effect of section 10, in a case to which neither section 10(3)(a) nor section 10(3)(b) applies, is to cast upon an interested witness who attests a will in which he or she is expressed to be the recipient of property an onus to allay suspicions of the Court similar to that borne by the principal beneficiary of a will prepared by the beneficiary: Miller v Miller (2000) 50 NSWLR 81 at 86[22] – 87[31], citing Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, considered by the Court of Appeal in Tobin v Ezekiel (2012) 83 NSWLR 757 at 770[43] – 774[55].

on this construction of section 10(3)(c), by invalidating a particular provision (courtesy of section 10(2)) section 10 could operate to save the remainder of a will which might otherwise (upon an application of “the suspicious circumstances rule” grounded in Barry v Butlin) be held wholly invalid.

In reaching a conclusion that section 10 governs a will admitted to probate under section 8, I am conscious that neither the report of the National Uniform Succession Laws Project Committee (in its report of December 1997 published as Miscellaneous Paper 29 of the Queensland Law Reform Commission) nor the consequential report of the NSW Law Reform Commission (LRC 85 of April 1998) adverts to the scope of what became section 10 in the context of a video will, or any other form of will, admitted to probate under section 8.

I am also conscious that, in the context of a formal will compliant with section 6 of the Succession Act, the weight of opinion amongst those whose consideration of law reform proposals led to enactment of the Succession Act in NSW as part of the Uniform Laws Project looked with disfavour upon extending any form of “interested witness rule” to all witnesses to the execution of a will, not limited to attesting witnesses: NSW Law Reform Commission, LRC 85, paragraphs 3.33-3.36.

In the present case, the witnesses to the making of the video will actively assisted the testatrix in the making of it. They were not mere, passive onlookers. They were directly, deliberately engaged in the making of the video will no less than are attesting witnesses to a formal “section 6” will.

Any policy imperatives underpinning section 10 of the Succession Act apply with no less force to an informal “section 8” will than they do to a formal “section 6” will. Those imperatives might be thought, moreover, to apply with greater force to an informal will in the form of a video will than to other forms of informal will because of the potentially casual character of a “spoken” will captured on a video recording.

Whether a person “attests the execution” of a video will within the meaning of section 10(1), read with section 8, should be tested against whether, as a question of fact, the person was present (at the time the deceased person made the statement of testamentary intentions recorded in the video) with the intention of attesting the making of the video will.

Such a test, drawn from the language of sections 8 and 10 in the context of Part 2.1 of the Succession Act, is consistent with statements of principle drawn from cases dealing with legislative predecessors of section 10 in the context of earlier equivalents of section 6. See, for example, In the Will of Mary Anne Greenfield (1922) 22 SR (NSW) 478; 39 WN (NSW) 140, applying In the Goods of Thomas Brightman Sharman (1869) LR 1 PD 661 at 663; In the Will of James Ernest Elms [1964-5] NSWR 286 at 288.

Although reversed by the Court of Appeal at [1968] 1 WLR 479, the (English) judgment of Cairns J in In the Estate of Bravda, Deceased [1967] 1 WLR 1080 at 1082H-1083A more closely accords with current NSW legislation than that of the Court of Appeal because, having stated the test as one of intention, it invites an application of that test with the starting proposition that the Court leans in favour of carrying out the intentions of the testator. The provisions of section 10(3)(c) of the Succession Act are in sympathy with such a perspective.

In any event, even if section 10 were held not to apply to a will admitted to probate under section 8 the suspicious circumstances rule may, in substance, be as capable of application to an informal will, mutatis mutandis, as it is to a will compliant with the formal requirements of section 6.

The rule has been held not to operate at large, but to displace presumptions of fact that may otherwise operate in favour of those propounding a will: Tobin v Ezekiel (2012) 83 NSWLR 757 at 773[51] and 773[54]-774[55].

By its very nature, an informal will (that is, a testamentary document not executed in accordance with section 6) does not, without fundamental reservations, attract a traditional “presumption” of capacity or knowledge and approval arising from “due execution”.

However, a reference to a “presumption” of this character in probate discourse is more empirical than prescriptive. It is an aid to the investigation of questions of fact, and to the determination of disputed questions of fact, in a world of imperfect knowledge. It might better be understood as an inference commonly drawn from established facts: Calverley v Green (1984) 155 CLR 242 at 264.

So understood, the wisdom probate “presumptions” encapsulate may be able to be harnessed in dealing with informal wills.

For example, if (as in the present proceedings) an informal will is rational on its face, and the process of its creation is equally, patently rational, common experience would lead most observers to infer (in the absence of some other fact) that the will-maker was mentally competent and that he or she knew and approved of the contents of the will.

The circumstance (fact) that the informal will was created at the instigation, or (as in this case) with the active involvement, of a substantial beneficiary would be likely, in common experience, to raise a suspicion about the status of the document which would, pending closer examination of all material facts, displace any inference of regularity that might otherwise commonly be drawn.

The facts that are to be regarded as “material” in this context are those that bear upon a decision as to whether the particular document was the last will of a free and capable testator.

In each case the essential question, in deciding whether a particular document should be admitted to probate in whole or part, is whether it was the last will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35.

Need for a Transcript of a Video Will

Where a video will is admitted to probate the Court will ordinarily require that a verified transcript of the will-maker’s statement be produced to the Court for incorporation in the instrument recording the Court’s grant of probate or administration. This serves the governing purpose of the probate jurisdiction, allowing for the character of a grant as an instrument of title to property (Estate Kouvakas [2014] NSWSC 786 at [228]-[233]), by rendering the will available to the public and interested parties in a conventional, accessible form.

In such a case, the grant should ordinarily include an express recital to the effect that the will-maker’s testamentary statement takes the form of a video recording, a transcript of which forms the grant or (as the case may be) part thereof.

In a particular case of disputation about the terms, or proper construction, of a testamentary statement, the video record may remain the governing document. In the meantime, however, any person not privy to the actual video record must be able to rely with confidence on the instrument of grant. Hence the importance of an accurate transcription.

Need for an English Language Transcript of a Video Will

Where a video will, admitted to probate, is recorded in a language other than English, the Court will ordinarily require that there be produced to the Court both a transcript of the will-maker’s statement as made and an English translation of the statement, both verified.

Verification of such a translation should ordinarily be by a person (such as an official translator or solicitor) upon whose expertise and integrity the Court (and, through the Court, the community) can rely.

This, like the requirement for a transcription of a video will, is more a rule of practice than a stipulation of law. In a particular case it might yield to the purposive character of the probate jurisdiction if undue inconvenience or expense would attend the provision of some form of “official” transcript.

Nevertheless, a requirement for a manifestly reliable transcription expressed in English is, in principle, neither unreasonable nor oppressive but, rather, necessary in the context of contemporary Australian society where reliance is routinely placed on documentation expressed in English and a grant of probate or administration serves as an instrument of title.

Disclosure of Administrative Contributions to Verification of the Terms of a Will

Ordinarily, where a grant is made on the basis that it include a transcript of a video (or audio) will (and, where necessary, an English translation of the transcript) the identity and qualifications of the person or persons who made the transcript (and, where applicable, prepared the translation) should be disclosed on the face of the grant or documentation incorporated in it. If questions arise as to the accuracy of the transcript or translation, those persons should be readily identifiable so that they can be called to account if necessary.

Notification of Interested Persons

Where an application is made to the Court under section 8 of the Succession Act for admission to probate of an informal will (particularly a testamentary statement taking the form of a video will), an orderly administration of the Court’s probate jurisdiction may require, as rules of court provide, that particular care must be taken to ensure that formal notice of the application is given to all interested parties, allowing them a reasonable opportunity to oppose the application should they be minded so to do. This is not only just. It minimises risks of error in the administration of an estate.

Notification of the pendency of probate proceedings to interested parties, coupled with a reasonable opportunity for them to intervene in the proceedings, binds them to the outcome of the proceedings in accordance with the well-established principle of probate practice acknowledged in Osborne v Smith (1960) 105 CLR 153 at 158-159: Estate Kouvakas [2014] NSWSC 786 [131]-[143], [214] and [276]-[283].

THE FACTUAL MATRIX

Wai Fun CHAN, also known as CHAN Wai Fun (a widow, aged 85 years, born in China, but resident in Australia for 23 years) died, in Sydney, possessed of property in NSW and overseas (with an estate with an estimated value of about $930,000) on 27 June 2012, leaving: (a) a formal will dated 6 March 2012, prepared by her solicitor, expressed in the English language, endorsed by one of the attesting witnesses (also a solicitor) with a notation that he had explained the contents of the Will in the Cantonese Dialect of the Chinese language to the testatrix who stated that she understood and agreed to the contents of the Will before she signed it; (b) a DVD recording of a supplementary statement of the testatrix’s testamentary intentions recorded, in Cantonese, on 8 March 2012 in the presence of one of her children (the second plaintiff) and that child’s spouse; and (c) eight adult children scattered around the world, variously resident in NSW, Hong Kong, mainland China and the United States of America.

Acutely conscious of her mortality, the testatrix was dissatisfied with the formal will made with the benefit of her solicitor because one of her children (the first plaintiff), acting against self-interest, dissuaded her from allowing that child and her sister, the second plaintiff (towards both of whom the testatrix felt especially indebted for recent support) a special legacy above and beyond the provision made for her children, generally, in the formal will.

Time and circumstance conspired against a return to the office of the testatrix’s solicitor for the preparation of a codicil. With the benefit of the second plaintiff, and the second plaintiff’s spouse, the testatrix made a short, oral statement captured on a DVD recorder.

She was warned that a video recording might not operate in law as a will for a want of formality. She was not deterred. She was determined to record her final testamentary intentions in a video. She expressed a strong desire to speak to her children in making her intentions known to them after her death. She could have done that in a video not intended to have legal consequences, but that was not her state of mind. She wanted to grant a legacy to each of the plaintiffs over and above any provision made for them in her formal will of two days earlier.

The plaintiffs apply for a grant of probate of the formal will, together with the video will as a codicil, as the executrices named in the formal will. Their application is accompanied by a transcription of the video will in the original Chinese, and an English translation of that transcription, certified by a translator registered with NAATI (National Accreditation Authority for Translators and Interpreters Limited), a body whose accredited translators commonly provide translation services for witnesses giving evidence in the Court.

Notice of the plaintiffs’ intention to apply for probate of the formal will was published in the Sydney Morning Herald on 18 July 2012. They applied for probate of the will, and the codicil, by a summons dated 14 August 2012. The will conformed to the requirements of section 6 of the Succession Act. The codicil (the video will) requires an application of section 8 of the Act.

By an amended summons filed on 29 November 2013, the plaintiffs applied for a declaration (contemplated by section 10 (3)(c) of the Succession Act) that the Court is satisfied that the testatrix knew and approved of the disposition made in the codicil of particular legacies, one of which favoured the daughter who assisted in preparation of the video will, and that those legacies were given or made freely and voluntarily by the testatrix.

THE LEGISLATION GOVERNING THE CASE

Sections 6, 8 and 10 of the Succession Act are in the following terms:

“6 How should a will be executed?

(1) A will is not valid unless:

(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

(2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.

(3) It is not essential for a will to have an attestation clause.

(4) If a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.

(5) If a power is conferred on a person to make an appointment by a will that is to be executed in some particular way or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in the particular way or with the particular solemnity.

(6) This section does not apply to a will made by an order under section 18 (Court may authorise a will to be made, altered or revoked for a person without testamentary capacity).

8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person’s will-if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person’s will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or outside the State.

10 Can an interested witness benefit from a disposition under a will?

(1) This section applies if a beneficial disposition is given or made by will to a person (the ‘interested witness’ ) who attests the execution of the will.

(2) The beneficial disposition is void to the extent that it concerns the interested witness or a person claiming under the interested witness.

(3) A beneficial disposition is not void under subsection (2) if:

(a) at least 2 of the people who attested the execution of the will are not interested witnesses, or

(b) all the persons who would benefit directly from the avoidance of the disposition consent in writing to the distribution of the disposition under the will and have the capacity to give that consent, or

(c) the Court is satisfied that the testator knew and approved of the disposition and it was given or made freely and voluntarily by the testator.

(4) In this section:

‘beneficial disposition’ does not include a charge or direction for the payment of:

(a) a debt, or

(b) reasonable remuneration to an executor, administrator, legal practitioner or other person acting in relation to the administration of the testator’s estate.”

Section 21 of the Interpretation Act 1987 (adopted by section 3(1) of the Succession Act for the purpose of section 8 of the Succession Act) defines “document” in the following terms:

“21.   In any Act .. ‘document’ means any record of information, and includes:

(a)   anything on which there is writing, or

(b)   anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or

(c)   anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or

(d)   a map, plan, drawing or photograph.”

MORE FACTS

In the ordinary course, the plaintiffs’ application for probate was met with requisitions issued by the Court’s Registry. Over time, some of those requisitions were attended to, in the ordinary course, but they were not ultimately satisfied until recently, after the Court prompted a response.

The plaintiffs’ application was referred to me, as Probate List Judge, by Senior Deputy Registrar Paul Studdert in one of his last acts before his recent retirement after a lifetime of working in the probate jurisdiction of the Court. Whilst sharing reservations of the NSW Law Reform Commission about the making of a formal “section 6” will by video (Report No. LRC47, Wills – Execution and Revocation, 1986, paragraphs 4.15-4.16), he recommended that the testatrix’s DVD statement be admitted to probate as an informal “section 8” will, together with a declaration under section 10(3)(c).

In doing so, he informed me that, so far as he was aware, the Court had never before admitted a video will to probate, and no consideration had been given in any judgment of the Court to the relationship between sections 8 and 10 of the Succession Act. He referred the plaintiffs’ application to me because of these two novel aspects of the case.

For the reasons stated in this judgment, I adopt the substance of Studdert SDR’s recommendation, including his suggestion as to the terms of a formal endorsement of the “Basis of Grant” recited in the instrument of grant.

A substantial amount of the delay in processing the probate application can reasonably be attributed to the fact that the testatrix’s codicil took the form of a video will in which one of the witnesses to the video will was named as a beneficiary.

The “Probate Rules” (the Supreme Court Rules 1970 NSW, Part 78) contain express provisions designed to ensure that persons affected by an application for admission of an informal testamentary document to probate are given formal notice of the application and an opportunity to consent to it or a warning that, should they fail to appear in the proceedings, they will be bound by the Court’s determination of the application.

Following the Court’s adoption of a new set of Probate Rules on 21 January 2013, those provisions can now be found in the Supreme Court Rules, Part 78 Division 6 (rules 41-45).

On the whole, the testatrix’s children manifested an indifference towards the plaintiffs’ application for probate, one or two even preferring to make themselves unavailable for the service of formal notice of the proceedings.

To the extent that the plaintiffs may have failed to comply with any requirements of the Probate Rules for the service of notice of the proceedings on persons affected by their application, I am satisfied that the proceedings have nevertheless come to the attention of all affected persons, and that a formal order should be made dispensing with any requirement for further service of notice of the proceedings.

APPLICATION OF LEGISLATION TO FACTS

Summary Conclusions

I am satisfied that the testatrix’s formal will dated 6 March 2012 satisfies the requirements of the Succession Act, section 6.

I am also satisfied that the DVD recorded on 8 March 2012 satisfies the requirements of section 8 of the Act for admission to probate as a codicil to the will: see Estate of Currie [2015] NSWSC 1098 at [35], citing In the Estate of Masters (Deceased); Hill v Plummer (1994) 33 NSWLR 446 at 455E-G, in the admission of a “computer will” to probate.

I am equally satisfied that, insofar as section 10 of the Act applies to the video will, a declaration should be made under section 10(3)(c). The testatrix manifestly knew and approved of the dispositions made by her in recording the DVD, and those dispositions were plainly given or made freely and voluntarily by her. The same can be said, and prudently should be said, of the formal will to which the DVD served as a codicil, with the intent that the two be read together.

Finally, I am satisfied, above and beyond section 10(3)(c), that any suspicious circumstances attending the making of the video will, beneficial as it is to the plaintiffs, have been adequately and properly explained.

Both the formal will and the video will should be admitted to probate.

Elaboration

The formal will presents no difficulties. It conventionally complies with section 6.

The video will does not comply with section 6 because it is neither “in writing and signed” by the testatrix nor “signed” by any attesting witness.

The DVD is a “document” within the meaning of the Interpretation Act, section 21 because it is a “record of information” and, more specifically, it is a “thing” which, at least, falls within paragraph (c) of the definition of “document”. It is a thing “from which sounds, images [and] writings can be reproduced with… the aid of” a DVD player: Treacey v Edwards (2000) 49 NSWLR 739 at 745[26]-[27] and [29]; Cassie v Koumans [2007] NSWSC 481 at [9]; In the Estate of Wilden (Deceased) [2015] SASC 9 at [10]-[12].

In terms of section 8(1), the section applies to the DVD because it “purports to state the testamentary intentions” of the testatrix within the meaning of section 8(1)(a) and, as contemplated by section 8(1)(b), it is not a document executed in accordance with Part 2.1 of the Succession Act, which includes section 6.

The DVD can be admitted to probate as a codicil to the will dated 6 March 2012 because, as contemplated by section 8(2)(b), I am satisfied that the testatrix “intended it to form an alteration to… her will”.

As manifested by the English translation of the transcription of the DVD, the testatrix commenced her statement by recording the date it was made (8 March 2012) and an express claim to be “of a clear and sound mind”.

That opening declaration was followed by a series of short, and apparently well-considered, disciplined statements of intent (coupled with motherly exhortations in passing) that stand neatly with the will as an alteration of the primary document.

The form of the testatrix’s oral testamentary statement, reinforced by extrinsic evidence as to the circumstances and manner in which it was made and the absence of any objection from adverse interests, leaves no room for doubt about her knowledge and approval of the recorded dispositions, freely and voluntarily made.

The only person visible, or audible, on the DVD is the testatrix, face to camera in the setting of a domestic kitchen. She twice glances to the side as if communicating with one or the other of the two persons (one a beneficiary) who, we know from their affidavit evidence, witnessed, and recorded, the making of her statement. She also glances down, from time to time, as if prompted by notes. However her presentation is calm, measured and at ease with the surroundings. It comfortably satisfies the requirements of the Succession Act, section 8.

ORDERS

Accordingly, I make orders to the following effect:

ORDER that the will dated 6 March 2012 (in the form of a three-page document bearing that date) and a codicil made on 8 March 2012 (in the form of a DVD recording of a statement) of Wai Fun CHAN also known as CHAN Wai Fun (who died on 27 June 2012) be admitted to probate.

ORDER that probate of the will dated 6 March 2012 and the codicil made on 8 March 2012 be granted to the plaintiffs.

ORDER that the proceedings be referred to the Registrar to complete the grant.

ORDER that any requirement for further compliance with the Probate Rules be dispensed with.

ORDER that the instrument of grant record an endorsement, as the “Basis of Grant” a recital to the following effect: “Probate of Will and Codicil. Executors appointed under the Will and Codicil. The Codicil is in the form of a video recording in the Cantonese Dialect of the Chinese Language. A transcript of the recording, and an English translation of it, are annexed”.

DECLARE that the testatrix knew and approved of each disposition made in the Will as amended by the Codicil and that each disposition was given or made by her freely and voluntarily.

ORDER that the costs of the plaintiffs in applying for probate are to be paid out of the estate of the testatrix on the indemnity basis.

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1.  From 1 July 2003 to 8 April 2014 (the relevant period) Mrs McMurray, the Applicant, was overpaid $94,219.84 in Family Tax Benefit (FTB), Child Care Benefit (CCB) and Schoolkids Bonus (SKB) by Centrelink, the service provider for the Department of Social Services, the Respondent.  She was not entitled to receive these payments, which are therefore debts owed to the Commonwealth.  The overpayments were the result of an error by Centrelink.   An incorrect coding on her computer record resulted in the continued payment of Mrs McMurray’s benefits even though her income exceeded the level at which they ceased to be payable.
2. On 16 March 2011 Mrs McMurray brought the matter to the attention of Centrelink when she reported an estimated combined annual income of $274,479.  The Centrelink officer who received the advice referred the case to a Senior Practitioner who, on 17 March 2011, determined that Mrs McMurray was still entitled to payment at the maximum rate.
3. On 17 April 2014 a Centrelink officer noted the error and recorded the overpayments as debts to be recovered.  On 28 April 2014 Mrs McMurray requested a review of the debt decision.  On 10 July 2014 an Authorised Review Officer (ARO) decided to waive the debts that arose before 1 July 2012 as they were incurred  after the time allowed by the legislation.  These debts amounted to $76,971.67.  The ARO decided, however, that the debts that arose during the relevant period should not be waived.  These debts amounted to $17,248.18.
4. On 10 September 2014 the Social Security Appeals Tribunal (SSAT) affirmed the ARO decision.  This matter is an application for review of the SSAT decision.
5. At the hearing Mrs McMurray represented herself.  She was accompanied by her husband, Mr McMurray.  Mr de Uray, a Principal Government Lawyer, represented the Respondent.
6. I had before me the documents provided by the Respondent in accordance with        section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).  For Mrs McMurray, I took her letter dated 13 January 2015 into evidence as Exhibit A1.
7. I also had before me the Secretary’s Statement of Facts and Contentions dated 13 February 2015.
8. Prior to my hearing the evidence, Mr de Uray submitted that in this case the material facts are not in dispute.  He stated that the Secretary accepts that the errors resulting in the debts are attributable solely to the Commonwealth.  He stated further that at all times Mrs McMurray was open and transparent in providing information to Centrelink.  Mr de Uray submitted that Mrs McMurray accepts that she received the excess payments.  Mrs McMurray agreed with this statement.
9. Mrs McMurray agreed that the details of the debts as recorded in the documentation were correct.  She also agreed that a debt recovery plan would not cause her financial hardship.
10. The parties agreed, correctly in my view, that the sole issue to be decided is whether Mrs McMurray should repay all or part of the payments made to her in error.
11. The relevant legislation is contained in the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).
12. In her evidence Mrs McMurray stated that at all times she had been honest and open with Centrelink.  She said she queried the benefits payments in 2011.  She said her enquiry was sent upstairs but the department still found that her payments were correct.
13. Mrs McMurray referred to paragraph 39 of the SSAT’s Reasons for Decision and said that she did not knowingly contribute to the debt.  Referring to paragraphs 35 to 37 of the Reasons, Mrs McMurray said that she was offended and distressed by the statements made in regard to her autistic child.  She said she had never had government support for her child and she was offended by the suggestion that she re-enter the workforce.
14. In his cross-examination Mr de Uray asked numerous questions to ascertain when Mrs McMurray first had doubts about the payments or suspicions that the level of benefits she was receiving was not correct.  Mrs McMurray answered consistently that she noticed nothing untoward about the level of benefits until 2011, when her husband’s salary increased significantly, giving them more disposable income.  It was then that she raised the issue with Centrelink.  Up to that time she trusted the Department to make the correct payments.
15. In her oral submissions Mrs McMurray reiterated the contentions in her written statement (Exhibit A1).  She contended that she was not responsible for debts caused by the Department’s errors.
16. Mr de Uray submitted that the debt of $16,018.18 for FTB for the period between 1 July 2012 and 8 April 2014 and the debt of $1,230 for SKB were not raised out of time.  He contended that, for these debts to be waived, Mrs McMurray would have to be in financial hardship, which she did not claim to be. He contended that these debts must stand.
17. In regard to the debts incurred before 1 July 2012, Mr de Uray submitted that this hearing was de novo.  Accordingly, the tribunal must consider whether the payments were received in good faith in accordance with the provisions of section 97(3)(c) of the Administration Act.  Mr de Uray did not contend, however, that Mrs McMurray had received the payments otherwise than in good faith.
18. Section 97 of the Administration Act provides relevantly:

the hearing

the issues

the legislation

the evidence

submissions

tribunal considerations

Waiver of debt arising from error

(1) The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.

(2) The Secretary must waive the administrative error proportion of a debt if:

(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and

(b) the person would suffer severe financial hardship if it were not waived.

(3) The Secretary must waive the administrative error proportion of a debt if:

(a) the payment or payments were made in respect of the debtor’s eligibility for family assistance for a period or event (the eligibility period or event ) that occurs in an income year; and

(b) the debt is raised after the end of:

(i) the debtor’s next income year after the one in which the eligibility period or event occurs; or

(ii) the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;

whichever ends last; and

(c) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.

(4) For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.

Debts raised before  1 July 2012

1. Applying the provisions of section 97(3) to the debts raised before 1 July 2012, I note there is no disagreement that the provisions of sections 97(3)(a) and (b) are satisfied and I find accordingly.  Section 97(3)(c) requires that the payments were received in good faith.

In Secretary, Department of Education, Employment, Training & Youth Affairs v Prince (1997) 152 ALR 127, Finn J found that

if that person knows or has reason to know that he or she is not entitled to a payment received – ie is not entitled to use the moneys received as his or her own – that person does not receive the payment in good faith.  Absent such knowledge or reason to know, the receipt would be in good faith.

1. In Haggerty v Department of Education Training & Youth Affairs [2000] FCA 1287 French J (as he then was) said:

Consistently with what his Honour said in the Prince case, want of good faith will arise where is a positive belief that the payment has been made my mistake.  It will also arise where there is a suspicion held by the recipient that he or she may not entitled to the payment made or a doubt as to the entitlement coupled with some objective basis for such suspicion or doubt.  The provision does not, however, authorise the imputation of want of good faith in any of the senses above described simply because there are in existence objective facts which would raise a belief or a doubt or a suspicion of non-entitlement in the mind of some imaginary recipient.

1. In this case there is no evidence that, before March 2011, Mrs McMurray had any knowledge that she was not entitled to the payments she was receiving.  There is no evidence that Mrs McMurray held any suspicions or doubts that she was not entitled to the payments.  She said in evidence that she simply trusted the Department to make the correct payments.  I find that Mrs McMurray received in good faith those payments that give rise to the debts raised before 1 January 2012.
2. As all the provisions of section 97(3) are satisfied, I find that the debts totalling $76,971.67 must be waived.

Debts raised after 1 July 2012

1. As the debts of $16,018.18 for FTB and $1,230.00 for SKB were not raised out of time the provisions of section 97(2) apply.  I have already found that Mrs McMurray received the payments in good faith.  I find that section 97(2)(a) is satisfied.
2. Mrs McMurray has already agreed that she would not suffer severe financial hardship if the debt were not waived.  Accordingly, I find that section 97(2)(b) is not satisfied.  As a result, I am not required to waive these debts under the provisions of section 97(2) of the Administration Act.

Special Circumstances

1. Section 101 of the Administration Act allows for waiver of part or all of a debt if the Tribunal is satisfied that:

The debt did not result wholly or partly from the debtor or another person knowingly:

Making a false statement or false representation;

Failing or omitting to comply with a provision of the Family Assistance law; and

There are special circumstances (other than financial hardship alone) that make it desirable to waive; and

It is more appropriate to waive than write off the debt or part of the debt.

1. There is no contention that Mrs McMurray made false statements or failed to comply with any of the provisions of the Family Assistance law.  Indeed Mr de Uray accepted Mrs McMurray’s evidence that, at all times, she provided full and timely information to Centrelink.  I am satisfied that the provisions of section 101(a) are met and find accordingly.
2. The only issue raised by Mrs McMurray that could be considered as a special circumstance is that the debts resulted solely from errors of Centrelink and she should not be held responsible for those errors.  In the Secretary’s Statement of Facts and Contentions Mr de Uray submits that Mrs McMurray’s circumstances are not sufficiently special to warrant the exercise of the discretion allowed under section 101 of the Administration Act.
3. I note the decision of this Tribunal in Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, in which Deputy President Forgie stated (in paragraph 80):

[S]pecial circumstances are not merely directed to the person’s own circumstances.  Rather, they are directed to those that are “special circumstances…that make it desirable to waive”.  That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system.  Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it…He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement.

1. In this case, Mrs McMurray has had the benefit of FTB and SKB payments without being entitled to them. As with Deputy President Forgie in Davy, I am not satisfied that there are special circumstances that make it desirable to waive all or part of the debt arising in the period  after 1 July 2012, and I find accordingly.
2. I have found that:

conclusion

the debts raised before 1 January 2012, totalling $76,971.67, must be waived;

the debts raised after1 January 2012, totalling $17,248.18, are not waived; and

no special circumstances apply which make it desirable to waive all or part of the debt.

1. My findings are in accord with those of the SSAT. Accordingly, I affirm the SSAT decision.

DECISION

1. The Tribunal affirms the reviewable decision.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

………………………………………………………………

Associate

Dated 19 March 2015

In expedited parenting proceedings , Ms Helbig (“the mother”) applies for orders that the children X born in 2005 (“X”) and Y (“Y”) born in 2008 (“the children”) live with her, that she have sole parental responsibility and that the children’s time with the father be supervised.

Mr Rowe (“the father”) seeks orders that the children live with him, that he have sole parental responsibility and that the mother’s time with the children is supervised for 12 months and, thereafter, that the mother is to have limited unsupervised time.

The matter has a long history.

The parents separated in January 2009 when X was three and Y was approximately eight weeks old. The mother moved away from the matrimonial home with the children, who lived with her.

In August 2009 the father moved to Western Australia.

In November 2010 the father made an application in the Federal Circuit Court of Australia (“FCC”) seeking parenting orders. In those proceedings, Dr R (“Dr R”) was appointed as a Single Expert. Dr R, who is a child and family psychiatrist, prepared two reports for the assistance of the Court.

The hearing commenced in November 2011 but was not completed.

Dr R completed an updated report which was released to the parties on 3 May 2013.

The hearing of the matter continued on 13 May 2013 and judgment was reserved on 15 May 2013. On 21 May 2013 the matter was resolved when the parties consented to orders which provided that the parents had equal shared parental responsibility, that the children lived with the mother and that the children were to spend unsupervised time with the father from alternate Fridays until Monday, alternate Thursdays overnight and half the school holidays. The mother was restrained from allowing the maternal grandparents to attend changeover and without admissions the parties were restrained from exposing the children to the parents’ naked genitalia, exposing the children to pornography and giving the children alcohol. Also without admission, the parents were to use their best endeavours to ensure that the children were not exposed to masturbation.

In the course of those proceedings, the mother flagged a possible intention to relocate with the children to Canberra but the consent orders were reached on the basis that both of the parents would be living in the same area north of Newcastle.

The father advertised for a person to be present when the children were in his care and employed Ms G (“Ms G”). Ms G initially came to the father’s home when he had the children in his care. They became friends and Ms G and her adult daughter moved into the father’s home in late July 2014. She has her own bedroom. Ms G’s adult daughter also has a room in the home and her twin teenage sons (Ms G’s grandsons) visit.

Between the making of the consent orders in May 2013 and 6 January 2014, the children spent time with their father broadly in accordance with the orders of May 2013, the last period being for four days ending on 6 January 2014.

Between 6 January 2014 and 6 September 2014 the children spent no time with their father, in circumstances which will be fully explored later in these reasons.

On 31 January 2014 the mother filed, in the Family Court of Australia, the application for interim and final orders which is now before the Court for final hearing. Pending final hearing, the mother sought that the consent orders of May 2013 be suspended and restrictions be placed on the children’s contact with the father. The mother alleged that the children were at risk in the care of the father.

The father denied the mother’s allegations and, in his response filed on 27 February 2014, he applied for orders that the children live week about with each parent and in the interim sought to continue his time with the children in accordance with the May 2013 orders.

On 30 July 2014 orders were made by the Court for the appointment of a Single Expert, Dr B, a child and family psychiatrist, and the orders specified which documents were to be provided to the expert.

Order 13 of the orders made on 30 July 2014, provided for the children to have supervised time with the father once each fortnight for two hours.

A dispute arose about the documents which were to be provided to Dr B and that issue came before the Court on 13 August 2014. The Court ordered that various counselling notes of the father’s which pre-dated the orders of May 2013 were not to go to Dr B.

The mother appealed against the order for supervised time and the order in relation to the documents to go to Dr B. Those appeals were dealt with by the Full Court and judgment was delivered on 17 September 2014. Both appeals were dismissed.

On 29 September 2014 Dr B’s report was provided to the Court under the heading “Recommendations”. Dr B said:

After two family reports it has been unsuccessful in establishing an ongoing relationship with both parents. I believe the only alternative now is for the children to be placed with the father. I recommend that this happen immediately and without notice. The children should remain with the father and there should be not (sic) contact for two weeks by any means. Some telephone contact controlled and supervised could be introduced after a (sic) two weeks. After for a (sic) month without any contact with the mother some supervised contact could be introduced. I understand that this is a radical recommendation, however there is a very high risk that if the children remain in the care of the mother that she is so convincing in her belief system that sexual abuse counselling and allegations are likely to continue to cause damage to the children, and that the children will grow up to believe that they have been abused and that their father is a paedophile and that they’ve been irreparably harmed. This is likely to damage their self-esteem and also predispose them to personality disturbance and also anxiety and depression and relationship problems as they progress. I believe that now the only chance for a good outcome where the children can maintain a good relationship with both parents is if they are placed with the father.

Dr B’s report was received by the Court on 8 October 2014 and was released only to the independent children’s lawyer (“ICL”).

An application was made by the ICL, without notice to either of the parties, and on 9 October 2014 the Court made orders that the children live with the father. The children were to be collected from their school by the father, all prior parenting orders were suspended and an order was made that the father have sole parental responsibility for the children. The orders provided for the children to have contact with the mother broadly in accordance with the recommendations of Dr B.

The mother appealed against the making of those orders and judgment in the appeal was delivered on 16 December 2014. The Full Court found substance in the grounds of the mother’s appeal in relation to lack of procedural fairness but reluctantly concluded that there was no remedy that could be provided to the mother in the event that the appeal were to succeed, in circumstances where the matter was listed to commence hearing very shortly.

The mother’s parents sought leave to intervene in the proceedings to seek orders that, if the children were not to live with the mother, they should live with the maternal grandparents. Leave was refused on the basis that the trial would be lengthened unnecessarily but the maternal grandparents were permitted to file affidavits in the mother’s case setting out their proposals.

The Court was aware that it was also the mother’s case that, if the children were not to live with her, they should live with the maternal grandparents.

The mother lives with her parents and, until 9 October 2014, the children had also lived in the same house as their maternal grandparents. The mother had no proposal to move out of her parents’ home, whether the children lived with her or not. In essence, the proposal of the maternal grandparents would have seen the children remaining in their home in the care of their mother.

When the matter commenced on 19 January 2015 the parties were the mother, the father, the ICL and the Secretary of the Department of Family and Community Services (NSW) (“DFCS”).

The mother sought orders for the children to live with her but, in the alternate, asked the Court to order that the children live with her parents.

THE APPLICATION TO DISMISS THE ICL

At the commencement of the proceedings, the mother sought to agitate an Application in a Case seeking orders that the ICL be dismissed and that the matter proceed without the children having an ICL. After hearing submissions from the parties, that application was dismissed and I indicated that reasons would be provided in the substantive judgment. These are the reasons.

The mother relied on an affidavit sworn by her on 31 December 2014.

It was the mother’s position that the ICL should be discharged and that the matter should proceed without the children being independently represented. Counsel for the mother submitted that the ICL had discharged her responsibility by ensuring that evidence had been brought before the Court and therefore she was not required to participate further in the proceedings.

Counsel for the mother had helpfully prepared a written outline of submissions in relation to the application. In a table commencing on page 4, she outlined 15 separate instances where it was asserted that the actions of the ICL (cumulatively) warranted the discharge of the order for the children to be independently represented.

Eight of those complaints referred to the wording of the ICL’s case outline and broadly to the assertion that matters in the ICL’s outline were either incorrect or omitted relevant information. The case outline document is no more than an outline and is not evidence in the proceedings. I do not propose to have regard to those complaints.

Substantial complaints were made by the mother about the case outline document which was prepared by the ICL for the purpose of the hearing which commenced on 19 January 2015, specifically in relation to matters which the mother asserted were not included in the ICL’s case outline. The mother asserted that there were four matters which the ICL should have included in her case outline but did not.

The third and fourth matters complained of relate to actions taken by the ICL in the proceedings before Judge Foster (as he then was) in the FCC in May 2013. There is no evidence before me that the mother made any application to Judge Foster to discharge the ICL in those proceedings. Those complaints have no relevance to the present application. They relate to completed proceedings which predate these proceedings.

The complaints made by the mother in relation to the present proceedings are:

On 23 May 2014 the ICL made an application to the Court for the father to spend supervised time with the children

The application made on 23 May 2014 for the father to have supervised time with the children was considered by the Court. Orders were made in accordance with the application.

On 29 May 2014 the ICL asked the mother to stop Y having counselling

No application was made to the Court in relation to Y’s counselling in May 2014.

In May 2014 the ICL provided the Family Consultant, Ms V, with documents from DFCS which were different from documents provided by the mother

It became apparent during the cross-examination of Ms V that she had been materially mislead by documents provided to her by the mother, which she had interpreted to mean that DFCS had substantiated the allegation that Y had been sexually abused and that the father had been confirmed to be the perpetrator. The documents which were subsequently provided to Ms V by the ICL provided the correct information that although there were concerns about Y, DFCS had not confirmed that she had been sexually abused and had not found that the father was the perpetrator. As a result of that new information, Ms V changed her recommendation and recommended that the children should have supervised time with the father. That was an appropriate course for the ICL to have adopted.

When the matter came before the Court on 11 July 2014 the ICL, aware of evidence from the mother that there had been fresh disclosures made by Y, continued to press for the father to spend supervised time with the children

Ms V had recommended that the children have supervised time with the father in the knowledge that Y had made statements which may have been disclosures of sexual abuse. The fact that further statements had been made by Y, relating to events which predated the supervision, would have been unlikely to lead to a suspension of the supervised time. The mother appealed against the order for supervised time made on 11 July 2014. The circumstances in which that order was made are set out in the judgment of the Full Court delivered on 17 September 2014 at paragraphs 64 to 111. It is not necessary to repeat those matters here. It is sufficient to note that the mother’s appeal was dismissed. The complaint that the ICL acted improperly in advocating for supervised time to continue is unfounded.

At an unspecified time, the ICL wrote to DFCS seeking information about correspondence sent to the father

It appears to be conceded that whatever communication the ICL had on this occasion with DFCS was also provided to the parties. Nothing in this allegation suggests any improper behaviour on behalf of the ICL.

An application was made by the ICL at a directions hearing for leave to inspect a court file in relation to one of the mother’s witnesses

An application was made at a Directions Hearing that the ICL have leave to issue a subpoena to DFCS for the production of its files relating to the children of the mother’s witness, Ms M. That application was rejected. The M children were victims of sexual abuse. There was evidence of interaction between the subject children and the M children which was interpreted by the mother as sexualised. The ICL has a duty to ensure that all relevant evidence is before the Court. There was nothing improper in the ICL’s application.

Having considered the evidence in relation to each complaint, I am not satisfied that any of the actions complained of in the table justifies the discharge of the ICL.

Further complaints are set out commencing at paragraph 8 of the submissions.

The mother complained that the ICL did not forward to the Single Expert, Dr B, copies of the father’s counselling notes which were annexed to an affidavit of the mother.

Those notes, which were produced in the May 2013 proceedings in the FCC, were available to the mother in the course of the hearing and were the subject of cross-examination of the father. The contents of the notes were well known to the mother when she consented to orders that the children spend unsupervised time with the father.

On 13 August 2013, the Court ordered that those annexures be removed from the document provided to Dr B. The notes had been produced to the Court in answer to a subpoena. The mother was not legally represented and may not have been aware that she was not permitted to use the notes so produced in this way. The ICL was correct in removing the notes from the material sent to Dr B. Subsequently the Court on 13 August 2014 amended the list of documents to be provided to Dr B to remove the notes.

The mother complained that the ICL told her that she should destroy the copies of the counselling notes that she held. Ultimately I ordered that the mother surrender to the Court all of the copies of the notes that were in her possession. The use to which the mother put the copies of the notes will be discussed later in these reasons. I do not consider the ICL acted inappropriately in suggesting to the mother that she destroy her copies.

The broad thrust of the mother’s application was that the ICL had formed a view which was aligned to that of the father. The submissions in relation to this complaint were understandably focused on the ex parte application made by the ICL on 9 October 2014 which resulted in the children being removed from the care of the mother and placed with the father.

Whilst the mother was understandably aggrieved by this event, it must be borne in mind that it was not the ICL who made the Order. The ICL made the application, relying on the recommendations of Dr B which are reproduced earlier in these reasons. The Court made the Order.

That Order was the subject of an appeal by the mother. In the reasons handed down on 16 December 2014 by the Full Court, there is no criticism of the ICL.

In almost every case where the ICL forms a view of the arrangements which it submitted are in the best interests of the children, that view will coincide, wholly or in part, with the position of one of the parties to the proceedings. Where it is necessary for interim applications to be determined, the ICL will be required, where possible, to form a view on the evidence available at the time.

There is no evidence that the view of the ICL, expressed in the orders which were sought on her behalf, was formed on any basis other than her consideration of the available evidence.

There is no substance in the mother’s complaints and for that reason her application was dismissed.

THE NOTICE TO ADMIT FACTS

The mother sought to rely on two Notices to Admit Facts. The first was prepared for the proceedings in the FCC and answered by the father. It was dated 30 November 2012. The father’s answers, confined to “Yes” (Y) or “No” (N), were added after that date. There were 299 questions. Many were in a form that would not be permitted to be put orally. The mother was not permitted to tender the document but Counsel for the mother cross-examined the father on admissions or denials in the document which were asserted to be inconsistent with his oral evidence.

The mother also sought to rely upon a further Notice to Admit Facts which had been forwarded to the father in December 2013. He had not responded to that Notice. I declined to order that the father respond since his cross-examination was about to commence.

THE ALLEGATIONS OF UNACCEPTABLE RISK

In order to determine what parenting arrangements are in the best interests of these children, it is necessary firstly to determine whether there exists a need to protect the children from being subject to, or exposed to, abuse or the risk of abuse.

The High Court, in M & M (1998) 166 CLR 69, laid down the test to be applied in determining allegations of this nature, saying:

…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.

And:

…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

And:

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

Thus the task is to determine whether the father poses a risk to the children and, if so, whether that risk is unacceptable.

The mother deposed that in mid-2013 after the orders for unsupervised time with the father had been implemented, on one occasion when she was bathing Y, Y took a brush and “tickled herself on the vagina”. The mother deposed that Y said, “This is the porcupine game that [Mr Rowe] showed me you just get a brush and tickle down there.” The mother did not report this incident to the father and did not ask if there was any explanation for Y’s behaviour. Y was four and a half years old.

The mother deposed that in September 2013:

[Y] was holding an Elmo toy and giggling. I asked “Why are you giggling?” [X] took the toy from [Y], turned it upside down and putting its face over his penis said, “[Y] was doing this.” [X] started rubbing the toy across his groin saying “And she was saying, “Look Elmo has a big mouth … he’s going to suck my privates.”” Then [X] said “…and mum, after dinner one night upstairs, you were having a cuppa with grandma and grandpa and [Y] and I were hiding behind the couch in the bedroom. [Y] said “Let’s show each other our private parts” and “I want to suck your doodle’”.

The mother relied on X’s account of what Y had done. She did not observe what Y did. There is no evidence that Y did or said anything in response to what X said to the mother, although it appears she was present during the entire conversation.

The mother deposed that on 27 December 2013:

I was putting the children to bed. We were talking and having foot massages. [Y] snuggled her face into my crotch and (sic) trying to lick me there. I was fully clothed. I moved away and asked “what are you doing?” She tried to snuggle in and lick me again. I held her back and said “don’t put your face in someone’s private parts and lick them, where did you learn that?” [Y] said “Dad…[Mr Rowe].” [Y] continued “[Mr Rowe], he asked me to rub in his private parts but I said no”. [Y] also told me “He said ‘[Y] follow me’ so I followed him .There’s a few stairs to go up the top level. At the very end of the hallway that was his bedroom, then I was in the bedroom and then he went into the bathroom. I needed to go to the toilet. He’s had 4 houses.”

The mother deposed that Y then said:

“I went up the ladder. Everyone was asleep except me and I climbed down and said “I’m going to do something like sneak out…down to the bottom.” She started counting then said “there’s 4 big stairs, I have to always use my hands to go up the stairs ‘cos there so big. I went looking to find the keys to get outside.”

The mother deposed that she recorded some of what Y said. That recording, of only part of the event, was tendered.

The mother’s version of this conversation was not challenged.

Later, on 27 December 2013, the mother caused X to re-enact what X had observed Y doing with the Elmo doll some three months before. Y was present. The mother recorded the event on a video camera. The recording was tendered in evidence, as were transcripts of the recording prepared by the ICL and by the mother. It is clear that X knew he was being recorded.

The recording shows X holding the Elmo doll. X said “she was holding babies and then she went like this, and then see how his mouth is open”. X turned the Elmo doll upside down and said “She said and I let him suck my doodle”

The mother asked Y “Is that true? Y?” and Y replied “No”.

The mother then prompted X, “And then what was happening upstairs when you were…Remember you told me about being upstairs? What was happening up there? Remember?” X said “Um she was behind the couch…I think. She said ‘Do you want to show each other um our private parts?’ and she also went ‘Can I suck your doodle?’”

The mother said “She said that to you did she? Really?” and X nodded. The mother then said “Why would she say that?” and Y said “I didn’t. All we were doing is…” At this point, the mother interrupted Y and didn’t allow her to complete her reply, saying that this was not a game that children would play.

The conversation continued. The transcript is set out below:

Mother“Why did you have my face in your private parts then?”

[Y]“What did you do?”

Mother“Well, tell me again”

[Y]“Are you sending a message to [Mr Rowe]?”

Mother“No I’m not sending a message but I want to know, you just said that he had asked you to do that to him, is that right?”

[X]“I didn’t ask her to”

[Y]“No [Mr Rowe] did”

[X]“What did he ask you to do?”

[Y]“He asked me to rub in his private parts but I said no and then he…”

[X]“No he didn’t [Y]”

[Y]“You were there” (with emphasis on ‘there’)

[X]“I was there the whole time. You were there barely any of the time because you were playing computer games..”

[Y]“You were”…

[X]“The whole time when we were with [Mr Rowe]”

Mother“When was it Y? When did this happen?”

[Y]Silence. “Mm I’m sending a text message”

Mother“You can send a text message later. It’s important for you to know that mummy believes you, okay? You’re not in trouble”

[Y]“Why don’t we send another message to [Ms O]?”

Mother“What would we say to her”

[Y]“Your doggy is really cute…”

[Y]“And we love”

[X]“Who?”

[Y]“how she plays”

Mother“[L] is very cute. If we were…”

[Y]“[X] says ‘Get your head out of my bottom’”

Mother“Please don’t do that”

[X]“And don’t kick me in the face..”

Mother“[Y] come here”

[X]“Stop kicking me in the face.. you deserve…”

Mother“Come here, come here, come here”

[X]“You deserve that”

[Y][Y] starts to cry.

Mother“It’s okay… come here. Now if we were to talk to [Ms O] and you were to tell her what you just told me, what would you tell [Ms O]?”

[Y]“I wouldn’t tell her anything”

X was adamant that the events that Y described had not occurred.

The mother made a notification to DFCS in the early hours of the morning of 30 December 2013. Tendered in evidence was a document which she said was a contemporaneous note of a conversation with a case worker for about 50 minutes commencing at 2.30 am on 30 December 2013.

The whole file of the DFCS in relation to the children was tendered in evidence.

Under the heading CSO BRIEF DETAILS the record notes:

Caller is reporting concerns for the children in the care of the father [Mr Rowe]. Caller is concerned that Y is being sexually abused by [Mr Rowe]. Caller states that on Friday night 27/12/13 when caller was putting [Y] to bed, [Y] tried to put her face on caller’s genitals and tried to lick caller’s crotch. Caller asked [Y] why she was doing this and [Y] said “because daddy asks me to do that to him.” Caller states that the children live primarily with caller and have contact with the father.

In the mother’s notes of that conversation she recorded that she said to the DFCS officer, “She tried to snuggle in again. I said ‘you don’t put your face in someone’s private parts, where did learn that?’ She said ‘Dad/[Mr Rowe] asked me to do it to him… to rub in his private parts… but I said no… it’s rude.’”

The mother’s account of the conversation in her trial affidavit does not include the allegation that Y said to her “daddy asks me to do that to him.” The suggestion contained in the mother’s report to the DFCS is that the father had asked Y to lick his genitalia. Those words were not, according to the mother in her affidavit, said by Y to her on 27 December 2013. In the narrative which follows the brief details, the record notes again that the mother said to the DFCS officer that “[Y] said dad [Mr Rowe] asked me to do it to him.”

The timing of the report to DFCS is relevant because on the afternoon of 30 December 2013 the mother and the father met for a pre-arranged discussion. The mother took notes of the meeting and the notes were tendered in evidence.

The father had prepared notes of his own prior to the meeting setting out the matters which he wished to discuss with the mother which were:

[The mother] wanting to relocate to Canberra.

More open and frequent communications about the children

Joint decision making regarding children’s matters

[X’s] diabetes management.

Full and open disclosure

Joint participation (where possible);

[Ys] (sic) health and development

Full and open disclosure

joint reviews.

Money matters:- Part offers rejected in preference to handing to CSA [I infer this refers to the Child Support Agency]. OK by me.

School extra-curricular activities [P School], [Q School], [U School]?

The kids social networks are the kids and should be shared as much as possible.

The discussion appears to have proceeded in relation to the matters which the father outlined in his notes. The mother recorded under the heading “Canberra Relocation” the words said by her:

How will visits work when we are in Canberra?

Kids to visit F [I infer that “F” is a reference to the father]

F to visit

How often does F want to see the kids when we are in Canberra?

The mother recorded that in relation to holiday time, the father “Got exactly the time he wanted in Court”. The father is recorded as saying that he did not know what time he wanted with the children. The mother noted that she said that the father knew full well before he moved to the Town N area that she intended to move in March. The mother also recorded “[Mr Rowe] has no business stopping us moving.”

Later in the document the mother noted herself saying that no reasonable objection had been voiced by the father and she further notes, “Offer to visit every four to six weeks to [the father’s town] and [Mr Rowe] can visit in between.”

Significantly, the mother did not raise with the father the content of the conversation with Y which had taken place on 27 December 2013 and neither did she inform the father that she had made a notification to DFCS.

INTERVIEWS WITH THE CHILDREN

Y was interviewed on 31 December 2014 by the joint investigation response team (“JIRT”) comprising Detective Senior Constable H (“DSC H”) and FACS case worker Ms W (“Ms W”). The interview commenced at 3.41 pm.

Y told the JIRT officers that the family used to have a house in Sydney but it was sold and, “our dad, he pushed, he like made us go, he pushed us out of the house…and then he moved in…and he made mum, he made mum pay for the house.” Y said that her mother and father lived in separate houses because they didn’t like each other and she told the JIRT officers, “we’re trying to move to Canberra but we can’t ‘cause he’s stopping us but we’re not.”

When Y was asked what she liked about her father, she said that the father let her and X go canoeing and that was really fun. When asked if there was anything that she did not like about her father, she made no reply. In relation to Ms G, Y said that she liked being driven around by Ms G to look at the Christmas lights. When she was asked if there was anything she did not like about Ms G, she made no reply.

I infer from the transcript that Y was then shown an outline drawing of a naked girl both from the front and the back. A copy of the drawing was not in evidence. The parts of the body were identified by Y starting with her hair and ending with her feet. In relation to each body part she was asked if anybody had touched that part and in relation to each she said that no-one had touched it.

She was then, I infer, shown an outline drawing of a boy, both from the front and the back. The process was repeated and Y denied having ever touched any of the boy’s body parts. When she was asked whether she had touched a big person she said no.

At about 4.15 pm, the interviewer resorted to leading questions. DSC H in cross-examination conceded that anything said from that point in the interview had little probative value. He said to Y “Well [Y] someone told me, someone told me that one time when you were at your dad’s place, that he asked you to do something to him like on his body. Anything like that ever happen [Y]? Has dad ever asked you to touch any part of his body?” To which Y replied “I said, no.”

Y then said “So I didn’t touch, I walked backwards and then I turned around and then I walked up and then I went up the stairs to my bedroom and went up to my bed.” Y was asked “So when did this, tell me when that happened [Y], when did dad ask you to touch him.” She made no reply.

She was asked “What part, like if, on this picture here what part of, what part of dad’s body did dad want you to touch?” (I note that the suggestion that the father wanted Y to touch him came from the interviewer and not from Y) Y replied “I don’t know.”

Y was asked “Was it his hair?” and she said no. She was asked “Was it somewhere else?” And she replied “I don’t know where.” She was asked “What did he say to you [Y]?” and she replied “I don’t know.” The interviewer then said Y “It’s really important that we talk today because you’ve come all this way to talk to me [Ms W], it’s a long way wasn’t it, to come down here and talk to us so can you think really hard and see if you can remember what he said to you? Can you remember?” Y made no reply. She was then directed to the picture of the boy and asked “So see our picture of the boy, did dad, did he say he wanted you to touch the front part of him or the back part of him?” Y did not reply.

Y was then asked “So that day that we’re talking about, was it daytime or night time [Y]?” And she replied “Day time.” She was asked whether it was in the morning or the afternoon and said that it was in the afternoon. When asked “How do you know it was the afternoon?” She said “I don’t know.” The interviewer said to Y “So it was you and dad, is that right?” And Y replied “[X] and [Ms G] were still asleep.” Y said “I got up before [Mr Rowe] ‘cause I tried, I was hiding but he woke up and he found me, then he brought me down, then I, and when it was, when it was in the middle of the day I started to play on the computer.”

Y was asked a series of questions to try and ascertain when the incident had occurred. She variously said that it had occurred before Christmas, before her birthday in November, in winter time and in spring time. The interviewer then said “And you said that you backed away from dad, is that right?” And Y made no reply. She was then asked “Why did you back away from dad, what made you want to move away from him.” And she replied “’Cause I didn’t, ‘cause I didn’t want to do it.” She was asked “Didn’t want to do it, yeah, what didn’t you want to do [Y]?” And she answered “Touching there”. She was then asked to use the interviewer’s pen and draw on the picture of the male figure where her father wanted him to touch and she replied “I don’t know where, I don’t remember”.

The interviewer then said to Y “So when you say you didn’t want to touch him there what do you mean? What if you use my pen and you draw on our picture of our little man here, if you use my pen, you draw on the picture where your dad wanted him to touch you?” And she replied “I don’t know where, I don’t remember.” Y was then asked by the interviewer whether she was asked to touch his hands and the transcript notes her reply as “Mmm.” Y was asked to draw on the picture and again asked where her father wanted her to touch him. And she replied “I don’t know where he wanted me to touch him.” The interviewer said “You know?” And she replied “I don’t”. The interviewer then said to Y “You don’t know. So what made you walk away from him if you didn’t, when he asked you to touch him?” And Y replied “I walked back…‘cause otherwise mum would have been cranky.”

The interview continued. At question 399 Y is asked “When you said you walked away from dad and you went up the stairs and you hid in the cupboard, how did you feel when you hid in the cupboard? Where you happy or sad or something else?” And she answered happy. The interviewer repeated the word happy and Y said “I wasn’t happy that he wanted me to touch him there.” And again Y was asked where she had been asked to touch him.

When Y was asked to draw on the picture where her father wanted her to touch him she said “His hands.” I note that was the suggestion that had been made to her earlier in the interview. She also said on the tip and his hair. The interviewer said “On the end of his finger” and Y said “and his nails were really sharp.” She also said “And he tricked me and then he made like stabbed me.”

The interviewer then asked “Did he want you to touch him anywhere else?” And Y replied “No. Only on his hands.” She then explained that her father was doing something with his hands. She said that he was carrying firewood to make a fire. The interview continued and at about 4.28 pm the interviewer said to Y “So this day when dad wanted you to touch him and ran up the stairs and you hid in the cupboard, you said that dad was carrying some firewood in his hands, did dad have clothes on, or no clothes or something else?” Y said “He had clothes on, he had a shirt, actually he had pants but no shirt on.” Y told the interviewer that X was present. She also said that X went and hid in the cupboard with her. When asked “So why did you both go and hide in the cupboard?” Y said “’Cause he wanted us both to touch him.”

She was asked “What did he say when he said he wanted you to touch him? And she replied “I don’t know.” The interviewer said “Can you think really hard for me, it is very important [Y].” And Y said “That’s all that he did.” The interviewer then said “[Ms W who was taking notes] wants me to ask you [Y], how did you know that dad wanted you to touch him?” And Y replied “I don’t know.” Pressed about how she knew that the father wanted her to touch him she said “I don’t remember”. When asked what her father had done to make her think he wanted her to touch him she said “I don’t know.” And when asked whether X was present she said she wasn’t sure.

Undeterred, the interviewer then said to Y “So can you show me where he wanted you to touch him with my pen?” And Y answered “On my hands.” She was asked “Did he want you to touch anywhere else on his body?” and she made no reply. The interviewer said “Whereabouts, here you go, you take my pen.” And Y said “On the hair”. When asked how she knew the father wanted her to touch him on the hair, she replied “I don’t know. And the face.” Asked whereabouts on his face she said “All around his face.” The interviewer said “All around his face so how did you know he wanted you to touch him all over his face? Did he say something or did he do something?” Y answered “He did something.” When asked what he did, Y said “I don’t know.”

Y then asked when the interview was going to end and was told “Soon, nearly finished, you’re doing a good job for me.” The interviewer then said to Y “I really need you to think really hard [Y]” and she agreed. And the interviewer said “Is there anywhere else on that picture that you can see where dad wanted you to touch him?” and Y replied “Belly button.” Asked “What made you think he wanted you to touch him on the belly button?” Y replied “I don’t know.” Asked “Did he do anything or say anything that made you think that he wanted you to touch him on the belly button?” Y made no reply.

The interviewer then asked “So was there anywhere else on his body that he wanted you to touch him?” And Y made no reply. I infer however, that she drew a circle on the diagram because the interviewer then said “so where did you draw that circle?” and Y said “here.” The interviewer said “What’s that part of his body?” And Y said “His private part.” When the interviewer said “So what made you think he wanted you to touch him on the private part?” Y made no reply. The interviewer said “Did he say something?” Y said “He did something”. Asked “what did he do?” Y said “I don’t know.”

Y went on to say that at the time she had her swimming costume on because they were going out in a canoe and she said, in answer to the question “has dad ever asked you to do that before?” that this had never happened before.

The interviewer said to Y “So someone told me the other day that you said that when you were talking to mum and you put your face down in mum’s lap and mum asked you, Why did you do that, and you said ‘Cause daddy asked me to do it. Has daddy ever asked you to do something like that?” And Y did not reply. The interviewer again asked “Has daddy ever asked you to do anything like that Y?” And again Y did not reply. The interviewer said “Is that a yes or a no?” and Y said “no”.

The interview continued. Y was asked “And was [X] with you when dad wanted you to touch him there or was he somewhere else?” And she replied “He was with me.” Asked “Did dad ask [X] to touch him anywhere” and Y said “Yes”. Y went on to say in response to a series of questions, 12 in all, that the father had asked X to touch him on his feet, his knees, his private parts, his bellybutton, his “boobies”, his ears, his eyes, his mouth, his hair, his face, his hands and his arms.

The interview continued. Y was asked whether or not she was ever asked to keep a secret and said she had not. The interviewer said “Even after this happened?” Y made no audible reply and the interviewer said “No. O.K. All right” and Y again asked how much longer the interview would last.

When asked “Have you only told me the truth today?” Y made no audible reply. The interviewer asked “So everything you’ve told me today really happened?” And again she made no audible reply. The interviewer said “What does that mean?” and Y said “Yes”. The interview concluded at 4.40 pm having commenced at 3.41 pm.

Because of Y’s statements that X was present the JIRT team requested that X be interviewed and that interview took place on 2 January 2014. Again the interview was conducted by DSC H.

When X was asked what he liked about his father, X replied “I like him because, ‘cause he doesn’t get angry very often. And he also lets me do basically whatever I want except tackling [Y].”

When asked whether there was anything he did not like about his father, X said there was nothing he didn’t like. When asked whether there was anything he didn’t like when he was at his father’s home, X said “I get headaches a lot when I am at his house,” and that he didn’t like being at his father’s house when it was windy because the beach was really rough.

X was asked “Now remember how I was talking to Y the other day, she was telling me about something that happened when you guys were visiting dad’s place.” And X replied “When we were, when were just with [Ms G]?” The interviewer said “No, no, when dad was at home. And [Y] told me something that, that she didn’t like, dad wanted to do something she didn’t want to do. Do you remember anything like that happen [X]?” And X said “I don’t remember.”

The interviewer then said:

Don’t remember, all right and she told me that, that, that she was in the room where the computer, dad’s got some computers, she was in the room where the computers were and dad was in the room and so was [Y] and dad wanted [Y] to touch, to touch him somewhere on his body. Do you remember anything like that happening? No? All right. And she told me that when, when this happened dad had a pair of, had a pair of swimmers on, a pair of blue swimmers with some stripes down the side. Do you, do you remember that? Do you know, have you seen dad wearing those swimmers?

And X replied “No”.

The interviewer asked X:

So she told me that, that, that your dad wanted, wanted [Y] to touch him somewhere on his body that she didn’t want to touch him and that she, she left the room because she didn’t want to do that and then she went and hid in the cupboard and you’ve hid in the cupboard with her, with a torch. Do you remember that happening? No?

And X said “I don’t remember that.”

X was asked whether he ever played hide and seek at his father’s house and he replied that when two other children are over they play hide and seek all the time. When asked where they normally hid, X described a number of hiding places including “this cupboard thingy”, “top of the bunk bed” and “inside boxes”. X also said that Y usually hides in the same spot, which is on the top bunk. X said that sometimes when Y is playing hide and seek, she hides in the wardrobes or the cupboards.

The interviewer said “Sometimes so but, but this time she’s talking about is, is after she left the room and you left the room with her, she went upstairs and she hid in the cupboard, you both hid in the cupboard at the same time. Do you remember any, do you remember anything like that happening?” And X replied no. The interviewer then said “No? And she said you had a torch. Remember anything, anything like that?” and X said no. X described having a torch and using the torch when they went camping and using a torch to go koala spotting.

The interviewer again asked X “So going back to what Y was telling me the other day, does, have you ever had, seen anything like that happen when you’ve been at dad’s place?” And X said no.

Asked “Has dad ever asked you to touch him on his body anywhere, [X]?” X said no. The interviewer said “No? Never? All right. Has, has [Y] ever spoken to you about, about dada wanting him to touch her, wanting her to touch him I should say?” and X said no. The interviewer asked “Has she ever said anything to you like that? Has she ever said anything to you about things that she doesn’t like doing?” And X replied no.

X was asked about the incident when Y was playing with the Elmo doll. The mother had brought the Elmo doll to the interview. X told the interviewer what had happened in substantially the same terms as he had told the mother.

X told the interviewer that he was looking forward to going to his father’s house that day.

After X demonstrated what Y had done with the Elmo doll, the interviewer said “Simon just wants me to ask you, have, has [Y] ever said anything to you about, she, that she’s seen someone do that, do things like that ?” X replied no. He was asked “Have you ever seen anyone do something like that, like people doing that?” And he replied no. He was asked “Or has, has [Y] talked about anyone wanting her to do that for them, to them” and X replied no. He was asked “Has anything like that happened to you, [X]?” and X replied no.

As a result of the interviews with Y and X, DSC H concluded there was insufficient evidence to proceed with any criminal prosecution or to apply for an Apprehended Domestic Violence Order.

The children were in the care of the father from 2 January 2014 until 6 January 2014.

DOCUMENTS PROVIDED TO DFCS BY THE MOTHER

The mother provided DFCS with an edited selection of the evidence that had been available in the proceedings before the FCC in 2013. Relevantly, she provided a copy of the notes of counselling undertaken by the father in 2008 and 2009 when he was referred to a psychologist, Mr A, for counselling in relation to major depression and marital difficulties. The notes extensively detailed conversations with the father about his use of pornography and masturbation. Significantly, she did not give DFCS a copy of the report of Mr A which said, inter alia:

I saw no evidence of a paraphilia, pathological sex addiction, nor any other dysfunction of sexual behaviour.

Mr A reported that he was not aware of any factors that would suggest a risk to the children in his care and that the father had a mature and responsible attitude to the care and nurturing of the children.

The mother also gave DFCS copies of notes produced on subpoena by her counsellor, Ms J. The father had participated in some sessions with Ms J during the period when he was consulting Mr A. She gave DFCS a copy of an affidavit sworn by her on 12 December 2010 setting out her concerns about the father’s sexualised behaviours during the marriage and a copy of the Notice to Admit Facts to which reference was made earlier in these reasons.

She provided the Notice of Abuse that she had completed in December 2010 which asserted “The father has demonstrated and disclosed to the mother and health professionals an increasing sexual obsession and sexualised behaviour in relation to the children X and Y between 2008 and 2010”.

The mother gave DFCS one page from Dr R’s second report with her hand written comments but did not provide Dr R’s conclusions.

She did not tell DFCS that in May 2013 she had consented to orders whereby the children would spend unsupervised time with their father after consideration of Dr R’s two reports and after the father had been cross-examined in the proceedings.

The file of DFCS records that on 5 January 2014 a report was completed, noting the material provided by the mother and stating “Although there is (sic) numerous references to n/f “sex addiction” and preoccupation with sex and masturbation, as well as infidelity there is no information which supports that [the father] has caused sexual harm to [Y]”.

THE INCIDENT ON 12 JANUARY 2014

On 12 January 2014 the mother and the children were visited by the mother’s friend, Ms M, and her children. In the course of playing together, the M children reported to their mother that “[Y] is doing rude stuff”. The mother asked Y “Are you [Y]?” but Y did not answer. The mother said “Well stop it please [Y]” and the children continued to play.

Ms M deposed that when she and her children were on their way home, her son complained that Y had “said she would stick her fingers in my bum. She stuck her fingers in my bum she tried to pull my pants down but I didn’t let her. Then she grabbed my dick with her other hand”.

Ms M’s daughter told her mother “she kept doing it when we went out on the balcony. Y kept chasing us around and saying “I’m going to stick my fingers up your bum”. Ms M deposed that her daughter said “She did it to me too mum” and demonstrated the way Y had held her hand with four fingers out and her thumb tucked in.

Ms M made a report to DFCS.

Ms G, in oral evidence, reported a recent conversation with Y about this incident. Y told Ms G that she and X and the M children were playing upstairs and the boys were running around. Y said that she asked them to stop and grabbed them around the waist and that she got into trouble.

None of the adults who gave evidence saw what happened.

14 JANUARY 2014

The mother deposed that on 14 January 2014 she was with Y at the beach. The mother said to Y “I’m proud you said no to [Mr Rowe] asking you to touch him. [Detective H] wants to help. Can you remember any more?” Y said “It was dark mummy” The mother asked “did someone say something nasty would happen if you told?” Y nodded.

The mother reported the conversation to DFCS. The records produced by DFCS say:

[The mother] asked [Y] if she was OK. [The mother] asked her if it has something to do with her conversation with (Detective H). [The mother] stated that [Y] half nodded and said “I don’t remember anymore”. She said “it was dark when it happened”. [The mother] stated that [Y] went quiet and buried her face in her lap. She said “I don’t remember anymore”. [The mother] asked her “have you been told not to talk or something nasty would happen to you if you did?” [The mother] said that [Y] nodded.

The mother in her affidavit omitted to say that on two occasions in that conversation, Y told her that she didn’t remember anymore. There is no explanation for the discrepancy in the mother’s version of the event in her affidavit and the version recorded by DFCS.

The maternal grandparents each depose to a conversation with Y in January 2014 when, in the presence of the maternal grandmother and X, Y said “Grandpa, [Mr Rowe] did something really wrong”. He asked “What was that [Y]?” and she said “He asked me to rub in his private parts”. The maternal grandfather said “and what did you do” and Y said “I said “no”.

On 25 January 2014 the mother notified the father by text message that there would be no further contact between him and the children.

On 28 January 2014 the father filed a contravention application. On 31 January 2014 the mother filed an application seeking interim and final parenting orders.

COUNSELLING WITH MELISSA C

DFCS recommended to the mother that Y have counselling with Ms Z of the Child and Family Health Team of the AA Local Health Service. The mother declined to use the services of Ms Z and instead arranged for Y to be counselled by Ms C (“Ms C”), a psychologist in private practice. Ms C’s children attend the same school as Y and X. Ms C’s child is in Y’s class. The father was not told that Y was to see Ms C. Ms C commenced her sessions with Y on 24 February 2014.

Ms C’s notes were in evidence. In her first session, Y played with the dad doll and the child doll. Ms C noted that “The Dad character was very positive and appropriate”.

On 11 April 2014, in her sixth counselling session, Y told Ms C that her father had asked her to touch him on his private parts. Ms C’s notes do not record the conversation in direct speech. Ms C asked Y if this happened one time or more than one time and records that Y stated “more than one time. Lots of times.” The notes record that Y was asked where this happened and told Ms C that it occurred in the father’s bedroom and that X was not present. Ms C made a report to DFCS. Ms C advised DFCS that she considered the risk of harm to Y to be considerable, should she be forced to see her father.

In her affidavit, Ms C deposed:

[Y] continued to make reference to the “yucky thing” or the “rude thing” that “[Mr Rowe]” had done in subsequent sessions, but was not more specific or detailed in her descriptions.

The notes of the session on 31 May 2014 suggest that the session concentrated on protective behaviours. There is no reference in the notes of that session to the “yucky thing”, the “rude thing” or “[Mr Rowe]”.

Similarly the notes of the sessions on 21 June 2014, 19 July 2014 and 23 August 2014 contain no such references.

On 7 August 2014 the notes record that Y “didn’t think about the “rude thing” with [Mr Rowe] when she was in the shower.”

On 13 September 2014 the notes record “No discussion around [Mr Rowe] or S.A.” which I infer to be a reference to sexual abuse.

Ms C sent an email to DFCS on 6 June 2014 in which she said:

I have been given your details by [the mother] in regards to my client [Y]. I was concerned that the report I made to the DoCS helpline in response to my mandatory reporting duties was closed just 4 days later, with the reason that “the matter had already been investigated” being cited.

I was of course aware that a similar piece of information had been reported previously, however I was always led to believe that new or similar pieces of information, particularly when provided by a new reporter would be married up with prior pieces of reported information so that the department might gain a more complete picture of the potential risk of harm to a child. This is particularly pertinent in this case, given that the matter is currently going through the Family Court, and the outcome may be that the person associated with the risk of harm (i.e. the father) may indeed be granted unsupervised access to the child.

I am extremely concerned for this child, and feel it would be a gross injustice if crucial and relevant evidence for the family law matter was omitted.

Are you able to please explain what the process has been here, and whether there is any possibility of the matter being looked at again?

CHILDREN AND PARENTS ISSUES ASSESSMENT

Ms V, a Family Consultant in the Newcastle Registry of the Family Court Australia, conducted interviews and prepared a Children and Parents Issues Assessment on 6 May 2014. She noted that key issues for the report included the allegations of sexual abuse perpetrated by the father and allegations that the father has a predilection for pornography and has a preoccupation with excessive sexual behaviour.

At the time Ms V saw the children they had not spent any time with their father since January 2014. X told Ms V that he “sort of” missed his father and would like to see him again. X said that his father had done nothing to hurt him but that he had heard from his mother “about the stuff what he’s done to other people”. When asked if he knew who the other people were X said “No. I just know it’s not safe”. X said he had fun with his father and would not mind visiting his father without Y. (It is notable that X’s statements about his father not being safe contrast with his statements made in the JIRT interview on 2 January 2014).

Y told Ms V that it is not safe at Dad’s because “he did something not right”. Ms V explored the safety issues and Y told her about a trampoline and a dangerous tree. Y did not express any concern about her father bathing or showering her.

Ms V reported:

[Y] then said “My dad done something wrong. Really wrong. Really rude”. [Y] would not venture any further and the issue was not pursued. [Y] was asked who she told about the “really rude thing happening” and she said the mother and the maternal grandparents.

In her oral evidence, Ms V said that, from the information she was given by the mother, she understood that DFCS had both substantiated that Y had been sexually abused and that the father was the perpetrator. It was on that basis that she recommended that the children spend no time with the father. Ms V gave evidence that when the correct position was made clear to her, that is, that the allegation that Y had been sexually abused by her father had not been substantiated, Ms V reviewed her recommendation and proposed that the father have supervised time with the children.

FURTHER INTERVIEW OF Y BY DFCS

The DFCS file records a notification, presumably by the mother, on 3 June 2014. The file records:

…on Friday night [Y] initiated conversation and she started saying how she and [X] ([Y’s] brother) could go to [the father’s] and they could play two player Minecraft. [Y] then said “It is OK, if [the father] asks me to do something, I will just tell him no”. The reporter then spoke to [Y] and explained how they needed to make sure that [Y] was safe at all times. X said that he didn’t want to go to [the father’s] and said he wanted to stay with his mother.

On the same night [Y] also made the following disclosure, “One day when [X] was playing on the computer, [the father] took me to the bedroom and he pulled his pants down and his undies too and he made me look at him. At that point I did this ([Y] looked up at the ceiling and was looking behind her head) and he kept turning my head and making me look. I tried to get away but he caught me by the ankle and made me look again.” [Y] then went ‘dazey’ for a while. The reporter asked [Y], “Did he make you touch him?” and [Y] replied, “Yes”.

On 3 June 2014 the mother sent an email to DFCS in which she said, inter alia:

Last Friday [Y] volunteered further information to me. [Y] said while [X] was playing on the computer and her father’s current girlfriend was “out shopping”, that her father had made her touch him and kept turning her head to face him with his pants down. She said he grabbed her by the ankles when she tried to get away. I reported this to FACs.

The mother was anxious to ensure that JIRT received both that information and Ms C’s notification to DFCS on 6 June 2014.

The maternal grandfather deposed that on 14 June 2014 Y told him that her father walks around without clothes, and that her father told Y that she and X could too, but Y said that they don’t like to.

On 16 June 2014 the mother was told by DFCS that the case had been allocated to a new case worker, Ms D (“Ms D”), and that Y would be interviewed again. The mother was anxious that Ms C should accompany Y in the interview and asked Ms C to contact DFCS. DFCS decided that involvement of Ms C in the interview might provide bias and declined to allow her to be present.

The mother continued to press for Ms C to be present.

INTERVIEW WITH MS D ON 20 JUNE 2014

Ms D interviewed Y on 20 June 2014. Ms W was present to take notes.

Ms D asked Y about her father and Y said “We both see [Mr Rowe] – if only one of us did we wouldn’t be safe.” Asked why, Y said “He’s not nice. He does rude things he’s not supposed to. He done it to me and [X].”

Y was asked about the things she both liked and disliked at her mother’s home and her father’s home and she did not identify anything at her father’s home that she disliked except for when he got angry and smacked her on the bottom.

Ms D then asked Y “You told me before sometimes dad does rude things. Can you tell me about them?” And Y said “I forgot already.”

Y was then asked whether there were things that happened in dad’s house that made her worried and she did not reply.

She was asked “What are the rude things daddy sometimes does?” and she did not reply. She was then asked “Can you tell me where does it happen? At his house or somewhere else?” And Y said “At his house. He’s probably not in jail. It’s a bit too rude.”

Ms D said “You’re allowed to say. You won’t be in trouble.” And Y said “He um, pulls his pants and undies down and tried to show me.” Ms  D said “Where?” Y said “In my bedroom.” Ms D said “Then what happened?” And Y said “Can I use your bedroom and you, so he did that rude thing – he pulled down undies. He tried to show me.” When asked what happened then, Y said “I was looking at his face and I said I’m not doing it. He said I have to or I’ll tell the police you’re doing the wrong thing in telling a lie. I turned my head and he turned it back then I turned it the other way and he turned it back.” Ms D said “Then what happened?” And Y said “He called the police.”

Y was asked to draw a picture of the house where these incidents occurred with her father and to indicate on the drawing where her father was standing. Y said “He was climbing up the ladder [I infer of the bunk bed] so he could get me. I was thinking of jumping down.”

Ms D asked Y where her father was when he pulled down his pants and undies and Y pointed to the top bunk. Y then said that her father was wearing “only undies” and that he had no pants on because he “chucked them away”. Y said that when her father pulled his undies down she tried to escape but “he got my ankle”. Y said that she tried to run and get down the ladder. She said that she almost fell off but her father pulled her up and said “listen to me or you will get a big smack”. Ms D asked what happened next. Y said “He pulled his pants down”.

Ms D asked Y whether anybody had told her to tell someone about the “rude thing” that her father did and Y said “Mum said to tell only you”.

Ms D asked Y whether her father had touched her and Y said no. When asked where her father’s hands were, Y waved her hands around in the air and said “up in the air and going like this”.

She was asked whether her father had touched her in the shower and she said no. She said that he had talked about “private parts” and when asked what he said she said “Really rude things that I can’t even say”. Ms D said that Y could say the words and Y said “Shit and crap and fuck”.

Y was asked to tell Ms D what her father said and she said she had forgotten already.

She was asked what it was that her father wanted her to do and she said she didn’t remember.

Ms D asked Y “What did [the father] want you to do on the bed?” and Y replied “Really rude thing.” Asked what happened Y said “Pulled pants and undies down.” Asked whether her father had made her do anything Y said “Two things. He pulled pants and undies down and tried to get in the shower and he brung me with him. Had to go to bed after I finished colouring in. Went back home the next day.”

Y was asked to draw on the picture where she was on the bed and whether she was lying, sitting or standing and Y said “sitting”.

Asked about her father Y said “Laughing haha you can’t get away. Then he brung me in and did the rude things in (sic) shower”. Ms D said “Rude things?” And Y said “Showed me his body and what they do”. Ms D asked “What did they do” and Y said “I don’t remember. Showed me his private parts, belly. He put me in my swimmers ‘cause he didn’t wanna see my parts. He always sees my parts in the shower.”

Y was asked whether her father had done any other rude things and she said no. She told Ms D that her mother doesn’t like her father and her father doesn’t like her mother.

Y was asked if she had ever told anybody else about the rude thing that the father did and she said that she had not told her mother or Ms C or X.

She was asked whether there was anything that the father did that she didn’t like and she said no.

She was asked whether there was anything her father did that made her frightened and she said no. She was asked whether or not her father had told her to keep a secret and Y replied “He has with [X]. Gave him wine and he has diabetes. Grandpa saw.”

It is not contested that that piece of information is not something that Y could have observed herself.

On 23 June 2014 Ms D met with the mother to discuss the interview with Y and to tell the mother that there was no clear disclosure from Y of sexual abuse by the father. The mother was told that:

[Y] was unable to give details around what had actually happened and give a sequence of events though she was able to describe other things in detail. [Y] also expressed that she was not concerned for her father, she did not feel unsafe, would like to live with him, they did not have secrets and [Y] could not recall any other time this had happened.

The file note records that the mother was told that there was a need to look for alternate explanations to Y’s descriptions as well as to do full assessment of the risks associated with both households.

On 23 June 2014 Ms D completed a document entitled SDM Safety Assessment Decision Report”. At paragraph 11 of that report, Ms D states:

There is no current information to suggest that [the mother’s] functioning or physical condition may impede her ability to care for [Y]. Community Services has noted that [the mother’s] response to Community Services and JIRT investigations into alleged sexual abuse of [Y] by her natural father [named] has caused concerns about her emotional and psychological state, as well as the psychological effects of [the mother’s] behaviour on [Y].

JIRT initially interviewed [Y] in December 2013 and was unable to substantiate harm to [Y]. Since this time [the mother] has acted to collect her own ‘evidence’ from [Y] and older sibling [X], including home recorded interviews with [Y] as well and numerous self reported discussions with [Y] centring on the ‘rude things’ [the father] does. Despite providing CS with these recordings, [the mother] maintains that she never speaks negatively of [the father] and never brings up any questioning about sexual abuse with [Y], which does not seem to be the case. [The mother] presented as being certain that abuse had occurred and it was a matter of time before the child felt comfortable enought (sic) to tell everything and [the mother] has engaged a psychologist to counsel [Y] for sexual abuse. [The mother] feels she knows the ‘truth’ but others are not listening or cannot see what is in front of them. As a result of [the mother’s] behaviour during the past year, [Y] has come to understand that she is ‘unsafe’ in [the father’s] care and he does ‘rude things’, though she cannot give details about what “rude things” happened. It appears that during interview [Y] may not be recounting events, but could likely be repeating information given to her in leading questions. When asked if she felt worried or scared of [the father] or [the father] did anything rude at another time [Y’s] clear response was ‘no’. [Y] was asked where she would like to live and she said with Dad.

The maternal grandfather deposed that on 9 July 2014 Y said to him “I don’t want to go to [Mr Rowe]’s” and when asked why, Y said “You know. He made me look in his private parts”. On 14 July 2014 the maternal grandfather made a notification to DFCS.

SUPERVISED TIME

On 30 July 2014, after a hearing, orders were made for the appointment of Dr B as a Single Expert and for the children to spend time with their father for two hours each fortnight supervised by PP Family and Counselling Services (“PP”).

The father attempted to arrange a supervised visit at PP on 9 August 2014. PP produced all of the text message communication in relation to arranging the sessions with the children. On 22 August 2014 the father was told that PP had tried to contact the mother but she did not return their calls. On 23 August 2014 there is a reference to the mother completing the intake interview the following week and the father did not see the children that day. No time could be arranged for 30 August. The children first spent time with their father at PP on 6 September 2014, nine months after their last contact with him.

THE RECORDING OF INTERVIEWS WITH DR B

Dr B conducted interviews on 14 August 2014. The mother insisted that she have Ms M present as a support person during her interview. Ms M insisted that she be present while the children spoke to Dr B and while he saw the children with their father.

In the course of cross-examination of Ms M, it emerged that Ms M had recorded the interviews conducted by Dr B with the children, with the father and the children and with the mother, on her mobile phone and had used those recordings to prepare her affidavit.

Rule 1.19 of the Family Law Rules 2004 (Cth) prohibits recording by any means of proceedings in the Family Court of Australia including, by virtue of rule 1.19(1)(e), any attendance with a single expert. Rule 1.19(3) provides that a person who commits an offence by contravening the prohibition on recording in subject to a penalty.

Ms M was given a certificate pursuant to the provisions of section 128 of the Evidence Act 1995 (Cth) (“Evidence Act”) in relation to the commission of the offence.

Counsel for the mother argued that the illegally obtained evidence should be admitted and relied upon, pursuant the provisions of section 138 of the Evidence Act. The matters which the Court must take into account when exercising a discretion to exclude improperly or illegally obtained evidence are set out in section 138(3).

EVIDENCE ACT 1995 – SECT 138

Discretion to exclude improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:

(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or

(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence; and

(b) the importance of the evidence in the proceeding; and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and

(d) the gravity of the impropriety or contravention; and

(e) whether the impropriety or contravention was deliberate or reckless; and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Counsel for the mother argued that the best interests of the children were the dominant consideration and that the best interests of the children required that the evidence be admitted. I do not accept that submission.

The mother disputed the accuracy of some of Dr B’s record of the interviews with her. In support of that argument she has included in her affidavit her evidence of the conversations which took place between herself and Dr B. Similarly, the maternal grandfather deposed that he prepared notes after his interview with Dr B and has included in his affidavit his version of their conversation. Evidence in that form, both from the mother and from the maternal grandfather, is appropriate. (Unfortunately, none of the alleged inaccuracies was put to Dr B).

There is no suggestion that Ms M informed Dr B, the father, the mother or the children that she was recording the interview process. In his oral evidence, Dr B said he was unaware that the interviews were being recorded.

The mother in her oral evidence said that she learned after the event that Ms M had recorded the interviews but was not aware of it at the time.

The Judges of the Family Court of Australia, in the exercise of their rule making power, have determined that there should be a complete prohibition on the recording of family law proceedings and specifically that there should be a complete prohibition upon the recording of any attendance with a single expert for the purpose of the proceedings.

That determination was made in the full knowledge and understanding that what occurs in interviews with Court appointed experts may be the subject of dispute and that the evidence of the views of the expert, and thus of what was said in the interviews, is of great importance in parenting proceedings.

The purpose of the rule is to prevent the very mischief that has occurred here.

It was not submitted that anything in the character of these proceedings was so unusual or extraordinary as to warrant any flouting of the rule.

Ms M was ordered to produce the device on which she made the recording and to delete the recording in the presence of the Court. She gave evidence on oath that there was no copy of the recording.

The portions of her affidavit which were based on the recording were struck out.

DOES THE FATHER POSE AN UNACCEPTABLE RISK TO THE CHILDREN?

The task of assessing unacceptable risk, where a parent has made an allegation of risk of abuse, is one which must be approached on the basis of the evidence.

There is no place in the assessment process for assumption, belief or instinct.

The assessment must be based on evidence given by those experts qualified to give evidence of the effect of the interview process, (whether the interview was conducted by the mother or some other person); the manner in which children of the relevant ages respond to that process and the way in which what children say and do should be interpreted.

It is the mother’s case that both of the children are at risk of sexual abuse in the care of the father.

Although her case was not clearly articulated, I infer from the cross-examination on her behalf and from the submissions that her case had three elements:

Firstly, the father had problematic behaviours in relation to his masturbation and viewing pornography.

Secondly, the father was a liar and therefore his denials that he had behaved inappropriately towards the children would not be accepted.

Thirdly, that the children had, in the process of the interviews with JIRT, with the mother and with Ms D, made disclosures that should be accepted as establishing unacceptable risk to them in the care of the father.

As to the first proposition, in her trial affidavit the mother said:

The problem is not that [the father] masturbates and looks at porn but that he lacks boundaries with the children.

And:

I am of the belief that there is no prospect of [the father] being able to control his sexual urges in front of the children.

The father freely admitted masturbating regularly and that he watched adult pornography online. He admitted that he had engaged in both actions during the marriage and that he continued to do so.

The mother’s case appeared to be that because the father masturbated and watched pornography, he was likely to pose a risk to the children. It was not the mother’s case that the pornography involved images of children.

That proposition was not put to Dr B who said in his report that the mother was convinced that the father had sexual deviant problems because he openly admitted to masturbating and watching pornography. Dr B reported:

There was also discussion about pornography and masturbation which the mother seemed to consider as being deviant. I believe that the mother was sexually naïve and did not have a clear concept of normal human masculine sexuality in that masturbation and viewing pornography as activities themselves did not equate to a sexual deviation or danger.

A similar view had been expressed by Mr A in his report dated 23 August 2010 where he said:

It should be noted that, the pornography use, while a source of tension in the marriage, and regarded as morally wrong from his and his wife’s perspective as evangelical Christians, was not atypical with reference to wider society. There was no evidence that he was accessing any illegal material or material which was outside of popular use.

There is no evidence before me that there is any causal link between masturbation, watching pornography and child sexual abuse.

As to the second proposition, the mother relied heavily on counselling notes produced on subpoena by Mr A relating to counselling sessions in 2008 and 2009.

Mr A recorded in his notes that the father told him that he had always been a liar; that he had lied to his parents about going to the pub during school hours and his use of marijuana; that he had lied about shoplifting as a teenager and that he would lie to the mother about viewing pornography.

Mr A’s notes record that the father “Feels he’s a compulsive liar”.

The father freely admitted in cross-examination that he had said those things to Mr A in the context of therapy. He said that he was depressed and desperate to restore the marriage and felt that he was responsible for its failure. He said that he wanted a total cleansing and that he put every little sin on the table in counselling.

The father was cross-examined about alleged lies.

Counsel for the mother asked the father about a passage in the report of Dr B where he is reported as saying that he had an erection when he was in the bath with X during the marriage. The father gave evidence that Dr B’s record of what had been said was incorrect. He said he did not feel it necessary to correct the record because he had been extensively cross examined about this incident in the 2013 proceedings and did not consider the incident was relevant to the present proceedings. I do not consider that this passage of cross-examination demonstrates that the father lied on oath.

The father conceded in some instances in cross-examination that his recall of an incident was inaccurate, however there is a distinction to be drawn between that concession and establishing that a person knowingly has told a deliberate falsehood in order to give the Court an incorrect impression.

As Ms C said in her oral evidence, the memory of adults, as well as the memory of children, is malleable and capable of distortion by intervening events.

Caution must be taken in distinguishing whether a person has deliberately told a lie or whether that person had given an inaccurate version of an event, based on an inaccurate recollection.

Even if a witness has been found to have deliberately lied, that fact does not establish the contrary proposition.

I do not accept the proposition that, because the father told Mr A in counselling, in the circumstances described, that he had lied and felt he was a compulsive liar, it necessarily follows that he has lied under oath when he denies having behaved inappropriately towards the children.

I have set out the evidence in relation to the interviews with the children at length earlier in these reasons.

In order to assess how their statements should be interpreted it is necessary to consider the evidence of Dr B.

In so far as it was submitted by Counsel for the mother that I should, in watching the video recordings of the JIRT interviews and the interview between the children and the mother, draw my own conclusions of the significance to be placed on what the children said, based on their appearance and demeanour, I specifically reject that submission.

The assessment and interpretation of the children’s interviews is a matter for expert evidence and Dr B is the person with the demonstrated expertise to conduct that assessment.

THE EVIDENCE OF DR B

Dr B was the court appointed expert. He is a specialist child, family and adult psychiatrist with over 25 years’ experience working as a psychiatrist in clinical and forensic capacities. In addition to his clinical work he has extensive experience in preparing reports for civil matters and for the Family Court of Australia.

In cross-examination by Counsel for the mother, Dr B gave evidence that he has expertise in relation to the cognitive development of children, attachment disorders, autistic disorders, youth depression, behavioural disorders, anxiety disorders, psychosomatic disorders, post-traumatic stress disorders, developmental disability, parenting capacity insofar as that is an issue that is relevant to child and adolescent and family psychiatrists, mental illness in parents, learning disorders, family therapy, the effects of sexual abuse and perinatal psychiatry.

Dr B gave evidence that in preparing his report he was providing his expertise as a psychiatrist and mental health expert; and his expertise in understanding child development and the interaction between children and adults in the context of litigation and family law problems between parents and how children can be influenced by that.

In the context of interviewing children about allegations of sexual abuse, Dr B gave evidence that his expertise was in understanding child development, emotional development of children, cognitive development, the ability of children to understand processes and the ability of children to understand the responses to adults and interaction with adults.

Dr B, in answer to questions by Counsel for the mother, said that he regarded himself as having a lot of experience in understanding sexual abuse and the effects of sexual abuse on children.

Dr B gave evidence that he was familiar with the interview procedure adopted by the police and had a lot of exposure to literature about interviewing children in the context of sexual abuse.

Dr B said that most of his experience was in relation to dealing with and treating children who have been sexually abused and have undergone treatment. He has dealt with the psychological impact of sexual abuse in his clinical work. Dr B has also had experience in looking at sexual abuse allegations in the context of family law proceedings.

I accept that Dr B’s expertise has been demonstrated for the purpose of these proceedings.

Dr B viewed the recordings of the JIRT interviews with Y and X and the video recording made by the mother of X with the Elmo doll and the subsequent conversations by the mother with X and Y. He also had available to him the material which it had been agreed was relevant to the issue.

After Dr B’s report had been completed and before he gave his oral evidence he was provided with the material which had been filed in the proceedings after the date of his report.

It was Dr B’s opinion that the mother had embarked upon a process of interrogation and misunderstanding of how children report facts and beliefs to parents.

He said that children under the age of seven, like Y, respond to fear of disappointing or fear of punishment as the guide for what answers to give to interrogation from an adult. Children between eight and 12 respond to what they believe are the facts about what is the truth, which is what X attempted to do with his mother.

Dr B said that it is not until a child reaches the age of 13 years or older that the child can understand intention about telling the truth. With repeated multiple questioning and interview, this can often lead to spurious disclosure. Dr B believed that this was demonstrated in the police interview and in the repeated questioning of the mother.

Dr B said that young children often masturbate and that masturbation is a normal part of human sexuality even in children. He said that often parents do not understand that young children do masturbate and then parents become alarmed because they think that this may be abnormal behaviour for children.

Dr B said that many years of research into human sexuality indicates that masturbation is a normal part of human sexual experience and that it is also normal for children to behave in self stimulatory ways.

In relation to the incident reported by the mother where Y, in the bath, referred to the “porcupine game”, Dr B said that it was possible that Y’s behaviour could be interpreted as sexualised behaviour and it was also possible that her behaviour was normal playfulness for a five year old child.

In relation to the incident where X demonstrated, on the video recording, Y’s behaviour with the Elmo doll, Dr B commented:

The attempted disclosure interview by the mother seemed chaotic and highly inappropriate. It is worth noting the children of the age of five are in a preoperational or magical stage of thinking. In terms of understanding lying and what’s correct, children of this age respond to punishment. Therefore the correct answer for a five-year-old when being elicited from a parent or adult, will be whatever the child thinks will avoid punishment, [Y]. An older child such as [X], at the age of eight or nine, the correct answer is how children of that age understand lying. It is worth noting that when [Y] was giving responses, that [X] was correcting her and making statements that what she was saying and reporting during the joint interview with the child and the mother, that what [Y] was saying was incorrect. It was quite clear from the interviews with [X] that he tried to correct his mother and denied that [Y] had made certain statements, or that there had been any sexual contact.

In his oral evidence, in response to questions about the demonstration with the Elmo doll, Dr B said that his interpretation of the incident was that [X] was trying to find a way of reporting to the mother something he felt she would be pleased about and that he wanted to provide information to the mother that he knew the mother would want.

Dr B questioned the fact that X even went to the mother with the Elmo doll story. He said that children play with dolls all the time and do all sorts of things and sexual play is not uncommon in children. Playing games with regard to genitals and being curious is quite common; it is part of the normal repertoire of children’s behaviour. So for X to actually go and report the incident to the mother indicated to Dr B that X was aware that the mother had a level of concern about these issues and that he was perhaps trying to assist her or provide some support to her.

Dr B said “I think the whole Elmo story has been taken to such an extreme that it has created enormous problems in these children’s lives. It could have been dealt with in a very matter of fact way by a mother who understood that children have sexual play and at times may need to be redirected.”

Dr B did not accept the premise that Y’s activity with the doll was indicating oral sex. Dr B was not convinced that the Elmo doll incident was necessarily what the mother concluded it to be. Significantly, Y was not asked what she was doing with the Elmo doll.

In relation to the video recording of the interview between the mother and the children, Dr B was strongly critical. He said that it was not appropriate for a mother to conduct a disclosure interview with her own children and that the whole construct of the video was flawed.

Dr B had “major problems” with the questioning and the inappropriateness of the whole situation and the weight which has been consequently put upon what the children said. He expressed the view that the original purpose of the mother was totally flawed.

Dr B said that he was not convinced that what was demonstrated with the Elmo doll was sexualised play on the part of Y and referred to the necessity to understand what Y’s intention was with the Elmo doll. Even if there was sexualised play with the Elmo doll, Dr B said that to assume the children were sexually abused by the father as a consequence is an enormous leap in logic.

Dr B said the mother has based her fears and anxieties on events going back into the marriage and the real issue is whether or not those anxieties are based on a valid premise in the first place. He went on to say that for the mother there was no clear reference point of objectivity. He expressed the view that the mother had sought help and had become involved with reference points that were unhelpful for her, which confirmed her anxieties and escalated her belief system. This developed into what he described as an illusion of validity in relation to her belief that the children had been sexually abused.

Specifically, in relation to the incident with the Elmo doll, Dr B said that it is quite common for children to be involved in sexual type play with other children and with toys and dolls and parents have to manage those situations. He said that some form of sexuality in children’s play is not uncommon and is part of normal curiosity and growth.

Dr B specifically said in relation to questions in relation to the Elmo doll incident:

One of the problems here is the series of questioning and what this all means and it is very difficult to know, first of all, what [X] observed about what [Y] had done and said and then what [X] reported to his mother and then what his mother then questioned X about and then [Y] about to then be able to be clear about how much of what transpired was accurate. That five year old children are normally playing in a fantasy world. So what the child was doing in a fantasy world may not have been sexualised at all. It might have been what [X] had thought was sexual. So I think there are a whole range of questions. And to presume that this was a sign that sexual abuse was occurring seems to be a quantum leap.

In relation to the mother’s evidence of the conversation and events which occurred on 27 December 2013, Dr B said that the mother’s response in saying to Y “Where did you learn that?” appeared to be highly inappropriate. He said that the question was leading because it contained the suggestion that Y’s behaviour was learned behaviour. He also said that there was no logical connection between the actions of Y and Y’s saying that the father asked her to rub his private parts. The subsequent description by Y of what she did, did not, to Dr B, make any logical sense.

When asked to comment about the mother’s interpretation of Y’s actions on that occasion, Dr B said that he believed that the mother’s interpretation was flawed, that she already had a heightened fear of sexual abuse and that her interpretation of the children’s behaviour was already pre-determined.

Dr B said:

Children of that age and that height have their faces and their heads at the parent’s genital region, so to cuddle a parent is naturally going to look like the child is putting their head into a parent’s genital region. The mother interpreted that as the child trying to lick her vagina, which seemed to be an extraordinary interpretation.

It was put to Dr B that the mother said to Y “What are you doing? Don’t put your face in someone’s privates and lick them. Where did you learn that?” Dr B said:

Well that’s a highly inappropriate question to ask a child. That’s a presumption of sexual behaviour which wasn’t – wasn’t necessarily true – that their five year old child, who is putting – doing that behaviour may have a totally different explanation for why she’s doing that, even if the mother did feel the child’s tongue. It doesn’t necessarily mean that – so an adult doing that is obviously – would be highly suggestive of sexual behaviour, but a five year old who is in a fantasy world and playful may have a totally innocent explanation for that behaviour.

Dr B said that the question which the mother asked was leading because it implied that somebody had taught Y that behaviour. He went so far as to say that the question was not only leading but misleading.

Asked whether the question was in fact open ended, Dr B said:

We also need to look at the process that has been going on for some period of time and one of the things that I did try to highlight is the multiple questions and multiple interrogations that occur with children over a period of time and that children learn over a period of time. And if you ask a child, you know, ‘where did you learn that?’ then often children learn from the process of questioning that there is an understanding about where … something is likely to have been learned from so it could well be that the mother had already indicated to the child just through previous sessions of questioning the child that if you learn something bad, you learn it from your father, so there could be something implied already in the question. That’s why it’s a leading question.

Dr B said that questioning what a child has experienced about their father previously has a very powerful effect on children in determining how they are likely to answer questions.

Dr B was highly critical of the progress of the JIRT interview with Y.

In response to questions about the interview process, Dr B said:

I think we have to look at the context of the whole interrogation of this child. This child had had an hour interrogation. There were four hundred questions. She had repeatedly said no. That she had never been forced to touch her father in a bad way. She has repeatedly said that she hadn’t – there hadn’t been any untoward interactions between her and her father. And that the interviewer repeatedly brought back pictures and then repeatedly went through the different parts of the body, ‘did he touch you there?’, there were a lot of implications that the police officer had … a preconceived idea and it wasn’t clear what this was… that the child had touched the father or understood some intention of touching the father.

Dr B said that it was not clear in the context of the whole interview what Y was talking about and whether she had really agreed that she had sexually touched the father or that the father wanted her to touch him in the genital region. He said that that particular passage of the interview was absolutely unreliable and the whole interview was flawed.

Dr B said:

This child had repeatedly denied that there had been any untoward interactions throughout the interview. And the interviewer didn’t accept that and he repeatedly came back to showing the child pictures of bodies and pointing to different parts of the body trying to illicit answers from the child until eventually, I think the child is exhausted after an hour and said ‘yes’ … I thought the whole interview was very disappointing and not of the level that I would normally … have witnessed of JIRT interviews.

Dr B said that the manner in which Y was interviewed was very suggestive. He went on to say that the questioning was repeated and determined questioning that eventually got an answer from Y so that the interview could then come to a close.

Dr B referred to Y’s repeated denials that she had touched her father. Dr B said:

One has to be very circumspect about interpreting particularly young children and the process of interviewing and manipulating children or suggesting to children, all those things can lead to enormous problems for courts and families in being able to understand what may or may not have happened to a child.

It was Dr B’s evidence that suggestibility, multiple questioning and interviewer bias all have a large impact, particularly on young children. Dr B referred to a number of instances of suggestive questioning and repeated questioning by the interviewer. (In this regard I note that it was DSC H who first suggested to Y that her father wanted her to touch him).

Dr B said that even when Y was asked about touching her father, it was not clear to him whether it was being suggested that this was some sort of sexual touching or whether it was merely playful.

It was Dr B’s opinion that the interview was not reliable and had been derailed.

He said:

I’m not actually saying that in this interview the child didn’t eventually say that she believed the father did want her to touch him. I just have serious doubts about what that really means in the context of a five year old understanding the intention of whether a father wants him to touch her in a sexual way and our interpretation of this.

Asked whether there was any reason not to believe Y, Dr B said “Well apart from the fact that she had been interrogated by the mother previously, she had had an extensive interview with the policeman, and the responses were, I think, at best ambiguous at the start, and there was continued questioning.”

Dr B expressed the view that there is no substantial evidence that Y had been sexually abused. He said that, on the basis of the evidence of which he was aware, the conclusion by the mother that the children had been sexually abused, or were about to be sexually abused by the father, did not make logical sense.

In relation to the incident reported involving the M children, Dr B said at worst Y’s behaviour was misbehaviour or playfulness and that he would be loath to place too much weight on what had happened.

In relation to the interview which was conducted by Ms D, Dr B said that there was certainly a belief by Y that something wrong had happened but that there was no real clear indication as to what Y thought the wrong thing was. He did not consider that anything that Y said in that interview was a matter for major concern.

In his report Dr B expressed his views in relation to the sexual abuse allegations:

I formed the view that there was intense need for control, so very strong feelings of sexual inhibition and suspiciousness, the development of an illusion of validity about the sexual behaviour of the children is confirmation that sexual abuse has occurred, that sexual interest and frustration also indicates that the mother believed that the father was likely to sexually abuse the children. The mother embarked upon a process of interrogation and misunderstanding of how children report facts and beliefs to parents. Children under the age of seven like [Y] respond to fear of disappointing or fear of punishment as the guide for what answers to give to interrogation from an adult. Children between eight and twelve respond to what they believe are the facts about what is the truth which is what [X] attempted to do with his mother. It is not until he (sic) age of 13 or older that children can understand intention about telling the truth. With repeated multiple questioning and interviewer bias, this can often lead to spurious disclosure. This was demonstrated I believe in the police interview, and has also been demonstrated I believe by the repeated questioning of the mother.

Dr B did not believe that on balance sexual abuse is likely to have occurred.

Ms C, the psychologist who was the witness in the mother’s case, expressed a different view. In a report dated 12 May 2014 which was annexed to her affidavit, Ms C said “In my professional opinion, [Y] presents as a child who has experienced trauma in relation to her father, and as a child who has experienced some form of sexual assault.”

Ms C’s affidavit and report were considered by Dr B. Dr B commented that the mother had provided Ms C with her opinion about the events involving the children in their initial interview. That was confirmed by Ms C who also agreed that she had been provided with a number of documents by the mother.

Dr B agreed with the proposition made by Ms C that, given the number of times that Y had been interviewed in recent years, it was not possible to ascertain what had happened to her. However, in her oral evidence, Ms C said that the trauma seemed to be associated with the father and that she thought Y’s presentation was consistent with some sort of sexual abuse.

Ms C, whilst acknowledging difficulties in the interview process that had been undertaken with Y, was not prepared to concede that Y’s initial disclosures to JIRT may have been unreliable.

Ms C had read the report of Dr B at the time when she gave her oral evidence but said that it did not affect her opinion.

In her oral evidence, Ms C said that she was not aware that the mother had consented to the children spending unsupervised time with the father and that she did not consider that she would have been assisted by obtaining any history from the father.

She did not accept that she was a friend of the mother although it was pointed out to her that Y referred to her in the interview with Ms D as “mum’s friend”.

She agreed that she had copies of documents provided by the mother, including an affidavit of the mother, but was not provided with any documents from the father.

Ms C said that she was aware that the father had admitted in court documents that he had masturbated in front of a child.

She was clearly not aware of the father’s evidence in that regard. The father denied that he had made such an admission but said that on occasions when X was in his care, but asleep, he had masturbated. The father pointed out that adults have sexual intercourse when children are in their care, typically at night when children are asleep.

Ms C had read the counselling notes of Ms J and Mr A and was aware of the suggestion that the father was sex addicted and pornography addicted.

It was suggested to Ms C, on behalf of the ICL, that Ms C had become an advocate for the mother in that she had made a notification to DFCS, telephoned DFCS to ask why her notification had not been followed up, corresponded with DFCS and proposed herself as an appropriate person to sit in on the interview by Ms D with Y on 20 June 2014. Ms C accepted that she was not permitted to sit in with Y on that interview because DFCS did not regard her as neutral person. She said she accepted that decision. She did not accept that she had become an advocate for the mother.

In so far as Ms C’s opinion does not coincide with that of Dr B, I prefer the evidence of Dr B.

He is a child and family psychiatrist with over 25 years’ experience. She is a psychologist with 12 years’ experience.

I do not accept that the association of Ms C with the mother; through the children’s schooling, the fact that her daughter was in the same class as Y, the fact that Y referred to Ms C as her mother’s friend, and the advocacy on behalf of Y and the mother to DFCS, demonstrate that Ms C approached this matter objectively.

By contrast Dr B was an independent expert appointed by the Court.

Dr B had access to all relevant information and clearly Ms C did not.

In those circumstances I prefer Dr B’s evidence to that of Ms C.

It was not clear from the submissions on behalf of the mother what evidence was said to establish that there was any risk posed to X from the father. I was not taken to any evidence in the period between the consent orders in May 2013 and the trial which suggested any risk. I assume that it is the mother’s case that if the father poses an unacceptable risk to Y, then he must pose an unacceptable risk to all children including X.

That is a proposition which was not put to Dr B.

However, having regard to the conclusions I have reached on the basis of the evidence of Dr B, I am not required to resolve that issue and could not do so on the evidence before me.

I find that there is no unacceptable risk to the children in the care of the father.

WHAT PARENTING ORDERS SHOULD BE MADE?

In determining the arrangements which best meet the children’s interests, having determined the issue of their possible exposure to risk of abuse, I am required to consider, pursuant to 60CC of the Act, both the benefit to the children of having a meaningful relationship with both of their parents and the need to protect them, relevantly, from psychological harm.

That the children would benefit from having a meaningful relationship with both of their parents was not in dispute, subject, in the mother’s case, to the need for supervision.

THE CHILDREN’S VIEWS

The children were interviewed by Ms V on 6 May 2014. Ms V reported:

[X] was of the view that he “sort of” misses the father and would like to see him again. He said the father had done nothing to hurt him, but heard from the mother “about the stuff he’s done to other people.” When asked if he knew who the ‘other people’ are he said “No. I just know it’s not safe.”

X told Ms V that he felt safe and comfortable at this mother’s home but not so much at his father’s home. He said that he had fun when he visits his father and would not mind if he visited his father without Y. X told Ms V that Y also has fun at the father’s house, but that when she returns home she “hits and kicks people. She screams at us”. X said he was unsure why Y behaved like that. X told Ms V that he would like to see his father again.

Y was asked why she hadn’t seen her father for some time and told Ms V that “It’s not safe at dad’s.” Ms V commented that Y was very unsettled and resistant to talking about the alleged safety issues at her father’s home but that she referred to some of the safety issues being that the father had a trampoline with no safety net and that he has a dangerous tree. Y did not express any concerns to Ms V about her father bathing or showering her but told Ms V “My dad done something wrong. Really wrong. Really rude.” Ms V did not pursue that comment.

Y was interviewed by Ms D on 20 June 2014. Another officer, Ms W, was present for the interview and took notes. Ms D was not available for cross-examination in the proceedings due to illness but Ms W was cross-examined. In the course of the interview, sadly, Y said “Mummy told me she doesn’t like daddy. Daddy told me he hates mummy.” Y was then asked “Where do you like living?” and replied “Probably dad’s.” Ms W in cross-examination recalled Y’s statement and rejected the suggestion that the statement was made with a rising inflection to indicate that Y was asking a question. It was Ms W’s recollection that Y simply made that statement.

The children were interviewed by Dr B on 14 August 2014 for the purpose of the preparation of the report dated 29 September 2014. Y told Dr B that she enjoyed spending time with her father and was very happy to see him. When Dr B observed the children in the presence of their father he notes that the children were thrilled to see their father. He observed that they ran up to him and embraced him and cuddled him. The children told their father that they would like to attend an upcoming family wedding with him.

After the change in the children’s living arrangements by virtue of the orders of 9 October 2014, the ICL arranged, with the consent of the father who had sole parental responsibility for the children, for the children to be interviewed by Ms E, who is a social worker employed with the Legal Aid Commission of New South Wales.

The ICL did not seek leave of the Court to have the children interviewed. By the time the ICL sought leave to rely on Ms E’s report, the interviews had been completed and the mischief to the children of repeated interviews had been done. The ICL advanced no reason for failure to ask Dr B to conduct interviews with the children to update his report, which was the appropriate course to take. However, refusing to allow the ICL to rely on Ms E’s report could not cure the mischief that had already been done and it was allowed into evidence. Mr E was cross-examined.

In her oral evidence, Ms E was clear that the report which she prepared was not in the nature of an assessment but merely a report of what the children had told her. Ms E interviewed each of the children separately.

When Ms E spoke with X, he acknowledged that he was aware that she would be preparing a report which would be seen by his parents and the Court. Ms E in her report says:

As [X] continued to draw his family tree he told me that he started living with his father two months ago, describing this move as “good”. He went on to tell me that there was nothing wrong at home and that nothing makes him sad about living with his father. [X] said that before he went to live with his father he was living with his mother, saying “it was good, I had fun and that’s about it”. [X] told me that when he lived with his mother he had “sleep overs with dad and then we had day visits and we started living with dad.” When asked if he would change his living arrangements he said, “‘I don’t really care that much.” He then stopped drawing and appeared to be thinking about his answer, he then said, “No, I really care but if I had a choice I would choose to live with dad“.

Ms E drew an outline of a hand which she called X’s “safety hand”. X identified his mother followed by his father then his maternal grandfather. X told Ms E, “I chose mum first not because there is something wrong with dad, it’s just that I’m more used to mum and have spent more time with mum. If I stayed with dad, for say another five years he would be number one.”

Asked to draw an island and then tell Ms E who would live on the island, X choose his best friend and identified his father as the next person to come and live on the island followed by his mother.

When asked to name three wishes, one of X’s wishes was that a genie would give him wishes. X suggested that the genie could make things better between his mother and father saying “I could get him to rewind the past, we would stay the same but mum and dad would not be fighting.”

X told Ms E that he was looking forward to starting school at F School in 2015, that he had no problem about changing schools and already knew some children that went to F School. X said that making new friends would not be an issue for him as he finds it easy to make and keep friends.

When asked specifically where he would like to live X said “Living on the moon would be a great idea.” He then said “It’s hard to choose, I want to stay with dad but it would be OK to go back to mum. I’m happy for the judge to decide”. Ms E said he then stopped and thought about what he had said and told her “It’s good with dad. I do want to stay with dad but I want to see mum.”

X expressed some dissatisfaction with the current supervised regime of time with his mother describing the supervision as “creepy”. X suggested it would be good to have a planned activity with his mother and suggested that contact could start with a day visit and then build up to overnight visits. X said that he would prefer to have less telephone contact with his mother as he finds it boring. He would prefer to have telephone contact only on the weekends when he doesn’t see her.

Y was also told that her parents and the Court would have access to the information which she gave Ms E and she indicated that she understood. When Y spoke about the changes to her living arrangements she told Ms E that she had been living with her father for about ten weeks and said “It’s good”. Y told Ms E that it was “good living with mum but not as good living with dad. Even if I have to go to bed early.”

Y said she wouldn’t mind living with mum sometimes and that she would prefer to live with her father but have sleepovers with her mother. After further conversation Ms E reported Y said “It is hard. I have no idea what I want.” Y then stopped and thought about what she had said and then told Ms E that she would prefer to stay with her father but visit her mother every day.

Ms E was not cross-examined about the apparent inconsistency between what Y is reported to have said in Paragraphs 319 and 320. It may be that there is a typographical error and that Y said firstly that living with mum was not as good as living with dad. In the absence of evidence, I cannot speculate.

Ms E reported that Y accepted that the daily visits would not be possible and said that she would be happy to see her mother on weekends. Y told Ms E that if she went back to live with her mother she would still like to visit and live at her father’s place on weekends. Y said that if she lived with her mother it was important that she continue to see her father and that she would like to see him on weekends and stay overnight.

When Y was asked who she would take with her to her island she said that the father would live with her but the mother would live next door.

In relation to schooling, Y told Ms E that she had attended P School but would start school next year at F School. She said she had no friends at school and would play with X. There was further conversation between Y and Ms E about starting a new school and Y said it was a new opportunity to make friends.

Ms E noted that X was very clear in saying “I love mum and dad but I think I would like to stay with dad.”

The children had a further interview with Dr B on 22 January 2015 so that the court expert could provide an updated report in relation to their wishes since the change in their living arrangements. Dr B was not provided with any information other than that the children’s place of residence had changed.

Dr B asked X what it was like being with his father and X said “It’s been good. I like it. I can watch television. I hadn’t seen much of dad. We’ve been doing fun things.” Asked about Ms G, X said that he liked spending time with her. They go shopping together and they like talking. X was asked if he had any worries and he told Dr B that he had no worries about being with his father or Ms G. X said “I’m happy. It’s going well.” Dr B said of his interview with X:

He didn’t seem to express any concern about the change. However he said “it’s a bit strange I didn’t expect it. But it’s been really fun to see dad.” I asked why did he think it was fun to see dad. [X] said “because mum and dad had a fight. Mum said he did bad things but he didn’t.”

Dr B asked X if there had been any bad things that had happened with his dad and X said “No”. X was asked if there were any bad things that had happened with Ms G and he said “No”. When asked how X felt things were going now, X said “It’s going good.”

X was asked about his wishes and said he wished for “mum and dad to stop fighting. A million dollars and unlimited wishes.” When Dr B asked X what would be the best thing to happen, X couldn’t think of anything. When asked if he had any problems he said he didn’t like being forced to eat vegetables.

X said the best thing would be that the mother and the father would stop fighting. When Dr B asked X what would happen if they didn’t stop fighting, X said “It would just be the same.”

Asked whether he would like to see more of his mother X replied in the affirmative and said “I’d like to see her every Wednesday and every second weekend like we did with dad.” X was asked if he had any other worries and he said that he did not and that he was happy with what was happening in his life at the current time.

In relation to Y, Dr B commented that she seemed happy and relaxed and undeterred by the tumultuous events that had occurred in her life over the recent months. Asked about her father, Y said “Good. I get on okay. No, good. We’re reading Charlotte’s Web together.” Asked about Ms G, Y said that she gets on very well with her.

Dr B asked Y what she thought about the Judge’s decision that she should live with her father and Y said “Nothing really. Mostly good.” Asked if anything bad had happened or if she was worried, Y said “No”. In relation to her mother Y said that “I want to be at mum’s house and visit mum and spend half the holidays.” Dr B commented in relation to Y

[Y] appears to be a happy relaxed girl who is surprisingly lacking in stress considering the enormous problems that have been occurring in her life. She also clearly seemed happy living with her father. She also had a sense of wanting to spend some time with her mother and wanting to be able to stay over at her mother’s and she also mentioned spending half the school holidays.

It is unlikely that the children had been made aware of the mother’s alternate proposal that they live in the care of their maternal grandparents. They did not express any views in relation to their grandparents either to Ms E or to Dr B.

THE NATURE OF THE CHILDREN’S RELATIONSHIPS

It was not the subject of dispute that the children have other than a close loving and nurturing relationship with their mother.

Similarly, it was not the subject of dispute that having lived with the maternal grandparents since 2009, the children have a close and loving relationship with their grandparents.

Based on his observations, Dr B formed the view that the father has maintained a close relationship with both of the children. This would seem to be evidenced by the fact that they have transitioned well into his care, pursuant to the orders of October 2014.

Dr B stated in his supplementary report of 22 January 2015 that “Despite the enormous animosity in these children’s lives they were both delightful children and seemingly not enormously adversely affected by the upheaval.” Dr B rightly observed that this was a matter for which both parents should be credited. He commented that since being placed with their father both children appear to be progressing well, both cognitively and emotionally, and both appear to have a good relationship with each other.

Dr B says that the children described a good relationship with their father’s friend Ms G and with her daughter K.

The mother was critical of Ms G’s behaviour and her attitude to the children. No doubt, Ms G’s manner of speaking to the children and her manner of disciplining them does not accord with the mother’s standards. However the children appear to like Ms G and she is not a significant person in their lives. She is a friend of the father and has a room in his house. She may or may not be a permanent resident in the household.

The significant relationship for the children in their father’s household is their relationship with him.

THE EXTENT TO WHICH EACH OF THE PARENTS HAS PARTICIPATED IN THE CHILDREN’S LIVES

From the time the parties separated until October 2014, the mother was the primary carer for the children. Since separation the father spent time with the children by arrangement with the mother until about August 2009. That time was largely implemented by the father spending time with the children at the mother’s home although there is no doubt that he was able to take the children on outings and to the beach in the course of those visits.

From August 2009 until May 2013 the father’s time with the children was supervised.

From August 2009, when the father moved to Western Australia, until he returned to New South Wales in about November 2011, the father did not take an active role in the children’s lives.

The mother has been responsible for the financial support of the children with the active and important support of her parents.

There is no doubt that the father’s failure to participate actively in the children’s lives from August 2009 until November 2011 is a matter for which he should be criticised.

Between the time of the parents’ separation in 2009 until the children were moved to the father’s home in October 2014, the maternal grandparents have provided both material and emotional support to the children. They have allowed the mother to live in their home with the children. They assisted the mother in caring for the children when she has needed their help. They have assisted driving the children to school and collecting them, have been involved with their activities both outside and inside the home.

I accept the evidence of the maternal grandparents that they have been part of the children’s lives and have nurtured them closely for the last six years.

THE LIKELY EFFECT OF ANY CHANGES IN THE CHILDREN’S CIRCUMSTANCES

In October 2014, pursuant to orders of the Court, the children moved to live with their father. The reports of Ms E and Dr B demonstrate that the children have settled well in the care of their father.

One of the consequences of the children remaining in the father’s care is that he would seek to change their school from the school they currently attend, being P School, to the state primary school which is very close to the father’s current place of residence.

Although the father gave evidence that the state school is more convenient since it is within walking distance of his home, his primary reason for wishing to change the children’s school is what he perceives to be the partisan attitude of the staff at P School and their support of the mother.

The father’s attitude is not unreasonable.

The mother herself, both in her affidavit evidence and in her oral evidence, confirmed that she is fixed in her belief that the father is a danger to the children. The mother gave evidence that she had talked to Mr A, the head of the junior school at P School, about her belief that the children were at risk of sexual harm from the father. She had given Mr A a copy of the orders and told him that the children’s time with their father had previously been supervised.

On 10 October 2014, a letter was received by the Family Court of Australia, addressed to the presiding judge. The letter was signed by; Mr I who is described as “Captain QANTAS Airways”, Dr BB who is the principal of P School, Mr A and Ms I (the wife of Mr I), who is the personal assistant to Mr A. The letter was intercepted by the Registrar and returned to Mr I, copies being provided to each of the parties to the proceedings. The Registrar explained that the letter had not been provided to the Judge but also brought to the attention of the writers pursuant to the provisions of section 121 of the Act.

The letter came into evidence in relation to the issue of the children’s continuing attendance at P School. The letter commences:

We write to you on a matter of great urgency. The recent decision by the Court to award custody of the children in the [Helbig V Rowe] custody case to their father has caused great consternation and shock amongst the local community and we cannot even begin to understand what perjury has led to this determination.

The letter goes on to speak glowingly of the mother and the maternal grandparents. The letter continues:

[Y], 6, is finally emerging from the tragedy of the separation, never really having been involved with her father from the time she was born. We see her developing into a fine young woman under the support of the college, her mother and grandparents. We also see the fear in her eyes when she is forced to go on an access visit with her father and understand that she is unable to sleep alone in her own bed on returning to the family home; preferring instead the comfort and security of her mother’s arms. There has been an ongoing but unsubstantiated suspicion that her father may have interfered with her at some time.

In relation to X the letter says:

[X] is a gentleman and an active young man preferring the outdoors and time with his [maternal] grandfather. He is well balanced and polite and a testament to his mother’s care. He is also burdened with Type 1 Diabetes that requires constant attention. His father is aware of this condition and the treatment required but does not seem to grasp the seriousness of not carefully monitoring the child’s insulin level. We fear that permanent damage or even death is a very real possibility while he is under the care of the father.

The letter concludes:

We understand that legal argument has caused the Court to arrive at this verdict, however, as leaders of the local community we feel that we are morally obligated to bring to your attention that we quite strongly believe that any decision involving permanent care by the father is not in the best interests of the children. We implore you to reconsider the verdict before we read about another tragedy in the daily newspaper.

Mr A swore an affidavit in the mother’s case and was cross-examined. Mr A did not teach either X or Y in 2014.

Insofar as Mr A had concerns about X and Y after they passed into the care of their father, he did not communicate those concerns to the father.

Mr A gave evidence that he thought the sending of the letter to the presiding Judge was appropriate and he thought the sentiments expressed in the letter were appropriate.

Mr A agreed that he had signed the children’s second semester school reports, that their grades had improved and that the teachers of both of the children were glowing in their assessment of the children’s progress.

Mr A, who holds the qualification of Diploma of Teaching, told the Court that he was qualified to make an assessment of the children’s psychological state. I do not accept that to be so.

In cross-examination by Counsel for DFCS, Mr A agreed that the school should be a safe haven for the children but he did not agree with the proposition that because he and other staff had become involved in the conflict between the parents by writing the letter to the Court the school was no longer a safe haven. I do not agree.

The father gave evidence that he was very offended by the letter which was sent to the Court and he decided to remove the children in consequence of reading the letter. The father said that he was made to feel like an outcast at the school and that he believed that the community of P School was hostile to him.

It was the father’s evidence that he sought assistance from Y’s class teacher, Mr CC, over an issue where Y said she was being bullied by another child and that he, the father, felt that Mr CC was dismissive of his complaint.

Having regard to the contents of the letter, and the fact that it is signed by both the principal and the head of the junior school, the father’s attitude is objectively reasonable.

The father, in addition, gave evidence that he could not afford to continue to pay the school fees at P School. The father has clearly discussed with the children the prospect of moving schools and according to the evidence of Ms E and Dr B that is not a prospect which causes any alarm to the children.

The likely effect of moving the children back to live with their mother or with the maternal grandparents is discussed in the consideration of the capacity of the parents and maternal grandparents later in these reasons.

PRACTICAL DIFFICULTIES AND EXPENSE

The parents live in close proximity to one another and there is no reason why the children could not move freely between the homes of each of their parents and of their maternal grandparents.

THE CAPACITY OF THE PARENTS AND THE MATERNAL GRANDPARENTS TO PROVIDE FOR THE NEEDS OF THE CHILDREN AND THE ATTITUDE TO THE RESPONSIBILITIES OF PARENTHOOD DEMONSTRATED BY THEM

X suffers from Type I Diabetes and until October 2014 the mother was primarily responsible for the management of the diabetes in close association with X’s medical practitioners.

Although both the mother and the school were critical of the father’s attention to X’s diabetes, a letter from Prof DD, who is X’s paediatric endocrinologist, reporting on a consultation with X on 12 January 2015 with his father documents a change to the routine of X’s care and comments upon his pleasing results. I am satisfied that X’s father is attentive and competent to care for X’s diabetes.

Each of the parents and the maternal grandparents is capable of providing for the physical and intellectual needs of the children.

It was the issue of the capacity of each of the parents to ensure that the children maintained a relationship with the other which seemed to be uppermost in Dr B’s concerns. In his report he said:

Should the children stay with their mother, I believe that the relationship with the father, which is still a very positive one, will be lost and break down and they will never have any contact with him again. This is going to be very unfortunate because I believe that he is a very important part of their life. He has a great deal to contribute to them and this would be an enormous loss for them. Such a loss is likely to impact on their sense of security and self-esteem with such loss. This would then predispose them to later mental health problems such as depression, anxiety and undermine their confidence in forming relationships.

Should the children be placed with the father I believe that they would develop well in his care. I believe that he is a capable caring parent who could provide for them. I also believe that he would support a relationship between the children and the mother.

Dr B goes on to say:

There is a huge dilemma here because there were two previous reports by [Dr R] that the children should see the father. The mother has taken control and through her own belief system based upon her questioning techniques and her illusion of validity has now created a situation where the children are reporting sexual abuse and getting sexual abuse counselling. This has now compounded the problem and there is a belief system amongst the children that the father is abusive, and yet the evidence to support this in my mind is false.

There is no doubt that, by the time that unsupervised time with the father and the children commenced in May 2013, Y was well aware that, in the view of the mother, the father was not a safe person.

The father gave evidence, in response to questions on behalf of the ICL, that from the first visits in May 2013 Y routinely told him that the mother said he was not allowed to shower her, dress her or toilet her. He said that on almost every visit Y would repeat what her mother had said but would then often ask him to help her either in showering or dressing. He said words to the effect “She says the words then calls me if she needs help”.

The father said he was careful to instruct Y to wash herself when she showered but that Y often asked him to help her with her towel.

In contrast to X’s statements about his father in December 2013 and to JIRT in January 2014, by the time X was interviewed by Ms V in May 2014, he believed that he knew that his father was not safe, although he could not tell Ms V why that was so.

It was Dr B’s evidence that for the best interests of the children, and in order for them to have a long term relationship with both of their parents, it is necessary that they live with their father. In his oral evidence Dr B said that the term which he used, “illusion of validity”, could otherwise be described as a single unfounded belief or a ‘folie’. He said that it was his opinion that the mother, over years, has developed her own beliefs about the father being a sexual deviant and having tendencies to sexual abuse and that she has chosen people around her who share her views, such as Ms M.

Certainly in relation to Ms M she appeared to have a very fixed view that the father was responsible for purporting to sexual abuse. Dr B reported that “[Ms M] told me she thought that (sic) would be inappropriate if I saw the father and the child. [Ms M] said ‘you shouldn’t see somebody who has abused a child’”

Dr B went so far as to recommend in his report that the mother have a guardian ad litem so that she would have the benefit of some objective input into her thinking.

The mother in cross-examination on behalf of the ICL said that she understood that her capacity to facilitate the relationship between the children and their father was an issue and said that she had gone out of her way to facilitate the relationship. She agreed that she has steadfastly rejected any proposal for unsupervised time with the father until May 2013. She said that if the Court ordered unsupervised time for the children with the father she would struggle, but that she understood that she would need to follow the orders.

The mother saw no need to have any assistance from a therapist in relation to the issues before the Court. She was not prepared to consider the recommendation of DFCS that she at least put her mind to alternative explanations for the manner in which the children were behaving. She did not resile from the statements which are referred to in paragraph 209 of these reasons.

Nothing in either the affidavit evidence of the mother’s parents or in their oral evidence suggested that their attitude was any different from that of the mother.

Whilst the maternal grandfather said in oral evidence that he would have no option but to accept the findings of the Court, there was nothing in his oral evidence that suggested that he was likely to change his belief that the children were at risk in the care of their father.

In relation to Dr B’s opinion, the maternal grandfather expressed the view that the opinion was unacceptable and flawed. Similarly in relation to Dr R’s opinions he referred to her having made classic, factual and logical inaccuracies.

The maternal grandfather conceded that he shared the mother’s view in relation to the father’s danger to the children. In his oral evidence the maternal grandfather used the term “we” to embrace his wife and the mother and it appears that there is nothing in the evidence to suggest they are not of one mind in relation to this matter.

The maternal grandfather gave evidence of a conversation which took place in November 2014 when he and the maternal grandmother attended the same church as X’s teacher, Ms EE. When the maternal grandparents asked Ms EE how X was going, she told them that he was happy and well and enjoying being back at school. Ms EE noted that conversation in the school records.

By contrast, when the maternal grandmother was cross-examined about the conversation with Ms EE, she reported that Ms EE had seemed quite perturbed that X was not his usual self and was not as happy as he had been. She reported that Ms EE had said that X’s diabetes was not being properly attended to by the father.

Dr B reported that in the interviews the maternal grandfather said that it was his view and that of the maternal grandmother that the father shouldn’t see the children. The maternal grandmother conceded that she heard that remark.

Asked about the future for the children, the maternal grandmother said that she would probably have gone along with supervised time for the father but would not agree to unsupervised time in the circumstances. She did not agree with Dr B’s conclusions and rejected his opinions in relation to the risk to the children.

The maternal grandmother said that if the children spent unsupervised time with the father it was likely that he would harm either or both of them. She said that, as she sat in the witness box, it was her belief that the children were both at risk.

When the maternal grandmother was asked what she would do if the Court found that the father did not pose an unacceptable risk to the children, she said that she could not answer that question, she would have to know what is happening and what the children may be saying now.

The maternal grandmother said that she held the view that the father posed a risk to the children ever since the episode when the father and X had been in the bath together when X was a very little boy.

In relation to the maternal grandmother, Dr B in his report said:

[The maternal grandfather] said that he was very concerned about the father. [The mother] had explained to them about certain behaviours. “I tried to join the dots. In January 2010 his father masturbated. [The mother] was beside herself. She went to write things down she was so upset.” Then [the maternal grandmother] explained that she was at the start when the first disclosure happened. “[X] started to talk about his father. He started to say that his father used to do things in the bath. I asked him to stop and then I handed over to [the mother].” [The maternal grandmother] indicated before [X] had said anything substantial that she knew he was making a disclosure of sexual abuse. This seemed extraordinary to me unless there had been a previous adult expectation of this occurring. She said that he was making a disclosure and in order to get the full disclosure she called [the mother] in. Therefore [the maternal grandmother] was part of the disclosure process and she seemed to have a prescience that [X] was disclosing sexual abuse, and this is why she got [the mother] to do the disclosure interview.

The event to which Dr B refers took place before the parents separated.

In relation to the maternal grandparents, Dr B reported they were concerned about grooming of the children. They were concerned that the behaviour that had happened was grooming. There hadn’t actually been sexual abuse at this point, but they were convinced grooming was going to lead to sexual abuse.

There is no distinction to be drawn between the attitude of the mother towards the father and the attitude of the maternal grandparents.

There is no distinction between the capacity of the mother to give objective consideration to the expert evidence about the allegations of inappropriate behaviour by the father and that of her parents.

There could be no suggestion that, in the care of the maternal grandparents, the children’s relationship with their father would be more likely to be fostered than would be the case in the care of the mother.

The concerns expressed by Dr B under the heading “Possible Outcomes” at page 45 of his initial report as to the likelihood that the children’s relationship with their father would be lost if they remain in the care of their mother apply equally to the care of the maternal grandparents.

Nothing in the evidence of the mother or the maternal grandparents suggested that Dr B’s analysis of the risk to the children of losing their relationship with their father was flawed and I accept his evidence as to the risk posed to the children if they live with their mother or, by analogy, with the maternal grandparents.

The orders which the father seeks would have the effect that, after a period of supervision which is recommended by Dr B, the children would have unsupervised time with the father. I was not taken to anything in the evidence which suggested that the father would not promote the children’s relationship with their mother.

CONCLUSION

Having regard to the matters which I have considered above, I accept the recommendation of Dr B at pages 46 to 47 of his initial report that the only alternative is for the children to be placed with their father and initially, have weekly supervised time with their mother. There is no reason for the time to be curtailed to two hours if PP can provide more time.

CHILDREN’S TIME WITH THE MOTHER AND MATERNAL GRANDPARENTS

The ICL sought orders which would limit the time the children spent with the mother (and at her invitation with the maternal grandparents) to supervised time until such time as the mother completed a course of counselling for the purpose of her changing her views about the allegations of abuse. It is implicit in the orders sought by the ICL that, if the mother’s views remain unchanged, her time with the children should remain supervised.

The orders sought by DFCS were less restricted and proposed an immediate introduction of unsupervised time for the children with the mother each alternate weekend from after school on Friday until the commencement of school on Monday.

The father sought orders in similar terms to those sought by the ICL, being that the progression from supervised to unsupervised time for the children with the mother was dependent upon her changing her views about the allegations of abuse.

The mother was quite adamant in her evidence that she did not intend to seek any assistance from a counsellor to modify her views. There is no evidence that forcing the mother to engage in a course of counselling that she strongly resists is likely to have a positive effect for her or for the children.

In all likelihood, a regime such as that proposed by the father and the ICL would lead to the children’s time with their mother being supervised indefinitely.

Ms E reported that X finds the supervision of time with his mother “creepy”. Dr B reported that both children want a regime of time with their mother which is more like that which they once had with their father, that is on weekends and during each week.

The purpose of supervision is to ensure that the children’s sense of safety and security in the care of their father is not challenged by any conscious or unconscious actions of the mother and the maternal grandparents.

It is important that the children have the opportunity to consolidate their relationship with their father as their carer and to ensure that the relationship is not undermined by any unconscious negativity. I do not expect that the mother would consciously act in a way that she believed was detrimental to the children but her fixed views are such that she may allow the children to be reminded that, in her view, their father is not a safe person, as she has done in the past.

Dr B said in his January 2015 report:

I’m hopeful now that if the children can continue residing with the father and that the contact can be gradually re-introduced in an unsupervised way and increased that this may eventually result in a good outcome where the children can reside with one parent and be well cared for and have healthy contact with the other parent and enjoy a close relationship with both parents.

The ideal scenario described by Dr B will not be achieved by imposing ongoing and indefinite supervision. The children’s relationship with and time with their mother needs to be normalised as soon as possible, consistent with the need for them to consolidate their relationship with and placement with their father.

To that end, the children’s time with their mother will be supervised for a period of one year from the date of these orders and thereafter will be increased until they are spending alternate weekends and half school holidays with their mother.

PARENTAL RESPONSIBILITY

Each parent seeks an order for sole parental responsibility in her or his favour.

The parenting relationship is so acrimonious that there is no possibility of their being able to communicate and share any decision making in relation to the children. Already there is a dispute about what school the children will attend. In these circumstances, I find that the presumption of equal shared parental responsibility pursuant to s61DA of the Act has been rebutted.

Since neither party proposed that parental responsibility should be shared, I propose that the parent who has the primary responsibility for the day to day care of the children should have sole parental responsibility.

MOTHER’S CONTRIBUTION TO THE COSTS OF THE SINGLE EXPERT

The ICL sought an order that the parties contribute to the costs of the Single Expert in the following terms:

By 11 February 2015, the mother is to pay into the Trust Account of Legal Aid NSW the sum of $2,640.00 (two thousand six hundred and forty dollars) for payment by Legal Aid NSW to [Dr B] in respect of the remainder of his fees in relation to his expert witness costs.

By 11 February 2015, the father is to pay into the Trust Account of Legal Aid NSW the sum of $140.00 (one hundred and forty dollars) for payment by Legal Aid NSW to [Dr B] in respect of the remainder of his fees in relation to his expert witness costs.

The father consented to the orders proposed. The mother did not.

The orders made 30 July 2014 appointing the Single Expert provided for each party to pay half of the costs. It does not appear from the judgement of the Full Court handed down on 17 September 2014 that the mother appealed against that order.

On behalf of the mother it was submitted that because she did not agree with Dr B’s recommendations and was highly critical of his report, she should not have to contribute to the costs of the single expert.

It was not submitted that there was any financial reason she could not contribute.

I do not consider that the fact that a Single Expert’s report is unfavourable is sufficient reason to excuse a party from contribution in circumstances where the order making provision for the joint payment of costs was not appealed and the time for appeal has long passed.

THE MOTHER’S USE OF MATERIAL PRODUCED ON SUBPOENA

Earlier in these reasons I have set out in some detail the manner in which material which was produced on subpoena in the 2013 proceedings was copied and distributed by the mother.

Of my own motion, I foreshadowed the making of an order restraining the mother from disseminating any material produced in the course of these or earlier proceedings and invited Counsel to address me if that course of action was opposed. No such submissions were made.

I directed the mother to produce to the Court all copies in her possession of the material which had been copied from documents produced on subpoena and those copies were produced and have been placed with the court file.

The Orders will restrain the mother from disseminating any material, without the leave of the Court first obtained, except for the purpose of obtaining legal advice.

I certify that the preceding four hundred and twenty-nine (429) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 9 March 2015.

Associate:

Date: 9 March 2015

On (omitted) 2007, with their wedding scheduled for (omitted) 2007, Ms Thorne and Mr Kennedy each signed a document headed “Financial Agreement (Pre-Nuptial Agreement s. 90B Family Law Act 1975)” (the first agreement).

They each received legal advice about the agreement. Ms Thorne remembers the advice that she was given to include:

It is the worst contract I have ever seen. Don’t sign.

The document included at paragraph B3:

Each Mr Kennedy and Ms Thorne acknowledge one to the other and agree that within 30 days of the signing of this Agreement, they will each enter into and sign another Agreement being a Financial Agreement pursuant to section 90C of the Family Law Act 1975, in terms similar to the terms provided herein.

Ms Thorne and Mr Kennedy married on (omitted) 2007.

And by 20 November 2007, a second agreement was signed by both parties and their respective lawyers, headed “Financial Agreement (Agreement S.90C Family Law Act 1975)” (“the second agreement”).

The husband signed a document called a “Separation Declaration” on 16 June 2011, signalling his view that the marriage was over. On 9 August 2011, the wife left their home.

The wife through her application filed 27 April 2012 seeks declarations that the agreements be declared non-binding, or alternatively, set aside, or declared void. Further she seeks an adjustment of property in the order of $1,100,000, along with lump sum spousal maintenance of $104, 000.

The husband, through his response filed 27 June 2012, opposes the orders sought by the wife, and seeks orders that the second agreement be declared binding.

The husband died on (omitted) 2014 from non-Hodgkin’s lymphoma.

The trial was part heard at that stage, indeed the trial dates had been fitted in around Mr Kennedy’s significant hospital treatments. The trial had been adjourned during his cross-examination when it became clear that there was a need for better evidence about Mr Kennedy’s financial position in 2007. The executors of Mr Kennedy’s estate (two of his three adult children to an earlier marriage) were substituted as parties in his stead.

The Evidence and the History of Litigation

Having separated in August 2011, on 27 April 2012 the wife filed her initiating application dealing with the financial agreements and seeking an order for property adjustment and lump sum spousal maintenance. She filed a financial statement and affidavit in support of her application. The husband attended to the filing of his response on 27 June 2012 seeking on an interim and final basis the dismissal of the wife’s applications and a declaration that the financial agreement of 20 November 2007 be declared binding on the parties. He filed an affidavit contemporaneously with his response document but filed his first financial statement on 3 August 2012.

At the time of filing his documents the husband had already been diagnosed with non-Hodgkin’s lymphoma and was in receipt of significant medical treatment including extensive chemotherapy and stem cell treatment. The husband’s health limited his capacity to participate in the litigation easily. Trial dates were eventually found which fitted in between chemotherapy bouts and the trial commenced on 12 March 2014. On 13 March 2014, whilst the husband was still under cross-examination, the trial was adjourned so that evidence could be garnered with respect to the husband’s financial position with greater particularity in 2007. Directions were made for valuations to be obtained.

On (omitted) 2014, the respondent husband died.

Probate of the Will was granted on 8 October 2014, and the deceased’s adult son and daughter were substituted as the respondents in the proceedings.

Valuations still needed to be obtained and understandably the process was a little delayed. Finally the matter was ready to be listed and trial directions were made to recommence the trial on 27 January 2015.

With the substitution of the adult son and daughter as the respondents in the proceedings, within this judgment I will sometimes refer to the respondent in the first instance as “the deceased”. I will otherwise variously call the parties, the wife and husband, or the bride and groom.

The wife’s witnesses included herself and her sister, Ms G. Both of those witnesses gave their evidence with the assistance of a (omitted) interpreter, Ms C. The use of the interpreter for the wife’s evidence was objected to as one of the questions before the court is the wife’s capacity to speak and understand English. It seemed to me that the question of the wife’s capacity at the time that she signed the two agreements was a question for my determination and that I would not be assisted in that regard by requiring the wife to give her evidence before me without the assistance of an interpreter.

The wife’s evidence also included a report by Ms S, the Director of Studies at (omitted) Language School, who had assessed the applicant’s ability to comprehend the proper meaning of the legal document signed by her on November 20, 2007. Ms S was required and made herself available for cross-examination

The wife also relied upon an affidavit by a town planner, Mr J who had produced a report with respect to an assessment of a development application made by the husband over land at Property N, which, I was told, was subsequently the subject of approval. Mr J was not required for cross-examination.

The wife’s other witness appeared pursuant to a subpoena. This was the solicitor who had given the wife advice in 2007 and had subsequently signed the certificate as to legal advice attached to the financial agreements. She is Ms Harrison, accredited family law specialist, who, in 2007 was an Associate of a firm on the (omitted). Ms Harrison’s evidence in chief was given orally. She was required and made herself available for cross-examination.

As earlier stated the husband was cross-examined to some extent during the first tranche of hearings. At that point in time, his only other witness was a friend of his, Mr M and after successful objections to parts of his affidavit, he was no longer required.

At the second tranche of hearings, the only witness for the respondent who was eventually relied upon and then required for cross-examination was the solicitor for the deceased who had acted for him in 2007 with respect to the financial agreements and who had provided him with advice and who had signed the requisite certificates. Mr W had attended to the filing of an affidavit. He was required and made himself available for cross-examination. His firm continued to act for the respondent at the time of the final hearing although it is clear from his answers in cross-examination that the carriage of the action has been in the hands of another solicitor at the firm.

In setting out the evidence as I have found it, I must record that the husband’s oral evidence had many difficulties. He was 74 at the time, and seriously unwell. He was frail, and wheelchair bound. He found the courtroom cold. On the first day of the trial, when the wife was being cross-examined, he went home during the morning tea adjournment. He was feeling pain. The next day he gave evidence, having been interposed by me in the hope that he may be better placed to come to court earlier, rather than later in the day. He wasn’t always responsive to questions, and at times, his evidence seemingly contradicted something that he had said only moments earlier. He seemed not to understand questions posed as suggestions, or when based upon someone’s earlier affidavit evidence, even his own. The longer questions revolved about one point in time, or one issue, the more confusing it became. I make no criticism of the husband in any of these remarks. He was plainly frail and unwell. I did not form the view that he was trying to be evasive or unhelpful. But, it must be said, that I found his evidence difficult, and I have done the best I can with it.

I was not so troubled by the wife’s evidence.

The Wife’s Contentions

The wife’s Outline of Case document e-filed on 10 March 2014 identifies that the issue for determination at this hearing is “in relation to the competing positions regard two asserted Financial Agreements” as identified in that documents paragraphs 2 and 3, thus:

The question to be determined is whether each of the documents described as a ‘Financial Agreement’ pursuant to the Act being:

2.1that dated 26 September 2007 [the First Agreement]; and,

2.2that dated 20 November 2007 [the Second Agreement];

is to be considered ‘binding’ upon the parties or not. More particularly for determination of this issue:

2.3whether there existed a ‘valid, enforceable and effective’ agreement between the parties at either date (section 90KA);

2.4to the extent necessary (if at all consequent upon the proposition in the preceding paragraph), whether each party received advice as required by section 90G in respect of either Agreement in the face of certificates form legal representatives of each to the contrary;

2.5again to the extent necessary (if at all), whether the wife in fact received advice as required by section 90G in respect of each Agreement;

2.6again to the extent necessary(if at all), whether a declaration ought be made pursuant to section 90G(1A) such that the Second Agreement is to be considered binding upon the parties;

2.7again to the extent necessary (if at all), whether there is any circumstance in which the First Agreement can be ‘revived’ or continue to operate in circumstances where inter alia it was been expressly terminated by the Second Agreement; and,

2.8 again to the extent necessary (if at all), whether a declaration ought be made pursuant to section 90G(1A) such that the Second Agreement is to be considered binding upon the parties.

3. Further, and to the extent necessary to consider the same given the issues identified in paragraph 2, whether any binding Agreement is one that ought be set aside pursuant to each of the following provisions of s90K of the Act:

3.1section 90(1)(a) – the non-disclosure of a material matter;

3.2section 90K(1)(b) – that the Agreements are void, voidable and/or unenforceable on the basis of each of:

3.1.1duress;

3.1.2undue influence; and/or,

3.1.3unconscionability;

3.3section 90K(1)(e) – that the husband engaged in conduct that was, in all the circumstances, unconscionable in respect of the making of the agreement.

The wife also seeks her costs of this application.

The Husband’s Contentions

The husband contends that:

Consistent with s90KA of the Act, the wife should be estopped from asserting that she did not receive any or any adequate legal advice that the purposes of s90G(1)(b) of the Act in circumstances where she represented to the husband that she sought and obtained relevant advice as described in recital F – 1 of the agreement;…

That subject to any generally accepted vitiating factor available to her at common law or in equity then pursuant to s90KA of the Act it is not open to the wife to contend that she failed to read or adequately read or understand the agreement before signing it is a basis to avoid the agreement;…

That subject to any generally accepted vitiating factor available to her at common law or in equity, then pursuant to s 90KA of the Act it is not open to the wife to contend that she failed to understand or adequately understand the terms of the agreement and their full effect before signing it is a basis to avoid the agreement.

The husband seeks that the initiating application be dismissed and that pursuant to s90G(1) or in the alternative s90G(1A) of the Family Law Act 1975 (“the Act”), the financial agreement entered into between the parties on 20 November 2007 pursuant to s90C of the Act be declared as binding on the parties. He further seeks orders with respect to costs as the Court considers appropriate and any other order or declaration the Court considers appropriate.

Background Facts

The parties met over the internet in early to mid-2006.

She was a 36 year old (country omitted) born, (country omitted)-living (occupation omitted), with her English language skills informally acquired. She had been married and divorced once, and later been in a four year de facto relationship which had ended when her partner was transferred to (country omitted) with his work and she could not follow him. She had no children and no assets of substance.

He was a 67 year old (nationality omitted) property developer from the (omitted) with assets in the order of maybe as much as $24 million, but at least $18 million. He was divorced from his first wife, with whom he had three children, now all in adulthood.

They had met (website omitted).com. Ms Thorne’s profile read:

I am single female with no children. I don’t smoke or drink. I am of (religion omitted) religion and speak a little (language omitted) and English. I wish to marry and have a good life.

Having met on the website in early to mid-2006, the parties then commenced speaking with each other on the telephone. They spoke in English and in (language omitted). The applicant records that the deceased said to her “I will come to (country omitted) and we will see if we like each other. If I like you I will marry you but you will have to sign paper. My money is for my children.”

Shortly thereafter in July 2006, indeed seemingly only a matter of days or weeks after they had commenced speaking on the telephone, the deceased asked the applicant to travel to Australia to see if she would like it. When she said that “no, you come to (country omitted)”, he said “I’ll be there next Thursday”, and he was. He says that he was attracted to Ms Thorne as they shared a religion and could speak to each other in (language omitted).

Although plainly keen to have a relationship, and potentially, another marriage, Mr Kennedy was at pains from the outset to make it clear to Ms Thorne that his wealth was his, and he intended it to go to his children. Ms Thorne was certainly aware of that position from the outset. Mr Kennedy was not so clear in his oral evidence as to how he made it plain to Ms Thorne that although he would provide for her financially whilst they were in a relationship she would be needing to sign an agreement with respect to their financial position prior to any marriage taking place. Mr Kennedy seemed to express the view in cross-examination that Ms Thorne was the first to introduce the notion of signing a document to protect Mr Kennedy’s financial position. I am not satisfied that was the case. It seems to me more likely than not that Mr Kennedy was the first to introduce the notion of a document being needed to be signed and that Ms Thorne was keen to acquiesce. I accept Ms Thorne’s position that she understood Mr Kennedy’s need to ensure that his children’s financial position was protected, and that her concern was, not what would happen to her financially while her husband-to-be was alive, but, as to what would happen to her financially if he died without making proper provision for her in his Will.

During their courtship phase, Mr Kennedy travelled to (country omitted) twice and further, together they spent a couple of months travelling around (country omitted) particularly (country omitted) and (country omitted). In (country omitted) they met Ms Thorne’s family. During this travel they made arrangements for an appropriate Visa for Ms Thorne to come to Australia. It appears that the Visa was going to be valid for nine months and the parties formed the joint intention that they would marry during that time which would then have the effect of allowing a different visa to be sought and obtained.

They came, then, to Australia, arriving in (omitted) 2007. Ms Thorne moved into Mr Kennedy’s penthouse on the (omitted). The valuation lately done for litigation purposes reveals this property to be 4 bedrooms, 5 bathrooms plus guest powder room, kitchen, dining, family, wet bar, lounge, living, study nook, laundry, multiple balconies and upper roof deck with pool. It has marble flooring, decorative cornicing, gold leaf decorative fittings, a chandelier, gold plated tap wear, and murals on some internal walls and ceilings. It may be expected that Ms Thorne would have been aware that this was an expensive home.

I accept the husband’s evidence that he didn’t ever specifically advise his future bride as to his exact wealth. He believed that he had given Ms Thorne a copy of an earlier financial agreement that he had had solicitors draw up when he had been in a relationship with Ms B. He had asked Ms B to sign the agreement, and when she had refused, he had ended that relationship. That agreement set out his financial position (he said) at that time, and Mr Kennedy considered that by giving Ms Thorne a copy of that agreement, that would have alerted her to the terms of the agreement that he was wanting her to sign, and to some specifics as to his wealth and particular assets.

Ms Thorne denied ever being given a copy of that document and denied any knowledge of the content of that document.

Mr Kennedy’s evidence about the timeframe of when he gave the (omitted) agreement to Ms Thorne was confused and confusing. No other evidence corroborates him giving it to Ms Thorne. No evidence corroborates Ms Thorne ever reading and understanding the (omitted) agreement. So, if it was given to her, which seems improbable, there is no reason for me to form the view that it informed her as to the likely contents of any agreement that she might be asked to sign.

Mr Kennedy’s wealth was known by Ms Thorne by other means. He told her that he was wealthy. He demonstrated that he had personal wealth through his actions: for example, travelling to (country omitted) to meet her at short notice, spending money on her there, gifting her money, buying her expensive jewellery, holidaying in (country omitted) for two months, telling her about his business interests and developments, telling her that he would look after her, etc.

On 8 August 2007, Ms Thorne, in the company of Mr Kennedy attended on the groom’s solicitor, Mr Jones, for the purposes of Mr Kennedy instructing Mr Jones to prepare a financial agreement to be signed prior to the wedding. Mr Jones records Ms Thorne’s presence at the meeting, and remembers meeting her at the time, exchanging pleasantries (“welcome to the (omitted)”, “congratulations on your upcoming wedding”), and then speaking only with his client, privately. Their next conference for the same purposes appears to have occurred on 14 August 2007.

Throughout their conferences, Mr Kennedy told his solicitor plainly and repeatedly that “there will only ever be a wedding if there is an agreement first”. From the solicitor’s perspective, his client never deviated from this position.

On 15 August 2007, his solicitor sent the groom a letter enclosing a draft agreement. Some discussion between solicitor and client ensued as the solicitor tried to get some better up-to-date information about his client’s financial position (no doubt so that Schedule C could be correct). A further letter and draft agreement was sent on 30 August 2007 and then another, on 5 September 2007.

The draft by Mr Jones included the important point that the agreement to be signed required that a further agreement would need to be signed after the wedding. The second agreement would be, on all essential points, the same as the first agreement, save for the fact that it would now be down post-wedding, not pre-wedding. Mr Jones included that provision in the first agreement as he was concerned about the proximity of the wedding date, and that it may be considered that the agreement was signed in haste which might be considered to amount to stress and pressure. Mr Jones had a number of conversations with his client about the agreement not being signed on the eve of the wedding.

As the wedding drew nearer, usual preparations were undertaken. A few weeks before the wedding, the bride’s parents and sister were flown to Australia from (country omitted) by the groom. They were accommodated by the groom.

Sometime around 16 September 2007 (and most likely on 19 September 2007), the groom told the bride that they were going to see solicitors about the signing of some documents. The wife had, of course, long known, that there would be a document to sign, before the wedding. It was on 19 September 2007 that the solicitor received a phone call from Mr Kennedy saying that he had lost the list of solicitors that he was to give to Ms Thorne for her to get her own legal advice. That list had been included in own of the earlier letters from the groom’s solicitor. The information was again provided to Mr Kennedy, and he made an appointment for Ms Thorne to see one of those named: Ms Harrison.

Ms Thorne asked Mr Kennedy whether she would have to sign the Agreement. And he told her that if she did not sign, the wedding would be off. Before going to see the solicitor, Ms Thorne knew that the only available outcomes to her where to either sign the document, or there would not be a wedding.

On 20 September 2007, Ms Harrison met Ms Thorne for the first time. Her sister came with her to the appointment. Mr Kennedy drove them to that appointment and waited in the car outside.

It was during that appointment, that, for the first time, Ms Thorne became aware of the contents of the agreement, and had information about Mr Kennedy’s financial position.

After the bride’s appointment with her solicitor on 20 September, Mr Jones received a phone call from Mr Kennedy reporting that Ms Harrison was saying the agreement was no good. A further urgent message was received by Mr Jones from Mr Kennedy. On 21 September, the solicitors had some contact with each other during which the bride’s solicitor suggested that due to the proximity of the wedding, there was the suggestion of duress.

On 21 September 2007, Ms Harrison attended to the completion of her written advice to Ms Thorne. On 24 September 2007, Ms Thorne again attended at the offices of Ms Harrison and Ms Harrison went through her letter of 21 September with Ms Thorne face-to-face. I am satisfied that all advice given by Ms Harrison was consistent with the written advice in her letter of 21 September 2007. That letter is annexure 1 to the wife’s affidavit filed 14 January 2013. It is now reproduced in full:

You have sought my advice regarding a financial agreement which your fiancée Mr Kennedy (“Mr Kennedy”) has asked you to sign before your wedding. A copy of the agreement is enclosed. You have told me that Mr Kennedy has told you that the wedding which is now only days away will not go ahead if you do not sign the agreement. Mr Kennedy has told you and our office that the terms of the agreement are “not negotiable”.

The agreement that Mr Kennedy wants you to sign makes the following provisions: –

1. For your maintenance during the relationship;

2. What property you will receive if the two of you separate;

3. That you can not make a claim against Mr Kennedy to help him maintain if you separate;

4. What you will receive if Mr Kennedy dies and the two of you have not separated.

Provision for your maintenance during the course of the marriage

The agreement provides that during the marriage until such time as you separate, Mr Kennedy will: –

A. Meet all the outgoings with respect to the home in which the two of you live;

B. Pay your maintenance of not less than $4000 each month or 25% of the net income generated by the management rights of the Property N development, whichever is the greater;

C. Permit your family to reside rent free in a unit located in the Property N development;

D.Permit you to reside rent free in a penthouse unit located in the Property N development;

E. Allow you to have sole use and possession of the Mercedes Benz (omitted) which he currently owns or a replacement vehicle of the same or higher value.

Comments regarding maintenance

Whilst Mr Kennedy promises to meet all outgoings with respect to the home it appears that any of your own needs should be met from the $4,000.00 you receive. That would include clothing and potentially includes all your personal items, toiletries and even the food you eat.

Whilst mention is made of the Property N development, you have instructed me that council has refused permission for the development to go ahead and that Mr Kennedy and his business partners will need to “take the council to Court” to get development approval. As such throughout the Agreement wherever there is a reference to the Property N development there is no guarantee that Mr Kennedy can meet any of his obligations in particular: –

a. To permit your family to reside rent-free in a unit in the Property N development;

b.To meet permit you to reside rent-free in a penthouse unit located at the Property N development (if you resided rent-free in a penthouse unit located in the Property N development this may well constitute the separation from Mr Kennedy in which case you’re right to reside in the penthouse would cease). As such, unless Mr Kennedy resides with you this is a provision you may well be incapable of ever enjoying;

c. There is also the possibility that in order to get council approval the Property N development might be significantly altered from the current proposed plan which may lead to Mr Kennedy or you arguing that it is no longer the development which was anticipated at the time of the agreement;

With respect to the car, as time goes by the value of the car will reduce so that over time a replacement vehicle of the same value may well be something that is far more modest than a Mercedes Benz .

If you and Mr Kennedy separate all of the above rights will cease. The agreement makes this clear. Keep in mind that separation not only means that you decide that the marriage is at an end and leave Mr Kennedy but it can also mean that Mr Kennedy decides that the marriage is at an end and tells you to go or leaves you. If you separate you will immediately cease receiving income whether it is the payment of $4,000.00 a month from Mr Kennedy or part of the funds from the management rights, your parents will have 14 days to move out of the Property N apartment, and you will have 14 days either to move out of the home you share with Mr Kennedy and/or to move out the penthouse unit.

My comments

If you only receive $4,000.00 per month and have to meet all of your own expenses from that money this is a very poor payment to someone in Mr Kennedy’s circumstances. Mr Kennedy makes no provision in the agreement for the amount he gives you to increase over time and if you and Mr Kennedy live together for a significant period of time he need not pay you more than $4,000.00 and you cannot demand more from him. Of course if the Property N development goes ahead then you may be entitled to receive 25% of the net income after expenses derived from the management rights. However, you do not control the expenses or the profitability of those management rights and there is no guarantee that this sum will ever exceed $4,000.00 per month, if it ever becomes payable.

Property settlement

If you and Mr Kennedy ever buy a house, land or unit together you will loan that property in accordance with its title. However you are entirely dependent on Mr Kennedy’s generosity and if he chooses not to ever put anything in your name and then you will never own property.

If you and Mr Kennedy separate within the first three (3) years of your marriage, whether there is a child or not you will get nothing. Mr Kennedy will not be obliged to pay you any money or to support you in any way apart from the payment of child support if you have a child together.

If you separate after three (3) years and there is no child Mr Kennedy’s obligation is only to pay you $50,000.00. There is no obligation to him to pay for your support and you will have no right to make any claim from him. Whilst the $50,000.00 is indexed to rise each year, such increases over time will not be significant and this money will continue to be a piteously small sum.

If you separate after your third year at wedding anniversary and you have one or more children Mr Kennedy will pay you $50,000.00 once again indexed to increase by small increments each year. If there are children then Mr Kennedy must provide you with the unit in the Property N development with a market value of not less than $500,000.00 or, if that is not possible, a unit with a market value of not less than $500,000.00. This does not become your property however and you only have the ability to live in that property until: –

i. Any children you have with Mr Kennedy ceases to live with you; or

ii. You start living in a de facto relationship.

If Mr Kennedy dies

If Mr Kennedy dies whilst you are still living together and not separated the agreement provides that Mr Kennedy must have made a will to ensure that you receive: –

(1) A penthouse at the Property N development or a unit on the (omitted) chosen by you not exceeding a market value of $1.5 million;

(2) 40% of the net income of the management rights of the Property N development or $5000 per month indexed yearly, whichever is the greater;

(3) The Mercedes Benz (omitted) presently in your possession or a replacement vehicle of the same or higher value.

Background

Mr Kennedy is 67 years of age and has significant means. According to the Financial Agreement Mr Kennedy says he has net assets valued at over $24 million.

You are 36 years of age and have relatively insignificant assets. In the Agreement your assets are set out as being cash at the bank of $16,000 and a quarter interest in a flat in (country omitted) which has a value of $50,000.00.

You and Mr Kennedy have been living together since earlier this year.

At 36 years of age you advise that you want to child but do not wish to fall pregnant out of wedlock.

You and Mr Kennedy are to be married on (omitted). The wedding has been arranged, the guests have been invited, your family has come from (country omitted) for the wedding, your dress has been made and there is a booking at the (omitted) for your reception.

You wish to remain in Australia and potentially that cannot occur if your marriage does not proceed. You have no job and it may well be that your Visa does not presently, and will not for some time, permit you to work.

If you marry Mr Kennedy without this agreement you would have the ability under the Family Law Act to make an application for property settlement and spousal maintenance on separation.

Spousal maintenance

If you separate without an Agreement and you are unable to adequately support yourself Mr Kennedy, because of his income and means, would be required to support you or contribute towards your support. This obligation would continue until you are either remarried or died or until Mr Kennedy died.

Property settlement

If you separate without an Agreement and were unable to agree about a division of property you could ask the Family Court or the Federal Magistrates’ Court to make a decision about what would occur. If a Court will called upon to make a determination in this matter they would consider the following: –

The net value of the asset pool to be divided;

The contributions that you and Mr Kennedy respectively made to the acquisition, conservation and improvement of the assets and in the role of homemaker and parent;

Any disparities in your respective futures in areas such as the amount of income you both receive and who is have who is to have the primary carer of any children.

Having regard to the above three factors a Court would ensure that the orders made regarding the division of assets between you and Mr Kennedy was just and equitable.

If you and Mr Kennedy lived together for a short period of time it is unlikely that you would receive very much by way of Property Settlement but you are still likely to be entitled to Spousal Maintenance, provided you are unable to support yourself. Given the type of lifestyle you would lead with Mr Kennedy it is difficult to see you would be able to obtain any employment that would enable you to continue to support yourself in the same lifestyle. For that reason I believe that you would obtain an order for Spousal Maintenance.

As your relationship goes on, over a number of years it would become likely that you would receive a not insignificant sum (in any event more than $50,000.00) in any Property Settlement following separation.

There are a number of requirements for the agreement you sign to be binding. Those are as follows; –

That the Agreement be in writing and signed by both you and Mr Kennedy;

That you and Mr Kennedy receive independent legal advice as to; –

The effect of the agreement on your rights;

The advantages and disadvantages of entering into the Agreement.

That the two (2) lawyers giving the independent advice certify in an annexure to the Agreement that the advice has been given;

That the original of the Agreement is given to one of you and a copy given to the other;

Upon separation the Agreement is not binding until one or both of you sign a Separation Declaration declaring that you have separated and are living separately and apart at the time the Declaration is made. You must also further say that there is no reasonable likelihood of cohabitation being resumed.

In accordance with my obligations to advise you in relation to this matter I advise as follows: –

The effect of the Agreement on your rights is to limit the scope of your ability to make an Application for Property Settlement and do away entirely with your ability to seek to seek Spousal Maintenance following separation;

There is no advantage to you to enter into this Agreement as it significantly compromises your rights to seek property adjustment or ongoing Spousal Maintenance from Mr Kennedy.

I believe that you are under significant stress in the lead up to your wedding and that you have been put in a position where you must sign this agreement regardless of its fairness so that your wedding can go ahead. I also understand from what you have told me that you are longing to have a child and you see your relationship with Mr Kennedy as the opportunity to fulfil what may well be a long held desire. I hold significant concerns that you are only signing this agreement so that your wedding will not be called off. I urge you to reconsider your position as this Agreement is drawn to protect Mr Kennedy’s interests solely and in no way considers your interests.

With regards

Ms Harrison

Accredited family law specialist

Contrary to that advice, and understanding Ms Harrison to be telling her that the agreement was the worst contract she had ever seen, Ms Thorne signed the first agreement.

The wedding went ahead on (omitted) as planned.

Mr Jones next saw Mr Kennedy on 26 October 2007, with respect to the signing of the second agreement which he had contemplated being signed after the wedding. The necessary changes were made and the document provided to Mr Kennedy.

On 30 October 2007, Jones Mitchell lawyers wrote to Ms Harrison enclosing the second financial agreement.

Ms Harrison next saw the applicant on 5 November 2007. Her evidence was that she didn’t believe that she went through the second agreement with the exactitude as the first agreement but gave the same overall advice that the agreement was terrible and that she shouldn’t sign it. Again the wife thought that the agreement would only take effect if she left her husband and that as she was never going to do that she wasn’t concerned about that issue but remained concerned about what provision would be made for her in the event that her husband predeceased her. Ms Harrison recalls that during her interview with the wife for the purposes of providing her advice to the second agreement, the wife received a phone call from her husband wanting to know how much longer she was going to be. Ms Harrison gained the distinct impression that the wife was being pressed to not spend too long on this issue but to get the document signed.

The second agreement was signed on that day by Ms Thorne. It contains the same essential provisions as the first agreement and the same information with respect to the husband’s schedule of property, financial resources and liabilities.

The second agreement was signed on 20 November 2007 by Mr Kennedy.

On 16 June 2011, the husband signed a separation declaration. The wife considers that the parties separated on a final basis in August 2011.

The parties had had no children together. For a short time, Ms Thorne had tried IVF unsuccessfully.

Mr Kennedy’s evidence was that he signed the Separation Declaration at a time when he had told Ms Thorne repeatedly to stop “frustrating him”, and she didn’t.

The parties had been married for just shy of four years, and cohabitating, all up, for about four and a half years.

The Law

The legislative provisions with respect to Financial Agreements are found in Part VIIIA of the Family Law Act 1975. They were introduced in 2000.

The legislative provisions at the time of the agreements being signed are the operative law. The amendments made in 2009 to s90G (including s90G(1A)) were not retrospective: Wallace & Stelzer and Anor [2013] FamCAFC 199 per Finn, Strickland and Ryan JJ at 73.

Sections 90G(1) and (1A) of the Act provide:

(1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:

(a) the agreement is signed by all parties; and

(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

(d) the agreement has not been terminated and has not been set aside by a court.

Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995 .

(1A) A financial agreement is binding on the parties to the agreement if:

(a) the agreement is signed by all parties; and

(b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and

(c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

(d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and

(e) the agreement has not been terminated and has not been set aside by a court.

Accordingly, only s90G(1) is herein relevant.

As to whether a financial agreement is valid, enforceable or effective, is determined according to the principles of law and equity that are to be applied when determining the validity and enforceability or effectiveness of contracts and purported contracts (see section 90KA of the Act). Conduct which is unconscionable would have a bearing on the validity or enforceability of an agreement. Duress is a form of unconscionable conduct.

Any Deficits in the Agreements and Subsequent issues of Enforceability

Any Deficits in the Legal Advice Given to either Party, and Subsequent Issues of Enforceability

The agreements attach at “A” and “B” certificates from the parties’ respective lawyers. The certificates for the first agreement for each of the lawyers are worded identically except to the name of the lawyer and their professional address:

CERTIFICATE FOR THE PURPOSES OF S.90G OF THE FAMILY LAW ACT 1975 AS AMENDED BY THE FAMILY LAW AMENDMENT ACT 2000

I, [lawyer’s full name and practising address], hereby certify that:

1.I am a legal practitioner practising as a Lawyer.

2.I have provided [client’s name and residential address] with independent legal advice as to the effect of a Financial Agreement pursuant to s90D and 90MH of the Family Law Act proposed to be entered into between MR KENNEDY and MS THORNE. I have provided the said [client’s name] with independent legal advice before [s/he] signed this Agreement as to the following matters:

(a)The effect of the Agreement on the rights of [client’s name]; and

(b)The advantages and disadvantages to her at the time that this advice was provided to [him/her], of making this agreement.

DATED the [date of signing]

[Signature of Lawyer]

The reference to section 90D is wrong. That section refers to financial agreements after a divorce order is made. Section 90CB applies when a financial agreement is made before marriage. On the Agreement’s cover sheet and in the body of the document, the correct section was referenced. It would appear to have been merely a drafting error in the Lawyers’ Certificates.

The reference to section 90MH is unnecessary, and to that end, wrong. It refers to financial agreements that deal with superannuation interests. This agreement did not deal with any superannuation interest. Again, it would appear to have been merely a drafting error in the Lawyers’ Certificates.

I am not satisfied that a drafting error of this nature is sufficient to offend s90G(c) which requires the provision of a signed statement by the legal practitioner stating that the advice about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided. The fact that the lawyers used an incorrect short hand reference by way of referring to a section of the Act does not take away from the advice that was given. It is unfortunate for the reference to be wrong, but in the circumstances of this case, I do not consider that it is terminal to the agreements.

Errors in the Part “C” Schedule of Property, Financial Resources and Liabilities of MR KENNEDY, as at the dates of the Agreements

During the adjournment of the trial between the first tranche of evidence and the second tranche of evidence, the parties attended to valuations of the husband’s interests at the time of the signing of the financial statements. That exercise demonstrated that the husband’s estimates of the value of several of his assets at the time that he provided it to his solicitor Mr Jones was not completely accurate. There is no reason for me to think that Mr Kennedy was doing anything but his best to reflect his financial position at that time and that he did that without the benefit of any independent valuations. There was no reason for the wife to have any particular view about Mr Kennedy’s worth. As stated earlier, it would seem from Mr Kennedy’s evidence that the applicant source of knowledge about his financial position would not have been obtained by him telling her directly rather but from her reading the (omitted) agreement. And, as I have found, Ms Thorne could infer wealth from Mr Kennedy’s words to her, and his actions and their circumstance, but not from any firm basis of knowledge.

The husband had some complex business interests in 2007 including shares in his own companies and interest in land at Property N on the (omitted). The husband’s evidence in cross-examination included that he didn’t think it was necessary to mention all of his companies and trusts when setting out his assets but that he did understand that the assets that he was declaring were is and his companies’ assets.

The valuations revealed that at the time of the agreements the Penthouse in which the husband was living should have been ascribed the value of $4.7 million not the $6 million that the husband provided. Further his shares in various companies were probably in the order of between $11 million and $13 million not the $10 million that he had ascribed. The interest in land at Property N, the valuation demonstrates, should have been ascribed to the value of $3 million not the $6 million that Mr Kennedy provided.

The difficulty that is suggested by the wife is that the husband’s use of the expression “shares in public companies” may reflect his shareholdings in companies for which he has no personal interest rather than companies of which he lawfully holds an interest. I understood Mr Kennedy’s evidence to include that the schedule “C” to the agreements reflected his assets and his companies’ assets and to that end I am not satisfied there is any basis for me to form the view that where at .8 he nominates “shares in public companies” he means anything other than shares in his own companies. To that end it is notable that his then estimate was not too far off the mark of the $11 million which seems to now be accepted.

It is also of note that, on that basis, Mr Kennedy’s schedule, if anything, inflates his worth. There is no basis for me to form the view that that was done with any intention to defraud or misrepresent his true situation but rather was a reflection of his understanding of his financial position at the time. There is, of course, no requirement for parties to have assets and liabilities expertly valued prior to the signing of financial agreements.

The Wife’s Proficiency in English and Any Bearing this has on her Capacity to Understand the Nature and Effect of the two Agreements

The husband and wife, during their courtship and during their marriage spoke with each other in English and in (language omitted). They appear to have been able to make themselves understood well enough. When speaking with the husband’s family and friends, the wife would speak English and appeared to others to be able to participate in conversations.

When the applicant went to consult Ms Harrison, she spoke in English. Ms Harrison was not concerned about the applicant’s capacity to understand her, and formed that the view that her client was understanding her: she was able to answer the solicitor’s questions and able to give her information.

Ms Harrison’s oral and written advice was, simply put, that the proposed Financial Agreement was terrible and that the applicant should not sign it. Ms Harrison understood the applicant’s position to be that the testamentary provisions were at the forefront of her mind. Indeed, the applicant was concerned to ensure that the agreement contained protection for her from Mr Kennedy’s Estate, should he predecease her, given that was likely bearing in mind their respective ages.

Ms Harrison’s evidence included that she considered that the applicant was not concerned about the separation provisions, but was aware of them. Ms Harrison considered that the wife’s understanding included that the separation terms of the agreement would only “kick in”, if she left the husband, and that she would never do that; the applicant was not interested in the idea that Mr Kennedy might ever leave her.

The evidence of the applicant’s expert witness, Ms S, demonstrates, it seems to me, that the wife is not fluent in English. Indeed, no-one seems to be arguing that she is fluent in English. Ms S was not satisfied that the results of the IELTS test undertaken by the wife in September 2011 accurately reflected her true ability, and considered as a result of her assessment of the wife that the test produced an incorrect higher mark, than she assessed of the wife.

Importantly, though, the evidence of Ms S included, that, for any lack of fluency in the wife’s understanding of English, she would be capable of understanding words to the effect of “this is a bad agreement; don’t sign it”. And, in short, that is what Ms Harrison’s advice was.

I am satisfied on Ms Harrison’s evidence that she was making her points clearly and plainly to the wife, and that the wife was understanding the final effect of the advice. Indeed, the wife’s own evidence is that Ms Harrison told her: “It is the worst contract I have ever seen. Don’t sign.”

There is a gap, then, between the level of understanding of the advice, and the actions of the applicant, the then client of Ms Harrison. If she understood such plain advice, why, then, would she sign the document? And within that question, if she understood the advice, why would she fail to conceive of the notion that the husband might be the one to end the marriage, leaving her exposed to the poor outcome?

I am not satisfied that there is any basis for me to consider that the wife’s poorer English can be associated with that outcome. If I am satisfied that her English was sufficient to understand the purpose and effect of the agreement, and to understand the solicitor’s advice about those matters, then I cannot attribute her lack of proficiency in English to her signing the agreement despite the advice.

Any Matters of Duress or Undue Influence

It is submitted on behalf of the Respondent through his Outline of Case, that to establish duress, there must be pressure the practical effect of which is compulsion or absence of choice.

The applicant knew that there would be no wedding if she didn’t sign the first agreement. The husband’s position about that was plain.

The husband did not negotiate on the terms of the agreement as to matters relating to property adjustment or spousal maintenance. He did not offer to negotiate. He did not create any opportunities to negotiate. The agreement, as it was, was to be signed or there would be no wedding. Without the wedding, there is no evidence to suggest that there would be any further relationship. Indeed, I am satisfied that when Mr Kennedy said there would be no wedding, that meant that the relationship would be at an end.

The applicant wanted a wedding. She loved Mr Kennedy, and wanted a child with him. She had changed her life to be with Mr Kennedy.

She was in Australia only in furtherance of their relationship. She had left behind her life and minimal possessions in (country omitted). She brought no assets of substance to the relationship. If the relationship ended, she would have nothing. No job, no visa, no home, no place, no community. The consequences of the relationship being at an end would have significant and serious consequences to Ms Thorne. She would not be entitled to remain in Australia and she had nothing to return to anywhere else in the world.

Every bargaining chip and every power was in Mr Kennedy’s hands. Either the document, as it was, was signed, or the relationship was at an end. The husband made that clear.

Mr Kennedy knew that Ms Thorne wanted to marry him. For her to do that, she needed to sign the document. He knew that she would do that. He didn’t need to open up negotiations. He didn’t need to consider offering something different, or more favourable to Ms Thorne. If she wanted to marry him, which he knew her to want, she must sign. That situation is something much more than inequality of financial position. Ms Thorne’s powerlessness arises not only from her lack of financial equality, but also from her lack of permanent status in Australia at the time, her reliance on Mr Kennedy for all things, her emotional connectedness to their relationship and the prospect of motherhood, her emotional preparation for marriage, and the publicness of her upcoming marriage.

In those circumstances, the wife signed the first agreement under duress. It is duress borne of inequality of bargaining power where there was no outcome available to her that was fair or reasonable.

The point of the second agreement, as best as I can understand the thinking of Mr Kennedy’s solicitor, was to allow the time pressure of the impending wedding to be released and for the agreement to be signed absent that time pressure. As I find it, the time pressure was, for the parties, and particularly the wife, the only difference. All of the other inequalities set out above remained. The wife had no bargaining power, nothing to persuade a different outcome, no capacity to affect any change.

In all respects the second agreement was simply a continuation of the first – the marriage would be at an end before it was begun if it wasn’t signed.

The wife plainly had no choice that she could reasonably see, but to sign the agreement. In those circumstances the second agreement was plainly signed by the wife under duress.

I’m satisfied that, in the circumstances, the operative second agreement was signed by the wife under duress. The agreement must be set aside.

The wife has been wholly successful in this hearing. Costs should follow the event. The respondent will pay the wife’s costs of this part of the application. The quantum of such costs, if not agreed, will need to be the subject of further submissions.

I make the orders as set out at the commencement of these reasons.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Demack

Date: 4 March 2015

1

The plaintiff is the daughter of the late Michael John Maynard Wright (the deceased). The deceased died on 26 April 2012 aged 74. He was survived by his wife Mary whom he married on 2 May 1997. He was survived by three adult children born of his earlier marriage to Jennifer Turner. The second defendant was born on 28 August 1971. The third defendant was born on 18 December 1973. The deceased’s son Myles who is not a party to these proceedings is the other adult child. The deceased’s three earlier wives (from whom he had been divorced) survived him. The plaintiff was born on 3 September 1995 from a relationship with Elizabeth Anne Mead.

2

The deceased made many wills during his lifetime with those many wills being altered by even more numerous codicils. The deceased made his last will on 6 March 2012 and that will was altered by codicil on 11 March 2012. On 10 July 2012 probate was granted in this court to the first defendant. The first defendant was the executor named in the will. He was over many years the deceased’s solicitor.

3

The fourth defendant is now, after partial distribution of the estate, a company owned jointly by the second and third defendants. The main value in the estate is held in this company. Quite why it should have been a party to these proceedings is not clear. In any event the fourth defendant took no separate part in the action and no orders were sought against it.

4

The plaintiff maintains she has not been left with adequate provision from the estate of the deceased.

Size of the deceased’s estate

5

Up until now in every case brought under the Family Provision Act 1972 (WA) (the Act) it has been necessary to assess the value of a deceased’s estate as at the date of death and as at the date of the hearing of the action. This case is different. After some initial skirmishing over the level of financial disclosure relating to the estate the parties agreed no attempt at valuation was necessary. They were clearly correct.

6

The deceased’s estate is colossal. By reference to the statement of assets and liabilities attached to the affidavit sworn by the first defendant on 1 June 2012 in support of his application for probate the value of each of the second and third defendant’s entitlements is in the order of $400 million. That needs to be put in context. Evidence was given by two actuaries during the course of the hearing – I will come to that evidence below. Both actuaries agreed a reasonable rate of return on capital is in the order of 6½%. If that is right then each of the second and third defendant can expect an income of more than $24 million per year without touching the capital. Of course that assumes each of their interests is only worth $400 million. In his written submissions counsel for the plaintiff speculated the size of the estate may be in excess of $1 billion. No issue was taken with that estimate by the defendants. Anyway it is difficult for most people to comprehend such wealth.

7

The bulk of the deceased’s estate has been distributed by the first defendant. Once a claim was made against the estate under the Act an executor should not further distribute the estate. The first defendant appears to have ignored that rule – presumably he believed the estate was of such a size any distribution he might make would not affect the capacity of the estate to meet any award. Be that as it may it is rule of practice the estate should not be distributed and no exception exists for large estates. If the executor is of the view further distribution would be appropriate and there was no risk of any award made to a party not being met he should seek the appropriate directions from the court under the provisions of the Trustees Act 1962 (WA).

8

At present the amount standing in the estate and undistributed is $45,272,231.18. It would seem just over $3 million of that amount is held in cash. The rest represents intercompany loans. In his evidence the first defendant said he had no doubt the full amount left undistributed could be realised within 30 days. Counsel for the plaintiff, while reserving his position so far as the distribution of the estate was concerned, accepted it was highly likely any award made to the plaintiff could be met from the undistributed assets of the estate.

The plaintiff’s entitlement to bring this claim

9

As the daughter of the deceased the plaintiff is an eligible person under the definition of ‘child’ in s 4(1) of the Act. Her entitlement to maintain this action is found in s 7(1)(c) of the Act. The application is then to be determined under the provisions of s 6(1) of the Act. That section reads as follows:

If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased’s estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement in life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

10

The proper approach to s 6(1) of the Act has been considered in numerous cases. It is now well settled the approach adopted by Malcolm CJ in Bondelmonte v Blanckensee [1989] WAR 305 is to be applied. His Honour said (307):

On an application under this provision two issues arise. The first question is whether the disposition of the estate by the deceased was not such as to made adequate provision for the proper maintenance, support, education or advancement in life of the claimant. This is in effect a jurisdictional question, which is to be determined at the date of death of the deceased: Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494. If that question be answered in the affirmative, the court in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order: Coates v National Trustees Executors & Agency Co Ltd (supra); Dun v Dun (1957) 99 CLR 325 at 331; Goodman v Windeyer (1980) 144 CLR 490.

11

Much judicial ink has been split attempting to define what is meant by the expression ‘adequate provision’ in the section. In the end all that can be said is what is adequate depends on the circumstances of the case – the size of the estate, the nature of the relationship between the claimant and the deceased, the claimant’s present circumstances and other legitimate claims. Any attempt to refine the meaning of this section runs the risk of putting a gloss on the statute.

12

There were three matters which were not in issue between the parties. First, the defendants accept the claim was brought within time – there is no limitation issue. Second, the defendants concede there was no conduct on the part of the plaintiff which would amount to what is sometimes called disentitling conduct. These are what might be called the statutory nonissues. But there is one further concession made by the defendants which is of great significance. They concede no award made to the plaintiff will have any effect whatever on any other party who is to take under the will. This concession requires more elaboration.

13

The will of the deceased provided for a number of specific bequests. For instance the wife of the deceased and his son Myles were provided with specific amounts. No order made in these proceedings will have any effect on their entitlement under the will or the entitlement of any other nominated beneficiary. The second and third defendants are the residuary beneficiaries. As the will stands at present they will receive what is remaining in the estate less any entitlement the plaintiff may have. But they acknowledge what they receive under the will is so significant that any award to the plaintiff will make no difference to their position. So one element that is usually a significant part of determining if any award should be made under the provisions of the Act is in this case of no account.

The plaintiff’s entitlement under the will

14

The plaintiff’s entitlement under the will is found in cl 6A(c)(i)(E) of the deceased’s will. It is in the following terms:

(E)Olivia Trust No. 2

(a)I note that I have given to the trustee of the trust called the Olivia Trust No 2 dated 18 April 2007 between Peter Cornelius Beekink as Settlor and me, Michael John Maynard Wright, as trustee (the ‘Trust’ as amended, supplemented, novated or replaced from time to time), sufficient funds to purchase a commercial building in Peel Street, O’Connor for $720,000 (which I currently rent from the Trust) plus $20,000.00 in cash. I note that periodically I place surplus cash on deposit with the trust at interest but on call;

(b)I propose to make 5 annual payments to the trustee of the Olivia Trust No 2 to increase the trust fund up to a maximum amount of $3 million in cash and/or property. These annual payments will be increased annually by the CPI increase;

(c)if I die prior to making all of those annual payments, and for so long as Olivia Mead is a beneficiary under the Olivia Trust No 2, to pay the balance of those 5 annual payments to the trustee of the Olivia Trust No 2 as if I were alive but only up to a maximum amount of $3 million (subject to CPI Increase) in cash and/or property inclusive of any amounts paid into that trust under Clause 3 above, as well as any loans I may have made to the Trust under Clause 6A(c)(i)(E)(a) above to which I waive repayment,

(d)subject to clause 6A(c)(i)(E)(b) and (c), the amount of the last payment I make to the trustee of the Olivia Trust No 2 before my death will be the amount of each of the balance of these payments to the trustee of the Olivia Trust No 2 under my Will;

(e)the amount of each payment referred to in clause 6A(c)(i)(E)(c) will be increased annually by the CPI increase;

(f)it is my belief that the payments contributed generally in support of Olivia Mead and to the trustee of the Olivia Trust No 2 during my lifetime (in this regard my Trustees should have my personal records to ascertain the extent of my support to Olivia Mead and provide evidence of this support to such persons as they consider appropriate) and the provision for further contributions to the trustee of the Olivia Trust No 2 after my death, are such as to provide for the adequate and proper maintenance, support, education and advancement in the life of Olivia Mead;

(g)for the purposes of this clause 6A(c)(i)(E) only:

CPI means the Consumer Price Index – All Groups for Perth, Western Australia, published by the Australian Bureau of Statistics, or any index which officially replaces it. If no index officially replaces it, the trustees will arrange for an expert to assess what it would have been

CPI Increase means the figure determined by dividing the current CPI by the previous CPI

Current CPI means the CPI number for the quarter ending immediately before the relevant payment

Previous CPI means the CPI for the quarter ending immediately before the payment immediately preceding the payment to be increased by the CPI increase

(The reference to the ‘Olivia No. 2 Trust dated 18 April 2007’ should be a reference to the Olivia Trust No 2 dated 18 April 2008. This was a typographical error and was acknowledged as such by the first defendant in his affidavit.)

15

To make sense of this clause it is necessary to refer to the provisions of the Trust Deed itself.

16

In some ways the Trust is a classic family discretionary trust; but in some respects it is highly idiosyncratic. Under the heading ‘Background’ there is a recital to the following effect:

One of the main objectives of the Olivia Trust No 2 is to provide for the advancement and benefit of Olivia Mead.

17

In the definition section, ‘Vesting Date’ is effectively the date upon which the plaintiff turns 30. However, there is an extended definition found in cl 5 of the Deed. It is in the following terms:

5Trust Fund at the Vesting Date

5.1If the Vesting Day is:

5.1.1The date on which Olivia Mead attains the age of 30 years and:

(a)Olivia Mead satisfies the Trustee (acting reasonably) that she is the natural daughter of Michael John Maynard Wright, and

(b)Olivia Mead is not an Excluded Person,

the whole of the Trust Fund will vest in Olivia Mead.

5.1.2After the date of Olivia Mead’s death and:

(a)Olivia Mead has not attained the age of 30 years; and

(b)Michael John Maynard Wright is still alive,

the whole of the Trust Fund will vest in Michael John Maynard Wright.

5.1.3After the date of Olivia Mead’s death and:

(a)Olivia Mead has not attained the age of 30 years; and

(b)Michael John Maynard Wright is dead,

the whole of the Trust Fund will vest in the executor of the will of Michael John Maynard Wright to be held in accordance with the terms of the distribution of his estate.

5.1.4any other date than those referred to in clauses 5.1.1  5.1.3 the Trustee has a discretion to pay or apply the entire amount, in such shares as the Trustee determines, to or for the benefit of one or more of the Beneficiaries (to the exclusion of the others) who are alive or in existence on the Vesting Date and if there are no Designated Beneficiaries then eligible, the whole of the Trust Fund shall vest in the executor of the will or personal representative of Michael John Maynard Wright to be held in accordance with the terms for the distribution of his estate.

18

The plaintiff is and always has been a beneficiary under the Trust. However, there is an extended definition of the term ‘Beneficiary’ found in the Deed. It reads as follows:

Beneficiary means any of the following:

(a)Olivia Mead, Michael John Maynard Wright, any other person nominated in writing by Michael John Maynard Wright personally (Designated Beneficiaries);

(b)any company in which any one or more of the Designated Beneficiaries, either directly or indirectly through one or more interposed entities:

•holds a controlling interest; or

•holds or is beneficially entitled to more than 50% of the voting power in the company or to rights to more than 50% of any dividends or any distribution of capital either on a return of capital or on a winding up,

(but only until such Designated Beneficiary becomes an Excluded Person) excluding

•the Settlor;

•any person in the capacity as trustee of any other trust to the extent that a distribution to that trustee would infringe the rule against perpetuities; and

•any Excluded Person.

(c)Any trust, association or company formed for charitable purposes.

19

The expression ‘Excluded Person’ which is referred to in cl 5 is defined in the definition section but more extensively defined in cl 14. That clause is in the following terms:

14.Excluding Beneficiaries

Excluded Persons

14.1Any person whether a Designated Beneficiary or not who:

14.1.1if Michael John Maynard Wright at any time before the Vesting Date, declares that person or class of persons is or are an Excluded Person;

14.1.2is a child of Olivia Mead;

14.1.3has become an alcoholic and/or whose capacity for rational behaviour in a competent and satisfactory manner has been impacted by alcohol;

14.1.4has at any time suffered a conviction relating to drugs, their use or any other illegal association therewith in any recognised form;

14.1.5is or has been in the opinion of my Trustees recently suspected or knowingly had any involvement or association whatsoever in relation to illegal drugs;

14.1.6in the opinion of my Trustees has become a drug addict or become involved with illegal drugs in the manner described in the preceding subclauses as a result of the legal use of drugs fur any reason whatsoever;

14.1.7is in the opinion of my Trustees a member of or in any other way involved with any religious body other than the Roman Catholic, Anglican, Presbyterian, Baptist, Uniting or other similar traditional faiths; or

14.1.8has been convicted of a felony at any time after the death of Michael John Maynard Wright or within 10 years preceding the death of Michael John Maynard Wright,

will be an Excluded Person and, as such, will be excluded as a Beneficiary under this Deed.

Effect of declaration

14.2A declaration in accordance with, or exclusion under, clause 14.1 takes effect on the date specified in the declaration or the occurrence of the relevant event (as the case may be) and continues to have effect thereafter. However, such declarations and events do not derogate from any interest in the Trust Fund to which any Beneficiary is indefeasibly entitled on or before the date of the declaration.

Declaration revocable unless otherwise specified

14.3A declaration or opinion made in accordance with clause 14.1 may be revoked at any time before the Vesting Date, unless Michael John Maynard Wright specifies at the time of making the declaration or opinion that it is to be irrevocable.

20

The appointor of the Trust was the deceased. Pursuant to cl 7.1 of the Deed upon the death of the deceased his executor, the first defendant, became the appointor. He also became trustee of the Trust with power to appoint another trustee if he wished (cl 7.2). The Trust Deed contained provisions dealing with how the income of the Trust Fund was to be distributed and how the trustees were to deal with the capital of the Trust. Both are of some importance and I will quote each clause in full:

3Income of the Trust Fund

Distributable Income

3.1Notwithstanding the definition of Distributable Income in clause 1.1, the Trustee has a discretion to determine the amount of the Distributable Income of the Trust Fund with respect to an Accounting Period. Subject to the exercise of this discretion, the amount of the Distributable Income with respect to an Accounting Period is whichever is the greater of Trust Income or Tax Income for that Accounting Period.

Trustee’s discretion

3.2In relation to the Distributable Income of the Trust Fund, the Trustee has a discretion either:

3.2. 1to pay or apply all or part of the Distributable Income as or for the benefit of Olivia Mead and in particular for her education (to the date Olivia Mead attains the age of 23 years or the attainment of her first tertiary qualification, whichever is the earlier to occur), maintenance, health and medical expenses;

3.2.2to pay or apply all or part of the Distributable Income, in such shares as the Trustee determines, to or for the benefit of one or more of the Beneficiaries (to the exclusion of the others) who are alive or in existence from time to time; or

3.2.3to accumulate all or part of the Distributable Income.

Exercise of Trustee’s discretion

3.3On or before the last day of each Accounting Period until the Vesting Date, the Trustee may exercise its discretion under clause 3.2 in respect of part or the entire Distributable Income of the Trust Fund for that Accounting Period.

Failure to exercise discretion

3.4Where the Trustee fails to exercise its discretion in accordance with clause 3.3 in respect of all or any part of the Distributable Income of the Trust Fund for an Accounting Period (unallocated amount), the Trustee is deemed to have accumulated the Distributable Income.

Exercise of discretion irrevocable

3.5Where the Trustee has exercised its discretion in accordance with clause 3.3 or is deemed to have exercised its discretion in accordance with clause 3.4 that exercise of discretion is irrevocable.

4Capital of the Trust Fund

Trustee’s discretion

4.1In relation to the Capital of the Trust Fund, the Trustee or Michael John Maynard Wright has a discretion to pay or apply all or part of the Capital, in such shares as the Trustee or Michael John Maynard Wright determines, to or for the benefit of one or more of the Beneficiaries (to the exclusion of the others) who are alive or in existence from time to time.

Exercise of Trustee’s discretion

4.2Without:

4.2.1limiting clause 4.1, it is the intention and wish of the Trustee and the Appointor as at the date of this Deed that there will not be any vesting of any of the capital of Trust Fund [sic] upon Olivia Mead until both of the following events have occurred:

(a)Michael John Maynard Wright has died; and

(b)Olivia Mead has attained the age of 30 years; and

4.2.2being under any obligation, until the Vesting Date Michael John Maynard Wright may exercise his discretion under clause 4.1 in respect of all or part of the Capital of the Trust Fund at any time.

Exercise of discretion irrevocable

4.3Where Michael John Maynard Wright has exercised his discretion in accordance with clause 4.2, that exercise of discretion irrevocable.

Power of advancement

4.4In exercise of the discretions conferred by either or both of clause 3 or clause 4 of this Deed, the Trustee may pay, apply or accumulate Property comprising or comprised in the Trust Fund for the advancement or benefit of Olivia Mead.

21

The picture that emerges then is this. Any benefit which was to flow to the plaintiff upon the death of the deceased passed to her through the Trust. As at the date of the death of the deceased the assets of the Trust were a building in O’Connor which was purchased for an amount of $720,000 and roughly $20,000 in cash. There was a debt attached to the building but that was cancelled under the terms of the will. As at the date of his death the deceased had not made any of the five annual payments to the Trust to bring its capital up to $3 million. Pursuant to cl 6A(c)(i)(E)(c) of the deceased’s will, the executor is directed ‘to pay the balance of those 5 annual payments to the trustee of the Olivia Trust No 2 as if I were alive but only up to a maximum amount of $3 million’.

22

There appears to be some uncertainty as to how this clause is to operate. Assuming the property in the Trust together with the cash amount to $740,000 then the executor is to pay into the Trust an amount of $2,260,000. It may or may not be the case the will requires annual instalments of $452,000. It may require no more than annual instalments of whatever amount the trustee deems appropriate with a final balloon payment bringing the total capital in the Trust up to $3 million (adjusted by CPI).

23

It is also not clear what the phrase ‘up to a maximum amount of $3 million’ actually means. Counsel for the plaintiff suggested it provided the trustee with a discretion to make payments up to that amount or to make payments of a lesser amount. Counsel for the defendants submitted the intent of the will was clear and the trustee was required to ensure the capital amount in the Trust was $3 million. It is not for me to determine precisely what cl 6A(c)(i)(E)(c) of the will means. But it does appear the position is arguable.

24

As at the date of death of the deceased the plaintiff and the first defendant had never met. In fact the evidence of the plaintiff was to the effect she had no knowledge of the existence of the Trust and its terms. The deceased had never mentioned it to her. Clause 3 and cl 4 of the Trust gives the trustee an absolute discretion with respect to the income and capital of the Trust. So, for instance, if the trustee decided to retain all of the earnings in the Trust until the plaintiff was 30 there is nothing she could do to alter that decision. In fact it appears as though the deceased intended the income from the Trust would not be just distributed to the plaintiff on an annual basis. Pursuant to cl 3.2.1 distribution of the income is permitted for the purposes of education but only up until the plaintiff is 23 years of age. What the Trust envisages is the plaintiff approaching the trustee for distribution for particular purposes; and the trustee has the discretion to agree or to refuse to make a distribution.

25

So far as capital is concerned the plaintiff has no right to call for any part of the capital. For instance, if she decided she wished to buy a house and sought a capital sum for that purpose the trustee would be quite entitled to refuse. He would not have to give any reason for doing so. The trustee might advance the funds. But the plaintiff under the terms of the Trust is at the mercy of the trustee.

26

Under the definition of ‘Beneficiary’ in the Trust it would be open to the appointor to include an organisation formed for charitable purposes – the Salvation Army for instance. The Trust allows all of the income to be distributed to that nominated beneficiary. It is most unlikely that would ever occur. But it is a possibility and is another odd feature of the Trust.

27

The strangest aspect of the Trust is cl 14. This provision could operate in an entirely oppressive fashion. It is arguable if the plaintiff were convicted of a drink driving offence she could be excluded as a beneficiary under the terms of cl 14.1.3. The same is true if she were convicted of simple possession of marijuana. It may even be the case if she was suspected of involvement with someone who used an illicit substance she could be excluded under cl 1.4.5.

28

The most egregious of all the provisions is cl 14.1.7. If the plaintiff converted to Buddhism, or perhaps Islam, she would be an ‘Excluded Person’. In fact it is arguable if she took a deep interest in, or was associated with persons who practiced these faiths, she would fall foul of the provision. Most Australians would regard freedom of religion as part of their birthright. The plaintiff in order to be sure the Trust would vest in her when she turned 30 would have to give up that basic human right. That is an extraordinary proposition.

Did the will of the deceased provide adequately for the plaintiff?

29

In my view it is clear the will of the deceased did not make adequate provision for the plaintiff. The starting point in reaching that conclusion is the size of the estate. The deceased had a vast fortune and he was in the fortunate position of being able to provide for all of the parties who had a claim on his bounty. It may be that providing the plaintiff with a sum of $3 million tied up in a Trust could be regarded as adequate – although for reasons which follow I am not satisfied that is the case. But this structure does not guarantee the plaintiff $3 million. There is a real prospect she might get nothing.

30

Furthermore, the whole structure is unwieldy. To have her fate in the hands of a man she had never met and who had close ties with other family members is unreasonable. How could the first defendant be expected to understand the wants and needs of a 19yearold girl living in Perth’s outer suburbs when he was a solicitor in Sydney? How was the first defendant to ensure the plaintiff did not fall foul of any of the provisions of cl 14? The terms of the Trust make it incumbent upon him to ensure the plaintiff did not breach any of the terms of that clause. The first defendant may well have had a philosophy that it was best to retain earnings in the Trust so that when the plaintiff turned 30 she would come into a substantial fortune. All of that is uncertain. The whole system is unworkable.

31

When the term ‘adequate’ found in the section of the Act is considered it is almost always in the context of whether the financial provision in the will is sufficient. But there is no reason why the term could not be used to described the form in which the provision is made in the will. The Macquarie Dictionary has as a definition for ‘adequate’ the word ‘suitable’. The structure mandated by the will and the Trust is, to my mind, not a suitable provision to provide for the proper maintenance, support, education or advancement in life of the plaintiff.

32

What Bondelmonte v Blanckensee makes clear is the jurisdictional question is to be answered at the date of death of the deceased. My assessment of the interaction of the provisions of the will and the terms of the Trust are focused on the date of death. But it is instructive to look at what has happened since the death of the deceased. Prior to the trial the first defendant offered to give to the court an undertaking that he would within 28 days after judgment bring the capital value of the Trust up to $3 million. On behalf of the defendants it was submitted this would remove any uncertainty as to what the plaintiff would receive from the deceased’s estate.

33

It is difficult to know what to make of that offer. In part it is of no consequence. What I have to assess is whether as at the date of death of the deceased adequate provision had been made for the plaintiff. It is the operation of the will and the Trust taken together which provide the answer to that question. An undertaking proffered subsequent to the death of the deceased can have no bearing on the decision on that issue.

34

In her closing submissions counsel for the defendants said the first defendant was prepared to give an undertaking to the court he would relinquish his position as appointor of the Trust and ensure a person acceptable to the plaintiff took up the position of appointor. Once again that undertaking cannot inform the decision of whether or not the provision in the will was adequate.

35

But two points can be made about these undertakings. First, the undertakings could only be accepted if I was satisfied the will of the deceased did not make adequate provision for the plaintiff – that is to say, if I was satisfied the plaintiff had satisfied the jurisdictional requirements of the section. It is satisfaction of that jurisdictional test which enlivens the jurisdiction. Undertakings given to the court could in any way effect that decision. If the jurisdictional requirement were not satisfied it is difficult to see on what basis the undertakings could be accepted and how they would be enforced.

36

Second, the offer of the undertakings suggests the defendants concede the terms of the will and the Trust do not adequately provide for the plaintiff. Counsel for the defendants hotly denied there was any such concession. How can the offer of the undertakings can otherwise be characterised? In any event in determining this question I have not taken into account any concessions on the part of the defendants.

37

It is also instructive to look at what has occurred in relation to the Trust since the date of death of the deceased not for the purpose of determining whether or not the interaction of the will and the Trust were adequate to provide for the plaintiff but rather to see whether any of the concerns raised by the plaintiff about the structure of the Trust are real. Since the date of the death of the deceased the first defendant has made two payments of $100,000 into the Trust. Why he should have made these payments is not explained. Clearly he was of the view he was not bound to make five equal payments and nor does he consider the payments ought be made annually. It could not be said the first defendant has in any way breached the terms of the Trust. The first defendant’s actions serve to highlight the uncertainty surrounding when payments into the Trust were to be made.

38

The first defendant has, pursuant to his power as appointor, retired as trustee and appointed a new trustee. There is no suggestion the new trustee is anything but independent. However, it is difficult to know why the first defendant took this step. Doubtless he is well motivated. But he did not discuss the appointment of a new trustee with the plaintiff and it would appear the plaintiff has had no contact with the new trustee. She knows nothing of the new trustee and presumably the new trustee knows nothing of her. This serves to illustrate again the capricious nature of the power given to the first defendant by the terms of the Trust.

39

In my view given the size of the deceased’s estate and the uncertainty surrounding the interaction between the deceased’s will and the Trust taken together with the terms of the Trust itself there has not in this case been adequate provision made for the plaintiff. I am satisfied the jurisdictional question should be answered in her favour.

Evidence of the plaintiff

40

The plaintiff swore four affidavits in these proceedings. They were admitted into evidence without objection. The picture that emerges from the plaintiff’s evidence is in many respects unremarkable. She grew up a normal welladjusted child with a single mother. Her first recollections of her father were from the age of 3 or 4. She wondered why her father did not live with the family. From the age of 6 she did have some contact with her father but it was sporadic. He appears not to have taken much of an interest in her welfare. He was consistently late when he arranged to pick her up and apart from one or two nights the plaintiff never spent any extended period of time with her father. That was his choice. The fact is she did not have a close relationship with her father and that was of the deceased’s choosing.

41

During her childhood the deceased provided little to the plaintiff or her mother in material support. He did pay childcare as he was obliged to do under the relevant legislation. He paid for school fees for a private college and he provided the plaintiff with some pocket money. But really that was the extent of his largess. Any gifts he gave the plaintiff were of nominal value. The deceased never purchased a home in which the plaintiff and her mother could live despite the fact they moved a number of times from one rented premises to another. In no sense could it be said the plaintiff was spoilt by her father.

42

As part of the plaintiff’s case evidence from an actuary was produced. I will deal with this evidence in due course. However, as part of preparing that evidence the plaintiff’s solicitors asked the plaintiff to specify expenditure she was likely to make for the rest of her life. That was a big task for a 19yearold girl. She specified expenditure on some items which were clearly fanciful. For instance the plaintiff has a keen interest in music and learned to play the guitar. When specifying what guitar she might purchase if she had funds available she specified a guitar valued at $250,000. No one needs a guitar of that value – particularly a 19yearold girl who is not now and never will be a professional musician and who has not had guitar lessons for some years. There were other items in a similar vein.

43

Counsel for the defendants was particularly effective in drawing attention to the fact the plaintiff’s likely expenditure throughout her life was overstated. But I was not left with the impression the plaintiff was a gold digger or in some way a narcissistic greedy individual. Faced with a question about what guitar she might like she let her imagination run wild. A 19yearold boy in the same position would probably, when asked about a car, have nominated a Ferrari or a Lamborghini. I do not draw any adverse inferences against the plaintiff consequent upon her answers to her solicitor’s inquiries.

44

What did emerge from the evidence was the plaintiff was a 19yearold woman who faced all the uncertainties and possibilities of a young adult in today’s world. Upon completing a one year bridging course she enrolled to study commerce at Notre Dame University. She then changed her mind and is now studying for a Bachelor of Arts Degree with a double major in media and marketing and public relations. She had no real idea of what career path she would follow. She anticipated undertaking postgraduate studies but there was no certainty she would be in a position to do so. She hoped to live either in the Eastern States or overseas for a period but she had no concrete plans and much would depend on her academic results. No doubt this case and the uncertainty in her life as a consequence made formulating any plans difficult.

45

The plaintiff did say she had a boyfriend whom she hoped to marry within the next two years. She anticipated having four children. Of course it is possible after one child she might reconsider; most sensible people do. Alternatively the joys of motherhood might be such that she may have six children. The point about all of this is the plaintiff’s future is uncertain. Attempting to speculate now where she may be in two years time, let alone in 50 or 60 years time is impossible. Her relationship with her boyfriend may break down. She may decide media, marketing or public relations is not for her. The possibilities are endless. All that can be said is based upon the affidavit material she filed and the way she handled herself in crossexamination the plaintiff is a wellbalanced, reasonably intelligent 19yearold. She has a life in front of her the same as any other 19yearold. Beyond that trite statement nothing is certain.

Actuarial evidence

46

Each party called evidence from an actuary. On instructions from solicitors each of the actuaries approached their task in a different way. When each reviewed the other’s conclusions there was agreement as to methodology. After a conference between the experts a joint memorandum dated 24 October 2014 was produced (exhibit 3). In the end I found the actuarial evidence of little assistance in determining the outcome of this application. But for the sake of completeness I should mention briefly the differing approaches taken by the experts and their respective conclusions.

47

The plaintiff relied on the evidence of Mr Corey Plover of the firm Cumpston Sarjeant Consulting Actuaries. Mr Plover’s report is document 15 in the trial bundle. Mr Plover was asked to make certain assumptions. These were:

•Olivia Jacqueline Mead was born on 3 September 1995 and is currently aged 18.3

•she will have a normal life expectancy for a female of her age (which I have estimated to be an additional 70 years based on prospective mortality projections published by the Australian Bureau of Statistics)

•cost estimates are itemised in the schedule provided, supplemented with information from the following:

-Detailed tables from ABS publication 6530.0, ‘Household Expenditure Survey, Australia (2009-10)’ …

-2013 RACV vehicle operating costs …

-AMP.NATSEM 33 ‘The cost of kids’ …

48

Mr Plover then produced a schedule which he described as ‘Estimated future expenditure’. Some of these expenditures were estimated by reference to the ABS figures and others were the estimates provided by the plaintiff. By way of example under the heading ‘Domestic fuel and power’ the estimate of the total expenditure between the date of the report and the anticipated death of the plaintiff was either $58,200 applying a 3% discount or $45,700 applying a 5% discount. That estimate was based on the ABS figures. On the other hand the annual cost of handbags and other fashion accessories were estimated by the plaintiff. The result was $298,400 applying a 3% discount and $200,800 applying a 5% discount.

49

Taking all of these factors into account in his report Mr Plover estimated the amount needed to provide for the plaintiff during her lifetime was $20,528,500 on the 3% discount scales and $15,371,000 on the 5% discount scales.

50

There are a number of difficulties with this approach. First, the outcome in dollar terms is highly dependent upon what might be called the discretionary spending of the plaintiff. Mr Plover’s conclusion in his report anticipated the purchase of a guitar for $250,000. When that and some of the other unrealistic items were taken out the figure was reduced to something around $13 million on the 3% tables. So the conclusions reached by Mr Plover were based on assumptions which in my view could not realistically be made. Perhaps the most glaring example of that is the assumption the plaintiff would have four children. Were she to have just one child the final figure would be significantly different.

51

But the difficulties with this approach are rather more fundamental. It assumes some sort of entitlement on the part of the plaintiff to have each and every one of her needs met from the estate. It does not factor in the prospect of her earning a living; nor does it factor in any income earned by a partner. While it is of interest I was not persuaded this mathematical approach was the proper way to determine how the discretion should be exercised.

52

The defendants relied on the evidence of Ms Catherine Nance an actuary with PWC. The approach of Ms Nance is set out in her report of 28 February 2014 (document 16 in the trial bundle). It reads as follows:

The trust fund will invest the investment capital for capital growth and to generate income. Each year the trust will pay an amount to the beneficiary. The payment amount will be set at commencement (initial amount) and then indexed each year to maintain the real value of the annual payment. The trust fund may earn more or less income from the capital than the payment each year. Any excess will be re-invested; any shortfall will be made up by a withdrawal from the capital. The payments continue until the death of the beneficiary or the capital is exhausted, whichever comes first. On death the remaining capital, if any, will be distributed in accordance with the trust deed.

I have considered clauses 4.1and 4.2 of the discretionary trust deed for Olivia Trust No. 2 and I note it is not the intention that the trustee release any capital to the beneficiary until she reaches age 30.

In many cases, the starting annuity payments represents less than 3% of capital and in these cases, it would be reasonable in my opinion to assume that the trust income would be sufficient to meet the annual annuity payments over the next twelve years. However, in other cases, the starting annuity payments are higher (over 6% of capital) and in these cases it would be unlikely that the trust income would be sufficient to meet the annual annuity payments for all years up to age 30. In all cases, there is a possibility that the trust income may be insufficient in any one year to make the annual annuity payment due to volatility of income.

You have confirmed that if there is an income shortfall in any year while the beneficiary is under age 30, the trustee will be able to access capital in order to make up the shortfall and pay the full amount of the annual annuity payment in that year. I have therefore assumed that the trustee would access the capital if required for this purpose.

You have instructed me to allow for a house purchase in seven years (when the beneficiary is aged 25) which I note will also require the trustee to access capital before the beneficiary reaches age 30.

The initial amount will be determined so that if all assumptions are met, the capital will be exhausted at the beneficiary’s date of death and not before. If the assumptions are not met, then the capital may be exhausted before the beneficiary’s death, or there may be capital remaining at the beneficiary’s death.

I have determined the initial amount of the annuity applying the assumptions outlined below, and rounded all results to the nearer $1,000.

I have not assumed that a life annuity will be purchased from a life insurance company (or other financial product provider). In that situation, the life insurer determines the payment amount taking into account the longevity risk (that the beneficiary lives beyond the expected lifetime), the investment risks and margins for expenses and profit. These additional margins would mean a lower income for the beneficiary than that calculated here, all else being equal.

53

Ms Nance makes various other assumptions which are detailed in her report. She also makes assumptions as to earning rates, when the plaintiff will purchase a home, she accepts the plaintiff will have four children, and she anticipates an annuity from investing rather than the purchase of an annuity.

54

By way of example Ms Nance looked at what annuity the plaintiff might receive on an investment of $3 million. She put the question this way:

An analysis of an investment of $3 million (as at 30 June 2014) up to age 25 used for provision of an annuity for the plaintiff, at which time a capital withdrawal for a suitable house (figures of around $500,000, $750,000 and $1,000,000) and the balance to then provide an annuity.

55

Ms Nance then made assumptions about price inflation, house price inflation and investment return. By way of example if it is assumed the plaintiff purchased when she was 25 a house as at 30 June 2014 valued at $500,000 then from the age of 18 she would receive an annual income of $101,000 per year assuming a 6.5% return on investment. If the same approach was adopted but the value of the house was put at $1,000,000 then the annual return would be $81,000 per annum.

56

Once again the evidence is of interest but in my view of no real value. What the defendants have done is assume $3 million is the amount in the exercise of my discretion I ought award to the plaintiff. Ms Nance’s approach did not allow for the difficulties occasioned by the terms of the Trust and, insofar as her evidence is directed at the jurisdictional question, it seems to me to be of no moment. What Ms Nance’s evidence does show is the sort of return that could be achieved by the plaintiff making a strategic investment of an award of $3 million. But it leaves open the question of whether $3 million is the proper award.

Evidence of other witnesses

57

A number of other affidavits were filed in these proceedings. Only one of those witnesses, apart from the first defendant, was crossexamined – the third defendant. Nothing emerged from that crossexamination which was relevant to my determination of the action. There are however a number of observations I would make about the evidence.

58

First, the evidence of the second and third defendants indicates they did not have a close relationship with the deceased. The picture which emerges is of a difficult man more at home in the world of business than dealing with emotions and interpersonal relationships. That is not to say there was not real affection between the deceased and his two eldest daughters. Undoubtedly there was. Moreover, the fact the second and third defendants had developed the Voyager Estate Winery in such an effective way was clearly a source of great pride to the deceased. But it would be a mistake to suggest the deceased and his two daughters constituted one big happy family.

59

As at the date of death of the deceased he rented the O’Connor property owned by the Trust. That arrangement continued until 1 February 2014. Based on the evidence of the first defendant it would seem the property is now rented out to third parties, presumably with the rental being paid to the trustee. There is no evidence as to the present value of the O’Connor property, its present rental return or the terms of the lease with the present tenants. The distribution made to the plaintiff from the Trust for the year ending 30 June 2014 was $22,069. Quite how that figure was calculated and why a distribution of that amount was made is not apparent from the evidence.

60

In her evidence the plaintiff indicated she suffered a hearing difficulty which required her from time to time to wear a hearing aid. Both parties instructed medical experts – Dr Ian Mitchell for the plaintiff and Professor Terence McManus for the defendant. The medical experts prepared a joint report. In essence they found while the plaintiff had a hearing loss it was minimal and would not effect her day to day activities. In reaching my decision I have assumed the plaintiff does not suffer from any or any significant hearing disability.

Exercise of discretion

61

As the Act itself makes plain and as was said in Bondelmonte v Blanckensee s 6(1) provides the court with a discretion. Once the jurisdiction question is answered in a plaintiff’s favour then it is open to the court to make ‘such provision as it thinks fit’. The approach of the defendants was to say if a plaintiff is entitled to an award then that award should be no more than adequate provision for the proper maintenance, support, education or advancement of life of the plaintiff. With respect that puts a gloss on the statute. The discretion in the Act is unfettered. It must be exercised judicially and all relevant factors must be taken into account. But there is no warrant for assuming that the award should be no more than that which will provide adequate provision for a plaintiff.

62

During the course of the hearing I was referred to dozens of cases. None bear comparison to this one. When it comes to exercising a discretion three factors are consistently found in the cases – the size of the estate, the needs of the plaintiff and the interests of other parties having a legitimate call on the bounty of the deceased. From time to time other factors arise in particular cases. But these themes are universally present. The weight to be given to each of these factors varies between the cases, as is to be expected. But the result is always what might be called a triangulation – a balancing exercise within the reference points provided by the three factors. But this case is different. The estate is massive and its value irrelevant in determining the outcome. No other individual will be prejudiced no matter what award (within reason) I make. That means there is no way of triangulating here; put another way, there are no factors to weigh in the balance. There are no markers for an exercise of discretion.

63

It is always necessary to remain cautious about reaching a decision in an evidence free zone. But it is difficult to see in this case what evidence could have been led and which was not led which might in some way influence the exercise of my discretion. As I have indicated, taking into account all of the evidence of the plaintiff, I was satisfied she was an honest levelheaded young woman. But she is subject to all of the vagaries and uncertainties of youth. The actuarial evidence really took the matter no further. None of the other evidence was as such weight as to influence my decision.

64

In the exercise of my discretion I would award to the plaintiff a cash payment of $25 million conditional upon her forfeiting any right or interest in the Trust. Subject to hearing from the parties that amount ought be paid to the plaintiff within 60 days.

65

Clearly this decision requires some explanation. I need to make it plain in settling on this figure I am exercising a discretion. The one factor which has influenced me most is the size of the estate. This award will set up the plaintiff and her children and perhaps their children for their lives. Wisely invested the fund will provide enough income so the plaintiff and her relatives will never want for anything again. All that against a background of the award making no difference whatever to the position of the other beneficiaries. Even in this day and age $25 million is a considerable amount of money. But in the context of this estate it is little more than a rounding error.

66

It is important to note what this decision is not. It is not about fairness. There is no test of fairness in the Act. If I was called upon to determine what in all the circumstances would have been fair it is difficult to see how the estate would not have been split equally between the deceased’s four children – perhaps with some provision for his widow.

67

This decision is not about compensating the plaintiff for the deceased’s limitations as a father. That is not the thrust of the Act. But in my view there is no warrant, as was suggested in the closing submissions of the defendants’ counsel, that the distant and difficult relationship between the plaintiff and the deceased in some way limited the plaintiff’s entitlement. Any suggestion that some concept of ‘bare paternity’ meant that an inadequate parent in some way had a lesser moral obligation to a child seems to me to be wrong as a matter of principle.

68

The authorities do refer to the ‘moral duty’ of a testator to those entitled to expect to benefit from his bounty. This moral duty test was once in favour, seems then to have gone out of favour and is now perhaps back in favour again. It feeds into two approaches which are prominent in the authorities.

69

The first is the concept of what a wise and just testator would do in the position of the deceased. This conjures up the rather archaic image of a grey haired gentleman in a smoking jacket, pipe in mouth, sitting at a leather top desk, fountain pen in hand, attempting to balance the interests of his wife and children. With that image in mind the internal dialogue might go something like this:

I am a fabulously wealthy man. I am able to provide for my wife, my children and others to such an extent that all will be well provided for without any of the others suffering. My two daughters Leonie and Alexandra have proved themselves loyal and have run the Voyager Estate business extremely well. They have supported me in every possible way. They deserve the lion’s share of my estate and they will have it. My son Myles is a successful musician who has forged his own career without much help from me. I should provide for him, conscious of the knowledge he has not been involved in the family business and will always be in a position to provide for himself.

That leaves my daughter Olivia. At her age she has no real idea of what she wants to do – she might get married and have four children. She might become an arts administrator when she finishes university or she may change her mind. She should have complete financial security so that she can pursue whatever interests she wishes into the future. She is young but she is levelheaded and with sound advice she can doubtless invest anything I leave to her to provide for her long term benefit. I can afford to spoil her and there is no reason why I should not do so.

70

Whether or not those ruminations would have led to the wise and just testator leaving the plaintiff $25 million is open to question. In my view it would and it is on that basis I have made the award.

71

The second approach, which appears to be favoured at present, is what might be called the community expectation test. That is to say, what amount should be left to a person in the plaintiff’s position to meet community expectations. Whether or not I am the ideal person to judge community expectations must be open to doubt. No doubt at one end of the scale a section of the community would believe the plaintiff should get nothing beyond what her father left her in the will. At the other end of the scale there would be those who could see no reason why the estate ought not be split equally between the deceased’s children. The majority view no doubt falls between those two extremes.

72

What can be said about community expectation is that most people would expect the plaintiff to be more than adequately provided for. Given the size of the estate and the lack of limitation on any award it is difficult to believe a majority would not see it appropriate to set up the plaintiff for life. How members of the community would settle on a figure is a rather more difficult question. In my view an award of $25 million would not fall outside the reasonable expectation of most members of the community.

73

In reaching this decision I did give careful consideration to establishing some form of trust into which the fund could be paid and which would be managed on behalf of the plaintiff. In the end I concluded such an approach would be paternalistic and unjustified. True it is the deceased did see a trust structure as appropriate. But that structure was fraught with difficulty so ordering the fund to be paid into the Trust is not option. Establishing a new trust while it might be possible would not seem to be practical. Who for instance would be the trustee of that trust? The result then is a substantial amount of money paid to a young woman without any restriction. On balance I am satisfied that is the best outcome.

74

Clearly it will take some time to frame the orders to give effect to these reasons. The parties’ solicitors should confer with a view to producing orders which facilitate the transfer of the Trust assets to the estate and the payment of the fund to the plaintiff. The costs of this action including the reserve costs ought be taxed and paid out of the estate. The plaintiff’s costs should be paid on a full indemnity basis save insofar as those costs have been unreasonably incurred.

75

None of us can choose our parents. But functioning adults can choose whether or not they have children. If they do have children certain duties arise. Here I am not referring to moral duties or duties which arise as part of community expectation. I am referring to the statutory duty which arises at death by virtue of the Act. The deceased must have been aware of that duty – he was well advised by a competent solicitor. But it is a duty he could have avoided. The deceased was aware some six months before his death he was afflicted by terminal cancer. At that stage he was free to distribute his estate in any way he wished. That would have meant on his death neither the plaintiff nor anyone else could have maintained a claim – there would have been nothing to claim against. But of course if the deceased had taken that course he would have been liable for millions of dollars in, effectively, gift duty. The price the deceased paid for passing his assets tax free to his nominated beneficiaries was acceptance of the statutory duty arising under the Act to the plaintiff.

76

Finally, I would add this. When the $25 million is paid to the plaintiff the rest of the residuary estate will pass to the second and third defendants. They will get about $10 million each less perhaps $1 million for costs. That is on top of the $400 million they already have; and they can rest easy in the knowledge their halfsister will be financially secure for the rest of her life.

The girls’ father denies any untoward behaviour of any type. Indeed, he asserts the allegations against him are part of a “conspiracy” designed to achieve a significant restriction (or, perhaps, cessation) of the time he spends with his daughters. He contends that the “conspiracy” is spearheaded by the mother’s father.

Those very serious assertions dictate, effectively, the parties’ respective contentions as to the parenting orders which they assert best meet the best interests of their children. If the mother’s primary contention is sustained, the children will not spend any time with their father. If the father’s primary contention is sustained, the children will live with him and spend time with their mother, initially, five nights per fortnight.

The mother’s assertion that the children have been subjected to sexual abuse by their father is based essentially on things she attributes the children as having said and her observations of their behaviours including, she asserts, a fear of their father evident from their words and actions.

In addition, the mother deposes to the father’s “addiction” to pornography during the relationship. No pornography is deposed as having – directly or indirectly – any connection with the parties’ children, or any children. Inferentially, the mother asserts that the father’s general character is such that he is capable of the behaviours toward the children which she alleges. The mother’s father (Mr E) directly asserts as much.

While the motive for the father’s overarching assertion of “conspiracy” might be seen as relatively clear (a desire to remove him from the mother’s life and the lives of their children as “revenge”), the factual foundations upon which the asserted finding of “conspiracy” might be made are less clear.

The allegation appears to centre upon what is said to be a stark coincidence in timing between the breakdown in negotiations in respect of financial issues and the making of the allegations. It is asserted that this occurs against a background of the mother (and, it appears to be alleged, her family) seeking to significantly limit the time between him and the children post-separation. Significant reliance is placed upon emails passing between the father and Mr E as persuasive of both the coincidence in timing earlier referred to and an asserted underlying antipathy exhibited by Mr E to the father.

The mother tape recorded V on 26 July. An agreed transcript will later be quoted. A video recording taken by the father on a visit with the children on 16 September 2012, when the mother was also present, is in evidence. G has participated in two 93A interviews on 31 July and 13 October 2012. The video of each is in evidence together with an accompanying agreed transcript.

Unacceptable Risk

Gravity of the Allegations and their Ramifications

The notion that children might be used (directly or indirectly) for the sexual gratification of adults is wholly repugnant to any sane person. To the extent that it is possible (or desirable) to identify or quantify that, it might be said that particular repugnance attaches – and should attach – to a parent of a child using or exposing their own child in that manner. Expressed in terms familiar to the Family Law Act 1975 (Cth) (“the Act”), the conduct is as complete and repugnant an abdication of parental responsibility as can be imagined.

Parenting cases in which allegations of the instant type are made present significant challenges for this court. Not the least of those challenges – and one evident in this case – is the nature, extent and quality of the evidence from which the court is asked to make findings in respect of very difficult central issues.

Section 140 of the Evidence Act 1995 (Cth) recognises that “the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved”. The gravity of findings bear upon the decision as to whether the evidence as a whole persuades me to the requisite standard that they should be made. Grave findings should not be made by reference to “inexact proofs, indefinite testimony or indirect inferences”. Nor, as Dixon J observed “… circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation.”

The evidence before me reveals the possibility of a number of very grave findings:

That the father has used both of his young children for sexual purposes and has falsely denied it;

That the mother and Mr E have conspired to make false allegations to that effect;

That Mr E has inculcated in G the false notion that the father has sexually abused them and has promulgated that false allegation to the mother, the broader family and the mother’s friends;

That the father has induced G to tell and promulgate a lie (that Mr E engaged in the conduct just described) by bribing her with a promised payment of $100.

The gravity of a finding that a father has sexually abused his children is matched by the gravity of its corollary; a finding that the father has not engaged in behaviour of that type has, if it is erroneous, obviously grave consequences for the children. Equally, a finding of unacceptable risk carries with it very significant consequences for the children and has, axiomatically, a dramatic impact on their relationship with the father as well as ramifications for how the father might be viewed in the future. Again, by way of corollary, a finding that an alleged abuser does not pose an unacceptable risk obviously also has potentially grave consequences for a child if it be erroneous.

Origin and Context of the Allegations

The genesis of the allegations that the father has sexually abused each of his daughters is in the statements made by the younger girl, V, to Ms E (the mother’s mother) and the mother in late July 2012, about three months after the parties separated. As will be seen, sinister meaning is attributed retrospectively to earlier statements and behaviours.

It is the July statements which prompted the mother to have both children genitally examined by a paediatrician and, a few days later, a formal police interview of G (and an unsuccessful attempt to interview V) on 31 July.

As seems almost ubiquitous in cases of this type, the evidence here consists of regular and increasing statements by the children of one sort or another, repeated to family members and others, all of which are said to be indicative of sexual abuse.

Equally ubiquitous in cases of this type, and again present here, the alleged statements are said to be accompanied by observed behaviours in the children which are causally attributed to the abuse: nightmares; stress accompanied by physical symptoms; fear of the father and repeated behaviour (and statements) to the effect that the children do not want to see their father. Contrary to the axiom familiar to science and statistics, correlation is said to imply causation.

The evidence in respect of these matters emerges from statements made by one or both of the children, predominantly to the mother, but also to members of her family and her friends. Affidavits from each depose to those statements. The father, too, asserts that the children have made statements to him; he asserts those statements are to the effect that he has not engaged in the conduct attributed to him. He deposes to observations of behaviours in the children when they are with him that are diametrically opposed to the picture presented by the mother and her witnesses, and to statements by the children to the effect that they not only want to see him but to spend more time with him. Almost all of the statements and behaviours to which the father deposes have occurred within the context of time that has been supervised by Ms A.

Ms A was initially suggested as a supervisor by the mother and agreed to by the father. After a short period of suspension instigated by the mother immediately consequent upon statements made by G, her continued supervision was formalised by a consent order. An Independent Children’s Lawyer (“ICL”) was appointed and Ms A was aware that she would be required ultimately to produce a report to the ICL. Ms A supervised time with the children over an approximate period of 20 months prior to being cross-examined in August 2014. Time occurred weekly on a Sunday and, for the majority of the time, at Ms A’s home. In the latter part of that period her supervision was conducted at other places, including the father’s home.

Apart from statements made by the children as alleged by the father, the mother and the mother’s family and friends, statements said to be relevant to a determination of the issue of abuse (and unacceptable risk) are also asserted to have been made to, or in the presence of, Ms A and to witnesses asserted to have expertise. The latter include: Dr R, a psychologist whose consultations were initiated by the mother and who saw “[V] and/or [G]” on nine occasions; Mr D, a psychologist jointly commissioned by the parties to produce a family report and Mr F, a social worker commissioned by the ICL to prepare a family report.

In addition, Dr G, a psychiatrist, was commissioned to prepare a report on the parties by the ICL. He did not see the children. Also, the mother called a paediatrician, Dr H, as a witness.

The Allegations of Abuse as they Emerge from the Evidence

Exhibits ICL 8 and ICL 9 consist of a listed summary of statements and behaviours deposed to by the mother in respect of each child. The list of statements and behaviours continue until early 2014 prior to the commencement of the trial. The lists comprise in total some 24 typed pages and 169 separate items. The lists include non-particularised references to alleged pre-separation observations, for example: “Generally throughout” the parties’ relationship “the children cried, had tantrums and begged [the mother] not to leave them with [the father] whenever [the mother] left the children in the father’s care”; “the children were wary of males” and “[G] generally slept with many soft toys around her, as if trying to hide”.

In respect of an event apparently said by the mother to resonate in events two years later pertaining to G, it is also said that, on Christmas Day 2010 (some sixteen months pre-separation when G and V were aged 5.2 and almost 2 respectively):

[G], [V] and their cousins were in their bedrooms when [the mother] walked past and overheard them talking “bottom talk”. “When [the mother] discussed this with [the father], [he] was very calm and said ‘isn’t that what kids do’”.

Examples of behaviours deposed to by the mother as indicative of abuse or as, effectively, “corroborating” statements by the children said to be indicative of abuse include:

“Generally when the children lived with [the mother’s] parents”: “[V] acted aggressively toward males on various occasions. [V] acted clingy toward [the mother]. [V] regularly suffered from nightmares and would scream”.

“The children dry retch, vomit and shake before and after visits with [the father]”.

“[G] said ‘I don’t want to see daddy again’ and [V] replied ‘daddy’s dead’”.

On 24.3.2013 “[G] dry retched over the toilet for half an hour and said to [the mother] ‘mum I don’t think I can go to see dad at [Ms A’s] today.

On 27.01.2013 “the children spent supervised time with [the father]”. V wet the bed that night.

On 17.02.2013 V woke up screaming “no, no, no” and dry retched.

Events and Statements Prior to 31 July 2012 Police Interview

An incident occurring between the children and their cousins on 4 June 2012 is deposed to as is a statement by G to the father in the mother’s presence on 10 July 2012. The mother deposes that, on 19 July 2012 (consequent upon a period of overnight time the previous night), V said that she “had a sore bottom ‘cause of whiskers”. The mother says she “did not know what she meant”. The mother also deposes to observing various contemporaneous behavioural disturbances (stomach pains, breathlessness and kicking and screaming at night). The combination of each appears to mark the start of her concerns about sexual abuse of V; concerns which she says were cemented a week later, specifically after statements by V recorded by the mother on her phone.

In paragraph 33 of the mother’s affidavit she states that the father sent a message on 24 July at 4.45pm saying “Nothing urgent. All good. Just funny story. Short version – [V] peed all over me. All good”. The mother swears in her affidavit: “I did not respond to the text message”. That evidence is false. In cross-examination she was confronted with a text sent by her to the father in response to his text. The text said: “Ha ha. Clean clothes in her kindy bag and jumper in [G’s] sports bag. Keep her warm. Welcome to parenthood.”

Ms E deposes to a conversation with V on 25 July consequent upon a period of overnight time with the father the previous night. Ms E says that V said her “bottom is sore” and asserts that “[V] then said to me words to the effect of ‘Nanna, I have whiskers down there’”. The mother deposes to Ms E telling her that V had said to her that her bottom was sore “’cause of whiskers in her bottom”. Other things are said at that time by V, but they are not there deposed to. They will be referred to later in these reasons.

That conversation prompted, it seems, a conversation between the mother and V occurring the next evening at bath time. The mother said in the witness box that she initiated that conversation. Part of that conversation was recorded by the mother on her mobile telephone. The presence of the mobile phone in the bathroom at bath time is said to be serendipitous. The recording and the mother’s transcript of it was sent by email to Mr E. It is headed:

Evidence [V] against her Father [Mr Thornton] Sexual

Child Abuse

Documented and recorded 4.30pm 2mis 54 seconds 26/7/12

Questioning Conducted by mother [Ms Thornton] to her daughter [V]

Documentation of attached audio file

The transcription as it appears in the email will be quoted in full later in these reasons as will the cross-examination of the mother in respect of the circumstances of its recording.

That first tape recording was succeeded by another; on the mother’s account, twenty-three minutes after the first. In cross-examination, the mother said that the first was recorded when V was on the toilet before her bath and the second after the child finished her bath.

The transcript of what is said to be the relevant parts of that later recording was also forwarded by the mother to Mr E by email a short time after the first. It, too, will be quoted in full later in these reasons. The email prefaces the transcript with the words:

Recorded transcript from above verbal recording between [V] …/…/09 3 years of age and [Ms Thornton] her mother at 4.53pm”.

Police records (Exhibit ICL 15) posit the conversation of 26 July as the catalyst for the mother’s complaint to the police and the mother’s apparent belief that abuse had occurred subsequent to separation. The complaint to the police is recorded as including, “[the mother] noticed a rash on [V’s] behind and that [the father] has stubble growth on his face which may explain the rash …” The police notes record that the mother’s allegations pertained specifically only to statements made by V and record the mother telling police that “… [G] did not want to talk to her mother about any occurrences however the mother suspects that this child may also have been interfered with by the father”. Subsequent to the first police interview, the police records note that the mother stated that she “didn’t believe anything had occurred with [G] as she had never said anything …”.

The events of 26 July also prompted the mother to have both children genitally examined by a paediatrician at a hospital on 27 July. Each revealed no abnormalities. The paediatrician observed that a normal finding does not exclude the possibility that sexual abuse has occurred. Each of the children is reported as suggesting, separately and some months later, that physical injury had been caused to them by their father. There is no evidence of any opinion sought from the examining paediatrician, or any other doctor, subsequent to either of those statements. Nor is anything referred to by the paediatrician pertaining to any rash.

The mother deposes in her affidavit of evidence-in-chief at [45]:

When [V], [G], my mother and I were walking out of the examination [by the paediatrician at Hospital K] I can recall [V] saying words to the effect of “that Daddy puts his fingers in her bottom like how the doctor put her fingers in her bottom” and “what the doctor did to me is what Daddy does to me”. [V] also said “Daddy had her last week and he touched her bottom and she put him in the naughty corner”.

The mother goes on to depose, at [46], to behaviours said to have been observed later that evening which she appears to attribute as causally linked: “ … [V] waking up and trying to vomit … gagging and she had a high temperature … nightmares through the night and [… saying …] ‘No no no no no Dadda, stop it! Don’t show me your bottom that’s not a magic show.’”

Prior to making a complaint to the police on 27 July, contact was made with a Mr L who is, apparently, a police officer and a friend of Mr E. Mr L was not called as a witness. Mr E deposes that Mr L said words to the effect of “The odds are, check – get them both checked. Usually in these cases, they’re both – something has happened”. Also apparently acting on the advice of Mr L, the mother and Ms E attended the matrimonial home where they found a yellow blanket which prompted a conversation between the mother and V, the effect of which was that the blanket was put into V’s bottom. The blanket was never given to the police nor mentioned to them.

The 31 July 2012 Police Interview

On 31 July, the police attempted to interview V but she would not engage in the process. Detective J conducted a 93A interview with G. Her statements to the police officer will be referred to specifically later in these reasons. The interview is summarised in police records (Exhibit ICL 15).

In the interview, G said she had seen her father kissing V on the bottom. She said it was on the side of the bottom. When asked to describe the kiss she did so on the palm of her hand. The police officer describes it as “a peck style kiss”. That description describes accurately what I saw G demonstrate on the video. Nothing was said to V by the father in conjunction with the kiss.

Although initially saying she “doesn’t feel comfortable” with her father, “… on elaboration [she] states not being comfortable with dad relates to him being loud when he is downstairs with his friends and she is trying to get to sleep”. G said that her father “… had not touched her”. The records also record “she is not scared of her father but feels that V is always allowed to do things but she is not”.

The police record that, “[a]t this stage there is insufficient evidence to substantiate any criminal offence has occurred”. The police notes also record that: “Mother stated that the child [V] had made disclosures to her relating to the father kissing her and was documenting it and would email. Further review to be conducted once documents provided by mother”. The police records do not record any “documents” subsequently being provided by the mother; the “supplementary report” following the matters just referred to pertains to a subsequent complaint by the mother, and consequent 93A interview, in October.

Events and Statements Subsequent to the 31 July 2012 Police Interview

G was interviewed by the same police officer on a second occasion on 13 October. Despite G’s denial to the police on 31 July that improper conduct had been directed to her, the 31 July – 13 October period sees statements by G said to be indicative that she, too, has been sexually abused by her father.

On 1 August 2012, the day after G was interviewed by the police, the mother initiated a conversation with V about “the afternoon she had spent with her father on 24 July 2012”. The mother’s account of what V said is that the father “…was pretending to be a monster on my bed and he weed on my bed…” The mother deposes that “…[V] [said] words to the effect of ‘Daddy did pop offs on her face and in her mouth, he kissed her on the bottom.’ She said she was crying and it was disgusting. She then said that ‘He used the blanket and pretended he was a monster and that daddy was jumping up and down pretending to be a monster on my bed and he weed on my bed’. She also said that ‘he put blankey in her bottom and that dad didn’t say he was sorry’…”. “She then showed me what he did and jumped on the bed”.

The evidence does not reveal that the event and statements were witnessed by anyone else. In that respect the mother deposes that V said that G was at a dancing lesson and, as a result was not present when the alleged behaviour allegedly occurred.

The mother and her witnesses depose to a number of statements made by the children within the week following the 31 July interview, to which, plainly, the mother (and her family) attach significance in concluding that both children have been sexually abused by their father:

Ms I, a friend and business partner of the mother, says that on 3 August V said “out of the blue”, words to the effect of “You know what my daddy did, [Ms I]?” … “He kissed me on the bottom and it was disgusting.” … Ms I said that she told V that her father’s action were “not nice”. V said words to the effect of “I tell him to stop but he doesn’t”.

Ms E swears that on 4 August, when bathing V and G, V said words to the effect of “Only Daddy can touch my bottom.”

Ms E also deposes that, two days later on 6 August, when collecting the girls from school and kindy, V said to G words to the effect of “do you want to see daddy? … I miss daddy”. G then said words to the effect of “but he kisses your bottom” and V said “ok”.

Ms I deposes that on 8 August, when at a park with her son M and V, she recalls hearing V say to M words to the effect of “[M], I have got a secret to tell you”. M’s response “was a typical four-year-old ‘ew’”. Ms I “asked [M] what [V] had said [and] he told me words to the effect of ‘[V] said her daddy weed on her bed and her face’”. After V again whispered to M “[M] then blurted out words to the effect of ‘[V] said her daddy kisses her bottom and she doesn’t like it.’” The mother also deposes to this incident – based, it seems, entirely on what Ms I told her: “[Ms I] told me that [M] told her that [V] whispered in [M’s] ear about the things her Daddy had done to her. [Ms I] also told me that [V] had told her when we were at the park, that Daddy had weed in her eyes”.

Thereafter, further statements made by the children and observations of their behaviours are deposed to by the mother:

The mother reports V saying during a telephone call with her father on 14 August (which was, the mother says, the first time V had spoken to her father since she made her statements on 26 July 2012: “I love you dad, but did you kiss my bottom” to which, the mother says, the father replied, “stop talking silly talk, we don’t talk silly talk”.

The mother deposes to a statement asserted to have been made to a Ms S – a counsellor or therapist to whom the mother took V for one session. The mother says that on 21 August, V told Ms S that “daddy kisses her on the bottom” and when Ms S asked V why, she said words to the effect “Because he loves me”. Ms S is not a witness. Counsel for the father asked the mother about this to which the mother replied: “I believe she gave notes”. No notes were tendered. No report is in evidence.

The mother says that on 23 August 2012 she observed V putting her fingers into G’s bottom and when asked why she had done it, V said “… her Dad had shown her”.

On 28 August 2012 the mother says that V asked her “…to ensure that ‘daddy would not kiss her bottom’…”. On the same day, the mother deposes that G was sleeping with her and “… screamed three or four times during the night as she was scared.” When the mother asked her why she was scared, G said words to the effect of “because of what daddy does to [V] I am scared”. The mother deposes that she then asked G if it had happened to her. “She nodded her head and broke down crying and then said words to the effect that ‘she couldn’t remember’ and that ‘I can’t talk about it until I am older, it’s not the right time to talk about it’”.

On 1 September 2012, the mother says that V said to her words to the effect of “mummy, I asked daddy and he promised he would not kiss and lick me on the bottom again”.

The following day, the mother says she observed V urinate on G in the bath and when the mother reprimanded her for doing so, V said words to the effect of “daddy wees on me”. The mother deposes that G said “no he doesn’t” and V responded with words to the effect of “yes he does, he wees on my bottom”. The mother further deposes that when she put V to bed that night, V said words to the effect of “I don’t want to see daddy again, mumma he hurt me he tore my skin” and when the mother asked her where, V “…pulled down the back of her pants and pointed to her bottom…”.

The mother reports a nightmare which G had on 6 September 2012 about the tooth fairy. She says that G kept saying “I can’t talk about it until I am older, it is not the right time to talk about it”.

The mother says that on 8 September, V had “…asked [her mother] to promise that her father would not kiss her on the bottom again…”.

It can be seen that the mother deposes to an event on 28 August whereby she appears to infer that words and an apparent non-verbal assignation by G indicate that she had been abused by her father. As will be seen, from about 9 October, evidence is given by the mother of direct statements said to have been made by G indicating that she, too, had been subjected to abuse by her father. That specific evidence emerges from statements consequent upon an incident on that date as a result of which G was chastised for behaviour involving her cousin. On the mother’s account, “[t]hey were showing each other their bottoms”. Having asked the girls to desist and making it clear that it was “unacceptable behaviour”, the mother called G into the bathroom. The mother “asked [G] if someone had done that to her”. G:

… said ‘no’ and was silent but then said that ‘dad had licked his two (2) fingers and wiped them on her stomach”. When I asked [G] if he ever touched her anywhere else she said “no, just licked his fingers and rubbed them on her stomach.” (at [72]).

In her evidence-in-chief, the mother deposes that on 9 October:

73.I spoke to [G] and asked her again why she continued to do these things. [G] told me that [the father] had touched her on 24 June 2012 which was the night that she had a sleep over with [the father] and lost her first front big tooth. When I asked [G] why she was doing this she told me that her father had done it to her.

74.[G] told me that [the father] had said to her that he was the tooth fairy and that he put two of his fingers inside her bottom that night. [G] said words to the effect of ‘he put his fingers in slowly and it hurt’. [G] demonstrated what she had said [the father] had done to her. She put two fingers in her mouth and started licking them and twisting them in a sexualised manner in her mouth with sound effects. I was horrified and sick to my stomach when I saw her do this as that is what [the father] used to do to me when we had sex.

75.I asked [G] why she had not told me earlier and [G] told me that [the father] had said to her not to tell me as ‘Mummy would kill Daddy’. She started crying and said ‘dad licks his fingers and touches my stomach and the night she lost her tooth when the tooth fairy came, dad came in and said he was the tooth fairy but I knew it was him. He put his fingers in my bottom’. I said to [G] ‘I know you love daddy and daddy loves you but it was wrong of daddy to do that’. She told me that she could not remember it happening any other time.

Consequent upon this conversation, the mother “stopped the children spending time with [the father]”.

The mother’s brother-in-law Mr N deposes to a conversation he had with G on the same night of 9 October. In his affidavit, he deposes that he asked G if she wanted to talk to him “about the allegations”. He says that she told him “that she had been holding a secret”. That occurred at about 7.30 at night subsequent to G’s conversation with the mother. He deposes to his question of G being prompted by both the mother and G being upset. Mr N said in cross-examination that G put two fingers together and she said words to the effect of “Daddy puts his fingers down there,” pointing at her vagina, “And smells his fingers and licks them”. He asked G how this made her feel and she said “It’s disgusting. I don’t want [him] to do it anymore,” and it happened when “he was being the tooth fairy.” In his affidavit Mr N reports G as saying “he says that he is the tooth fairy… I just pretend I am asleep … I want him to stop doing it”.

The mother’s sister Ms N said in cross-examination that the following day, 10 October, she said to G “that it was good that she had a big talk with her mum last night” and that G then said “Yes, Daddy pretends to be the tooth fairy, licks his fingers and touches my bottom.” In her affidavit, Ms N deposes to G saying “front bottom”.

The mother again raised with G the incident and conversation just referred to three days later on 12 October.

The mother says when she was driving to the airport she asked G why she had not spoken before about what [the father] had done, to which G responded with words to the effect of “daddy said if I told you, you would kill him … I cried every time you went to training … how come you didn’t listen to me.” G also told her mother that [the father] did it to her “because he loves me” and that it had been happening since she was five years old.

Documents produced under subpoena from the Department of Communities, Child Safety and Disability Services were tendered by the ICL. (Exhibit ICL 16). They record a notification to that Department made (by an unidentified notifier) on 12 October. Among the notified concerns, it is recorded that: “… [G] said that ‘daddy cut me there, not with a knife. Daddy was pretending to be the tooth fairy that night. [G] has been having nightmares about the tooth fairy hurting her for the past couple of months”.

The Children are seen by the Psychologist Dr R

At the mother’s instigation, Dr R, a psychologist, saw “[V] and/or [G]” on nine occasions. Six of those sessions occurred approximately weekly prior to a second police interview with G which took place on 13 October. The last of those six sessions occurred on the day before that police interview. The first session subsequent to the second police interview occurred five days after it on 18 October.

Dr R was the third therapist or counsellor to whom V was taken by the mother in the approximate five months between separation and G’s second police interview. The mother deposes to him being the first to whom G was taken.

Although it is not referred to in Dr R’s report, it seems to be uncontroversial that the father was invited to participate in this process but he declined, seeking in fact that the process cease. I reject the submission by the mother that the father’s lack of participation in Dr R’s process was unreasonable or that some inference adverse to him should be drawn from it. There was at that time (and still is) a high degree of conflict and suspicion between the parties (including a suspicion by the father that the mother was “evidence shopping”) and Dr R was chosen unilaterally by the mother. Whether or not the first suspicion is ultimately correct or not is not to the point in assessing the reasonableness of the father’s then conduct.

Although not established through direct questions of Dr R, it is clear that the focus of his sessions with “[V] and/or [G]” was therapeutic as distinct from forensic. In that respect, not only was the father not seen by Dr R, either alone or interacting with the children, but, in addition, the report itself says that, “…[e]ssentially the focus was on giving [the mother] and [V] both skills to manage current symptoms”.

The presenting issue as summarised in the report was that “[V] had disclosed possible sexual abuse to [the mother] by her [i.e. V’s] father”. The report goes on to record that the “… alleged abuse had occurred on multiple occasions and included [the father] kissing/licking/touching her bottom”. A series of V’s behaviours recounted by the mother is there also recorded. No concerns or allegations of sexual abuse of G are referred to as constituting any of the presenting issues. The first session was on 4 September 2012.

Dr R’s report refers to seeing “[V] and/or [G]”; it does not specifically refer to the fact, which emerged in his oral evidence, that the mother was present for seven of those nine sessions. Neither the report nor oral evidence specifies each of the sessions for which she was present. The report says that “[G] also attended some sessions with [V] to help build resilience for [G] and to help [V] engage more in the sessions as V was very quiet and shy in the sessions with me by herself” (my emphasis). The report does not specify how many, or which, sessions saw both children present. Dr R stated in cross-examination that he saw G and V together without their mother on two of the nine sessions, that there were only “a few sessions that I had that [G] was involved in”, and that “most of my sessions were with [V] and [the mother]”.

Although Dr R makes mention of being the third therapist to whom V had been taken in an approximate five-month period, he makes no mention of any enquiries made of those earlier therapists. It is also not known whether Dr R was made aware that G had been interviewed by the police some six weeks prior to his first session and, in that interview, had denied that any improper conduct had been directed toward her. There is also no indication that he was aware that the police were unable to have V engage in an interview.

Particulars of the statements said to have been made to Dr R by each of G and V will be referred to later in these reasons. For present purposes it might be observed that his report says that, “[d]uring the course of the sessions [G] disclosed her own sexual abuse to [the mother]” …while recording later in the report that, “When we were discussing various types of feelings, [G] did disclose her abuse to me …”. [Emphasis added in each case]. In cross-examination Dr R confirmed that G’s disclosure to her mother “definitely occurred outside my room”.

The latter “disclosure” did not occur verbally; G refused to do so. Dr R acquiesced in that refusal. He asked her to write her statements on a whiteboard. G agreed. There is no record of what G wrote on the whiteboard. In oral evidence, Dr R said he would “ordinarily” take a photo of what a child wrote on the whiteboard. However, not only would G not say anything verbally to him, he says that she also refused to permit him to take a photo of the whiteboard. He also acquiesced in this refusal.

As mentioned, the terms of the initial referral pertained, on his account, to concerns about sexual abuse of only V. No mention is made of any statement by V in any of the nine sessions save for one. In recording G’s “disclosures” to him as just described, Dr R said that when he “…asked [V] whether this had ever happened to her she buried her head behind G and said that Daddy put his fingers in her bottom.”

Dr R reported the “incidents of sexual abuse” to relevant authorities. In addition, he says in his report that he also “…spoke to Taskforce Argos regarding [the father] and the possibility that he may be engaged in child pornography offences.” Nothing in Dr R’s report or evidence suggests any basis for the latter report save for statements by the mother about something which, on his account, is said by the mother to have occurred over eleven years previously: “[the mother] did relay that when she first started dating [the father] he had been in a big argument with his brother about files that his brother found on [the father’s] computer.” The father complained during his interviews with Mr F that his “computers were seized”. There is no other evidence before me in relation to that seizure; that the police took any action arising from that seizure, or that there is any on-going investigation in respect of same.

The 13 October 2012 Police Interview

Consequent upon the statements made by the children in the period after the first police interview and, it seems, the October statements of G in particular, G was again interviewed by Detective J on 13 October 2012.

Again, particulars of what G said during that interview relevant to abuse or risk will be given later in these reasons. During that interview, G alleged that her father had engaged in specific sexual conduct towards her. The subpoenaed police notes record in that respect that, save for the details given by G, “[w]hen attempting to obtain further particularisation child was unable to enhance further”.

Despite G saying a number of things to the police officer that might be construed as indicative of abuse, the police determined that “there was insufficient evidence to substantiate any offence has taken place sufficient for a [criminal] court proceeding”.

The Father’s Covert Video Recording

On 16 September 2012 (that is, about three weeks before the second police interview) the father took a video recording of part of an interaction between the mother, the children and him at a shopping centre. (Exhibit M5).

The video was taken covertly – that is, without the knowledge of the mother (or the children). The recording is plainly self-serving – it is covert, part only of the interaction and, importantly, only a part selected by the father.

An attempt was made at the hearing to agree on a transcript of the words recorded. A transcript was agreed with one exception. Toward the end of the transcript, two alternatives are given to a response from V to a direct question from her father as to why she had said he touched her bottom. One records “because you didn’t”; the other “because you did it”. As I said in court, I consider that the recording reveals the former. Counsel for the father agreed. However, counsel for the mother suggests the latter. Despite listening to the recording multiple times, I consider the recording insufficiently clear to stand on its own as evidence of either.

In any event, I accord no weight to either version of the statement in assessing whether abuse did or did not occur or in assessing whether time with their father involves an unacceptable risk to the children. (Nor do I attach significance to any other words used as indicative of abuse or as indicative that it did not occur).

The Mother’s Assertions After the Second (13 October 2012) Police Interview

The mother deposes in her evidence-in-chief to statements made by V and G subsequent to the second police interview.

Examples include:

On 18 October, five days after the second police interview, V started putting her fingers in her bottom and making G smell them. When told by the mother not to do it to G “or anyone else”, the mother says that V said words to the effect of “is it just for daddys to do”.

Later that evening, the mother says V said “out of the blue” words to the effect of “oh that’s wee wee” “he put his fingers in my mouth with stinky bottoms on it, I spat it out and spit the bottom at dad.”

The mother recounts G saying on the following day, 19 October, that the father had said to her that “mummy hates dad and that mummy would kill dad if [G] told mum the secret”.

On 10 December, G asked the mother why she and the father had separated and the mother responded:

…that it did not have anything to do with her or [V], that we both love her and [V] and that it was just best for us not to be together. I asked her how that made her feel. [G] told me that it made her feel sad but that she did not like what [the father] did to her. I asked [G] if she wanted to tell me about what [the father] had done to her. She said to me ‘He put his fingers in and said he was the tooth fairy’. I asked [G] if that was what [the father] had said each time. She said ‘no, he said he was a spiritual ghost’. I asked [G] how it happened. She said ‘Daddy would wait until I rolled on my side, he said he was pulling the blankets up but he wasn’t really he put his fingers in’ I asked where he put his fingers. [G] told me ‘in my back bottom’. I asked ‘are you sure’. She said ‘yes, he licked his fingers and put them in my bottom.

G saying that “… her father had taken a photo of her and [V’s] bottoms in the bath and had asked her to stand up and wash her bottom and he took photos of her”.

The mother also deposes to a number of physical symptoms and observed behaviours which she attributes to the abuse of the children by their father and their consequent fear of him. Those observed behaviours and statements include statements and behaviours said to be indicative of a floridly-expressed unwillingness to see the father. Examples include:

The mother deposing to and annexing a medical report that V had “… been a patient of the above listed practice from 15/3/13 to 10/04/13” (that is, about three weeks) V had “… presented with some physical signs associated with the stress and anxiety that has been happening in her life” that included “worsening eczema which was over her entire body and she had peeling of the skin on her fingers as well associated with the stress. She has red raw fingers associated with excessive peeling of the skin.

In a similar vein, a report in respect of G (who had been a patient of the practice for about 10 weeks from 6/2/13 to 29/4/13 says that she has “… presented with some physical symptoms associated with the stress and anxiety she has recently been through … [including] dry retching, some vomiting and also breakouts of her eczema and peeling of her fingers that at times were extremely red and raw due to the peeling of her skin”.

G saying “no, no, no” when reminded it was time to telephone her father and appearing “quite distraught … She begged me and was sobbing uncontrollably saying that ‘she did not want to speak to Daddy’”.

G saying “out of the blue” words to the effect of “mum what if I was playing in the park with dad and he tried to steal me”.

After a period of supervised time with Ms A on 9 December, the mother asserts V was angry “ … punching and hitting [G], pushing her dinner over and not eating her food” and when asked why she was angry, V said words to the effect of “I am angry because I saw Dad and I never want to see him again”.

Both girls “crying and becom[ing] distressed” when she encouraged them to telephone their father.

G “screaming outside [the supervisor] Ms A’s residence” on 6 January 2013 “as she did not want to see her father.” G “started to yell” at her mother and “begged [the mother] and kept saying words to the effect of “I don’t want to see dad”. G is alleged to have “had a stomach ache and wet the bed that night”.

The Children are seen by Reporting Psychologist Mr D

Mr D, a psychologist, first saw the parties and children on 28 November 2012. He had been commissioned “on the joint request” of the parties’ legal practitioners. Although commissioned in that manner, he says “that my work in preparing a report is fundamentally and ultimately for the court”.

The circumstances surrounding the subsequent preparation of two reports by Mr D – a “Brief Family Report” (Exhibit ICL 5) dated 18 October 2012 and a “Partial Family Report” (Exhibit ICL 6) which is undated – are highly unusual and will be discussed below. His (extensive) notes were also produced and became Exhibits ICL 1 and ICL 7.

The “Partial Family Report” outlines a series of interviews and telephone discussions said to have occurred in April 2013. The persons there referred to are not the parties to these proceedings, nor do they have any connection with this case. It is agreed they refer to a family wholly unconnected with these proceedings.

Mr D’s Brief report indicates that he interviewed the father on 28 November 2012 and observed the father interacting with the children on the same date. Yet, nothing at all appears in his report in respect of either.

The collateral information obtained by Mr D from Ms A (in two telephone conversations on 18 December 2012 and 8 May 2013) will be referred to in the context of discussing her evidence later in these reasons.

Again, the statements made by either of the children to Mr D will be particularised later in these reasons.

Mr D was asked why he had produced, ultimately, only a partial report. His evidence was puzzling – all the more so as it comes from an experienced report writer:

I cannot explain that entirely. There was something about this matter that I became very – very stuck on. I could not work through this to a point that I could reach a production [sic] conclusion. I’ve thought long and hard about this and I knew I – I knew I would have to address this question today but I – I don’t think I can give a fuller answer than that.

Under questioning from counsel for the ICL he continued:

COUNSEL:Now, when you say you got stuck, does that mean you got stuck in terms of expressing an opinion and conclusions? – –

MR D:Not entirely. Not entirely. There was something about this matter that whenever I went near it I – whenever I read, whenever I thought about it, whenever I read some more affidavits, it – it became much more complex than I – I felt I was able to address, I think. I’m not sure if that’s entirely the case. Well, as I said, I don’t have the complete answer for you.

That prompted questions from me:

HIS HONOUR:And, yet, oddly, as it seems to me at least, the four paragraphs of opinion [in the Brief Report] and conclusions appear at least to pre-date the other material. I would have – now, I don’t know but I would have thought that, if you had got stuck, it would be the other way around. In other words, that you look at a whole bunch of stuff, you think, “Well, I’ve got a tentative conclusion A or a tentative opinion B or tentative conclusion C, but I’m stuck,” for whatever reason and therefore what would be missing is the opinion and the conclusion. But this is the other way around … the opinion and conclusions come first and then there’s some other material based on the interviews, observations, etc, and then … as you describe it, getting stuck?

MR D:That’s right. So in that – in that brief family report, that was something – you know, I was very tentative in offering that and I – I used my language carefully. I think the “stuck” point came when it came time to be more conclusive and elaborate in what I was able to present to the court.

Counsel for the ICL then asked, “But are you able to assist us with any opinion and conclusions?” to which Mr D replied, “I haven’t worked through all of this material to the point that I could confidently assist you, I believe.”

Dr H’s Letters and “Report”

The mother relied upon an affidavit by Dr H, a paediatrician, filed on 2 April 2014. The doctor was not required for cross-examination by either the father or the ICL.

Having met with the mother and V, the doctor wrote a letter dated 14 November 2013 that was provided to Bravehearts; the Department of Communities, Child Safety and Disability Services; the “Child Protection Investigation Unit”; and “SCAN – Hospital K”. The letter recites in part that V had, “… developed some deeply disturbing behaviours” and postulated her suffering “ … some extraordinarily traumatic experiences in the past”. The doctor’s letter goes on to record that, “[i]n taking her history it would appear all of this is consistent with child sexual abuse”.

The doctor’s letter then goes on to provide an exhortation for there to be “a major police investigation” and to comment that it was “incomprehensible” that “[V] is allowed to be in the company of the alleged perpetrator”.

It is not clear from either the doctor’s letter or his affidavit what data, save for the mother’s account (and any statements by V – which are not recorded in either), the doctor had available to him, including, for example whether he was aware that there had already been two police interviews with G and an inability to have V participate in either.

In a subsequent letter to the mother’s solicitors dated 4 March 2014 (described in the affidavit as a short report written at their request), Dr H stated that, he:

…was never engaged to undertake any medico-legal work with respect to the child. As a direct result of that it was on the basis of what was told to me by the mother that I felt that it was imperative that I ensure that investigations had been undertaken by the appropriate people… [and that he] … did not examine [V] with respect to the reported child abuse on the basis that this had been undertaken by others…

The Children are seen by the Family Report Writer, Mr F

Mr F conducted interviews with the parties, the children and Mr E and Ms E on 12 September 2013. The same day, he undertook observations of the children with each of the parties (and the parties together).

Mr F is one of three people independent of the parties or their witnesses who have had the opportunity of both speaking to the children and observing their interaction with each of their parents. (The others are Mr D and Ms A.)

I accept the evidence of Mr F recording statements by the children and his observations of their behaviours and their interactions with their father as accurate and reliable. Indeed, they were not challenged as otherwise.

The Evidence of the Psychiatrist, Dr G

Dr G is a psychiatrist commissioned by the Independent Children’s Lawyer to prepare a “report in relation to this family”. He saw the father on 16 May 2013 and the mother on 17 May and again on 3 June. He did not see the children or observe any interactions between the children and either of their parents.

Dr G’s psychiatric opinion of each of the parties was, relevantly, unremarkable.

He saw no evidence of any pervasive depression in the father. Although there was “no disorder of the form of thought”, the father was nevertheless “… circumstantial and tangential at times” – a trait I observed frequently for myself in the witness box. Also entirely consistent with my observations of the father’s demeanour in court, Dr G said of the father: “… I note an idealised account of the marriage apart from the last few years and also an idealised picture of his ex-wife whose physical attributes he described in glowing terms”.

Having noted “no organic mental state, psychosis, major mood disorder or anxiety state”, Dr G turned to the father’s personality where he assessed:

… narcissistic features … but further information is required with respect to whether there is any disorder. He presents as having a poorly defined sense of who he is … some aspects of his attitude to the marital relationship also suggest he engages in what may be called ‘part object relations’ as evidenced by his difficulties in describing his wife as a person as against her physical characteristics … .

Importantly, the father’s personality vulnerabilities as discussed should not be taken as evidence that sexual abuse of the children has occurred or that it is likely to occur although narcissism has certainly contributed to the break down of marital relationship.

In respect of the mother, Dr G similarly noted “no organic mental state, psychosis, major mood disorder or anxiety state”:

From a psychiatric perspective it is difficult to know what to make of the mother’s beliefs that the father has sexually abused both the children based on what the children have said and their associated behaviours … .

As to personality, the report opines that the mother “is within the normal range … There may be some issues of dependency but further information is required on this”.

Time with the Father Supervised by Ms A

The first visit supervised by Ms A was on 30 September 2012. Ms A continued to supervise time during the period spanned by the trial (which needed to be adjourned part-heard and concluded some three months later). Senior counsel for the mother required Ms A’s personal attendance to be cross-examined, indicating early in the trial that “… her credit will be in issue”. Ms A gave evidence in August 2014, when the part-heard proceedings continued.

Ms A’s evidence is very important. As will be seen, extremely serious allegations arise from events in early 2013 to which she was a witness. Her evidence and the challenges to it will be examined in detail below.

Issues Emerging From the Evidence

There is no physical evidence that sexual abuse has occurred; the genital examination performed by a paediatrician detected no abnormalities. As she points out, that does not mean that abuse has not occurred.

In the absence of any physical evidence, ultimate findings as to abuse or risk must be based in significant measure on an assessment of what children have said and, importantly, what they have said to different people at different times and in different circumstances.

Obviously enough, the mother (and her family) seek to attribute decisive weight to the children’s statements which, she contends, are indicative of abuse of the girls at the hands of their father. So, too, with their behaviours and asserted unwillingness to see their father and their fear of him. Doing so involves giving little or no weight to other statements, and other evidence of the children’s behaviours to the opposite effect of what she contends for.

The complexity of the findings that might be open in that respect emerges from issues which will already be apparent from the outline of the evidence given above. Examples include:

The speed and intensity with which allegations of abuse emerged from and after V’s statements to her grandmother;

The circumstances surrounding, and manner in which, statements by V were recorded by the mother very shortly thereafter and embraced immediately as indicative of abuse by the mother and her parents;

The assertion by the father that the circumstances surrounding those events are part of a “conspiracy” against him;

A denial by G that any sexually improper behaviour had been directed toward her and subsequent statements that it had, including during a police interview marked by her exhibiting significantly different demeanour;

The diametrically opposed accounts of the children’s behaviours when with their father and their expressed attitude toward seeing him and alleged fear of him;

The nature, extent and frequency of questioning of the children and the attention paid to statements made about their father, the mother and Mr E.

An added layer of complexity emerges by reference to events at and around Ms A’s supervision of the children from early 2013. During her supervision during the early part of 2013, evidence of the following matters, given here by way of overview, emerges:

Statements are said to have been made by G that, on their face, suggest that the mother has been instrumental in prompting allegations of abuse from her.

Statements are said to have been made by V to similar effect.

G has made statements to the effect that the mother played the tape recording of V of 26 July 2012. She says it was played when they were driving in the car, that it was played “loud” and was played “all the time”.

Statements are said to have been made by G in which she denied to the father in Ms A’s presence that her father had “touched her bottom”.

Statements are said to have been made by G to the same effect to Ms A alone.

Statements are said to have been made by G in which she says that Mr E had “made her” say that her father had touched her bottom.

Further in that respect, statements are said to have been made by G to the effect that Mr E had told her that she “had to lie”.

Subsequently, statements are said to have been made by G to the effect that her lie was a lie.

Further in that respect, statements are said to have been made by G to the effect that the latter lie was prompted by her father offering her $100 to tell that lie.

Obviously enough, issues of the gravest seriousness are raised by that evidence.

Further, despite the highly-conflicted nature of the evidence, uncontroversial findings pertaining to the children’s statements emerge from that evidence:

G has been questioned about important matters by each of her mother, her father and by Ms A;

G has made statements, including accounts of events, that are different depending upon the audience receiving them;

On either the father’s account (supported by Ms A) or the mother’s and Mr E’s account, G has, as they respectively assert, made untruthful statements;

On either the father’s account (supported by Ms A) or the mother’s account, G has told untruths that are attended by detail and in respect of matters of significance involving people who she loves and who are central to her welfare and nurturing.

A judgment needs to be made in respect of three separate, but integrally related, central issues – each of which, and the interrelationship of which, is illustrated starkly by reference to the allegations emerging from supervised time with Ms A. Those three issues are:

The veracity and reliability of statements made by the children: That is, what precisely did each child say and what should be made of its content;

The veracity and reliability of the reports of the children’s statements: That is, should the reporter’s account be accepted as an honest and reliable account of what each child said, when it was said and the circumstances in which it was said. Similarly, the veracity and reliability of the reports of the children’s behaviours and alleged fear of their father is important; should the reporter’s account of those matters and the circumstances in which they occurred be accepted as honest and reliable; and

Contextual factors and circumstances that impinge on each of those two issues.

Plainly, central decisions about the reliability – and truthfulness – of evidence are central to a resolution to all three issues. Findings as to the truthfulness and reliability of each of the parties, Mr E and Ms E, and Ms A are crucial to informing findings as to those issues and, ultimately, abuse or risk.

Findings as to the reliability of the opinions expressed by Mr D and Dr R and the weight to be attached to those opinions are also important. Neither Dr G’s opinions, nor the observations of Mr F, were seriously challenged as inaccurate or unreliable.

The Truthfulness and Reliability of Evidence

Contextual Factors and Circumstances

Loyalty, Unconscious Bias and High Emotion

Here, many of the plethora of statements attributed to the children emerge from the evidence of each of the parents and the mother’s family members or friends. Other statements emerge from the evidence of Dr R, Mr D, Ms A and police interviews.

Contextual factors and circumstances apply to each (although not necessarily the same ones).

The comments of Lord Pearce made in the House of Lords nearly 50 years ago in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403, are not only as true now as they were then, but can be seen as particularly apposite in the highly-charged atmosphere of this case:

… Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he [or she], though a truthful person, telling something less than the truth on this issue or, though an untruthful person, telling the truth on this issue? Thirdly, although he [or she] is a truthful person telling the truth as he [or she] sees it, did he [or she] register the intentions of the conversations correctly and, if so, has his [or her] memory correctly retained them? Also, has his [or her] recollection been subsequently altered by unconscious bias or wishful thinking or by over-much discussion of it with others?

His Honour went on to say, importantly as I see it to the current context:

Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. … And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process …

More recently, to similar effect – and, again, particularly apposite in my view to this case – Legatt J said in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC (Comm) 3560, at [19]

The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

Legatt J’s comments are made in the context of a commercial case. They are in my respectful view all the more powerful when what is at stake is the welfare and protection of children. Allegations of the present type properly invoke strong feelings among those who care for the children the subject of the proceedings. As will be seen, those strong feelings are overt in this case.

I consider that their Honours’ statements resonate loudly in this case. To their Honours’ lists of considerations I would respectfully add that, in cases of the instant type, the reliability and veracity of the evidence can be coloured by the belief that the end (protection of children from abuse or the defence of false accusations as to abuse) justifies the means (exaggeration or “stretching” or manipulation of the truth). Again, as will be seen, I think that factor is manifest here.

Demeanour and Behaviour

Caution should attend findings as to the veracity and reliability of evidence based on the demeanour of witnesses observed in the witness box, if only because: “judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible and the conscientious truthful witness may be hesitant and uncertain”.

So, too, judicial assessments of the behaviour of parents as revealed by the evidence – and what “should” or “should not” be expected of parents in those situations – must recognise that not only is every person different but that every parent parents according to their own lights, usually informed by their upbringing, beliefs and values (and very often imbued with a resolve to not make the same “mistakes” their own parents made). Values differ. Values often inform perceptions. Parenting cases often involve values as much as facts.

Yet, while recognising the caution that should be applied emanating from those considerations, the observation of witnesses as they give their evidence can, equally “… legitimately [play] a significant and even decisive part in assessing credibility and in making factual findings”. So, too, incongruities between assertions and observed actions can, albeit attended by caution in respect of attaching homogeneity to the latter just referred to, be important in assessing the reliability (or veracity) of the former.

The views of relationship partners and, often, their broader family, are filtered through the prism of a broken relationship. Blame is frequently attributed. The views of family members about a son or daughter’s choice of partner often intervene and a broken relationship is often seen to be a vindication of long-standing views about the lack of suitability of a son or daughter’s partner. I consider that this, too, is a feature of the evidence in this case. Sections of emails from Mr E and the father in my view resonate with this undercurrent.

The Evidence of the Father

The father was confronted with statements he had made to Airline O. They pertained to the frequency of his flights with them in the course of his business. They were, it seems, designed to extract greater benefits, or more preferential treatment, from that airline. His statements were, as I find, false. His attempts to explain what, as I find, are demonstrably false statements at times bordered on farce.

The cross-examination on this topic had as its purpose, as I apprehend it, the intention of extracting a finding that the father was prepared to lie if it suited his purpose. The inference sought to be drawn was, in effect, that if he told lies in this context for this purpose, why should his evidence be believed about the instant issues.

Added to that established untruthfulness was a marked oddity in the manner in which the father gave his evidence in the witness box. His counsel described the father in closing submissions as “a unique character”. That submission was made, as I apprehend it, in an attempt to explain or give context to a decidedly odd manner evident in his oral evidence.

While his statements to Airline O were, I think, plainly untruthful, they struck me as odd lies; they seemed to me much more redolent of a childish, and child-like, need for self-aggrandisement than as a measured attempt at deception. Indeed, those untruths, and the behaviour more generally, seems to me entirely consistent with the narcissistic traits assessed by Dr G. Indeed, much of the father’s demeanour in the witness box seemed to me to be redolent of precisely the same traits: by turns narcissistic and a child-like need to be loved and admired.

There is no doubt that the father has asked questions of the children in respect of the allegations. He has done so contrary to express requirements to not do so. The father knew (as did Ms A) that he was not to speak to the children of the allegations. The father did so for the third time on 30 December 2012 (the sixth visit) having been told on two prior occasions not to. He did so having been told on the second of those two earlier occasions that, if he continued to do so, Ms A would cease supervising visits (with the resultant consequence that he would not see the girls). A moment’s reflection would (or should) have revealed to the father that he could expect any such comments to be reported on – as they in fact were.

That he did so is in my view a stark example of, at least, the father’s lack of insight and narcissism, each of which formed a central component of Dr G’s assessment of him.

In his statements to the children the father can be seen to be seeking to influence the children; the nature of the questions asked were, on Ms A’s evidence, usually suggestive of a required answer. An example is Ms A’s evidence in respect of the 30 December visit. She stated that he had been “asking [G] questions about her allegations of him having touched her” and that “… he said something like, you know, ‘I didn’t do anything to you, did I’?”

I think it highly likely, by dint primarily of the personality traits referred to by Dr G, that had further opportunities to question the children not been constrained by supervision, the father would have done so. As will be shortly seen, I find that the father questioned the children significantly less frequently and significantly less relentlessly than the mother. However I consider that is reflective of a lack of opportunity rather than being reflective of any appreciation of the detrimental effect that doing so may have on the children or, indeed, on the content of what the children might say.

Each of the mother and father (and, indeed, others within the wider family groupings) may hold to the view that questioning of the children about these allegations is appropriate – or, at least, understandable. The father might claim that his questioning of the children was prompted by (as he might see it) an understandable desire to have them confirm what he alleges to be true, (as he asserts). Although his opportunities to question the children were, as I find, relatively limited by reason of supervision, the very existence of supervision should have seen him alive to the pressure the children might feel as a result. The mother might claim that her questioning of the children was prompted by (as she would see it) an understandable desire to have them confirm what she alleges to be true, and the heinousness of what she alleges to be true, so as to offer a foundation for added protection of them. (The end justifies the means). Yet, that, too, shows a lack of insight for the impact upon the children and the potential impact upon the content of what the children might say. As will be seen, her questioning, too, is overtly suggestive of the answers she expects.

The questioning of the children and, worse, the questioning of the children in a leading or suggestive way, causes significant doubts to attend the accounts of what each child has said as evidence of the truth (or accuracy) of what is said by the child. A large body of research across the world informs expert opinion about the questioning and evidence of young children: how children are influenced by the questions they are asked; by the person who is questioning them; by leading questions and how answers are influenced by a range of factors. I do not have evidence of that research before me, nor was it otherwise referred to. However, Dr G’s unchallenged opinion was that “if children are questioned in a particular way, they may feel certain answers are required”. That opinion followed a comment that these children “have been observed a lot”; something that could hardly be doubted.

In that respect, it should be recorded that the questioning of both parties was occurring while the children were coping with the separation of their parents – itself an extremely stressful and upsetting event. (As an example, G only expressed one wish when asked by Mr F to nominate three: for her parents “to not to split up. That’s one. Then I have no idea”.). The questioning by their parents – predominantly, as I find, by the mother – also occurred within the broader context of the interviews and assessments set out earlier in these reasons.

I find it inconceivable that the children have not become aware of an on-going interest in their words and actions that has occupied a central place in their young lives. I have little doubt that the children have become acutely aware that each of their parents expect answers or behaviours of them and that their words – and actions – follow.

An essential question about the truthfulness of the father’s evidence should be addressed: should his denial of any untoward sexual conduct be accepted? It must be accepted that a father desirous of having an unimpeded future relationship with his children will deny any improper conduct. Thus, I regard the fact of denial as mattering little. However, an assessment must nevertheless be made as to the truth or otherwise of that denial.

I do not draw any inference that, because he told lies to Airline O he would tell lies about sexual conduct towards his children. The sending of a text to the mother on one of his first periods of post-separation overnight time that V had “peed all over me” does not strike me as a perpetrator of sinister conduct seeking to mask that conduct; rather it strikes me as wholly consistent with the rather child-like and needy person described by Dr G and observed by me in the witness box.

Despite the lies to Airline O, the impropriety of his conduct in questioning his children during supervision, and for all the oddities in his presentation, I was not left with the impression of dishonesty in his answers or accounts in so far as they affected the children. I believe his denials of improper conduct. Despite placing appropriate caveats on what might be drawn from observations of children’s behaviours, I am buoyed in that conclusion by evidence which I accept of the children’s interactions with the father and their expressed desire to spend more time with him.

The Evidence of the Mother

I have pondered deeply two extremely serious questions. Does the mother genuinely believe that the father has sexually abused his children? Or, by way of contrast, has the mother sought to influence the children in what they have said and the way they have behaved so as to present a false picture of the risk presented to the children by the father? If those conclusions were drawn, they would likely have a profound effect upon the parenting orders ultimately made because serious questions would arise as to whether the need to protect the children from that harm should predominate over the benefit of the plainly meaningful relationship the children have with her.

Those questions arise through my conclusions that the mother has given evidence which is intentionally misleading by omission or disingenuousness, and, in some cases untruthful, about matters of importance with respect to the children and the issue of abuse or risk. In one instance, I consider that less than truthful evidence was given to mask the fact that she had sought to influence G to make a false allegation against the father.

The matters of importance to which I have just made reference, broadly described, are:

The evidence pertaining to the father’s text on 24 July 2012 about V “peeing” on him;

What was said, and importantly not said, about the presence of a ball in the bath at the time V made statements about “whiskers”;

The alleged serendipitous presence of the mother’s phone and the recording of V’s statements on 26 July 2012;

The mother’s denial that she played her recording of V in her car so that the children could hear it;

The mother’s evidence in respect of the events of 10 March 2013 and G’s alleged statement that the father had offered G a $100 bribe to make false allegations about Mr E; and

The mother’s assertions that the children were/are fearful of Ms A;

The father’s video and incongruities in the mother’s behaviours.

I have grave doubts about the reliability of much of her evidence, in particular in respect of the accuracy of what she reports the children having said. I think it highly likely that much of her evidence is exaggerated. The evidence of the mother (and her witnesses) is replete with speculation and comment. Her evidence is also replete with the attribution of conclusions, or suspicions, derived from vague assertions of past conduct (for example, that a child was “wary of males”). I regard that “evidence” as having no weight.

I consider the evidence of the mother (and her witnesses) is affected by the consideration that they were prepared to “assume the worst” from what the children are reported as having said. The speed and intensity of the mother, Ms E and Mr E’s belief based upon tape recordings of V is testament to that as, in Mr E’s case, are emails immediately consequent to it. That is an important factor in my view. I consider it plain on the evidence that each has closed their mind to alternative explanations for statements and behaviours – both initially and as they later emerge – and, as a result, has filtered each through the prism of a pre-existing and entrenched belief that they are attributable to abuse. In that respect, I repeat what I earlier said about factors which I consider impinge upon their evidence.

After much deliberation, having considered all of those matters and, in some cases, in spite of them, I have come to the view that the mother does genuinely believe that the children have been abused by their father.

The evidence of Ms A, and my ultimate acceptance of it, is central to findings in respect of many (but not all) of the specific concerns in respect of the mother’s evidence enumerated above. It is also important as to her observations of the children in the father’s company and their words and actions while interacting with him.

Ms A’s evidence was, understandably, subject to significant challenge by the mother’s senior counsel. That evidence, and the challenge to it, needs to be examined in detail. It is convenient to do so before referring in detail to the specific matters just outlined.

The Evidence of Ms A

Ms A is an experienced supervisor. She undertakes the work commercially (as distinct from altruistically at the request of particular parties). Her evidence reveals she was well aware of the nature and extent of the allegations in this case and her consequent (onerous) responsibilities. She was, initially, appointed by agreement between the parties and subsequently by court orders.

Those matters provide important context to the challenge to Ms A’s recollection. In addition, and importantly, Ms A’s specific responses in cross-examination that she could not recall are, in my view, reflective of a desire to not be didactic or certain in respect of assertions that do not admit of same, and of a desire to not expressly call into question what, primarily, the mother sought to assert. I consider that Ms A’s raising of the possibility of the children “whispering” such that she may not have heard, to be an example of the latter. When Mr North SC asked her about the reservation, “that’s not to say that he didn’t whisper it in her ear” in her note of the 30 December (which will be referred to specifically below) and whether “is that there simply as a mere possibility or … because, on occasions, you had seen him speaking softly to one or other of the girls?”, Ms A replied, “No, that’s – it was just me saying it – that it was possible that he could have.”

I referred earlier to the fact that senior counsel for the mother indicated early in the trial that Ms A was required to be present in court to be cross-examined as “her credit will be in issue”. No part of the challenge to Ms A’s evidence suggests ultimately that her evidence is untruthful.

The insistence upon Ms A’s presence in court to be cross-examined gave me the opportunity to observe her carefully in the witness box. My observations of her, her demeanour, the care with which she answered questions and the manner in which she sought to distinguish certainty from possibility impressed me greatly.

Ms A did not rely on recall; she gave evidence of contemporaneous note-taking. She said she “scribbled” notes as things happened or were said, and later – generally that night at the conclusion of visits – turned her scribbled notes into a fuller typed account. She said that she did not record what occurred on each and every visit, but did record anything which she regarded as significant. She was aware that her supervision was occurring in the shadow of court proceedings in respect of the children and she was aware that, consequent upon the appointment of the ICL, she would, ultimately, need to prepare a report of the entirety of her supervision for the ICL.

I acknowledge that Ms A’s familiarity with the father over a period of 20 months or so and familiarity with, as she contends, warm and spontaneously joyful interactions between him and the children, has the potential to have been an influence upon her and, consequently, upon her evidence. (The words of Lord Pearce and Legatt J quoted above pertain.) However, I do not consider that Ms A’s evidence is affected by any such influence here such that it impacts upon the reliability of her evidence. Indeed, I consider her evidence redolent of professionalism, genuine care for the children and an impartial reporting to the mother of relevant events occurring during supervision.

I consider that each of the parents, and Mr E’s, words and actions should be judged within a context of extreme conflict emanating from very serious allegations in respect of young children and the entrenched positions in respect of them. So, too, Ms A’s words and actions fall to be judged within extremely difficult circumstances. She was caught in the middle of extreme conflict and, in particular, a situation where she was receiving diametrically opposed information about serious matters involving young children.

Ms A’s evidence is challenged by the mother in a number of specific respects:

It is said that some matters of importance were not included in her notes and that there were discrepancies between her notes and her affidavit. That challenge embraces challenges that are made by reference to what the mother deposes of interactions between Ms A and her;

It is said that Ms A did not, or may not, have heard all that was said between the children and their father. This is said to arise from the father “whispering” to the children so that it was inaudible to Ms A and/or because she was supervising other children such that she was unable to hear what was said;

Ms A’s recollection of events is said to be “not that good”;

It is said that Ms A “acquiesced in the father’s questioning” of the children and that she “interrogated” the children;

Generally, it is implied, at least, that Ms A acted other than with impartiality and total propriety.

Cross-examination was directed to what the mother swore in her affidavit of evidence-in-chief as having occurred on 11 January 2013. The gravamen of what is alleged is that, on that (erroneous) date, (a) G told the father that “he had done it” and (b) that he had responded “no, I didn’t” to which she responded “yes you did” and (c) the father “rolled his eyes and laughed and said, okay, yes I did”. Secondly, and separately, the mother deposes (at [188]) that on that same date she “… spoke with Ms [A] after the visit and she told me that [G] had told her what had happened to her when ‘Daddy put his fingers in’”.

Initially, in response to what counsel put to her based on that (wrong) date, [Ms A] responded, “No, I don’t recall that at all, I’m sorry”. When asked, in respect of that (wrong) date, if it was “… possible the conversation occurred”, Ms A responded, “Well, if I don’t – if I didn’t write it – well, anything is possible”. She went on to swear in response to the specific assertions as to the father rolling his eyes and laughing “No, I don’t recall that at all, sorry”.

I raised with counsel that no event could have occurred on 11 January (the date deposed to by the mother and put to Ms A by counsel); 11 January was not a Sunday and it is uncontroversial that all time with Ms A occurred on a Sunday. The error as to date was conceded. Of course, that meant that there was no evidence of any date on which the event allegedly occurred.

Ms A was then asked about this conversation in respect of “… a contact visit before the 14^th, probably or possibly the 13^th or the 6^th”. The question was not objected to. No notes correspond to those dates. Consistent with her evidence as to her general approach, Ms A responded that, if there were no entries for those dates, “… it was probably just a routine thing that, you know, they came, they had fun, they went home”.

Later, Mr North SC modified his question again and Ms A was asked whether she’d had a conversation to the above-mentioned effect “in January of 2013”. Later still, the question was modified again to, “Ha[ve] there been any prior conversations between you and G before 10 March where she had spoken about what had happened when her father had put his fingers in?” Ms A responded: “[G] didn’t tell – ever tell me – her father had put his fingers in, that I can recall.”

Nothing to that effect is contained in any note (save G on 10 March accusing Mr E of suggesting that to her).

In a similar vein, Ms A was asked whether “at some time prior to 14 January” the father had been angry at G for “telling the police and [Mr D]” about the allegations. That question was based on an answer G had given to Mr D. Ms A responded that she had “never heard [G] say [Mr D’s] name”. She said that she could recall no occasions when the father had been angry with G during supervised time.

Ms A was asked about an assertion by the mother based on a report by G that the father had shown G pictures of him kissing a woman. Ms A’s evidence was that, while the father showed the children photos, including one which depicted him and a woman, “… he never showed them a picture of a woman kissing”.

Ms A was also asked about an event by reference to correspondence passing between solicitors (and the ICL). The affidavit of each of the parties references correspondence passing after many of the supervised visits replete with numerous issues and allegations pertaining to them. A letter from the mother’s solicitors dated 14 January, contends that “the children have told [the mother] that during the supervised time [the father] continues to speak with them about the allegations of sexual abuse despite Ms A’s attempts to stop such conversations”. Neither date nor conduct is there specified.

A passage of a letter from an apparently responsive letter from the father’s solicitors was put to Ms A. That letter is dated 23 January and says in part that the father “… instructs that on the last occasion that the children spent time with him there was no discussion in relation to these proceedings or the children’s interview with [Mr D]. [The father], however acknowledges that those issues were previously raised during supervised time which is regrettable”. In terms, that response suggests plainly, by the use of the expression “those issues”, that a concession is made as to discussion of proceedings and the children’s interview with Mr D.

Ms A’s evidence is referred to earlier. When the father was cross-examined about this issue, it was by no means clear that he was conceding both that he had spoken about the allegations (when he knew that he shouldn’t) and that, specifically, he had spoken about the interviews with Mr D.

It was suggested that there were discrepancies between Ms A’s affidavit and her notes. Ms A said that she “sent a copy of her notes to the lawyers” (I infer the ICL) “and they prepared the affidavit for me. And I just thought that they had condensed it because mine was so detailed”. I accept that evidence; it has the ring of truth and accords with not-infrequent judicial experience in respect of the conversion of notes to affidavit form. Any such discrepancies do not persuade me of any lack of recollection or lack of reliability more generally.

Ms A gave evidence that a computer virus had rendered unobtainable notes of early visits. It was not suggested that this was anything other than true. I accept it as such.

Ms A’s Alleged Inattention: Whispering and Distractions

A distinct challenge to the reliability of Ms A’s evidence is based on the possibility that things might have been said to the children by the father that were inaudible to Ms A. As earlier referred to, a specific assertion in that respect that the father had been “whispering” to the children seems to emerge from events of 30 December (which was the sixth supervised visit) recorded by Ms A. That date was the third occasion upon which the father spoke to the children of the allegations (despite having been chided for previously doing so, having been warned not to, and having been told that if he did it again, supervision would cease). Ms A’s notes of the events of that day record:

The girls and [the father] played well together. [The father] phoned his dad and the girls spoke to him but only for a short while. The girls didn’t show any signs of being afraid of [the father] or not wanting him to touch them. He was sitting on the lounge on the patio and [V] sat next to him and [G] was on the other side laying down with her legs across his legs and said she was comfortable and wanted to stay like that when I asked her. They were playing in the garden when [the father] spoke to [G].

I called [G] and asked her what Dad had said and she told me he said he didn’t do those things. I asked her if she was ok and she said yes. As [the father] was leaving I spoke to him and said he was not allowed to speak about things like that with the girls. I also said if he continued to do this visits would have to be cancelled. He assured me he would not do it again.

When [the mother] came I told her what had happened. She got a bit upset. Later she phoned me and said [V] had told her that [the father] has spoke to her about the same thing. I did not see him speak to [V] but that’s not to say he didn’t whisper it in her ear.

When it was suggested to Ms A that “[y]ou clearly didn’t hear what [the father] said [on 30 December] did you?”, Ms A said that “I heard – not every word but I did hear that he said something, you know, about touching her”. When asked whether the father was “speaking softly”, Ms A responded “[n]o, he was just speaking normally”.

Ms A’s evidence proceeded:

MR NORTH:… during that conversation did [the father] … say anything to [V] that led you to believe that he was demanding that she respond in a particular way?

[MS A]:No.

MR NORTH:Or suggesting that she respond in a particular way?

[MS A]:No.

MR NORTH:There was certainly a conversation in your presence where they gave contradictory accounts about what had happened, wasn’t there?

[MS A]:Who?

MR NORTH:[V] and her father. Where [V] said—?—

[MS A]:Yes. And—

MR NORTH:And he denied it?

[MS A]:Yes.

MR NORTH:You’re quite confident that there had been no whispering going on that day?

[MS A]:Yes, I am.

Ms A’s evidence is to the effect that while she couldn’t swear to having heard every word said between father and children, she was aware when things (of all types) were being said; was alive to same and sought to ascertain the content of what was being said. I accept her evidence.

Ms A’s Alleged Inattention Due to Supervising Other Children

Another specific component to the challenge to Ms A’s evidence is based on the assertion that things may have been said to one child (or both) when Ms A either was not present or when her attention was directed to the supervision of other children in her care or because supervision was conducted by other people under her direction or control (in effect, employees of hers). Mr North SC submitted, “It is clear, in my respectful submission, that [Ms A] was on occasion distracted and there were opportunities for the father to speak to the children about matters, which he seized.”

Ms A said she “supervised [the father] by myself” (as distinct from relying on employees or others). That evidence was not challenged by reference to any evidence save for the mother’s supposition and consequent assertion based on statements she asserts were made by the children from which she drew the conclusion that others had supervised the children. I accept Ms A’s evidence.

Ms A conceded that, at times, she supervises more than one family’s children. She was asked if it was possible that she “… might have been supervising more than one family [while supervising [V] and [G]]”. She replied: “It’s possible, but I don’t think so. [The father] was never left by himself”. I accept that evidence.

Ms A’s Conduct and Alleged Inappropriateness

It is asserted on behalf of the mother in written submissions that Ms A’s supervision was “inappropriate” and, in oral submissions that she “misapprehended her role”. It was not made clear in either submission what findings should, in any event, emerge from any such conclusion.

The submissions seem to reflect the views of the mother and also those of Mr E. Mr E penned a document which he sent to Bravehearts (Exhibit ICL 20). Within that document he asserts that the father: “… has [Ms A] do an affidavit tell this story and that she had heard [G] say this and then in another part [G] says I did not say it and that she lied. She also said she [i.e. G] was also offered a $100 to say this?” There is, as it seems to me, a clear – albeit implicit – assertion that Ms A’s sworn account of, at least, the March events earlier referred to, was, in some unspecified respect, the result of influence brought to bear by the father and that statements attributed to the children result from fear of both the father and Ms A. If that be the suggestion, I reject it.

The findings that seem to there be alluded to in the submissions on behalf of the mother are those emanating from the other contentions about her supervision earlier discussed: that there were things said that Ms A did not hear; there were opportunities for things to be said by the father to the children that Ms A permitted or was not present for or that her attention was focussed on other children or activities and not on the task of supervision.

A specific assertion put to Ms A in some detail concerns the events of 20 January 2013 when V initiated a conversation with her father. It was put to Ms A that she permitted the conversation to continue in that she did not intervene or did not intervene sufficiently quickly. Further questions were then directed to the issue of Ms A having a conversation with V alone. In a similar vein, it is asserted that Ms A “interrogated” G (and, perhaps, both children). The assertion of “interrogation” might be seen to be, at best, ironic in light of the fact that Ms A asserts, and I accept, that the mother questioned G for 45 minutes in the presence of Ms A and V during which the mother made it clear that she thought G was lying. The irony is compounded by the fact that, a week later, the mother specifically requested that Ms A speak to G alone on an issue of some sensitivity (G having told lies) and to do so in the absence of the father.

To the extent that Ms A’s conduct is challenged and my judgment of its “appropriateness” relevant, I make it plain that I offer no criticism. She was, as I have earlier said, caught in the middle of extremely difficult circumstances. (The same circumstances had, in a different context, caused an experienced report writer to abandon completion of his commissioned task). Further, and crucially, Ms A is not a robot; she is a human being and a mother. Her conduct should be judged – just as I propose to judge conduct of the mother, father and Mr E – by reference to what might be expected of human beings, and parents, caught in extremely difficult situations doing only that which we can all hope to do, namely our best.

To the extent that those matters are said to impugn Ms A’s reliability as a witness, I reject that suggestion.

In summary:

I consider Ms A to be an honest, reliable witness;

She impressed me as an independent and impartial witness doing her best to give an honest and accurate account of the events which she recorded and about which she was asked;

I reject the attack on her recall. To the extent that her recall was called upon independent of her notes, I regard it as commensurate with that expected of an honest witness attempting to give an account of historical events;

I accept the accuracy of her notes;

I reject otherwise the specific challenges to her reliability. It should be accepted, of course, as is accepted by Ms A herself, that she could not hear every word ever said between the father and the children. This is an honest concession which also underscores the reliability of her evidence generally. However, I accept that her supervision was such that she could hear sufficiently what was said so as to appreciate the subject matter and context; to take proper account of it and to raise it with the father, the children and, later, the mother;

Similarly, Ms A accepts – again as it might be expected an honest witness would – that she could not swear to having both children in her sight and hearing for every minute of every visit. Again, however, I accept that her supervision was such that she could see, hear and otherwise monitor, appropriately, the interactions between the children and their father; and

I accept the submission that the father did indeed seize opportunities to speak to the children about the allegations. Doing so does him no credit and all the more so after he was warned not to do so. I do not, however, accept that any such conduct impinges on the reliability of Ms A’s evidence.

I turn now to explain my concerns and findings in respect of the specific parts of the mother’s evidence enumerated earlier.

The Text Message About V “Peeing” on the Father

The recording by the mother on 26 July was preceded by the children’s overnight visit with the father on 24 July.

When Dr G asked the mother why she had recorded V, the mother said “it must have been because she may say something or not”. She told him she had never recorded V before and she did on this occasion “only because that night [the father] had sent (her) two SMS”.

The mother told Dr G that the SMS related to the father reporting the child giving him a cuddle (about which the mother told Dr G, “I thought at the time this was typical of [the father]” “he should have been giving the child cuddles not the other way round”) and with respect to being “peed on”. The mother told Dr G, she thought this was “weird” and “bizarre”. The mother also told him that V had “never peed on me” and that “[V] was upset the whole day” and that “[G] had said that [V] had wanted me while they were with their father”. (It will be recalled that, during that visit, the father sent a text to the mother in which he says: “Nothing urgent. All good. Just funny story. Short version – [V] peed all over me. All good.”)

Two things of importance can be seen. The mother attributes her 26 July tape recording of V to the “weird” and “bizarre” texts and what she implicitly, but plainly, suggests is unusual behaviour by V. Dr G’s report is silent as to whether he asked the mother whether she responded to the texts. There can be little doubt that the mother gives a sinister, or potentially sinister, connotation to the father’s text when speaking to Dr G.

In her affidavit of evidence-in-chief, the mother swore that she did not respond to the father’s text. That evidence is untruthful.

The mother was confronted by her responsive text in cross-examination: “Ha ha. Clean clothes in her kindy bag and jumper in [G’s] sports bag. Keep her warm. Welcome to parenthood”. In my view, her reply cannot reasonably be seen other than that she, too, saw it as humorous (“ha ha”) and, inferentially, that such behaviour by V (and/or children of that age in general), was not out of the ordinary (“welcome to parenthood”). It will also be recalled that, subsequently, the mother asserts that V has said to her that the father weed on her and a sinister connotation is attached to it.

Whiskers and the Ball in the Bath

The day prior to recording V, the mother and Ms E depose to conversations between them in which Ms E recounts V saying her bottom is sore and that she “has whiskers down there”. However, neither the mother nor Ms E deposes to an additional matter which the mother recounts to Dr G (and which Ms E recounts to Mr F).

To Dr G, the mother recounts a conversation occurring on 25 July – the day before she recorded V. When V said there were “whiskers” in her bottom, Ms E said (as the mother recalls it) “I don’t know what you mean”. Ms E told the mother there was “a ball in the bath with spikes in it” and, when Ms E asked V what she meant when she referred to whiskers, V said, “it’s just the ball”. The mother’s version of what Ms E then told her, as recounted by Dr G, is that “[m]y mother said it was weird because she was not sitting on the ball, however we did not make a lot of it”.

Ms E gives a different account as recorded by Mr F. She posits both V and G in the bath on that night and says to Mr F: “They [i.e. V and G] had been playing with a rubber ball by sitting on it and letting it go. They splashed and spilled water in the bathroom. [V] complained of having a sore bottom”. It will be observed that not only does Ms E tell Mr F that the children were sitting on the ball, but that this joint activity precedes V’s statement about a sore bottom.

V’s comment about the ball – which attributes “whiskers” to the ball (“it’s just the ball”) – is not repeated in the mother or Ms E’s affidavit of evidence-in-chief. Nothing on the mother’s tape recording of V, nor any other evidence before me, suggests that the mother took up V’s own attribution of the cause of “whiskers” with her.

The mother’s account of what preceded her tape recording of V in her affidavit of evidence-in-chief is:

39.On 26 July 2012 I asked [V] if her bottom was still sore. She said words to the effect of “she had whiskers in her bottom”. I asked her “what were the whiskers”. She said words to the effect of “Dadda kisses me on the bottom its disgusting”. “It’s really stinky and dad smells it.” He touches it all over my bottom”, “with his tongue he licks it all over my germies bottom” “ he kisses it and he licks it in my bedroom”.

40.I was shocked. [V] said that [G] had been at ballet when her father had kissed her on the bottom. I recall after [V] telling me that her father had kissed her on the bottom and it was really stinky that I picked up my mobile telephone and recorded the conversation as I was not quite sure what else to do. I was in shock and I asked [V] to tell me what she just told me and tried to ask her more questions to verify what she was telling me.

The mother told counsel for the father in cross-examination that what is sworn to at those paragraphs is a “summary” of what is said by V during the conversation that is recorded. Importantly, there is no evidence of the specific matters there deposed to (“kisses on the bottom”; “stinky and smells it”; “with his tongue”; “licks it all over germies bottom”) emerging from any evidence prior to the mother’s tape recording of V.

The Serendipitous Presence of the Phone and Recording of V

The mother’s recording of V on 26 July 2012 constitutes the only evidence in which V’s precise words can be heard and assessed.

The mother filed an affidavit on 7 December 2012. That affidavit responded to the father’s introduction of children’s matters into the proceedings. In that affidavit, the mother refers to 26 July and to asking V “if he[r] bottom was still sore”. No mention was there made of having recorded the conversation.

Much of the detail referred to in the passages of the affidavit of evidence-in-chief just quoted is absent from the mother’s essentially contemporaneous account sent in the email to her father, which attaches an audio file of that recording. The transcript of the recording is preceded by:

Evidence [V] against her Father [Mr Thornton] Sexual

Child Abuse

Documented and recorded 4.30pm 2mis 54 seconds 26/7/12

Questioning Conducted by mother [Ms Thornton] to her daughter [V]

Documentation of attached audio file

I had just bathed [V] and she told mum the night before in the bath that she had a sore bottom with whiskers. I asked her if she still had a sore bottom, she said it was better now. I asked her what the whiskers were that she had told Nanna about the night before. She said that the whiskers were from Dad. I grabbed my iPhone and started recording from here. [The transcript of what was said then follows and will be quoted later in these reasons].

The mother was cross-examined about the apparent serendipitous presence of her mobile phone so as to effect the relevant recording. I was entirely unconvinced by her evidence.

The mother told the court that V had come “home from the visit screaming, clinging to me, saying “I don’t want dada, I don’t want dada” and “had nightmares that night saying “Stop it. No, dad”. The mother then asked her on the night of the recording whether her bottom was still sore and said to V “nanna said that you had a sore bottom because of whiskers” and V said, according to the mother:

Dada kisses me on the bottom” and that’s when I freaked out and I – she was on the toilet and I just happened to have my phone. If I didn’t have my phone there I wouldn’t have recorded, like, it just happened to be there.

Later, the mother said:

HIS HONOUR:… and so having heard the statement from the child which, am I right in thinking you thought meant that she had been sexually harmed in some way or sexually dealt with in some way, and, as it were, to confirm your worst fears you then – it was then that you grabbed the phone and we heard the sequence we’ve just heard? Is that right?

THE MOTHER:Yes. As soon as she said it was dada who kissed her, like, I just – I just wanted to make sure, (a), I was hearing it correctly. That I wasn’t leading her. I just wanted to hear the truth and I didn’t want it to be any, I don’t know, confusion as to what she was telling me. I didn’t want her, then, forget or make up anything that she had said or she hadn’t said. It was just my gut reaction.

HIS HONOUR:Did you get – give the tape to the police?

THE MOTHER:Yes. No. I tried to but he said that – I think I actually did end up emailing. I told him I had it available but he said he wasn’t interested. He said if I wanted to email it through I could which I did.

HIS HONOUR:But after he had spoken to [G]?

THE MOTHER:No. It was before – when we went to the police station they sent us away and said they would call us so when I got back and told him – I told him about that and he said there’s no point, you know. If she’s not going to talk to me, you know, from what you’re telling me you will just be like one of those, you know, psycho mums who comes in here making up allegations so he’s, like, you know, he basically didn’t want me to even tell him about – I said don’t you want to hear what she’s told me and he’s, like, you think very carefully before you tell me what she’s said so I didn’t know what to do so I emailed him anyway.

HIS HONOUR:Right. So in the context of having made a complaint to the police that you had concerns that your daughter had somehow been sexually interfered with or dealt with improperly by her father and indicating to the police officer that you had a tape that indicated that he said, essentially, or said words to the effect that gave you the impression that he wasn’t interested in hearing about it?

THE MOTHER:Yes.

I do not believe the mother’s account of the serendipitous presence of her phone which, she said, “was in the bathroom behind the basin”. On a consideration of the whole of the evidence in respect of this incident, I think it significantly more probable than not that the mother initiated a conversation with V with the pre-conceived intention of recording it.

Given my general dissatisfaction with the mother’s evidence and my specific findings in respect of the car tape and the conversation of 15 March in relation to “the bribe” to which reference will shortly be made, I consider it extremely likely that significant prior (unrecorded) conversation occurred between V and the mother directly relating to the events thereafter recorded.

The Events of 10 March 2013, Mr E’s Alleged Influence and “The Bribe”

The father deposes to a conversation said to have occurred on Sunday 10 March 2013 which he alleges was initiated by G and which he says occurred in the presence of V and Ms A:

130.[G], [V], [Ms A] and I were in the front lounge room of the house. At or about 3:20pm, and in the presence of [Ms A] and [V], [G] said to me, “Dad, you know it wasn’t mummy who did all this, it was Poppy [i.e. Mr E]”.

131.[G] said this to me in response to my statement, “You know I still love mummy, don’t you?”

132.I responded to [G’s] comment, “What do you mean?”

133.[G] responded, “It was Poppy that made me say you touched my bottom.”

134.I asked again, “What do you mean?”

135.[G] replied, “That time at the police, Poppy said to me that I had to lie and say you touched my bottom and that you put your fingers in my bottom.”

136.I said, “What did he say?”

137.[G] responded, “Poppy asked me if you ever touch my bottom. I said no, and that you hadn’t. He said that I had to say yes, you did, and that you did touch my bottom and say that to people”.

138.I asked, “What about mummy?”

139.[G] responded, “Mummy said to say it too”.

140:I asked, “What did mummy say?”

141:[G] replied, “Poppy told mummy to say it and Nanna too, then they told [Ms N] [Ms Thornton’s sister] and [Ms I] [Ms Thornton’s friend] to all say it as well.”

142.I said to [G], “[G], did I ever do anything like that to you?”

143.[G] said, “No. But Poppy told me that I had to say it or I was in trouble.”

144.I then asked [G] if Poppy had said the same things to [V] and [G] said she didn’t know.

145.I then asked [V] if I had ever touched her bottom and [V] quickly replied “no”.

146.At that point, [Ms A] then stopped the conversation and took [G] away from [V] and I and continued the conversation with her outside the room.

Ms A’s notes of that day are materially corroborative of the father’s account.

As can be seen, the evidence contains not only a denial by G and V that the father had perpetrated untoward conduct, but that Mr E was instrumental in inculcating and promoting an allegation that was false.

Importantly, I accept, as Ms A’s note records, that at the conclusion of the visit on 10 March 2013, Ms A told the mother what G had earlier told her, (i.e. to the effect that Mr E had made G make statements about her father inappropriately touching her). Ms A notes that at that time G told the mother “the same thing she told me”. Ms A’s notes then record:

[The mother] asked her why she told me that and [G] said “I don’t know”. [The mother] asked if it was true and she said “yes”. [The mother] immediately challenged that statement of [G’s] saying that her father “wasn’t even in the country”.

Ms A then notes that the mother repeatedly asked G why she said it and G kept saying “I don’t know”:

[G] never changed her story. [The mother] said that there are a lot of things that have been going on to prove [the father] did touch the girls. They have nightmares quite often. The girls used to cry when she had to go out of a night begging her not to go.

Ms A then notes that:

After about 45 minutes of questioning [G], [the mother] left with the girls.

Ms A’s account in this respect was not the subject of specific challenge. It can be seen that the mother challenged G in the presence of others. She challenged as untruthful, an account of what G had asserted to an earlier, different audience was truthful. She questioned G for about 45 minutes.

The mother deposes in her affidavit of evidence-in-chief to a conversation which she alleges she had with G on Friday 15 March, five days after the events of Sunday 10 March and two days prior to the next visit with her father on Sunday 17 March. The mother deposes:

261.… I asked her how her visit was with her father the previous Sunday [i.e. 10 March]. She told me that [the father] had told her that if she went up to [Ms A] and told [Ms A] that her Poppy had told her to say the things about her Daddy touching her bottom that he would give her $100.00. I asked [G] if that was the truth. [G] shook her head and had tears in her eyes when she said words to the effect of “No, Daddy really did it”. She said words to the effect of “I thought he would give me the money”. I said words to the effect of “honey do you think he will give it to you?” and [G] just shook her head and said “No”. I asked [G] if [Ms A] was with her when her father said that. She said that [Ms A] “was helping some other kids”. [Italics in original]

Counsel for the father asked the mother whether she had discussed the 10 March 2013 visit with G prior to Friday 15 March. She said “I don’t think so. I don’t think I knew about it”. When asked “[d]id they [i.e. the children] say anything about the [10 March] visit”, she said “not about that [i.e. the allegations involving [Mr E]]. When pressed about that the mother said “I think I got a letter from [the father’s] lawyer telling me about it”.

While the last statement is true of itself, it is an answer which, in combination with the mother’s earlier-quoted answers, is in my judgment, disingenuous and misleading. It seeks to mask the fact that the mother was well aware that she had, as Ms A asserts and I accept, a 45-minute conversation with G about that very topic some five days earlier. I consider that the mother sought to mask that fact because of what I find occurred between G and her on 15 March, to which I will shortly refer.

At the next supervised visit on Sunday 17 March 2013, the mother took up with Ms A both what G was reported as saying on 10 March and what the mother asserts G said to her on 15 March in respect of this issue. Ms A’s notes of the 17 March 2013 visit record:

[The mother] brought the children and had a talk to me. She told me that what [G] told me last week was a lie. She said [G] told me [the father] said he would give her $100.00 if she told [Ms A] poppy told her to say that she did. [The mother] told me that her dad wasn’t even in the country when all of this happened. She asked me to talk to [G] and see what she said before [the father] arrives because [the father] intimidates the girls and they are afraid to talk in front of him. I said I would the[n] [the mother] left.

[The mother] left so I talked with [G] by herself. I spoke to [G] and she told me that she had told a lie and poppy didn’t say that. I asked her if she was sure and she looked at the ground and said yes. Poppy never told me to say anything. Funny that last week she never changed her story at all. Told me the same thing she told [the mother]. Then went home for a week and came back and completely changed her story. She told me that [the father] didn’t say anything about giving her $100.00. She said that poppy didn’t tell her to say anything. [Emphasis added].

I told her it was very important to only tell the truth. I said I promise that she won’t get into any trouble from mum or dad if she told me the honest truth right now. She told me that dad poked her on the bottom with one finger. She said one of her teeth fell out and she lost the tooth and daddy came into the bedroom to play the tooth fairy. [G] was in bed and daddy poked her bottom. He did not take off or take down her pants. He poked her with one finger on the side of her bum cheek. At no time did [the father] ever take her pants down. She also told me that she told a lie to me because she told mum that dad had put his fingers in her bottom but he never did it. I told her never tell a lie again.

We went outside and [the father] arrived and the visit started. The girls had a good time. [G] and [the father] spoke again about telephone calls. [G] said she might ask mum if she can ring but she would probably say no. I said [their mother] told me that if the girls wanted to ring their daddy they could. [G] said that if she wanted to ring her dad she would ask mum but if she didn’t want to ring her dad she wouldn’t.

The mother deposes in respect of that visit:

264.When I was collecting the children from [Ms A’s] residence after the [17 March 2013] visit [Ms A] spoke with me and said that [G] had said to her that she had lied to her and that her father had not made her lie she had just felt like saying those things out of the blue. In front of [Ms A] I said to [G] words to the effect of “[G] that is not what you told me”. [G] insisted that it was the truth. [Ms A] also told me that [G] had told her that her father had never touched her bottom that it was just on the side.

265.I was shocked that [G] was making these comments after telling me for almost a year what her father had done to her however I did not question [G] as I did not want to upset or confuse her any further.

Then, in evidence that should tear at the heart of anyone involved with these children (as it did with me), the mother records this:

266.During the car trip home from the supervised visit [G] was sobbing and crying saying words to the effect of “I just feel like I’ve changed into a stupid person, I think I’ve turned into another stranger I am nothing”. [G] also said that her father “used to push it”. I asked [G] what her father would push and she responded “on the side of my bottom” and words to the effect of “I am scared of Dad he does all this stuff to me and I had dreams of him trying to turn me into invisible and then I died and you never saw me again”. [G] kept saying that words to the effect of “she did not know what he did because she was asleep the whole time and then he ran and he would have his fingers on the side of her bottom”. [G] also said that “Daddy said every time he did it that she was not to tell me”.

267.When we arrived home [G] was visibly distressed and said words to the effect of “I was telling a lie to [Ms A] because I am scared of Dad”. She said that she thought her father might have “come back to [Ms A’s]”. She also told me that she lied to [Ms A] at the start of the supervised visit because “she knew Daddy was coming and he might have heard her”. [G] told me that she had lied to me in the car as her father had told her that he lives at [Suburb C] (near where we lived) and that he could have been following her.

268.[G] had received a set of Barbies and a bubble blowing machine from [the father] as gifts from his trip to Singapore however she refused to open them.

269.At around 8:00pm that evening [G] again told me that she is scared to tell the truth because she is scared of “Dad and Ms A”. [G] told me that [Ms A], [the father] and [V] had all discussed the incident during the supervised visit. [Ms A] has previously told me that she has had to stop [the father] talking about the court proceedings with the children during supervising visits.

(Italics in original)

No mention of $100, or any other words suggesting any other amount or any other inducement was made during the interchange that took place on 10 March 2013, whether by reference to the mother’s account, or Ms A’s account.

Ms A’s account of the events which occurred on 17 March 2013 (that is to say the visit immediately following the 10 March visit and two days after the mother’s alleged conversation with G on 15 March), records that the mother told Ms A that “G told her that [the father] said he would give her $100 if she told [Ms A] poppy told her to say what she did”.

Thereafter, G gave Ms A an account broadly in accordance with what the mother said G had said to her, including that she had told a lie on the previous Sunday. However, there is a material difference: omitted from the account G gave Ms A is any mention of $100, or indeed anything else providing any inducement; indeed G specifically denied that the father had said such a thing. It is, as far as I can see, the only material difference in G’s account and the mother’s account of what G had said.

While Mr E deposes to events consequent upon the allegation that he had (effectively) instigated a false account of abuse, nowhere in his affidavit nor in his oral evidence does he refer to any conversation either with the child or with the mother about any alleged bribe, the sum of $100, any other sum or any other gift or inducement.

It will be recalled that Mr D asked G whether “she had told [Ms A] anything about [Mr E]”. Mr D records G telling him that she had told Ms A that “… poppy said to say [the father] had touched her bottom …” but that it “didn’t happen”. Mr D specifically asked G why she had said that to which, as has been seen, she responded with comments about her father’s anger. Nothing at all was said by G to suggest that the father had offered her $100, money or, indeed, any other inducement.

Paragraph 39 of an affidavit sworn by the mother earlier than her affidavit of evidence-in-chief, and closer to the events referred to, recounts the statements by G about her grandfather later said to be false. The mother admitted in cross-examination that, despite deposing to that issue and the events just referred to, no mention at all is there made of the $100 (nor any other alleged inducement) offered by the father for G’s asserted false statement.

Among the various challenges to Ms A’s evidence, it was not put to her specifically that any or all of the various matters said to impinge on her supervision provided the opportunity for the father to say anything to G about giving her $100 during the 10 March visit. I consider that there was no reasonable opportunity for the father to do so without Ms A hearing it or being alive to the possibility of such a conversation and I consider that it would not have occurred, or anything like it have occurred, without Ms A making a record of it.

There is no evidence of G making any statement about the offer of a $100 bribe from the father independent of the mother’s evidence.

I think it extremely likely that if G made any statements to her mother on 15 March to the effect that her father had offered her money, they are statements resulting from the mother’s influence or encouragement to that effect and that those suggestions were suggestions or encouragement that they should be repeated to Ms A. I by no means dismiss the possibility that the mother has concocted the statement and persuaded G of it. The allegation of this specific “bribe” in this specific instance bears a very uncomfortable similarity to the explanation that the mother (and Mr E) each give for such affection as they are prepared to concede is shown by the children to their father. (As will be seen, in short they assert that any such joy and affection they express to or with their father is as a result of the father bribing them with lollies or gifts).

There is evidence which I regard as reliable that G said the words earlier referred to (that Mr E suggested statements to her). Those words plainly on their face suggest that Mr E has said things, or engaged in conduct, which have “made” G say that her father has touched her bottom. Those statements might lend weight to the father’s conspiracy theory.

However, while I find that G did in fact say the things attributed to her, I do not accept those statements as truth of what they contain. That is, I do not consider that, through deliberate and conscious words or actions, Mr E has sought to inculcate a belief in G and/or sought to have her repeat that inculcated belief to anyone else.

I make that finding despite also finding Mr E’s evidence untruthful in two respects. He denied that he had said to the paternal grandfather in a telephone call on 30 July 2012 when speaking of the father, “I wish the cunt was dead”. In cross-examination, Mr E said initially that he couldn’t recall saying that. I did not believe that answer. Later, he conceded that he may have said it. I think it extremely likely that he did say it. Mr E also denied the proposition that he had said of the father during the same conversation that “he’s been right up both of them”. I reject his denial; I think he did say it. I thought his denials unconvincing. Both statements attributed to Mr E are, as I find, entirely consistent with the tone and content of the emails sent by Mr E in the aftermath of the mother’s recording of V and the deep vitriol toward the father within them.

If, as I have found, G was not bribed by the father to say what she said of Mr E and if, as I have found, Mr E did not say (or do) what G attributes to him, an alternative explanation for G saying those things must exist. I consider that an explanation emerges readily from the evidence. Primarily, it lies, in my view, in the children seeking to adopt for each of the polarised camps within which their primary loved objects reside, words and actions which they perceive as desired by those camps.

Questioning of the Children

Independent of my findings about “the bribe” and playing the recording of V’s statements in the car, the evidence is replete with the mother questioning every word and action of the children. Indeed, her affidavit of evidence-in-chief is effectively a week-by-week account of what either or both the children have said or how they have reacted before and after periods of time with their father.

Much of that evidence can only have come from what, as she alleges, the children have said. I do not accept that those statements have issued from the children spontaneously and without prompting by questions from the mother. Her own evidence is that she has questioned them about important matters and, indeed, has done so with regularity. She told G that she (G) was telling lies about her grandfather during the course of questioning her for over 45 minutes with Ms A in the presence of V. She questioned G again about the same events five days later. She told G to give Ms A an account of that conversation two days after it occurred.

I have already made findings that the father, too, has questioned the children. Of course, his opportunities to do so have been significantly restricted, notwithstanding his high-handed and narcissistic attitude to the restrictions placed upon him in that respect and my finding that, but for supervision, his questioning, too, is likely to have been regular and unrestrained.

Leaving aside parental questioning, these young children have, on any view of the evidence, been exposed to significant disruption and high conflict over more than two years since their parents separated. During that time, not only have the children been questioned by their parents but also:

V had been seen by three therapists in five months post-separation and G had been to one therapist;

The children have been spoken to by the police twice (and G formally interviewed twice);

Both children had been genitally examined by a paediatrician;

The children had been interviewed by Mr D;

The children had been interviewed by Mr F;

The actions and words of the children have been the subject of interest and comment by wider members of the mother’s family and her friends;

All contact with their father had been supervised by a person who was, initially at least, a stranger to them; and

Both children had been asked questions by Ms A.

I consider that evidence points to a firm conclusion that the children have been exposed to relentless attention being given to their words and actions about their father and his conduct toward them. I have very little doubt that the children have been spoken to and asked questions about their father and, specifically, his conduct toward them concerning “their bottoms” or such like. Indeed, I consider it extremely likely that their young lives have been dominated by it.

Playing the Tape in the Car

The father deposes to a conversation during a supervised visit with G on 27 October 2013 in which:

194.… [G] said to me “Dad, did you know Mummy used to play this thing on her iPhone with [V] and Mummy talking about touching bottoms?”

195.I said, “What do you mean?”

196.[G] went on to say, “Well it was on her phone and she would play it loud while we were in the car. She used to do it all the time.”

197.I then said to [G], “All I care about is that you know that I am the best daddy and that you can talk to me about anything.”

198.[G] then said, “Mummy knows you didn’t touch my bottom, but I’ve heard her telling people. She told [Mr P] when we were all at the farm.”

Ms A’s account of that event is:

[The father], [G] and [V] were on the lounge in my family room waiting to leave to go to [the father’s] home. [G] said to [the father] Dad did you know mummy used to play this thing on her iPhone. It was [V] and mummy talking about touching bottoms. [The father] asked [G] what she meant. [G] said it’s on her phone and she would play it loud while we were in the car. She did it all the time. [G] said she doesn’t know if [V] heard it. [The father] told [G] you know you will never get into trouble if you tell the truth. [G] said it was [V] and mum talking. [G] said mum played the tape to us in the car. [G] said it was [V] saying what Dad did. [The father] then said not to worry about things like that, it is time to go to our home.

I accept that G made the statements attributed to her by the father and Ms A.

It is not suggested that G could be referring to any tape other than the mother’s recording of V on 26 July 2012. The mother denied that she played the recording of V made by her on 26 July in her car in the presence of the children. She said she was sure that she had not done so. I thought her denial was entirely unconvincing.

On either the father’s account or Ms A’s account, the statement is made without any prior interest in the topic being shown by either child or anyone else, and, indeed, without there being any discussion of the mother or anything to do with her. That is, it does not emerge from a context that might give weight to the proposition that she was giving an account of an event that might accord with her father’s overt or implicit expectations of her.

There is no other evidence to suggest that the playing of that recording had been the subject of any allegation by one parent against the other or the subject of any inquiry of the children by anyone. (In that respect, it might be contrasted with statements about bottoms, touching and who might have done what to whom). I have not been made aware of any evidence to suggest that the father, or for that matter Ms A, was aware of the possibility of the tape being played such that, either consciously or unconsciously, statements about it could have been prompted or suggested by them.

I can see nothing that G might have expected to gain from raising a matter which, as reported, seems, on its face, benign and about which her father could not otherwise have known.

I reject the mother’s denial. I find that her evidence in that respect is deliberately untruthful. I am well satisfied that she has, in fact played the 26 July tape of V, that she has done so in the car and done so more than once at a volume where it was audible to G.

The Father’s Video and Incongruities in the Mother’s Behaviour

Dr G reports being “troubled” by an observed incongruity; he was struck by the mother exhibiting “no obvious distress” when she was “describing what she believed happened to the children”.

In referring to a statement by the mother to him to the effect that the father “… genuinely loves and … cares for [the children]”, Dr G said “… that belief [about] the father, doesn’t fit with the allegation of sexual abuse”. He continued: “[s]econdly, she continues to … have contact with the father – sees him at changeover, is quite civil to him. Now, … that’s a good sign in the sense that she’s behaving – keeping her emotions in check for the benefit of the children … so as not to upset the children. But, … if a mother strongly believes that the father has sexually interfered with the children, as she does, you would expect she would want nothing to do with him”.

When asked by counsel for the father whether that “… led to the view that maybe she doesn’t genuinely believe that the children have been abused”, Dr G made the obvious point that he didn’t “have access into her thoughts” and then said, “I can only make inferences that there are things that are puzzling”. I, too, was “troubled” and “puzzled” by it; so much so that I took it up with Dr G during the hearing. I remain very troubled and puzzled by it.

Equally, I was struck by what I regard as a similar incongruity emerging from the mother’s behaviour depicted within the father’s video recording on 16 September.

In oral submissions, Mr North contends that the mother was attempting to hold her emotions in check and to, as it were, put on a brave face for the children. I accept that factor may have been at play. I note also that the interaction was in a public place and that behaviour might be thought to be modified accordingly. I am also very conscious that, even as to behaviour, the video is self-serving in the sense that some behaviour might have been excluded and its content is chosen by the father. In those respects, however, no behaviour observed on the video struck me as different or discordant to what I observed of the mother in the witness box. In looking at the mother’s behaviour on the video, I am also mindful of what I said earlier about attributing homogeneity to human/parental reactions.

Yet, none of those matters separately, nor the combination of any or all of them, renders less than remarkable what was observed during the part that was recorded nor remove my pervading feeling that her behaviours sit very oddly with a mother who believes that her former partner has used his then three year old child for his sexual gratification. Remarkably, for example, the father held V in his arms for part of the recording. Further, noting again the same caveats, the mother did not at all strike me as someone who was remotely scared or wary of the father. Nor, I should observe, did I see anything to suggest that the children displayed the slightest fear or apprehension of their father. Again, the same caveats apply, together with the fact that, of course, their mother was present.

Acknowledging those various factors and caveats, I am, however, unable to shake the overwhelming impression of an entirely unexceptional social interaction between conflicted separated parents which, again remarkably in light of the central allegations involving V, involved assertion and counter assertion about issues of conflict between them wholly unconnected with the alleged behaviour.

Alleged Fear of Ms A

The allegation that the children were frightened of Ms A emerged during questioning of each of the mother and Mr E concerning the evidence of the father and Ms A to the effect that the children enjoyed their time with their father and had expressed a desire to spend more time with him.

Mr E asserted in a document sent by him to Bravehearts (Exhibit ICL 20) that G had apologised to him for “saying these things” (about him putting her up to making false allegations against the father) but “she said poppy, daddy made me say these things and I am sorry. I am so scared of him and [Ms A]”.

The mother, too, was asked whether the observations of Ms A (and Mr F) suggested to her that the children might not harbour the fear of their father which she asserts or that they might in fact want to spend more time with their father. Her thoughts accord, it seems, with her father’s. In cross-examination by counsel for the father, this exchange occurred:

MR JORDAN:Yes. So your take on this – on the expressions of both [G] and [V] is that that’s as a result of their father bribing them by buying them things; is that right?

MOTHER:It’s definitely a big part of it: all the things that they’re going to get, but they can only get when they live there.

MR JORDAN:Don’t you think it might be just a little bit more that they just love their father, they love spending time with him, and they would love to spend a lot more time with him?

MOTHER:No, because [G] – [G] still says things, that she would like to see less or – they’re – they’re heaps better than what they were, yes. They enjoy spending time more now, but prior to that, no. For the last two years it has been quite traumatic.

MR JORDAN:You want [Ms A] replaced as a supervisor?

MOTHER:Yes.

MR JORDAN:The children have a good rapport with her?

MOTHER:[G] is also scared of her.

MR JORDAN:[G] is scared of her?

MOTHER:She has made quite a few comments over the years.

Ms A was never asked whether she noticed anything or heard anything from the children that suggested to her any fear of her on their part. Nor was she asked whether she herself had any such perception. Nor was it put to her that the children were scared of her or harboured any fears of her.

There is no evidence to suggest that the mother ever took up the issue of the children’s alleged fear with Ms A or alluded to it with her, in particular in or about the events of March 2013. None of Ms A’s notes either record any signs or expressions of fear of her by the children. None of Ms A’s notes record the mother ever suggesting to Ms A that the children were frightened of her or them saying that they were frightened of her.

I am extremely dubious, even if consistent with what I have said earlier that the children have said things to that effect in a desire to conform with what they perceive their mother and grandfather want to hear, that the mother believes the children are scared of Ms A.

I consider that statements to that effect are being used by the mother (and Mr E) as a means of avoiding something which they might otherwise have to accept and process, namely that the children exhibit spontaneous happiness when with their father and express a desire to see more of him. That is, they seize upon something that allows them to close their mind to that possibility.

The Alleged Conspiracy

The finding earlier made in respect of G’s statements implicating Mr E in suggesting statements to her can be seen as indicative of the finding that I make that there has been no “conspiracy” between Mr E and the mother as asserted by the father.

I accept Mr E’s denial to that effect. I do not consider that his untruthful answers, as I have found them, are indicative of a broader lack of truthfulness. Nor do I consider those untruths are indicative of a willingness to tell lies about a centrally important issue such as the concoction of a false allegation of such seriousness.

His case is, as I have earlier said, poorly articulated; it is also long on assumption and speculation and short on factual premises.

The father’s suggestion must have at its core an allegation that the mother and her father have planned to tell, and have told, a series of very serious lies. If there is a conspiracy, it is deeply Machiavellian and particularly evil: it involves Mr E and the mother formulating a plan to inculcate, and then, in the mother’s case record, statements of children. It involves them exposing the children to an invasive genital examination knowing that there is no basis for it. It involves the making of false allegations to the police.

I can see no firm evidence that could properly sustain those profoundly serious findings.

The Opinions Of Mr D And Dr R

Dr R

I gained a generally unfavourable impression of the reliability of Dr R’ss evidence from reading his report and listening to his evidence.

Nothing in Dr R’s report or evidence permits any finding of the context in which things were said by G. For example: on what occasions was the mother present?; what questions were asked of either child and by whom?; was Dr R made aware of what, precisely, G had said on and after 9 October and what was said about that, by whom and when? His oral evidence as to G’s “disclosure” is, he conceded, based not on notes but on recall. I was not impressed by his recall. In that respect, for example, his oral evidence was that “[G] had disclosed the night before” the session (although this appears to be in reliance of the mother’s account, not G’s). Neither Exhibit ICL 8 nor the mother’s affidavit of evidence-in-chief speak of any “disclosure” on 17 October (i.e. the “night before” the session).

Despite taking the serious step of reporting “incidents of sexual abuse” to relevant authorities and having acquiesced in G’s refusals to permit contemporaneous notes or a contemporaneous (photographic) record of what she had written, Dr R did not, subsequent to any specific sessions, or the totality of them, make any written notes of what had been said. Curiously, Dr R said he did make notes but, oddly, he confirmed in the witness box that his notes contained only matters that were entirely innocuous.

I do not consider that weight should be given to the statements that the children are said to have made to him in assessing whether abuse has, or has not, occurred or in assessing unacceptable risk having regard to the following matters which I consider to be of importance:

The fact that Dr R’s process was clinical as distinct from forensic;

The absence of any reference to collateral information from the police and in particular the denials of behaviour by G in the first police interview and an apparent change in her and her statements in the second interview;

The lack of contemporaneous notes or other record;

Neither notes nor any other report or document permits of an adequate assessment of what precisely was said by either child. Having heard his oral evidence, I am not persuaded that what is in his report should be accorded significant reliability in that respect;

In any event, and importantly, the alleged statements by the children are entirely lacking in what I consider to be important context, including what questions were asked of each child and by whom;

The presence of the mother with the children in sessions and the absence of any context as to what part she played in interactions which elicited, or did not elicit, responses from the children impacts adversely on the weight I attach to what is reported to be the children’s statements (or behaviour);

I consider that Dr R’s report and evidence is redolent of his process and observations having been significantly influenced by the mother’s account of what had occurred to V (and, later, G) and a ready acceptance of her conviction that abuse had occurred as distinct from professional opinions gained independently through clinical process, observation and reliable collateral information; and

There is no evidence to support Dr R’s specific expertise to express a specific opinion as to whether sexual abuse has occurred.

Mr D

Mr D’s own evidence that he “got stuck”; the difficulties he had with the asserted complexities of the matter (for example that he was “tied in a knot”); the uncorrected error in the issued report as to the “wrong family” earlier referred to; the reference to the obtaining of important data (from the father and his interactions with the children) not subsequently included within the report; the failure to at all address the impact (if any) that important data had on any opinions expressed and, of itself, the failure to complete his report, detract markedly from the weight I attach to Mr D’s evidence generally.

In its essence, the Brief Family Report comprises three paragraphs of “opinion and conclusions”. Those paragraphs commence: “[V] has reported information to me which, in my opinion, and after I have considered all the information available to me, suggest to me that she may have been sexually assaulted by her father”. As Mr D confirmed in cross-examination the reference to V is incorrect and should in fact be a reference to G. As Mr D’s notes and evidence reveal, V in fact said very little to him.

In answer to an additional question from counsel for the ICL, he apparently qualified that opinion:

COUNSEL:In light of the other information which is listed on page 4 of that report which was available to you and to which you had regard. Is that right?

[MR D]:The point I’m trying to make there is that I have information which suggests she may have been sexually assaulted. That’s not my – I’m not concluding that she has been or that it was likely that she was.

After an interchange between myself and senior counsel for the mother, reference is made by counsel to Mr D’s statement that “ … at this stage my opinion [is] that her reports to me indicate that what she has stated represents her true recollection of reality. I also accept that they may not”. After that evidence, this exchange occurred under further questioning from counsel for the ICL:

COUNSEL:So you’re not saying that you are certain that this represents a true statement of her reality but you incline to that view. Isn’t that right?

[MR D]:Yes. And the best answer I can give to the court is if I also refer to paragraph 8 when I’m talking about the idea that there may be further information available I may be able to be provided with some assistance by the ICL and the idea of that is that I would then – you know, I’m – I’m earmarking the idea that I would then be able to present a more conclusive opinion.

No application is made to have the relevant rules of evidence apply (s 69ZT(3)). As a result, the provisions of the Evidence Act 1995 (Cth) in respect of, relevantly, opinion evidence do not apply. Accordingly, opinions can be offered without relevant expertise for them being established. The admissibility of those opinions must be accepted.

Yet, even in the absence of an application pursuant to s 69ZT(3), when the issues are as serious as those relating to the sexual abuse of children, I am extremely uncomfortable about attaching weight to an opinion that abuse has (or has not) occurred in the absence of established expertise for that opinion. In assessing the weight of opinions about sexual abuse, the question of whether appropriate qualifications, training or experience permits a psychologist, or other expert witness, to give an opinion as to whether a child has been sexually abused or is at risk of same, must be a significant factor. (Indeed, the question of whether any qualifications, training or experience qualifies any person as an expert capable of giving opinions about that specific issue should not be assumed.)

In this case, that consideration applies to Mr D as much as it does to Dr R. (It also applies to Mr F, who was at pains to point out that he did not purport to possess such expertise or to offer any such opinion. Similarly, despite Dr G’s extensive training, qualifications and experience set out in his report, the doctor does not claim any such specific expertise in that respect.)

That issue aside, I attach little weight to the respective opinions of Dr R or Mr D as to the occurrence of abuse for the reasons earlier advanced. It seems Mr D himself expresses doubt about the opinion expressed in respect of V [properly G] in his Brief Report. I confess that I was not left with any confidence about just what any such opinion might now be. Be that as it may, to the extent that Mr D maintains any such opinion, I give it no weight.

Mr D’s Brief Report indicates that he interviewed the father on 28 November 2012 and observed the father interacting with the children on the same date. Yet, nothing at all appears in his report in respect of either. Of significant importance is the fact that nothing within the report seeks to synthesise any observations made of the father and his interactions with the children and any opinions arising therefrom, with other observations and opinions expressed within the reports – particularly the opinion expressed in the first “Brief Family Report”. The same is true of collateral data obtained from Ms A.

In my view, that is a significant omission. It has the potential to be important because of the highly unusual circumstances which saw Mr D not completing his commissioned task and producing in lieu only a partially complete report.

Those factors, and the matters mentioned earlier in these reasons relating to Mr D’s process, cause me to place little weight on any opinions expressed within Mr D’s report.

Those important matters aside, I have perused Mr D’s very extensive handwritten contemporaneous notes. Those notes, and the fact that it was not put to Mr D that either the statements of the children, or their observed behaviours which he records, are other than recorded accurately persuades me to find that each occurred as he reports them. He interviewed the children in the absence of each parent.

The Children’s Behaviours

I have already referred to evidence from the mother (and some of her witnesses) as to the children’s florid manifestations of their expressed fear of their father and their apparently regularly-expressed and implacable desire not to see him.

The notes taken by Ms A span an approximate 16-month period. They encompass observations of visits between the father and children at her home and, later, away from her home including at the father’s residence and, on one occasion at Dreamworld where the father was performing professionally. The tenor of the observed interactions between the children and their father is of happy, excited interactions redolent of spontaneous warmth and affection. Examples over that 16-month period include:

“The girls and [the father] played well together. The girls didn’t show any signs of being afraid of [the father] or not wanting him to touch them. He was sitting on the lounge on the patio and [V] sat next to him and [G] was on the other side laying down with her legs across his legs and said she was comfortable and wanted to stay like that when I asked her” (30.12.12);

“The girls were pleased to see their dad … The girls had a good time”. (25.2.13);

“The girls were both very happy and played on the I-pad and tablet and then went into the kitchen and we cooked scrambled eggs: (10.3.12);

“The girls came in and were pleased to see their dad … [the father] and the girls went into the lounge. They had a good time playing with each other. (26.5.13);

“We went to [the father’s] home as usual. The girls were very excited”. (15.9.13);

“… we went back to [the father’s] house and the girls wanted to go swimming again. … They all had a wonderful time. …” (22.9.13);

“The girls were very excited because they told me they saw daddy at the airport in Sydney … The girls had a good day” (3.11.13);

“The girls were really pleased to see [the father] … they had a good time.” (10.11.13);

“The girls arrived very excited to see dad … the girls had a good time with everyone”. (12.1.14);

“The girls arrived and were very excited to seeing [sic] their dad. When [the father] arrived they gave him big cuddles and kisses …” (2.2.14);

“The kids were very cuddly today” (5.2.14);

“The girls always enjoy their time with their dad” (19.3.14);

“The girls were both happy…” (2.4.14);

In respect of the visit to Dreamworld and seeing, and participating in the father’s [business]: “The girls were very excited”. (6.4.14)

Ms A records two occasions when one or other of the girls were upset. In respect of the visit on 28 April 2013 Ms A reports a reluctance on G’s part to leave her mother’s car. Ms A records that “[a]fter a short time” the children came into her home and, later, she records the father asking G why she didn’t want to come in earlier. G said she “feels shy because she hasn’t seen him for a long time”. G then asked the father “… what 7 x 24 was and [the father] said 168 and [the father] asked [G] why. She said that’s how many hours it’s been since I’ve seen you. [The father] then gave [G] a cuddle”. Ms A says that G then told the father that “ … she would like to see him more”. “[V] then went over to [the father] and put her head on his shoulder and her arm around his neck and said Daddy I love you. She then went back to doing her glitter picture”.

In a similar vein, Ms A also records that, on 26 March “… [V] didn’t want to get out of her car seat so [the father] went over to [the mother’s] car and …carried them both in. Once inside she sat in the [car] seat for a while but then got out of it and played as normal. The girls had a good afternoon”.

Mr F records in his report:

75.… The children did not appear concerned about the notion of the father returning to the office soon. They played with toys and chatted happily with their mother …

76.The father arrived. [G] went to him and displayed some affection. [V] remained closer to her mother. The father greeted the children warmly. He had a rather intense and upbeat presentation … . The father commented on missing the children. [G] leaned into her father.

77.The mother left with minimal intensity. The children did not appear upset or concerned at her leaving. They hopped on and off their father’s lap. The father was bright and good-humoured. He had a rather intense manner, asking a number of questions of the children. He was quite verbose and directive. He engaged them in memory games in an inclusive way.

78.The play became more physical, with the children doing familiar acrobatic jumps with their father. They looked out of the window. There was a lot of affection and laughter in the interaction.

79.The children appeared quite relaxed after their father left …

Ms A’s notes also record statements by the children to the effect that they wanted to spend more time with their father; that they wanted to speak to him more often on the telephone and, in addition, record words and behaviours from the children to the effect that the children did not want the time with their father to end. Each sits in stark contrast to the picture painted by the mother (and others in her family) of regular and consistent statements by the children that they are frightened of their father and do not wish to see him and by (more recent) allegations by the mother and Mr E that the children are frightened of Ms A.

Each of the mother and Mr E was asked whether evidence of the type just described from Ms A (and the evidence in Mr F’s report, particularly that quoted above) caused them pause in light of their respective evidence about the children’s statements and behaviours alleged to have been witnessed by them redolent of reluctance to see their father and fear of him.

Mr E deposed in his affidavit to witnessing “trauma symptoms that G and V consistently present with”. He agreed in cross-examination that he concluded that, as at the date of his affidavit, the children did not enjoy spending time with their father at all. He said that the children had told him nothing to the contrary since that date, but he had “noticed the difference”.

He attributes, though, any such difference not to any relationship the girls have with their father, or any relationship they yearn for, but, rather:

I think they’re probably at the moment happy to go there, because I think [V] owns the lolly stand at Sanctuary Cove, [G] gets told that she’s been given watches, gets half the profits from his business and all this sort of thing.

I took the matter up again with Mr E during his cross-examination by counsel for the ICL. He said that, based “purely on what he had observed”, he had noticed a change in the children’s behaviours “in the last two or three months of this year”. The following exchange occurred:

HIS HONOUR:Now, you attribute that, as I understood what you told [counsel for the father], [to] the fact that, what, [V] owns the lolly machine at Sanctuary Cove and that, what, [G] has been told she will get half the profits of the business or something?

THE WITNESS:Yes, and she’s – gets an iPhone and she’s getting money.

HIS HONOUR: Right?

THE WITNESS:Not that they’ve ever seen anything.

HIS HONOUR:Right?

THE WITNESS:And toys.

HIS HONOUR:Putting it in crude terms, they’ve been bribed?

THE WITNESS:True

In light of the matters earlier discussed in these reasons, including in particular the questioning and processes to which the children have been subjected and my findings with respect to the evidence of the mother, I consider the explanation offered by the mother and Mr E for the diametrically-opposed accounts of behaviours and statements by the children to be fatuously self-serving.

It is also, in my judgment, a telling example of each closing their respective minds to thoughts or explanations that do not accord with their own, and to a collective belief system that abuse has occurred, which such belief system is inflexible and does not admit of alternative explanations and possibilities.

I consider the evidence of Mr F reliable as to the statements and behaviours of the children recorded within it.

Despite the reservations I have expressed in and about the reports prepared by Mr D and my lack of confidence in his reports as a result, I nevertheless accept as reliable the evidence emerging from his notes as to the statements and behaviours of the children recorded within them.

While I am sceptical of the veracity and reliability of the mother’s evidence and while I consider that she has exaggerated her evidence as to the expressed reluctance of the children’s behaviours, I accept it as more likely than not that the children have said things to her (and to members of her family and friends), and exhibited behaviours to the effect that they do not wish to spend time with their father. I am equally convinced that the children are acutely aware that this accords with what their mother, their grandfather and their wider family want.

Restrictions in the type and quantity of the father’s time means that the children are not exposed to their father “doing the hard yards” and maintaining for them the tedious controls that a proper parenting routine requires. The father is, very much, the parent for fun times while the mother is, very much, the parent who maintains discipline and the parameters of a day to day routine. So much is a familiar conflict inherent in separated parenting regimes. But the differences here, as deposed to by the mother, (and others) cannot, if accepted, be explained by these factors.

The overwhelming impression is that when with their mother and her family and exposed to discussions about their father and his alleged behaviours (which, I consider, happen frequently) they are children under pressure burdened by the concerns of adults. When with their father, the overwhelming impression is of children enjoying being children. Again, however, while so ever these allegations have hung over him, I think the presence of Ms A has permitted that to flourish. I am not particularly confident that the same freedom might have been afforded the children had his time with them not been supervised by her.

I have little doubt that the words and actions of the mother, Mr E and members of the mother’s family have left the children with no doubts about the deep animosity felt by them toward the father and that they consider he has done things to their “bottoms” which they regard as wrong. I have no doubt that the children have picked up on words and emotions expressed in accordance therewith.

The Children’s Statements

I put little weight per se on the fact that statements by the children have been repeated to a number of different people over time to allegedly similar effect as those related by the mother. Again, alleged statements are often recorded as “words to the effect of”. Actual words, and their import and context, are often lost in the re-telling.

I consider that the mother’s witnesses are affected by the factor referred to by Lord Pearce to which I have earlier referred: without exception, they care very deeply for these two girls; have persuaded themselves that the father has sexually abused them and, as a result, seek to give as much loving support to their family member or friend as they can and a concomitant condemnation of the father. They have, as Legatt J said in the passage earlier quoted, “a desire to assist, or at least not to prejudice” the mother’s case.

Similarly, individual differences and values are important: while some parents might pass off some conduct or statements of children as “kids being kids”, other parents see similar conduct and behaviour as having deep or sinister significance. Some observations are more susceptible to individual impression than others. It is a rare case of this type where those factors do not play a part in assessing the evidence.

I have no doubt that each and all of those matters have materially affected the evidence of the mother’s witnesses. They are, to borrow Lord Pearce’s words “emotional” (in the sense in which the expression is there used – i.e. affected by emotion) and “think they are morally in the right”. If they are right, each is both understandable and, I venture to say, proper. But, in the context of the court seeking to ascertain whether evidence justifies findings and ultimate outcomes, they are factors which in my view materially affect the reliability (or credibility more generally) of their evidence.

In a different context, Lord Pearce refers to the effect being to “conjure up a legal right that did not exist”. Here, the effects are, in my view, to conjure up meaning that may not exist in the words and actions of the children and to ameliorate precision in the recounting of those words. In my view, those factors impinge, for example, upon the evidence of the mother’s sister and brother-in-law; her parents and Ms I. As has been seen, I also consider they impinge significantly upon the evidence of the mother.

I accept each of the tapes of the 93A interviews as accurate reports of the whole of what was said relevantly by G on each occasion. I was able to observe G’s demeanour for myself in each instance.

Each of the tape and video recordings taken, respectively, by the mother and father are self-serving in the sense earlier described and, given that each is admitted to be part only of an event or conversation, they each beg a central question: what happened, or what was said, that is not recorded on the tape? I am not confident about accepting the evidence of, respectively the mother or the father as to the contents of conversations that are not depicted on the tape or video.

I do not consider that weight should attach to what is said by V in either tape as evidence of the truth of its content. In respect of the mother’s tape recording, other issues to be discussed shortly additionally impact that finding.

However, I consider that each has other evidentiary value. I have already made findings in respect of the behaviour of the mother depicted in the father’s video. As will be seen, I consider the same is true of the mother’s tape recording of V.

Hearsay statements are rendered admissible in parenting proceedings by s 69ZT and s 69ZV of the Act. Hearsay evidence of what children have said pervades cases of this type, and this case is no exception.

Permitting the reception of hearsay evidence as the general rule in parenting cases might be seen as a reflection of the fact that the assessment of the relevant mandatory considerations is, frequently, as much about an assessment of values as it is a determination of facts. However, parenting cases in which one parent alleges that the other has sexually abused their children are, of their nature, “forensic” and very often involve decisions about many serious facts. Yet, as is common, here the court is confronted with ascertaining what weight should be given to a number of hearsay accounts, many of which are accounts by others of the statements of young children and, indeed, the statements of children about the statements of other young children and, indeed, the statements of children about the statements of other young children. Not only does this impact on the weight to be given to the statements, but it also in my view magnifies the factors just mentioned.

So, too, where, as here, the evidence consists not of the precise words used by children in circumstances where firm findings can be made as to the context which pervades the making of the statements, but of evidence punctuated by the expression “words to the effect of”. The latter statement axiomatically implies, at least in part, the intervention of the listener’s interpretation of the words as distinct from the words themselves.

Those matters must be kept very much in mind in assessing the veracity and reliability of the children’s statements as relayed through the words of others.That is all the more so, of course, where I have doubts about the accuracy or reliability of the account of the report of the statement.

V’s Statements in the Mother’s 26 July Tape Recording

The accuracy of the transcript of the recording contained within the mother’s email to her father is in evidence. As to the words which it records, it is not challenged (save that, as will be seen, a passage of the tape is indistinct). The transcript, which follows the introduction earlier quoted is:

[Ms Thornton]:So who kisses you on the bottom?

[V]: “Oh Dada”

[Ms Thornton]:“Does He dad?

[V]: “yeah”

[Ms Thornton]:“Do you like it when he does that?”

[V]: “No its disgusting, when he kisses me on the bottom its disgusting”

[Ms Thornton]:“Do you say stop it I don’t like it?”

[V]: “Well its stink really stink and my Dad smells it

[Ms Thornton]:He smells your bottom?

[Ms Thornton]:Does he?

[V]: Yeah, and its really stinky”

[Ms Thornton]:“Does he touch it ever?

[V]: Yeah he does

[Ms Thornton]:What does he do?

[V]: He touches it and he smellses it

[Ms Thornton]:Does he?

[Ms Thornton]:Can you show me what he does?

[V]: “He kisses it and he smells it”

[Ms Thornton]:“You show me what he does”

[V]: “When he gets home he will show you”

Ms Thornton:“Does he touch the front bottom or back bottom?”

V: He does it all over my bottom

[Ms Thornton]:Does he with what? WHAT does he touch it with?

[V]: “His mouth,

[Ms Thornton]:He touches it with his mouth?

[V]: Yeah and its disgusting

[Ms Thornton]:That’s Oh … and you say stop it I don’t like it”

[V]: “but [Q] just got in trouble by me…”

Ms Thornton:What did [Q] get in trouble for?

[The transcript leaves a gap at this point. The recording is of indistinct chatter. The mother asserts that no such chatter is connected with the instant allegations. Equally, however, it is not possible to discern what allegedly non-material matters are discussed.]

[Ms Thornton]:“So what Daddy kisses the front bottom?”

[V]: “All over”

[Ms Thornton]:“All over with his tongue? Yes, With his mouth does he?

[V]: Yes, with his tongue he licks it all over my germmies bottom.”

[Ms Thornton]:Are you serious? When does he do that?”

[V]: “On Sat Friday”

[Ms Thornton]:“Does he do it in your bedroom”

[V]: “Yeah and he kisses it and he licks it in my bedroom.”

[Ms Thornton]:Does he?

[V]: Yeah

[Ms Thornton]:“Is [G] there, has [G] ever seen him do it?

[V]: “Yeah

[Ms Thornton]:“How does it make you feel honey

[V]: Can I have a shower

As to the purpose of the second recording shortly following the first, the mother said:

I think I was bathing her, so by the time I got her out of the bath, and I thought I would clarify to see whether it had happened. … Or if it – how many times it had happened, because then I would know.

This recording was also played in court. As has earlier been seen, the second recording occurs 23 minutes after the first. It is clear from the recording that some minor corrections should be made to the accompanying transcript which should read (corrections in square brackets):

[V]: “12345678910 … that’s how many times”

[Ms Thornton]:“So tell me what did he do?”

[V]: “He licked it”

[Ms Thornton]: “He licked your bottom?”

[V]:“Yeah”

[Ms Thornton:“Like] how many times”

[V]: “Like 16”

[Ms Thornton]:“OK, alright”.

Taking together the accounts deposed to by the mother and Ms E, the reports of what each said respectively to Dr G and Mr F, and the tape recording, the following points emerge:

V is about 3½ when the taped conversation occurred;

There is conflicting evidence of what has been said by the mother to V prior to the taping commencing;

There is, in any event, no clear evidence of what was said by the mother prior to the tape commencing, the length of time over which any such things were said and whether G was present for some or all of any conversations;

In particular, it is not known whether and to what extent leading questions were asked of V prior to the commencement of the tape;

Despite, in answer to my question, the mother saying that her intention was to not ask leading questions, the first question recorded is a leading question;

The notion that the father “kisses” V on the bottom emerges from a leading question by the mother and a follow-up question which assumes that to have occurred;

The questions then asked by the mother assume a sinister connotation to the “kisses” as distinct from playful conduct to which a non-sinister connotation could be given. (This has the potential to be important in light of descriptions of conduct subsequently given by G to the police and Ms A in respect of alleged conduct toward her);

The notion of the father “touching” V’s bottom is raised first by the mother in a leading question. “Touching” is a neutral expression – there may be many reasons a father would, quite properly, “touch” a 3½ year-old’s bottom if a sinister, adult connotation of the word “touch” is removed;

Nothing transcribed from the recording (and nothing distinct from the recording itself) suggests that V’s reference to Q (which may be related to the events earlier described as it is “Q” who “just got in trouble by me”) is taken up with V: the answer to the mother’s question in that respect is neither transcribed or deposed to;

The first question asked of V after the non-transcribed, indistinct part of the tape is a leading question that introduces an entirely new notion not emerging from anything recorded in the first part of the tape, namely that kissing involves the vagina (assuming that is what is meant by “front bottom”);

The conduct is said by V to occur in V’s bedroom (a matter that, as will be seen, has the potential for significance in respect of other statements by the children.

Similar considerations can be seen to attend the short second recording:

There is no evidence of what is said in the 23 minutes between the two recordings, and in particular what questions were asked of the child in the intervening period;

It is not known if G was present for the whole of that time and, if so, what she heard or was asked during that time;

Again, the opening portion of what is recorded has no context, and, in particular, any conversation or questions which precedes it;

The child’s response that he licked “it” is followed by a leading question which assumes that any licking occurred to V’s bottom;

Despite a clear answer from V that it had occurred 16 times, the mother made it clear in cross-examination that she did not believe that to be the case. It was unclear why that answer was rejected as false while others were not.

Other Statements by V

V could not be engaged by the police such as to give an interview to them. Evidence of things said by V subsequent to the mother’s tape recording from sources giving reliable accounts are sparse. Indeed, the evidence plainly reveals that, having initially denied to the police that anything happened to her, it is G, not V, whose statements attract significantly more attention and about which there is significantly more evidence in the period after the first police interview.

To the extent that reliable evidence reveals any statements by V, they are ambiguous; refer to what her mother said, or are denials that her father touched her bottom:

On 28 November 2012, V told Mr D: “… My daddy’s always naughty.” She later “strongly denied” ever making such a statement. Mr D does not record V saying anything else to the effect of what is recorded on the mother’s tape recording.

On 20 January 2013, Ms A records that V said “Mummy said you [ie the father] did naughty things to me. You touched my bum with your tongue … [father denies] yes you did, mummy said so”.

On 23 February 2014, Ms A records the father asking V “has anyone ever touched your bottom” to which V said “no”.

On 12 September 2013, neither V nor G made any statement to Mr F suggestive of abuse.

As can be seen from a comparison of the mother’s affidavit of evidence-in-chief with the transcription of the mother’s recording of V, a central inconsistency pertains to whether G did, or could have, seen the alleged conduct perpetrated on V.

The mother’s affidavit of evidence-in-chief deposes that G could not have seen the father’s alleged conduct because V said that “[G] had been at ballet when her father had kissed her on the bottom”, V says in the second part of the recording (in response to a question that permits of an answer that G had either been there and/or “seen him do it”) that she had been there (and/or had “seen him do it”).

There is only one piece of evidence from a source I regard as reliable to suggest that G may have seen something.

It emerges from what G told the police officer during the first police interview. She said “Because sometime when we are about to have a bath [the father] kisses [V’s] bottom… like just on the side not right in …(G is tapping the side of her leg) … (What sort of kisses?): short ones (G raise her right hand and quickly kisses the palm of her hand).” Plainly enough, G is suggesting she has seen something, but what she describes is both a long way removed from conduct of the type described on the tape and, is conduct that may be entirely consistent with an innocent action. When the police officer followed up with a question “How many times have you seen dad kiss [V] on the bottom?” G responded, “I am not sure”.

There are, however, suggestions from G that V has told her things about what the father has done to her. In assessing the weight to be attached to those statements, I am particularly conscious of the fact that they are the child’s account of the statement of an even younger child.

Statements By, and Pertaining To, G

G was aged about 6¾ at the time of the first police interview and aged 7 when interviewed the second time by the police and by Mr D.

Denials by G

As has been seen, statements made by G said to be indicative of abuse are made some 10 or 11 weeks consequent upon a denial in a police interview that any such thing had occurred to her.

Other evidence also refers to G making denials (including evidence that G has denied her denials). That evidence can be summarised as follows:

Statements as to When and Where Conduct to G May Have Occurred

The mother seems to now clearly assert that sexual abuse of both children occurred before separation. The basis for that assertion appears to emerge from what the mother deposes in her affidavit of evidence-in-chief as to G saying that “I cried every time you went to training” and that “it has been happening since she was five years old”.

The proximity of what is said by V on 25 and 26 July 2012 to a period of overnight time on 24 July (together with the mother’s and Ms E’s assertions as to their concerns emerging from events on that date (the SMS from the father); Ms E’s conversation on 25 July, and the suggested immediacy of V’s conduct (clinging, nightmares etc) suggests that the mother (and indeed Ms E) believed something abusive occurred to V on the period of overnight time on 24 July.

Unsurprisingly, questions posed by both the police officer and by Mr D sought to posit statements made by the children in time, including by reference to a specific occasion or occasions. That information has, of course, very significant forensic potential: among other things it provides for the possibility of obtaining collateral information that might assist in assessing the veracity or reliability of children’s statements; it provides a means for assessing if an alleged perpetrator had reasonable opportunity to carry out the actions alleged and it can provide measures for any inconsistencies in account that might be thought significant.

As might be expected of a child of her age, none of the statements attributed to V posit an event by reference to time frames or places. She does say that “it” occurred “when [G] was at ballet” and “in my bedroom”. Of course, if that is true then, contrary to other statements made by V and G, G was neither there nor saw it occur.

By way of contrast, G does pinpoint an event in time and place. So, indeed, does the mother. As has been seen, the mother told the police that she attributes the father’s sexual conduct toward G as having occurred on 24 June 2012. That accords with the mother’s own evidence. That statement can be seen, in turn, to be referenced to G’s statements which are said to link some conduct with the appearance of the tooth fairy. That same event can be seen to underlie much of what G said to the police officer and to Mr D.

It will have been seen that V refers (in the mother’s tape) to behaviour having occurred in her bedroom. That is the only evidence by which it might be ascertained where any alleged conduct to V occurred.

Again, by way of contrast G does make comments to suggest where behaviour might have occurred. However, G has made a number of different statements as to when and where events have occurred:

The Difference in G’s Demeanour Between the 1^st and 2^nd Police Interviews

As I have earlier mentioned, there was a stark and troubling contrast between G’s demeanour during the second police interview when compared with the first interview. She was asked about this by both the interviewing police officer and Mr D:

While, of course, at least partially dependent on assessing what a 6¾ year old child was thinking as at 31 July 2012, I find it almost impossible to accept G’s self-description of same when, on 13 October, she explains to the police officer why she did not tell him what had allegedly occurred to her at their earlier interview some ten or eleven weeks previously.

My observations of G in the first police interview were of a bright, cheerful, engaged child with whom the police officer struck an excellent rapport. She answered questions spontaneously, cheerfully and without noticeable hesitation. Her demeanour appeared calm and relaxed (despite the fact that, as she accurately said in the second interview, she did not know the police officer and it being, after all, a formal police interview).

The startling contrast with her demeanour on the second occasion, the long pauses before answering, the hesitancy in answering many questions, the changing of answers and a markedly flat affect all struck me as signs of a child under enormous stress. I found it excruciatingly painful to observe.

I have already made findings that the mother has inculcated or encouraged in G the notion or story that her father has bribed G to tell a false story about Mr E. I have already found that the mother has played the tape of V’s recording in the car so that it could be heard – and heard more than once – by G. I have already rejected the mother’s account of the placement of her mobile phone (and, thus, the capacity for her to record V) as being serendipitous.

I consider it highly likely that G was “primed” by the mother for the second police interview in that she made it clear to G what she was to say to the police officer. I am fortified in that view not only by the findings earlier referred to, but in particular by G’s statement to Mr D that she was able to tell the police officer the things that she did in the second interview “because my mum said to tell ‘em the truth this time’”. Not only is this an indication of the fact that the mother spoke to G about the first police interview but, in addition, it is, in terms, a clear indication to G that her mother thought she didn’t tell the truth on the previous interview with the police.

Further to those matters, G’s statements to the police in October have very significant oddities.

If, as the mother would contend, full faith is to be given to statements which are said to be indicative of abuse, why should full faith not also be given to other statements that do not sit so easily with any such adult perception? The corollary is also true; if some statements are dismissed, why ought other statements also not be dismissed.

G says that she thought the father was the tooth fairy; “he” came into the room, licked two fingers and put it up. Later, however, she says “he was doing that but then umm I noticed that it wasn’t the tooth fairy, it was just dad.” Later, however, she (a) speaks of two separate visits – one by the tooth fairy and one by her father; and (b) attributes the tooth fairy as existing (“I don’t know if the tooth fairy was actually umm just one minute behind him or before him”); and (c) appears to confuse or conflate the tooth fairy with her father (“well I thought he was the tooth fairy but it was just dad”).

Later again, when the police officer again takes up this issue, G again attributes reality to something that is not real (the tooth fairy) and refers to the tooth fairy as a female “because I heard her … because we had creaky stairs and um we had creaky floor downstairs and she was very loud … I meant dad was loud, so I knew it wasn’t the tooth fairy…”.

Apart from the confusion readily apparent from these statements, G also told the police officer that “well I thought he was the tooth fairy but it was just dad but he did umm the thing putting the fingers … I only know what he did to me I just don’t know what actually really what happened on that night, I just remember what he did to me”.

In my view, it cannot be said that inconsistencies readily apparent from the second interview with the police officer (and also from Mr D’s interview with G) are insignificant. Indeed, I consider them to be very significant. In respect of when conduct might have occurred to her G says:

That it did not happen (QPS interview 31.7.12).

An event happened by reference to an event, namely the loss of a tooth, the mother fixes that event plainly in time – 24 June 2012 – because that is the date upon which G lost that tooth. The police and her evidence confirm it. Having then given an account to police in respect of an event tied to the apparent appearance of the tooth fairy, G says that:

The event happened when she was three (QPS 13.10.12);

The event happened when she was five (QPS 13.10.12);

The event happened when she lost her tooth when she was five (D 28.11.12);

The event happened when her mother was “out training, swimming, going up to the rec centre” which D clarified as being prior to separation – that is prior to April 2012 (D 28.11.12);

The event happened when G “was asleep” (D 7.5.13);

The event happened “a long time ago” when G was “four years of age” (D 7.5.13);

She told her mother about it when she was 6¾ (that is July 2012). The evidence does not reveal G saying anything to her mother at that time. But, of course, the mother recorded V saying something about what had happened to V at that time.

The use of the singular in the evidence just traversed should be noticed. Whatever event G might be seen to be describing, if any, it is plain that she is describing one incident only. She was asked about that by the police officer on more than one occasion. In response to more than one question, and on each occasion, G indicated that “it” happened only once. She said the same thing to Mr D and Mr D’s exploration of the issue referred to “the incident”.

She also referred to one event with Ms A (17.3.13). That one event was also linked to “the tooth fairy” and when “one of her teeth fell out”. However, that incident is described as being her father “poking her with one finger on the side of her bum cheek” and that “he did not take off or take down her pants”.

That latter statement is entirely consistent with what she told Mr D on 7 May 2013 (“when I had my pants on … pyjama pants”) to which Mr D adds that G explained that “her father touched her once, on the outside of pyjama pant … just with one finger, but he did it hard on the [anus]”.

It is also entirely consistent with what G told the police in her second interview in October “… pulled my sheet off and then well he but then he didn’t pull my pants down he just did it”. When the police returned to that topic (“you said you had your pants on”) G nodded yes, and when asked what she was wearing she said “I was wearing my pyjamas and then my long pants”.

There is a remarkable congruence between what can be gleaned of what G says about specifics relating to the conduct (“licking fingers”; “fingers into the anus” and the like) with the mother’s complaint about sexual conduct directed towards her during the course of the relationship by the father. The mother suggests, as it seems to me, that this coincidence reveals an underlying or hallmark pattern of behaviour by the father. In light of my findings about the regularity and relentlessness of the mother’s questioning of the children and her interest in the subject of what the father may or may not have done to the children, I consider it much more likely as indicative of the nature and content of leading questions asked by the mother of G.

G’s Demonstrations

As has earlier been seen, during the first police interview G demonstrated the kiss that she asserted she had seen the father give V’s bottom by giving what the police officer described as a “peck-style” kiss on the palm of her hand.

Ms A, too, gives evidence of a demonstration by G – this time in respect of her father’s alleged touching of her. Cross-examination proceeded as follows:

MR NORTH:And you say in paragraph 33: G then held up one finger, and poked herself on the right buttock, which is entirely consistent with what G had said and shown me on a number of occasions previously.

[MS A]:Mmm.

MR NORTH:Now, that would have been a significant event on each such previous occasion, wouldn’t it? That [G] had done that?

[MS A]:Well, to me it wasn’t because she was only poking her bottom. She wasn’t putting her fingers anywhere. Like, had been spoken to before.

MR NORTH:How did daddy poke you? And where did daddy poke you?

[MS A]:Mmm.

MR NORTH:And she gestured in a particular way; poking her finger into her buttock?

[MS A]:On the right side of her

MR NORTH:On the right side of her buttock?

[MS A]:The cheek of her bottom, right.

MR NORTH:And you say that she done that in response to similar inquiry on a number of occasions before?

[MS A]:Mmm.

And, further:

[MS A]:On the cheek of her bottom.

HIS HONOUR: Thank you.

[MR NORTH]:You told this court earlier that there had been no conversations about the father putting his fingers inside [G]? Didn’t you just give that evidence earlier today?

[MS A]:Pardon?

MR NORTH:Did you not give evidence earlier today that you had – there had been no conversations about the father putting his fingers inside [G]?

[MS A]:No, there haven’t. The only time that [G] has said it, as she has said it herself.

MR NORTH:Well, you see, I suggest to you that there have been conversations about the allegations of assault and/or the allegations made by the girls about their father   ?

[MS A]:Yes, but when – the thing about her

MR NORTH:   that haven’t been recorded by you?

[MS A]:No. The thing about her poking her bottom. She showed – she poked it – she poked her bottom when she talked about it in the lounge room. She poked her bottom when I talked to [Ms Thornton] about it, and we all spoke together. And then she poked her bottom exactly the same the next week when I spoke to her about it.

HIS HONOUR: Sorry. In lounge room. What was the second one? When something [Ms Thornton]? I missed?

[MS A]:[Ms Thornton], and [G], and I – when I was telling [Ms Thornton] after the visit what happened.

HIS HONOUR: Right?

[MS A]:She did it again, then.

HIS HONOUR: Yes?

[MS A]:And then she did it on the following week when [Ms Thornton] asked me to ask [G] again what happened.

It can be seen that Ms A both described what G did and asserts that G demonstrated it to the mother in Ms A’s presence. It was not suggested to Ms A that either assertion was false. The mother makes no mention of this event in her evidence. That demonstration is referred to as being a poke on the side of the buttock.

The Children’s Statements: Conclusions and Findings

I accept the concordant evidence of Ms A and the father to the effect that G said quite specific and detailed things to them to the effect that Mr E had told her to tell lies about her father. I have found those statements by G to be untrue. I have accepted the concordant evidence of Ms A and the father that G has denied to each of them that her father has “touched her bottom”. Yet, at the same time, I accept that Mr D has accurately recorded G as saying (and confirming to a later question) that she had not said that to Ms A. The latter statement by G is untrue. I accept that Mr D has accurately recorded G as saying that she told her mother of her father’s alleged improper behaviour when she was 6¾ (that is, in July 2012). That is untrue.

I do not think for a moment that G is “a liar”. I do not think for one moment that she has set out to deceive her mother, Ms A, her father, a police officer or Mr D. I do think that she (and V) are prepared to, and will, say things which they think will please each of their primary loved objects – their mother and father, and other important adults in their lives.

I consider that G and V have been subjected to a pervasive and inflexible belief system by the mother and by members of her wider family. I consider that their belief system has emerged from a flimsy foundation and that information has been fed to it that serves the belief, and that information has been rejected that does not serve that belief. Their minds have been closed to alternative explanations and implacably so.

I consider that the children are acutely aware of the views of the mother and her family, including specifically the view that the father presents a sexual danger to them. The evidence is strongly persuasive that the subject of their “bottoms” and the father’s conduct said to be connected with their bottoms has been a constant source of questions and interest by the mother and her wider family.

The children are, to borrow Dr G’s words, acutely aware that words and actions are expected of them when their father is spoken of by the mother and her family.

I am very firmly convinced that the mother has engaged in deliberate and intentional conduct that has sought to influence the words and behaviours of the children in and about their father. The playing of the tape in the car; the conversation on 15 March and the “priming” of G for her second police interview are telling examples. The stark contrast in G’s demeanour between the two police interviews is not the only extremely concerning evidence in that respect; their oppositional behaviour with their mother when time with the father is contemplated compared with the evidence of spontaneous happiness when with the father supervised by Ms A is another.

I consider that the diametrically opposed evidence about the children’s behaviours in and about seeing their father deposed to by the mother (and other of her witnesses) and the evidence of the father and Ms A is explained by the factors just referred to: the children know how their mother expects them to behave when going to their father and are free to express themselves when they are with him and she is not there.

The evidence of the mother and Mr E when asked to give consideration to what Mr A says of their time with the father (even if they are not prepared to give credence to the father’s account) and the inherent glib rejection of the possibility of young children seeking a relationship with their father is, I think, a powerful pointer to the pervading atmosphere in the mother’s household, and her family more broadly, of which the children are very well aware.

I consider there is a marked lack of coherence in the children’s statements and I regard them as unreliable indicators that abuse has been perpetrated upon them. Inconsistencies in them are not minor discrepancies that might be expected of young children seeking to recall events at the request of adults. Rather, in my view, they are fundamental to any satisfaction as to improper conduct or risk of same. They include wildly disparate accounts of when an alleged incident occurred; the attribution of it occurring when “I was asleep”; and the attribution of reality to something that is not real: the tooth fairy.

In V’s case, there is extremely sparse evidence from any source that I regard as reliable that she has said anything persuasive of abuse having been perpetrated upon her. I consider the mother’s tape recording to be wholly unreliable for the reasons I have earlier referred to.

The findings just discussed and made earlier in these reasons lead to the following conclusions:

The evidence in this case falls a long way short of evidence which would compel a finding that the father has sexually abused his children or, to be clear, that he has engaged in any improper conduct toward them;

As to “… whether, on the evidence, there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk”, I consider the weight of the evidence is strongly persuasive of there being no unacceptable risk to these children from living with or spending time with, their father; and

The children have a loving relationship with their father, are not fearful of him and desire spending more time with him.

Best Interests and Orders

The findings earlier made in so far as they concern the mother and her conduct in seeking to influence the children bear directly upon findings that need to be made by reference to s 60CC in assessing the children’s best interests.

It will be clear from what I have earlier said that I consider that a degree of moral opprobrium should attach to aspects of the conduct of both parents.

The insightless and high-handed conduct of the father in questioning the children when specifically prevented from doing so and doing so in a way that compromised the position of Ms A does him no credit. So, too, although not related to parenting per se, telling lies to an airline. The mother’s conduct can be seen to be more directly related to the parenting of the children. Bringing pressure to bear upon young children is emotionally abusive. Exposing children to relentless questioning as to their behaviours and relationship with their parent in the aftermath of a parental separation is emotionally abusive.

If I concluded that she did so because she sought to curtail significantly the father’s relationship with the children without any genuine belief that he had perpetrated the actions of which she accuses him, that would be an extremely serious breach of the responsibilities of parenthood and the duties inherent in parental responsibility. If I considered that the father’s actions in questioning the children were unrelated to them and entirely based in a tit for tat desire to extract a benefit in his conflict with the mother, similar considerations apply.

As I have sought to point out earlier in these reasons, human actions and reactions are complex and all the more so when a relationship has ended. The reactions of separating parents as it affects their parenting complicates their actions and reactions dramatically and all the more so when allegations of heinous conduct toward children is involved. When parents think the end is moral – and what is more moral than seeking to protect one’s children – the means to that end become aberrant. I think that has occurred here.

That does not excuse poor conduct. However, the issue is not a judgment about that conduct but, rather, how that conduct should be judged within the matrix of a range of factors mandated by the Act, ultimately directed toward a determination of orders that best meet the best interests of the children in the difficult circumstances in which they find themselves.

The assessment of those matters should, in my view, be based on an ultimate conclusion that the conduct of each of the parents which might properly be judged harshly and, in particular, that of the mother in the specific instances earlier referred to, should be seen as aberrant and as each of them thinking that a particularly moral end justifies means that are, objectively analysed, emotionally harmful to their children.

Parental Responsibility

Section 65DAC of the Act requires that, when two or more persons share parental responsibility for a child, they must, in exercising that parental responsibility in respect of major long term issues, consult and “… make a genuine effort to come to a joint decision about” the relevant issue or issues.

In circumstances where significant high conflict attends a co-parenting relationship, and in particular where serious allegations of the type under consideration here have created significant animosity, that requirement has the potential to exacerbate conflict. When, as here, children have been exposed to a lengthy period of significant post-separation conflict and have been the centre of allegations, the exacerbation of conflict (or the creation of new conflict) is a real possibility. Any such conflict is, in my view, antithetical to their best interests.

To the extent that orders might do so, they should seek to avoid that conflict. That can be achieved by vesting parental responsibility solely in, relevantly, one of the two parents.

However, as I have sought to point out in other cases the potential exclusion of one parent from decision-making about major long term issues by the interpretation of an order for “sole parental responsibility” which accords to “the other parent” no rights, duties or responsibilities in respect of major long term issues at all, is a significant interference with that parent’s rights and the parental responsibility that the parent otherwise enjoys and assumes by reason of parenthood. Of course, the children’s best interests should prevail over the interests of the parent, but that does not render the latter irrelevant. If orders can be framed to take account of both considerations consistent with the children’s best interests predominating, they should be preferred over orders that exclude, or might be interpreted as excluding, a parent from those decisions.

In my view, orders can be, and in this case should be, shaped so as to meet concerns arising from the likelihood of the parents not co-operating or their competing assertions creating conflict likely to embroil the children, while at the same time paying regard to the interests of the “other” parent.

There is little doubt in my mind that the mother has been the primary nurturer of these children. Quite apart from other evidence (including what I consider to be, effectively, a concession made by the father to that effect), so much is evident from G’s statements. Historically, I think it plain that the mother has taken the primary role for making decisions for the children. I have already indicated that I consider that the father’s narcissistic traits and lack of insight can impact upon his decision making and parenting.

I will make orders that vest sole parental responsibility in the mother, but entrenching a process that, while requiring notice and the receipt of the father’s views much as the Act requires, nevertheless provides for the mother to make the sole ultimate decision about those issues (on notice to the father). In addition, in seeking to balance the factors just referred to, the father should be involved in the children’s day to day lives through the provision of information relating to where they live, their schooling and their health. (Equally, the mother should know where the children will be staying when spending time with the father). I will make orders facilitating the provision of information and authorisations so as to permit that flow of information.

Put in terms familiar to s 61DA(4) of the Act, I consider that the best interests of the children require a rebuttal of the presumption of equal shared parental responsibility for the reasons just given.

That being the case, to use the expression used by the Full Court in Goode and Goode a decision about the parenting orders which best meet the best interests of these children is “at large”.

Live With and Time Orders

I repeat that it cannot, I think, be contended other than that the primary nurturer of these children has been their mother. Although G’s statements come from a relatively immature girl and were directed to the amount of time she sought with her respective parents (she indicated plainly that she wished to spend more time with her father but nevertheless did not see him as being the parent with whom she would primarily reside), I think her statements are the (relatively immature) expression of something deeper. I think she sees her mother as the parent from whom she receives her primary nurturing and so much is understandable in light of the parties’ parenting history. I consider the same is true of V.

Issues relating to abuse or unacceptable risk dominate parenting proceedings of this type, but they also frequently illuminate considerations which are directly relevant to the matters enumerated within s 60CC. That is the case here.

Equally, the alternative orders put forward by the mother (and the orders put forward by the Independent Children’s Lawyer) also effectively illuminate of themselves some of those relevant considerations.

In that regard, the alternative proposals of the mother in the event that the court does not find sexual abuse has occurred or finds that there is no unacceptable risk of same, sees the children living with her (consequent upon an order for sole parental responsibility) and orders for time in favour of the father which would see him having regular time with the children the quantity of which increases over time. The same is true of school holiday time which increases over a period of two years. Orders sought by the Independent Children’s Lawyer are broadly to similar effect, albeit that the speed with which the increase occurs, and the quantity of time, differs.

Each, on the assumption of the findings just referred to, acknowledge implicitly the benefit for the children in having a meaningful relationship with their father and each does not otherwise assert a need to protect the children from harm as a relevant consideration.

So, too, the father contends (in circumstances where the court finds that the mother is not genuine in maintaining her allegations of sexual abuse and/or unacceptable risk), that the children live with him and spend time with the mother. The father seeks (consequent upon a build-up of time over eight months) a situation where ultimately, the children spend equal amounts of time with each parent (from Tuesday to Friday in one week and from Thursday until Monday in the second week). Those proposed orders make the same implicit concessions in respect of each of s 60CC’s Primary Considerations.

The orders also implicitly acknowledge, of themselves, concessions in respect of a number of the Additional Considerations within s 60CC(3).

In particular, they can be seen to effectively assume findings in respect of the nature of the relationship of the children with each of their parents, a capacity of the parents to provide for the needs of the child and the practical difficulty and expense of the children spending time with each parent. So, too, the attitudes to the children and the responsibilities of parenthood demonstrated by each parent.

While the mother, in particular, criticised aspects of the father’s parenting, her orders do not suggest (again absent the findings referred to) that any such parenting deficiencies should sound in orders that, for example, would see the father either not seeing the children or spending supervised time with him. That, in my view, is a proper (implicit) concession.

Her proposed orders can, though, be seen to site the children’s primary care with her and a role of lesser quantity (but not, it should be emphasised, necessarily quality) with their father.

Consideration of all of the evidence and my earlier findings will, I think, illustrate sufficiently that aspects of the father’s personality, what I judge to be deficiencies in insight and a self-focussed view of parenting, lead me to a conclusion that broadly accords with the mother’s position.

I have already referred to the views the children have expressed about spending more time with their father. It will be clear that I recognise that such views as the children express are expressed by yet young children whose level of consequent relative immaturity should be taken into account and result in weight being attributed directly to their views only cautiously.

That said, it is important for the voices of the children to be heard in these proceedings in a manner consistent with their age and maturity. It seems to me clear on the evidence that, while the children have expressed a desire to spend more time with their father (as I find), they nevertheless express a desire to continue to receive their primary nurturing from their mother. I record that I have taken account of their views and that some weight is given to them.

I consider that arrangements for the children to spend time with their father as extensive as what he suggests would be a significant change to their erstwhile circumstances and I consider that any such change may well have a detrimental effect on them. These children have been exposed to almost three years of post-separation conflict between their parents and, as I have said many times in these reasons, are caught in the cross-fire of a very serious set of allegations and counter-allegations.

Consistent with my earlier findings, I do not doubt that the children have been acutely aware of these proceedings and also aware that they are the focus of them. I also have no doubt that they are acutely aware that they are the focus of competing claims and counter-claims by their parents, each of whom they love dearly. I consider that orders which minimise the amount of change to be in their best interests. These children need to, as it were, find their feet, with as much support and as little disruption as possible.

I am not entirely confident that any orders made by this court would be less likely to lead to the institution of further proceedings than any other orders.

I also have some concerns about the mother’s expressed willingness to implement my orders consequent upon findings which, I strongly suspect, she will disagree with. That said, the mother has assured me in evidence that, consequent upon the findings made by me, she will abide them and abide the orders for co-parenting made as a consequence. I propose to take her at her word. I consider that the mother has her children’s best interests at heart and, left to her own parenting devices and free of any dependence upon others, she will seek to do what she says she will do.

Balancing all of the considerations I consider relevant to a decision about the orders that best meet the best interests of these children, I will make orders that broadly accord with the thrust of the orders sought by the mother and the ICL prefaced upon the findings as to abuse and risk which I have made.

I have made some variations to the manner in which time increases as I consider that those variations better take account of the need for the “dust to settle” for these children and to minimise the impact of any change but consistent with my strong view that these children desire more time with their father.

In light of my findings as to the children’s knowledge of these proceedings and what they have been exposed to within them, I consider it appropriate that a person independent of the parents explain the orders in child-appropriate language. I will require the ICL to explain these orders to the children utilising such professional assistance as she might consider appropriate.

I have considered whether some time immediately consequent upon the orders should be supervised, specifically for the purpose of the children adjusting to their new circumstances. However, in light of statements made by the children, as manifest in the evidence of Ms A, I am satisfied that they are not only able to sustain that time without supervision but that they are looking forward to it. However, I consider time should remain supervised until the ICL explains the orders as I will direct which, in turn, I will direct should take place with all possible expedition.

In light of my findings, I see no reason why, as sought by the mother, Mr E should not be excused from his undertaking given on 28 August 2013 that he will not spend time with the children, other than in the company of at least one other adult.

The mother also seeks an order to the effect that the therapy the children are undertaking with (another) therapist should continue. I don’t consider that the circumstances reveal the need for any such order; orders for parental responsibility have been made.

It is frequently said that the requirements of s 121 of the Act can operate to prevent those with a proper interest in the proceedings outside of the parties having access to the court’s reasons. In addition, the repeated lesson emerging from numerous Inquiries throughout Australia about how agencies can better serve children is the need for information to be shared appropriately.

While embracing the protections to which the section is directed, I consider it appropriate, if only to avoid doubt, to make orders providing for a copy of these Orders and reasons to be provided to Dr G, Dr R, Mr D, Mr F, Dr H, Detective J and the Director of any office of the Department of Communities, Child Safety and Disability Services to which a notification has been made in this case.

I order accordingly.

I certify that the preceding four hundred (400) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 23 February 2015.

Associate:

Date: 23 February 2015

Introduction

Mr Yip (“the father”) seeks leave to appeal, and if leave is granted, to appeal from an order made by Judge Coates of the Federal Circuit Court on 13 December 2013. The order dismissed the father’s appeal against a decision of the Social Security Appeals Tribunal (“the Tribunal”) in relation to child support payable for the two children of his relationship with Ms Wreford (“the mother”).

The appeal is opposed by the mother, and also by the Child Support Registrar (“the Registrar”) who was named as the second respondent in this appeal.

The father contends that Judge Stephen Coates erred in failing to find that the Tribunal made an error of law by setting his annual income for child support purposes at $217,000 for the period 4 July 2011 to 31 December 2013. He contends that his income should have been set in accordance with his taxable income as found by the Australian Taxation Office (although in his appeal before Judge Stephen Coates he proposed that it be set at $100,000 per annum). If leave to appeal is granted, he seeks that the orders made by Judge Coates and by the Tribunal be set aside, and that the matter be remitted for rehearing “in accordance with law”.

Background

The following facts are drawn from the reasons of the Tribunal and Judge Stephen Coates, and may now be regarded as uncontroversial.

The father and the mother have two children, who were aged seven and six at the time the Tribunal made its decision.

Prior to resigning on 30 June 2011, the father was employed as a manager of a large company involved in an industry in which he had spent his entire working life. His taxable income for the year ended 30 June 2011 was $115,000.

At the time, the father was in a relationship with Ms L who, it seems, had never held full-time employment, but had obtained a licence in April 2011, which she used for two months working for the father’s employer.

On 4 July 2011, the father advised the Registrar that he estimated he would have no income for the rest of the financial year. An administrative assessment of child support based on this estimate was issued on 11 July 2011.

Very soon after advising the Registrar he would have no income, the father and Ms L caused D Pty Ltd to be incorporated. The father and Ms L were the directors and equal shareholders, and the only staff of the business commenced by the company. No funds were needed to establish the business, which had a turnover of more than $500,000 in the year ended 30 June 2012.

On 31 January 2012, on the mother’s application, a Senior Case Officer made a determination increasing the father’s taxable income for child support purposes from nil to $115,000 per annum for the period 16 September 2011 to 15 September 2013. The father objected, but his objection was disallowed.

The father then applied for a review, and the Tribunal increased his taxable income for child support purposes to $217,000 per annum for the period 4 July 2011 to 31 December 2013. The father appealed to the Federal Circuit Court, but Judge Coates made an order on 13 December 2013 dismissing the appeal.

Relevant provisions of the child support legislation

Subsection 98B(1) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) sets out the procedure the mother used to challenge the assessment based on the father’s estimate. The subsection provides:

(1)If, at any time when an administrative assessment is in force …

…

(b)the carer entitled to child support concerned;

is of the view that, because of special circumstances that exist, the provisions of this Act relating to administrative assessment of child support should be departed from in relation to the child, [the carer] may … ask the Registrar to make a determination under this Part.

Subsection 98C(1) sets out matters which must be satisfied before the Registrar can permit departure from an assessment.

(1)Subject to this Part, if:

(a)an application is made to the Registrar under section 98B; and

(b)the Registrar is satisfied:

(i)that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and

(ii)that it would be:

(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

(B) otherwise proper;

to make a particular determination under this Part;

the Registrar may make the determination.

Subsection 98C(2) provides that the grounds for departure are the same as those for an application made to a court pursuant to s 117(2). Subsection 98C(3) goes on to provide that ss 117(4) to (9) apply as if any reference in those subsections to a court were a reference to the Registrar, and as if any reference to an order were a reference to a determination by the Registrar.

Section 98S sets out the determinations the Registrar can make. The determination relevant here is that contained in s 98S(g), namely “varying a parent’s adjusted taxable income”. The words “taxable income” are defined in the Assessment Act. We will come to that definition when we are addressing the relevant part of the argument.

As already noted, s 117(2) sets out the grounds to be considered when deciding whether to depart from an assessment. The ground relevant to this appeal is that contained in s 117(2)(c):

(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

…

(ia)because of the income, property and financial resources of either parent; or

(ib)because of the earning capacity of either parent; …

Subsection 117(4) details the matters to which the Registrar must have regard in deciding whether it is just and equitable to permit departure from an assessment. The relevant part is as follows:

(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order … the court must have regard to:

…

(d)the income, property and financial resources of each parent who is a party to the proceeding; and

(da)the earning capacity of each parent who is a party to the proceeding; …

Subsection 117(5) sets out the matters to which the Registrar must have regard in determining whether it would be “otherwise proper” to permit departure, but we need not recite the provision, as the father’s appeal to the Federal Circuit Court did not challenge the way in which it was applied by the Tribunal.

Section 117(7A), which is of central importance to the appeal, provides:

(7A)In having regard to the income, property and financial resources of a parent of the child, the court must:

(a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and

(b)disregard:

(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; …

Section 117(7B), which is also of significance in this appeal, provides:

(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

(a)one or more of the following applies:

(i)the parent does not work despite ample opportunity to do so;

(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes fulltime work for the occupation or industry in which the parent is employed or otherwise engaged;

(iii)the parent has changed his or her occupation, industry or working pattern; and

(b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

(i)the parent’s caring responsibilities; or

(ii)the parent’s state of health; and

(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

The statutory provisions governing this appeal

The statutory provisions governing appeals from the Tribunal have recently been discussed in Child Support Registrar & Crabbe and Anor (2014) FLC 92-062 and Burns & Grint [2014] FamCAFC 48.

It is sufficient for present purposes to record that:

the father was entitled to appeal against the decision of the Tribunal only on a “question of law”;

the father requires leave to appeal from the decision of the Federal Circuit Court; and

if we grant leave, on hearing the appeal we can affirm, reverse or vary the decision of the Federal Circuit Court, and can make such decision as we consider ought to have been made, or we can order a rehearing.

The application for leave to appeal

The father argued in his written submissions that leave to appeal should be granted because the alleged errors made by the Tribunal “go to the fundamental operation of the Act”. It was submitted that there was “real doubt as to the correctness of the decision of the Circuit Court and the result is to leave standing a decision that is of significant prejudice to the [father]”.

The Registrar’s submissions in reply noted that the decision of the Tribunal

like all child support departure determinations increasing the liable parent’s liability for child support affects the appellant’s substantive liability to child support. Nonetheless, the appellant needs to show that the … dismissal of the appeal from the [Tribunal] involves an error of principle, and/or causes a substantial injustice or raises matters of general importance.

The Registrar argued that neither the Amended Notice of Appeal nor the father’s Outline of Argument identified any error of principle, and further submitted that no injustice had been done. It was said that the father’s case was “so lacking in merit that leave to appeal ought not be granted”.

No submissions were made in oral argument relating to the test to be applied in dealing with an application for leave to appeal, nor indeed was there any other reference to the issue of leave to appeal.

The test referred to by counsel for the Registrar in her written submissions is that which has traditionally been applied in this Court, whereas the test alluded to by senior counsel for the father is that applied in some other intermediate appellate courts, including the Full Court of the Federal Court. This is not an appropriate occasion to consider which test should apply, but see the recent discussion in Jess and Ors & Jess and Ors [2014] FamCAFC 227. On either test, it is necessary for the father to at least raise doubt concerning the way the law has been applied by the primary judge.

The application for leave and the appeal itself were argued cognately. In deciding whether leave to appeal should be given, we will first consider the father’s complaints about how the primary judge addressed the Tribunal’s application of the relevant legal principles.

The reasons of the Tribunal

His Honour found that there was no question of law raised in the appeal to him from the decision of the Tribunal, and our task is to determine whether his Honour has erred in that finding. In order to do so, it is necessary to consider the reasons for judgment of the Tribunal.

Having recorded that the Senior Case Officer decided to set the father’s income at $115,000 “on the basis that that was his demonstrated earning capacity”, the Tribunal noted at [9] that this decision could only have been made if the requirements in s 117(7B) were met. The Tribunal found at [13] that the requirements had been met and therefore concluded that “regard could be had to [the father’s] earning capacity” (emphasis added).

Having noted that when the Senior Case Officer made her decision, the father’s earning capacity was found to be $115,000 per annum, the Tribunal found at [14] that in the course of the review proceedings, the father had “established that his current income and financial resources exceed that figure” (emphasis added).

In explaining this finding, the Tribunal said (emphasis added in [16]):

14.… During 2011/12 the company had a gross income of $564,733. It incurred listed expenses of $403,410, leaving a profit of $161,633. The listed expenses included a director’s fee to [the father] of $43,000 and a director’s fee to Ms [L] of $43,000. It also included the entire rental on the house that [the father] and Ms [L] live in, which was $19,053, although the business is run out of only one of the bedrooms of that house. The company does not rent any other space. If one were to generously attribute 20% of the total floor space of [the father] and Ms [L]’s rented house to that one office space, business-related rental expense would be $3,810 and personal rental would be $15,243. [The father] also said that the company paid for all personal telephone expenses which he estimated in his statement of financial circumstances to be $5,200 ($100 per week). In summary, the company incurred business-related expenses of $403,410 – $15,243 – $5,200 = $382,967, leaving a balance of $221,334. Together with directors’ fees, $221,334 + $68,000 [sic – the Tribunal no doubt meant to say $86,000, but the error persists in the calculations that followed in a way that was of benefit to the father] = $289,334 was available to remunerate [the father] and Ms [L] in their capacities as directors and shareholders of the company.

15.The company paid [the father] and Ms [L] equal amounts in director’s fees and they have an equal entitlement to the company’s profits pursuant to their equal shareholdings. On that basis, [the father’s] legal entitlement to various income and financial resources would be fairly represented in an adjusted taxable income for child support purposes of $289,334 /2 = $144,667 per annum. Whether it is appropriate to only have regard to that figure will be discussed below.

16.When [the mother] lodged her departure application the administrative assessment used [the father’s] estimate of income of $0. The disparity between that figure and [the father’s] earning capacity, as well as the disparity between that figure and [the father’s] income and financial resources, constituted special circumstances such that the application of the administrative assessment would result in an unjust and inequitable determination of child support payable. The Tribunal therefore concludes that a ground for departure exists.

Having thus found a ground for departure, the Tribunal then turned to the issue of whether it was just and equitable to permit a departure from the assessment:

17.The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and their children. Regard must be had to a variety of factors such as the needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula.

After noting the contrast in the employment histories of the father and Ms L, the Tribunal recorded:

21.It was put to [the father] that while he and Ms [L] have elected to have equal shareholding in the company and have elected to receive equal fees as directors, their equal remuneration did not reflect the commercial value of their respective contributions to the company. [The father] did not accept that proposition because he said they both worked roughly 40 to 50 hours per week.

The Tribunal next addressed the roles performed by the father and Ms L in the company, and then went on:

25.The Tribunal asked [the father] what he thought the respective commercial values of his and Ms [L]’s contributions to the company were. He said he had no idea. It is clear that [the father] is the driving force of the business. He has a wealth of relevant experience which he brings to his position of manager. Without him, there would be no business. The only relevant experience or expertise that Ms [L] appears to have brought to the business at its inception was approximately two months’ experience as a casual [employee].

26.It is difficult to quantify the respective values of [the father’s] and Ms [L’s] contributions to the company, although they are clearly not equal. The Tribunal will conservatively value [the father’s] contribution at 75% and Ms [L’s] at 25%. That rather generously values Ms [L’s] contribution during 2011/12 at $289,334 x 25% = $72,334, and conservatively values [the father’s] contribution during 2011/12 at $217,000.

27.By structuring the company in a way that does not reflect their respective contributions, [the father] has effectively gifted to Ms [L] income and financial resources that would otherwise be his. Of course, parents are free to give gifts to their partners and others, but that is not a legitimate basis for reducing their child support liability.

The Tribunal next examined the expenses of both parents and the two children, before finding at [29] that the father “has an abundant capacity to contribute to the children’s expenses”. Although the Tribunal did not go on to express satisfaction that it was just and equitable to depart from the assessment, such a finding is obviously implied. The Tribunal did discuss whether it would be “otherwise proper” to allow a departure, and concluded it would be (at [32]-[33]).

Having thus established the existence of the three requirements for departure set out in s 98C, the Tribunal then discussed how to frame the departure order. Although acknowledging one option was to set the amount of child support, the Tribunal concluded at [34] that the preferable approach was to specify the father’s adjusted taxable income on the basis that “the formula would then calculate the child support payable based on the average costs of children”.

In summing up its decision, the Tribunal observed:

35.[The father’s] legal obligation to provide for his children takes precedence over his election to effectively gift a portion of his ongoing income and financial resources to his partner. Setting [the father’s] adjusted taxable income for child support purposes at $217,000 would reflect the position he would be in had he not effectively made that gift, and would result in a current rate of child support of approximately $24,700 per annum …

The Tribunal completed its reasons by explaining why the new rate would take effect from 4 July 2011 and conclude on 31 December 2013.

The reasons of the Federal Circuit Court

In giving his reasons, the primary judge explained that the appeal could be brought only on a question of law. His Honour acknowledged, however, that an unduly legalistic approach should not be adopted in deciding whether an issue of law is involved.

Among the authorities cited by his Honour was Tasman & Tisdall (SSAT Appeal) [2008] FMCAfam 126, where Brown FM (as his Honour then was) said (footnotes omitted):

43. It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision. As such, I should be cautious to approach the decision of the SSAT with “an eye [which is] too keenly attuned to perception of error”. Rather I should take a common-sense approach to what the SSAT was saying in its decision and the reasons why it did [sic] said what it said.

44. An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:

fails to construe properly the legislative provisions applicable;

identifies the wrong issues or asks itself the wrong questions;

ignores relevant material or relies on irrelevant material;

fails to accord procedural fairness to the party before it;

makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.

Although the father raised a miscellany of issues on appeal, Judge Stephen Coates found none raised a question of law or, if they did, found the Tribunal did not err in applying the law. The appeal was therefore dismissed.

Grounds of appeal

The father’s complaints have undergone metamorphosis as his case made its way through the multi-layered appellate process. His original Notice of Appeal filed in the Federal Circuit Court in November 2012 was amended by a Notice filed in June 2013. His Notice of Appeal filed in this Court on 10 January 2014 was amended by a Notice filed on 15 May 2014, but the complaints were then recast in the written Outline of Argument. These, in turn, were further refined by senior counsel for the father in his oral submissions.

We propose to address only the three complaints articulated by senior counsel for the father in his oral submissions, which are to be found in Grounds 5 and 6 of the Amended Notice of Appeal. We will not address Grounds 1 to 4, which were not pursued.

First complaint – error in determining father’s income and resources

The first complaint was that his Honour should have found that the Tribunal had erred in law when determining the father’s income and financial resources for the purposes of s 117(2) and s 117(4), in particular by failing to have regard to s 117(7A). It was argued that the Tribunal had conflated the father’s income and financial resources with “the altogether different question of what should be regarded as the income and financial resources of the father” (emphasis added).

Senior counsel took issue with the conclusion of the primary judge that no error of law was raised by the father’s contention that the Tribunal had misunderstood the legal relationship between the company, the father and Ms L. Counsel also criticised the conclusion of the primary judge that the Tribunal had done no more than make a finding of fact that the father had gifted an interest in the company to Ms L and a further finding of fact concerning the “contributions” of the father and Ms L.

We see no error in the conclusion of the primary judge at [70] that there was no substance in this complaint and no questions of law are raised here. The primary judge accepted at [58] that it was possible, depending on the evidence, that it was “against company law to determine that the [father] has a greater capacity to pay more money” than the other equal shareholder. The Tribunal had also properly understood the legal relationship between the company, the father and Ms L. Throughout the Tribunal’s reasons, there is reference to the father and Ms L being in a position of equality, and hence entitled to similar benefits from the corporation (see, for example, [15], [21], [27] and [35]). The finding of the Tribunal at [27] and repeated at [35] that the father had “effectively gifted” what would otherwise have been his income and financial resources constitutes both a recognition of Ms L’s legal entitlement and a finding of fact concerning how she came to have that entitlement. The further findings concerning the “contributions” of the father and Ms L cannot be construed as anything other than findings of fact for which there was ample evidence.

We do not accept the submission of senior counsel for the father that the “question of whether there was a gift, required, at the threshold that there be a legal analysis of the respective interests of the [father] and [Ms L] in the company”. Contrary to what was said by the primary judge at [61], the Tribunal did not find that the father made a gift of “an amount or interest in the company”. The findings of the Tribunal were that the father had “effectively gifted to Ms [L] income and financial resources that would otherwise be his” and that he had “effectively gift[ed] a portion of his ongoing income and financial resources” (at [27] and [35]). The repeated use of “effectively” demonstrates that the Tribunal was alive to the fact that the arrangement did not, in fact, constitute a gift.

In support of his proposition that the Tribunal had conflated the father’s income and financial resources with the question of “what should be regarded as [his] income and financial resources”, senior counsel for the father noted that the Tribunal had found that the earlier decision to set the income at $115,000 per annum was based on s 117(2)(c)(ib) (earning capacity). However, it was submitted that the Tribunal’s own decision appeared to have been based on s 117(2)(c)(ia) (income and financial resources) and that the Tribunal had therefore erred in law by not considering s 117(7A), which sets out matters to which regard must be had when considering a parent’s income and financial resources. If that submission is correct then it is said his Honour erred in failing to recognise that this raised a question of law.

Although an alternative reading is available, we accept that the Tribunal’s decision can be read as being based on the father’s income and financial resources, notwithstanding the Tribunal having recognised that the original decision was based on “earning capacity”. Counsel for the Registrar conceded that the Tribunal’s decision was based on the father’s income and financial resources, rather than on his earning capacity, but she submitted that:

“the concepts are fluid because under s 117(7A) in having regard to the income … and financial resources the tribunal necessarily had to have regard to the capacity of the appellant to derive income”;

the Tribunal had examined the father’s capacity to derive income and his “actual financial resources” and, having done so, found at [27] that the father had control over the income and resources of the company, which is why he had been able effectively to gift those to Ms L;

the question whether or not a “question of law” arises from the decision of the Tribunal must take as its premise the approach adopted by, and the facts as found by, the Tribunal; and

on the facts as found by the Tribunal, and having regard to his capacity to derive income, the father could not legitimately assert that his income and financial resources were not truly reflected by the decision to set his income at $217,000.

We accept that, having seemingly decided there was a ground for departure based on the father’s income and resources, the Tribunal made no express reference to s 117(7A)(a), which expressly directs a court to have regard to the capacity of a parent “to derive income” when it is having regard to a parent’s income and financial resources.

One answer to the complaint about the absence of reference to s 117(7A)(a) is that suggested by counsel for the Registrar, namely that it emerges from the reasons that the Tribunal did give attention to the father’s capacity to “derive income”. However, we are not entirely convinced by this argument, which seems to us to give the same meaning to “earning capacity” as it does to “capacity … to derive income”. In our view, those expressions have different meanings in the context of the Assessment Act.

That this is so is demonstrated by reference to s 117(7)(a), which deals with the position of the child, as opposed to s 117(7A), which deals with the position of the parents. Subsection 117(7)(a) provides (emphasis added):

(7)In having regard to the income, earning capacity, property and financial resources of the child, the court must:

(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; …

While the two provisions are couched in very similar language, s 117(7A) differs from s 117(7)(a) in that the retention in s 117(7A) of “income” and “capacity … to derive income” is accompanied by the omission of “earning capacity” and “earn”. In our view, the variation in terminology points to Parliament’s intention that “capacity to earn income” not be seen as synonymous with “capacity to derive income”. This is consistent with authority relating to the meaning of the word “derive” when used in the context of income taxation legislation. For example, in Brent v Commissioner of Taxation (1971) 125 CLR 418 at 427, Gibbs J said:

The word “derived” is not necessarily equivalent in meaning to “earned”. “Derived” in its ordinary sense, according to the Oxford English Dictionary, means “to draw, fetch, get, gain, obtain (a thing from a source).

If “derive” is used in this sense, “capacity to derive income” is apt to cover the example given in both s 117(7A) and s 117(7)(a), namely income that could be obtained from assets already under the control of, or held for the benefit of, the child or the parent. On the other hand, “capacity to derive income” is not, in our view, apt to encompass income that might have been available if the financial affairs of the father had been arranged differently.

Counsel for the Registrar may have sought to address this flaw in her argument when she submitted that the Tribunal at [27] had found, albeit obliquely, that the father had control over the income and resources of the corporation by virtue of the fact that he had been able effectively to gift half to Ms L. However, the fact the father elected to give Ms L equal control of the business does not mean that he thereafter retained control, or that she held any part of her interest for his benefit (absent a finding to that effect).

Nevertheless, on our construction of the provision, it was unnecessary for the Tribunal to refer to s 117(7A)(a) because it had not been argued that the father had any current capacity to “derive” any additional income from assets held for his benefit or under his control, or that he had any other means of “deriving” income. As the Full Court said in SCVG & KLD (2014) FLC 93-582 at [78]:

factual and legal concessions, if accepted by the court, may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding.

The fact the Tribunal found a ground for departure based on the father’s income and financial resources rather than his earning capacity, and made no finding about his capacity to derive additional income, does not mean that the Tribunal was bound to frame its order by reference to the father’s current income or resources, or by reference to the income that might be available if the corporation declared a dividend. Any argument that the Tribunal was so bound overlooks the fact that its power to grant a departure from an assessment comes from s 98C and is dependent only on satisfaction of the criteria stated therein.

Having satisfied itself about each of the three criteria, the Tribunal could make any of the determinations mentioned in s 98S. There are no limits contained in the statute on the exercise of the power, save that the determination must be “just and equitable” and “otherwise proper”.

The fact that s 117(4) and s 117(5) prescribe certain matters that the Registrar or Tribunal must have regard to in deciding whether a particular determination is “just and equitable” does not mean that regard cannot be had to other matters. As the High Court said in Stanford v Stanford (2012) 247 CLR 108 at 120 [36] when discussing the same words in s 79(2) of the Family Law Act 1975 (Cth) (footnote omitted):

The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.

It follows that the Tribunal was entitled to give such weight as it saw fit to the father’s election to effectively give away future income and resources, even though the ground of departure was his current income and resources. We do not read [27] as a finding of control of the corporation by the father, as counsel for the Registrar suggested, but rather as explaining why the Tribunal considered it would be just and equitable to set the father’s income on the basis of the income he would have received had he not elected to benefit someone else. The weight placed on this clearly relevant factor can be seen in the Tribunal’s summing up, where it was said that the father’s “legal obligation to provide for his children takes precedence over his election to effectively gift a portion of his ongoing income and financial resources to his partner” (at [35]).

For these reasons, we reject the submission that it was only open to the Tribunal to have regard to the “factual or legal scenario” existing at the time the departure application was being considered. Similarly, we reject the submission that the Tribunal could only look behind the company structure if it was a sham or it was shown the father had control. Such restrictions are not warranted by the legislation, one of the stated objects of which is to ensure that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support … (emphasis added)

Thus, we are satisfied that his Honour did not err in finding that no issue of law is raised here.

We turn now to the associated complaint concerning the Tribunal’s failure to mention s 117(7A)(b). We accept no reference was made to this provision; however, this could only constitute an error of law if the Tribunal had regard to Ms L’s “income, earning capacity, property and financial resources”. In our view, that has not been demonstrated, because the ultimate decision was based on the father’s position rather than Ms L’s. The fact that Ms L’s income or resources would have been diminished if the father had not elected to bestow a benefit on her does not mean the Tribunal had any regard to her income or resources. In any event, as counsel for the Registrar submitted, it could be readily inferred that the Tribunal accepted that the “special circumstances” mentioned in s 117(7A)(b) existed. Thus, again there is no error demonstrated by the primary judge.

Senior counsel for the father also submitted that the Tribunal erred by:

failing to take account of Ms L’s “premium for ownership”;

failing to recognise it “would be by no means unusual for, and one would expect it, for retained profits or at least a proportion of the retained profits to be retained for the ongoing viability and operation of the business given its infancy”; and

overlooking the fact that the profit of a company does not become “an interest of the shareholder” until a dividend is paid.

The first two arguments do not give rise to a question of law, and thus did not provide a basis for a successful appeal to the primary judge. Further, all three arguments fail to take account of the facts that:

the business was commenced without injection of any capital;

there was no evidence to show the business had any need to retain funds to ensure its viability; and

there was no evidence to suggest any reason why a dividend could not be paid.

For these reasons, we find no merit in the first complaint.

Second complaint – nominating an income other than taxable income

The second complaint was that his Honour should have found that it was not open to the Tribunal to nominate a taxable income for the purposes of making a determination that does not reflect the father’s actual taxable income or a finding as to his taxable income, and that in doing so, the Tribunal had erred in law.

Senior counsel for the father took us to s 56(1) of the Assessment Act which provides (original emphasis):

For the purposes of assessing a parent in respect of the costs of a child in relation to a child support period, if the parent’s taxable income has been assessed under an Income Tax Assessment Act for the last relevant year of income in relation to the child support period, the parent’s taxable income for that year is the amount as so assessed.

By reference to s 56 and s 57 of the Assessment Act, senior counsel for the father stressed that “taxable income” means “either assessable income under the Income Tax (Assessment) Act or an approximation of that”. He argued that what was involved in a determination under s 98S(g) of the Assessment Act was not just a variation of “income” but rather a variation of “taxable income”. While acknowledging, by reference to ss 35C, 56(4)(a) and 57(9)(a), that the Registrar is not prevented from making a determination under s 98C based on something other than the taxable income of the paying parent, senior counsel for the father submitted it was still necessary to determine “what it means when … the Tribunal is invited … to make a particular order varying an assessable income”.

Senior counsel for the father further submitted that:

[I]t’s clear from the tribunal’s reasons that there was no attempt to bring the figure of 217,000 back to taxable income concepts. It wasn’t derived in any way through some analysis, for example, of imputed dividend, dividend income under the ordinary concepts. It has made no attempt to do that. It has simply identified that it is convenient if we adjust taxable income. Now, in our submission, that has two consequences for the appeal. Firstly, it demonstrates that the tribunal was concerned with income rather than earning capacity and, secondly, it calls into focus how the tribunal can approach the power to adjust the taxable income.

Senior counsel for the father also submitted that the s 98S(g) mechanism

cannot be used, to simply arrive at a taxable income which doesn’t bear any reference to the actual taxable income either under income tax legislation, actual income or even any assessment by the registrar as to what the taxable income might be. The whole purpose of the provision is to identify an available amount by reference to the taxable amount … [B]y playing with adjusted taxable income you’re attributing an amount which is not available as income but it’s purely nominally available as income. Now, in our submission, that doesn’t give any or sufficient recognition of the statutory terms that are engaged here.

We do not accept that by making a determination pursuant to s 98S(g) the Tribunal was “concerned with income rather than earning capacity”. Although there are other means to achieve the objective, decision makers commonly adjust the paying parent’s taxable income in order to reflect earning capacity rather than income. We agree with counsel for the Registrar that as a “clear matter of statutory construction it was within the power of the tribunal to vary and substitute by varying the adjusted taxable income as it did in this case”. We also accept her submission that:

to contend otherwise makes the departure provisions inoperable in cases where it is found that a liable parent has financial resources available for the supply of child support that are not reflected in that parent’s taxable income so it’s no surprise, then, that the Act operates as it is well known to do which allows for the variation of adjusted taxable income with no reference to what might be assessed as taxable income by the Taxation Office.

For these reasons, we find the Tribunal did not make an error of law, and there is no merit in the second complaint.

Third complaint – denial of procedural fairness

The father’s final complaint was that the primary judge should have found that he had been denied procedural fairness in relation to the finding of the Tribunal that “the interest in the company that conducted the business should be split 75:25 notwithstanding the relevant directorships and shareholding”.

We agree with counsel for the Registrar that the procedural fairness issue raised before the Federal Circuit Court dealt with an entirely different issue than the one now sought to be advanced here. Furthermore, we accept counsel’s submission, relying upon accepted authority, that procedural fairness does not normally require decision makers to disclose their thinking processes or proposed conclusions. In any event, during the course of the proceedings before the Tribunal, the presiding member said to the father: “the question arises as to whether … it is appropriate to recognise that legal relationship of fifty-fifty or whether … some other proportion should be involved”.

We are not persuaded that any issue of procedural fairness arises; his Honour did not err and we therefore find no merit in the third complaint.

The outcome and costs

Having found no error by the primary judge in his determination that no question of law was raised in the appeal, we propose to dismiss the application for leave to appeal. Although the father sought costs against the Registrar if his appeal succeeded, he opposed the Registrar’s application for costs if he was unsuccessful. Senior counsel for the father sought to justify what he accepted was the “fairly obvious disconnect” by submitting that the role of the Registrar was “not to contend for any particular result but effectively to act as a contradictor … to assist the court” and that “the Commonwealth through the Registrar has a particular role to play … and that would justify that disconnect”.

In support of her application for costs, counsel for the Registrar observed that all of the complaints in the Federal Circuit Court had failed and that none of the grounds in the appeal to this Court identified how the Federal Circuit Court had erred. Counsel further relied on the fact that the grounds identified in the Amended Notice of Appeal were not the grounds articulated by senior counsel in his oral argument and that no question of legal principle has been raised.

We make no criticism of the way in which senior counsel reframed the father’s complaints in his oral submissions as they helpfully condensed the argument. However, the fact remains that none of the grounds were found to have merit. The father, having been wholly unsuccessful, should pay the Registrar’s costs.

The mother did not seek an order for costs.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Strickland JJ) delivered on 19 February 2015.

Associate:

Date: 19 February 2015

Application

This is an application to deal with the Respondent Mother for contravention of a parenting order, which was one of a series of orders made on 17^th December 2013 after a Defendant Hearing.

The order provided that the Father would spend time with the child [X] on the Father’s birthday for a period of a number of hours on [date omitted] 2014. That time did not take place. The Mother, with the benefit of legal advice, has conceded that contravention and no reasonable excuse has been established, although I have heard submissions in mitigation from the Mother’s solicitor.

Mr Ulbrick, solicitor who appears for the Father, has submitted a minute of order sought by the Father in respect of the contravention that has been established.

The orders that are sought can be summarised as follows:

That the Mother enter into a bond under the provisions of section 70NEC of the Family Law Act for a period of two years with a surety or, in the alternative, that under the provisions of section 70NFC of the Act that she enter into a community service order.

That the Mother pay the Applicant Father’s costs of these proceedings.

That by way of make-up time the Father spend time with the child at [N] from after school on Friday 6^th March until 1:00pm on Sunday 8^th March.

That the Mother be restrained by injunction from signing any documents or taking any steps to enrol the child in any primary school except [C] School, which is the school he is currently attending; and

That leave be granted to serve a copy of these orders on the principal of [C] School.

The proceedings were commenced by the Father acting for himself. There were originally eight contraventions alleged. The Court was informed at the time that all eight of those contraventions were to be defended.

When the matter came before the Court for hearing today the situation had changed in that the Father had instructed Mr Ulbrick, solicitor, to appear for him. Mr Ulbrick is a solicitor who has a significant degree of experience in matters under the Family Law Act. Mr Ulbrick had very carefully and, I might say, helpfully prepared a case outline in which he set out the matters upon which the Father sought to proceed, a chronology and a brief rundown on the relevant law. What was a significant change is that notwithstanding the eight original counts in the original application the Father, with the advice of his solicitor, elected to proceed on only four of them.

Ms Li, solicitor, appeared for the Mother. She obtained instructions from the Mother to concede a contravention in respect of Order 5(e), which related to a claim that the Mother did not facilitate the Father’s time with the child from 10:00am until 6:00pm on the Father’s birthday being 24^th May 2014.

The other matters remained in issue. Over the lunch adjournment the parties’ solicitors were to have some discussion about the particular paragraphs of the Father’s affidavit that were to be relied on, but when the matter came back to Court Mr Ulbrick told the Court that in the light of the Mother’s admission of a contravention of the order relating to 24^th May, which he correctly identified as being the most serious of the four counts, the Father elected not to press the other three.

That being the case the Court was in a position to proceed to make orders arising from that contravention. It was not sought to lead any evidence to show that the Mother had a reasonable excuse, although I did hear submissions which went significantly towards mitigation of the particular claim. Nevertheless, the fact is that this was a Court order made after a lengthy hearing, which should have been complied with.

The situation as far as the Mother was concerned, as Mr Ulbrick pointed out, was that the Mother had previously been found to have contravened parenting orders made by this Court and had previously been placed on a bond under the provisions of section 70NEC.

The orders of the Court made on 17^th December 2013 did include orders in respect of allegations of contraventions. Two contraventions were established without reasonable excuse in respect of orders that had been made until further order during the earlier proceedings. One on 17^th December 2012 and one on 8^th June 2011. In respect of one contravention the Mother was ordered to attend a post-separation parenting course under the provisions of section 70NEB of the Family Law Act.

In respect of the other the Mother was required to enter into a bond under the provisions of section 70NEC of the Act without surety or security for a period of 12 months on the condition that she abide by all current parenting orders.

As that bond commenced on the date the orders were made, namely, 17^th December 2013, it was still in force at the date of the contravention which is currently being dealt with.

Ms Li addressed the orders sought by the Father. She submitted that reimposition of a further bond would only invite further litigation by the Father, noting the degree of conflict between the parents over the years. She submitted that a community service order in the circumstances would not be appropriate.

She dealt with the question of costs. Mr Ulbrick for the Father seeks an order for costs in what he described as a nominal amount, namely, $550.00.

Ms Li submitted that in the light of the fact that eight contraventions were originally alleged, but that eventually the Father only sought to press one of them, that this should have a significant effect on any costs order. Some of the counts, she submitted, related to claims that were frivolous. That, of course, may well be so, but the Father, once he had the benefit of legal advice, reduced the number of counts that he was pressing from eight down to four and it is fair to say that those four counts there were originally sought to be pressed this morning could not in any one case be described as frivolous.

The frivolous claims, if such they were, had been speedily discarded after the Father had obtained the advice and sensibly followed the advice of his solicitor. Ms Li submitted that, in any case, the parties should either pay their own costs or perhaps, in light of the fact that only one contravention had, in fact, been found, that the Father should pay the Mother’s costs. I do not accept that submission.

The Father seeks an injunction restraining the Mother from signing any documents or taking any steps to enrol the child in any primary school except [C] School in the [N] area and sought leave to serve a copy of those orders on the principal of the primary school.

The fact situation is that the Mother has recently moved to [N] as a result of being permitted to relocate the child’s residence to [N] after the period of time by the orders that had been made on 17^th December 2013. The child [X], who was born on [omitted] 2009, is old enough to attend school and the Mother has enrolled him at [C] School.

Mr Ulbrick submitted that the Father was concerned that the Mother would act precipitately or irresponsibly or frivolously in withdrawing the child from the school, having previously decided that she would enrol him in another primary school in the area and then changing her mind and enrolling him at [C]. He seeks an order for the duration of the child’s primary education to restrain the mother from withdrawing the child from that school.

I have considered all of those matters. I indicated to the parties’ solicitors that my initial view was that a community service order would be too draconian an order to impose, notwithstanding the circumstances and notwithstanding the fact that the Mother cannot claim the benefit of having no prior history of contravening the orders. I am still of the view that the circumstances do not warrant the imposition of a community service order.

I am of the view that this is a matter in which an order for costs is appropriate. One of the very reasons under section 117, subsection (2)(a) of the Family Law Act for imposing an order for costs is failure by a party to comply with a court order, and indeed, the various sections relating to contravention proceedings specifically envisage the sanction of a costs order. The amount of $550.00 was, in my view, aptly described by Mr Ulbrick as a nominal amount.

Indeed, it is. An examination of the Court scale under Part 1 of the Rules would have allowed, on a party-and-party basis, an imposition of a costs order well in excess of $2,500.00. In those circumstances, the amount of costs sought is nominal, and I have already decided that this is a matter that is appropriate for an order for costs. I accept the fact that the Mother has been a student and that has been reliant, for financial support, upon her partner.

I take into account, in the Mother’s favour, the fact that she did concede the particular contravention. It is usually far more sensible to admit responsibility in respect of a count than proceed with an unsuccessful defence. Ms Li tells me that the Mother has been most concerned about these proceedings, as well she might be. The fact that the Court has previously found contraventions of interim orders made by this court is a matter of concern, and indeed, it is not uncommon, in my experience in the criminal law, where people have been found to have been in breach of good behaviour bonds for them to be immediately sent to prison.

In my view, there does need to be a sanction to mark the seriousness of this. It needs to be proportional to the circumstances. It needs to take into account the Mother’s particular situation, and it does need to acknowledge her sensible approach to making the admission that she did.

I have given consideration to all of these matters, and I propose to make the following orders. Stand up, please, Ms Vine. I make the following orders.

Please note that I have not made the injunctive order sought in respect of the child’s school. In my view, that order is outside the scope of the matters with which the court was required to deal. This was not a case where it was alleged that the Mother had contravened any order in respect of the child’s education, and I did not consider that it was appropriate, in the circumstances, to impose an injunction as sought by the father.

The purpose of the orders that have been made today is to provide an appropriate response to the circumstances, including marking the Court’s displeasure at the breach of the particular order, but it is not, in my view, appropriate to make a further parenting order unrelated to the substance of the application. I require a transcript of my reasons for this decision on a next-day basis.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 3 February 2015

Introduction

This is an application by Ms Kristoff seeking orders as to property division between her and the respondent Mr Emerson. The parties were never married but the applicant maintains that from 2003 until late 2011 they lived in a de facto relationship within the meaning of the Family Law Act. The application is therefore governed by the provisions of Part VIIIAB of the Act.

Background

The applicant is aged 45 and the respondent 55. They met in 1999. The applicant was employed as a sex worker and the respondent was one of her clients. In the course of their sexual encounters they ended up discussing personal matters relating to their families and their interests. They discovered they had a mutual interest in horses and country life. They became friends. The applicant began to involve the respondent with her family. From 2000 onwards the sexual relationship between the parties ceased to be a commercial one, that is the respondent was not required to pay for sexual encounters.

The relationship developed such that towards the end of 2000 the parties travelled together to (omitted) for about a week.

About this time the respondent and a friend, Mr P, were renovating a house they had acquired at Property M. The applicant was invited to accompany the respondent on a number of occasions whilst the applicant and Mr P worked on this house. She assisted to a degree in fetching tools and materials and cleaning up the property. This occurred at weekends which were a busy time in the sex industry and the respondent would often give her a few hundred dollars to compensate for her loss of income. At one stage she said he gave her a “roll of hundred dollar notes” which apparently was related to her loss of income and his paying for sexual services for which he had not hitherto paid.

In late 2001 or early 2002 the applicant gave up her job as a sex worker. She implies in her affidavit that this was due to the respondent but I am not prepared to make that finding. She obtained employment as a (occupation omitted) at the (employer omitted).

The relationship between the parties broke down towards the end of 2002. At the time there had been incidents between the parties and between the respondent and the applicant’s sister. The end result is that the respondent approached the police and alleged that the applicant and her sister had assaulted him. He applied for a Domestic Violence Order. It is not necessary to make findings in relation to this or to dilate on this episode. This estrangement seemed to have been comparatively short lived and at the end of 2002 the respondent approached the applicant with a view to reconciliation. Their relationship resumed. In early 2003 they travelled together to (omitted) for about five days.

Up until 2003 the applicant had lived full time in a home in (omitted). She shared this home with her sister. The respondent owned a house in Property B. In 2003 he acquired another property in Property G. When the respondent bought the Property G property the applicant started spending time there. Her evidence is that she came to spend most nights at Property G and that she would only stay overnight in (omitted) if she had a function on in the City. In support of her version she produced Telstra bills and Rates Notices showing her address as a post office box in (omitted) used by the respondent and other people associated with him in business.

The respondent denies that the applicant spent most nights in Property G. On his version she would stay there only occasionally.

The evidence corroborating either party’s version is equivocal or absent. The respondent says that the applicant changed her postal address for her telephone bills and Rates Notices because her sister for some reason was in the habit of hiding these bills when they arrived at (omitted). The applicant concedes that her sister would do this. The applicant’s sister could have been called to verify the applicant’s account but I am satisfied that the circumstances are such that I should not draw any inferences from her failure to give evidence. The same applies to a woman with whom the respondent was associated during relevant periods. I need not discuss the reasons proffered for their non involvement in the case.

I find on the balance of probabilities that the applicant stayed at the respondent’s Property G property more frequently than the respondent would concede. On the other hand I am not satisfied that she would only spend nights at (omitted) when she had a function to attend in that area. I find there was likely to have been at least two nights a week that the applicant would stay in Property G but it would not on average have exceeded five nights a week. When I make this finding however I do not do so with any real confidence. In the end I can summarise the position by saying that the onus ultimately is on the applicant to make out her case and I am not satisfied that she spent as much time at the Property G property as she claims.

The parties disagree as to the extent of their sexual relationship. The applicant says that sexual intercourse was a regular feature of their relationship. The respondent denies this. I accept the applicant’s version.

The respondent describes his relationship with the applicant as being in the nature of a “friendship”. I find that there was more to it than this. When one is dealing with a concept as amorphous as “love” it is difficult to make findings as to the degree of attachment the respondent felt towards the applicant. However after the parties separated the respondent telephoned her and professed his love for her. Whatever the extent of the respondent’s feelings towards the applicant they were definitely more significant than a “friendship”.

The parties never shared an economic life. At no stage did they have a joint bank or other account. They never jointly acquired property. The great majority of expenses when the parties stayed together were met by the respondent.

As I understand it a part of the applicant’s case would involve my making a finding that her career was adversely affected by the relationship. In essence she says that the respondent was the cause of her giving up employment as a sex worker and her giving up or being dismissed from subsequent employment at the (employer omitted). The evidence in relation to this is as follows:

The applicant implies that she gave up employment as a sex worker because of the respondent. I do not accept this. She gave up this employment in late 2001 or early 2002. She then obtained employment as a (occupation omitted) at the (employer omitted).

The applicant says that the respondent told her that he would prefer that she not work and told her that he was able to support her. In the latter part of 2004 the respondent was charged with an assault on a sex worker. The applicant says that she “accepted some blame for his actions as I had ignored his requests for me not to work and to resign from my new position”. The new position was as a (occupation omitted) at (employer omitted).

I accept that the applicant did not work for a time but do not accept that this was at the request of the respondent. Moreover I do not accept that this had any lasting financial impact on the respondent. She says that towards the middle of 2005, after the respondent was convicted of the assault charge, she told him that “regardless of him generously paying for everything I wanted I missed having a routine” (ie the routine of a job) and that in February 2006 she obtained employment as a (occupation omitted) at (employer omitted).

In 2011 the applicant began to experience problems at work. This was because of issues between her and a (employee omitted) employed at the (employer omitted). She says that the respondent urged her to resign from this employment to resolve the issue. She says that the respondent rang her supervisor about this issue. She says that the respondent told her supervisor that she (the applicant) used to work as a prostitute. She says that she then resigned and this was because of the actions of the respondent. I do not accept that the respondent was the cause of her resigning. I do not accept that the respondent told the manager of the applicant’s past. I find that the position was that the supervisor was left with a choice of losing either the (employee omitted) or the applicant and reluctantly decided that it was the applicant who had to go.

The parties’ applications

The applicant seeks that the court order that there be an alteration made in the parties’ property interests such that the respondent pay her an amount which would result in her having twenty-five percent of the combined assets of the parties. The respondent seeks that this application be dismissed.

The only significant property owned by the applicant is a one third share of the (omitted) property. She and her two siblings inherited this property from her mother. She values this share at $267,000. In relation to this and all other valuations neither party has sought to have the property of the other valued and I am left in the position where I must accept the estimates each has given.

The respondent’s property and the values he ascribes for each are as follows:

He has the Property G property valued at $780,000.

He retains the Property B property valued at $378,000.

He has about $160,000 worth of shares.

He has a little over $11,000 in savings.

He has two motor vehicles with a combined value of about $51,000.

He has household contents valued at $67,000.

He has an interest in a property in the (country omitted) valued in his Financial Statement at $105,000. There seems to be some doubt as to whether he will ever be able to become the legal owner of this property. For present purposes I adopt the valuation in the Financial Statement.

He has a Self-Managed Superannuation Fund with assets valued at about $605,000.

There are no liabilities that should be deducted from this pool.

On this basis the combined assets of the parties total about $2,157,000. On this basis a twenty five percent share is about $539,000. After deducting the value of the applicant’s interest in the (omitted) property her application would have her being paid an amount of about $272,000. It is not necessary to do a precise calculation.

Discussion

The Family Law Act gives the court power to alter the interests of people in their property if they are or were married or if they are or were living in a de facto relationship. The first thing the applicant must establish is that the parties were in a de facto relationship. If the parties were in such a relationship for more than two years the court’s powers to make property orders are enlivened.

The extent to which the applicant must satisfy me that a de facto relationship existed between the parties is specified in section 140 of the Evidence Act. This section reads as follows:

(1): In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

The nature of the cause of action or defence; and

The nature of the subject-matter of the proceedings; and

The gravity of the matters alleged.

The reference to “the gravity of the matters alleged” appears to be a reference to the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336. At page 361-362 Dixon J said as follows:

When the law requires that proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of all facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of the occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issues has been proved to the reasonable satisfaction of the tribunal.

The issue of whether a Briginshaw standard of proof should be required in a case involving a dispute as to a de facto relationship has not been definitively determined. In the recent case of Owens & Bensom, a decision of the Full Court of the Family Court delivered on 22 December 2014 Austin J said as follows:

29. However, the respondent (the party contending that there was a de facto relationship such that the court’s powers to make property orders were enlivened) only needed to discharge his burden on the balance of probabilities. The ultimate issues about when the de facto relationship ended and for how long it endured were not issues of such nature or gravity as to enliven the application of s 140(2) of the Evidence Act. The provisions of s 140(1) of the Evidence Act capably accommodated the issues at hand and the evidence adduced by the parties in respect of those issues.

The issue in that case was not whether or not there had ever been a de facto relationship but rather the date on which it ended. The issue of the application of the Evidence Act however seems to me to be the same.

The remaining members of the Full Court, Finn and Strickland JJ left that question open. They said that they agreed with Austin J’s judgment “save that we are not necessarily persuaded that the application of s 142 of the Evidence Act 1995 (Cth) was not enlivened in relation to the issue of the jurisdictional fact as to whether the de facto relationship in this case existed beyond 1 March 2009.”

It is not necessary in this case for me to form a conclusion as to this issue. I will adopt the test most favourable to the applicant. I require that she merely prove her case simply on the balance of probabilities without requiring her to satisfy the Briginshaw criteria.

The term “de facto relationship” is defined in Section 4AA of the Act. Section 4AA(1) provides that a person is in a de facto relationship with another person if

(a)the persons are not legally married to each other; and

(b)the persons are not related by family; and

(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The circumstances referred to in paragraph (c) above are set out in section 4AA(2). That section provides that the circumstances may include any or all of the following:

(a)the duration of the relationship;

(b)the nature and extent of their common residence;

(c)whether a sexual relationship exists;

(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e)the ownership, use and acquisition of their property;

(f)the degree of mutual commitment to a shared life;

(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)the care and support of children;

(i)the reputation and public aspects of the relationship.

I shall now discuss each paragraph in Section 4AA(2) in turn.

Insofar as the duration of the relationship is concerned I am prepared to accept that if the parties were in a de facto relationship that relationship was from 2003 until the end of 2011.

Insofar as paragraph (b) is concerned I will proceed on a basis that is most favourable to the applicant. I will assume that she spent the majority of her time, on average about five nights a week, at the respondent’s home.

As I have indicated I accept that a sexual relationship existed in this period and I accept the applicant’s version as to the extent of this relationship.

In relation to paragraph (d) I find there was no financial dependence, or interdependence between the parties. I find that the respondent paid the great majority of the costs of his household (which included the applicant when she was there) but that there was never any arrangement in relation to financial support between them.

In relation to paragraph (e) the parties never jointly owned any property nor acquired any property. They never jointly used any property except to the extent that the applicant would stay in the respondent’s Property G property.

In relation to paragraph (f) I find that the parties had a mutual commitment to a shared life except that that did not involve their living together full time and did not involve any financial interdependence.

In relation to paragraph (g) the relationship was not registered under the ACT Civil Unions Act.

In relation to paragraph (h) there were no children of the relationship.

In relation to paragraph (i) the parties did not socialise together to any substantial degree. The applicant attributes this to the respondent’s personality which she says resulted in his having few friends. I do not know and am unable to make a finding as to how other people perceived their relationship.

When making a finding as to whether or not a de facto relationship existed there is no “bright line” test. It is not a case where if a certain number of boxes are ticked a de facto relationship will be found to have existed. The situation was aptly described by Mason & Brennan JJ in Calverley v Green (1984) 155 CLR 242, (1984) FLC 91-565 where they said that “the term ‘de facto husband and wife’ embraces a wide variety of heterosexual relationships; it is a term obfuscatory of any legal principle except in distinguishing the relationship from that between husband and wife.”

In this case I am not satisfied that there was a de facto relationship between the parties. Some of the indicia of a de facto relationship were present, some were not. The factor to which I attach most weight is the lack of any financial relationship between the parties.

For completeness however I add that even if I had found there was a de facto relationship between the parties I would not have made an order altering their property interests. I will explain why.

Section 90SM(3) gives the court the power to alter the interests of parties to a de facto relationship in their property. Section 90SF(3) however provides that the court must not make an order under that section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. There is no doubt that the respondent is the sole legal and beneficial owner of the property to which I have referred in paragraph 17. Before I can alter those interests in favour of the applicant she must satisfy the criteria set out in Section 90SF(3).

Satisfying those criteria is not a formality. In Rogers & Rogers (1980) FLC 90-874 the Full Court of the Family Court quoted with approval a passage from a decision of Strauss J in Ferguson & Ferguson (1978) FLC 90-500 where at page 77,615 his Honour said;

It seems to me, that the main purpose of sec. 79(2) (this is equivalent to Section 90FS(3) and concerns property disputes between couples who are or were married) is to ensure that the Court will not alter the property rights of the parties, unless it is satisfied that cogent considerations of justice require it to do so, and that if the Court decides that it requisite to make any order under this section, the Court must be satisfied that the alteration so ordered, will go no further than the justice of the matter demands.

That passage from Rogers was quoted with approval in the joint judgment of Bryant CJ and Thackray J in Bevan & Bevan (2013) FLC 93-545 at page 87,231 and (semble) with approval by Kay J in Benenke v Benenke (1996) FLC 92-698 at page 83,370.

Section 79(2) was considered by the High Court in Stanford & Stanford (2012) 24 CLR 108, (2012) FLC 93-518. In their joint judgment at paragraph 39 French CJ, Hayne, Kiefel and Bell JJ said as follows:

…… because the power to make a property settlement is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist.

Along the same lines at paragraph 40 their Honours said:

(Whether) making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised in accordance with legal principles, including the principles which the Act itself lays down. To conclude that making an order is “just and equitable” only because of and by reference to the various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

In this case I am not satisfied that there are sufficiently cogent reasons to alter the interests of the respondent in his property in favour of the applicant had I found that the parties had been in a de facto relationship. The applicant made some contributions to the relationship. She helped to clean the respondent’s Property B property after he moved out. She helped with Property M. I assume that when she stayed at the Property G property she helped with domestic tasks just as I imagine she did when she lived in (omitted). She made no significant financial contribution. Her contributions were not such as to justify the court making orders altering the interest of the respondent in his property in her favour. As I have indicated there was no financial interdependence between the parties. There are no children of the relationship. I am not satisfied that the respondent was responsible for the applicant giving up her employment as a sex worker or giving up, or being dismissed from, her subsequent jobs. I am not satisfied that the applicant has been adversely affected financially in any way by the relationship.

Conclusion

I therefore dismiss the applicant’s application.

The respondent may consider making an application that the applicant pay his costs. For the benefit of the applicant who acted for herself I will briefly explain the law as to costs. This is found in section 117 of the Family Law Act.

The starting point is that each party should bear his or her own costs. However if the court is of the opinion that there are circumstances that justify its doing so it may make an order that one party pay all or a part of the other’s costs. Section 117(2A) sets out a number of matters to be considered if an application for costs is made.

I imagine that if the respondent were to seek costs he would do so on the basis of paragraph (e) of that section which refers to whether a party has been wholly unsuccessful in the proceedings. The applicant has been wholly unsuccessful. Normally that is a very weighty factor justifying an order for costs.

However another consideration is found in paragraph (a) which refers to the financial circumstances of the parties. It is obvious that the respondent has much more by way of assets than has the applicant.

My inclination at this stage would be to refuse any application for costs. However there may be facts of which I am unaware that bring other paragraphs into play and I have not heard submissions on behalf of the respondent. The above does not indicate a fixed position.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Brewster

Date: 13 January 2015

The orders made by her Honour on 28 March 2011 were:

1. That Mr and Mrs S shall be authorised to consent to treatment on behalf of their child Jamie under the guidance of Jamie’s treating medical practitioners including but not limited to his endocrinologist Dr G and his psychiatrist Dr C, for the administration of Zoladex (a GnRH agonist) and cyproterone acetate in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve suppression of gonadotrophins and testosterone to pre-pubertal levels.

2. That the full name of Jamie, Jamie’s family members and their occupations, the hospital, the Independent Children’s Lawyer, Jamie’s medical practitioners, Jamie’s school, this Court’s file number, the name of the Family Report writer, the State of Australia in which the proceedings were initiated, the name of the parents’ lawyers, and any other fact or matter that may identify Jamie shall not be published in any way, and only anonymised Reasons for Judgment and Orders (with cover-sheets excluding the registry, file number, and lawyers’ names and details, as well as the parties’ real names) shall be released by the Court to nonparties without further contrary order of a judge, it being noted that each party shall be handed one full copy of these orders with the relevant details included, for provision to the treating medical practitioners and to enable their execution, and one cover-sheet of Reasons for Judgment that includes the file number and lawyers’ names.

3. That no person shall be permitted to search the Court file in this matter without first obtaining the leave of a judge.

4. That otherwise all existing applications shall be adjourned for Reasons for Judgment and further orders on a date to be advised to the parties.

On 6 April 2011, her Honour delivered reasons for judgment and made further orders otherwise dismissing the parents’ application and discharging the independent children’s lawyer.

The genesis of the appeal is unusual because the matters raised on appeal were not the subject of dispute at trial and can be agitated now only because they raise a point of law. As far as Jamie is concerned, the orders sought for at least stage one treatment were made by Dessau J and treatment is underway. There is no appeal in respect to the effect of her Honour’s orders. The appellants’ case is that as the court does not have jurisdiction to authorise the parents to consent to treatment (it being within their parental responsibility), the orders made were beyond jurisdiction and should be set aside.

The appeal has particular importance because it has potential relevance for a much wider range of children than just Jamie, whose parents are the appellants in this case. This is because the main issue is whether the treatment (proceeding in two stages) is a medical procedure (Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”)) for which consent lies outside the bounds of parental authority and requires the imprimatur of the court.

As a result of the potential for this decision to affect other children by eliminating any need to make application to the court for consent to the procedure, in either of stage one and/or stage two of the generally accepted treatment, three parties in addition to the parents were involved in this hearing. The first, the independent children’s lawyer, was appointed at trial by Dessau J for Jamie. Secondly, upon the lodging of the notice of appeal, the Appeals Registrar gave notice of the appeal to the public authority. Notwithstanding the declining of an invitation to intervene at first instance, the public authority filed an application seeking to intervene in the appeal. In a separate judgment delivered 2 February 2012, this court granted leave to intervene to the public authority, pursuant to s 92 of the Family Law Act 1975 (Cth) (“the Act”) upon the following conditions:

the [public authority] is not permitted to call or tender any evidence in relation to the appeal; and

the [public authority] is confined to making written and oral submissions in relation to Ground 1 in the Amended Notice of Appeal filed on 24 June 2011.

Thirdly, in the course of hearing submissions in relation to the application by the public authority, it became apparent that intervention on behalf of a federal entity, in addition to a state entity, would be appropriate. Upon invitation to the Attorney-General of the Commonwealth and the Australian Human Rights Commission (“AHRC”) to intervene in proceedings, the AHRC filed an application to intervene and an order was made by consent on 24 November 2011 providing for intervention.

Those diagnosed with childhood gender identity disorder are part of a group of persons generally referred to in current literature as persons who are transgendered. This is a description of a person who has the characteristics of one sex but who experiences him or herself as being of the opposite sex and who may have undergone hormonal and (usually in adulthood) surgical treatment to change some of their physical characteristics in order to conform more closely to the opposite sex.

Recently the Australian Government recognised this state by publishing Guidelines on the Recognition of Sex and Gender (“the Guidelines”) to standardise the evidence required for a person to establish or change their sex or gender in personal records held by Commonwealth departments and agencies.

In addition the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) received Royal Assent on 28 June 2013. This legislation and the Guidelines indicate that those who are transgendered are an identifiable group in our society and their right to live as a member of the sex with which they feel compatible is to be respected.

Background to the proceedings

It is convenient to set out passages from the judgment of the Full Court of 2 February 2012, at [3] to [11]:

3.Although born with the physical characteristics of a male and having a non identical twin brother, Jamie began identifying with the female gender when she was about two and a half to three and a half years old. At the time of the hearing she was in grade five at school and since mid 2009 has been known exclusively as a girl, wearing girls’ clothing, being addressed as a girl by classmates and teachers, using the girls’ toilets, sleeping in the girls’ dormitory at camp and “generally presenting as a very attractive young girl with long blonde hair” (reasons for judgment [at first instance], paragraph 2).

4.Jamie was diagnosed by the medical experts involved in the case with childhood gender identity disorder. The medical experts supported the parents’ application for Jamie to undertake the following special medical procedures:

a)the administration of puberty suppressant hormones such as implants of Zoladex (the gnRH agonist) at intervals and at a dosage as may be determined necessary to achieve suppression of gonadotropins and testosterone to pre-pubertal levels under the guidance of Jamie’s treating practitioners including but not limited to Dr G (endocrinologist), and Dr C (psychiatrist) (“Stage 1”);

b)additional treatment of oestrogen as may be considered appropriate by Jamie’s treating endocrinologist currently being Dr G (endocrinologist) and in consultation with and on the written advice of Jamie’s treating psychiatrist, currently Dr C (psychiatrist) (“Stage 2”).

5. In the reasons for judgment her Honour observed that the medical practitioners were unequivocal as to the absolute urgency for Jamie to start what is referred to as “Stage 1” treatment, to suppress male puberty. Her Honour noted (reasons for judgment [at first instance], paragraph 5):

… She currently has the pubescent development of a 14-year-old male, and it is rapidly progressing. The concern was that physiological developments, such as a deepening voice, would be irreversible unless treatment was started. For that reason, the hearing in this case was brought forward.

6. At the end of the hearing on 28 March 2011 her Honour permitted Stage 1 treatment but determined that it was premature to make any order about Stage 2. Subsequently the published reasons dealt with her Honour’s reasons for this.

7.Relevantly, in the reasons for judgment her Honour noted the constraints of the Act and that the objects in s 60B(1) are to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children, and, in making decisions about a particular parenting order the best interests of the child are the paramount consideration (s 60CA). The primary and additional considerations for the Court in determining what is in a child’s best interests are set out in s 60CC(2) and (3). Her Honour noted relevantly for the appeal (reasons for judgment [at first instance], paragraph 33):

It is generally within the bounds of a parent’s responsibility to be able to consent to medical treatment for and on behalf of their child. There are however certain procedures, referred to in the authorities as ‘special medical procedures’, that fall beyond that responsibility and require determination by the court, as part of the court’s parens patriae or welfare jurisdiction (see […] Marion’s case) […]

8. Again, relevantly for the purpose of this application and the appeal her Honour said (reasons for judgment [at first instance], paragraph 33):

… There was no dispute in this case that the procedures proposed fall within the definition of special medical procedures.

9. Her Honour noted that in 1995 s 67ZC of the Act was inserted specifically providing that the Court has jurisdiction to make orders relating to the welfare of children. She observed that the procedure to be followed in applications for medical procedures is contained in Chapter 4, Division 4.2.3 of the Family Law Rules 2004 (Cth) and that r 4.09(2) identifies the evidence that must be included from “a medical, psychological or other relevant expert” in such a case. Her Honour observed that childhood gender identity disorder has been considered in several reported decisions including Re Alex: Hormonal Treatment for gender identity dysphoria (2004) FLC ¶93-175, in which the relevant treatment was permitted.

10. Her Honour went on to consider the matters in r 4.09(2), and in a sensitively expressed conclusion determined that it was in the best interests of Jamie to authorise Stage 1 of the medical treatment. Her Honour noted that although in other cases, including her own previous decisions, Stages 1 and 2 have been dealt with at the one time, in view of the unusually young age of Jamie and the unlikelihood of her requiring further treatment until she was around 16 years of age, she could not decide what was likely to be in Jamie’s best interests in six years time and declined to order Stage 2 treatment.

11. At the trial before her Honour apart from the medical experts she had evidence from a family report writer and there was an Independent Children’s Lawyer appointed for Jamie. All were supportive of Stage 1 treatment commencing immediately. Her Honour noted in her reasons for judgment that she had made an order inviting the First Intervener and a State government department to intervene in the proceedings, particularly in view of Jamie’s young age, but both declined.

The appeal

In respect of the appeal itself, the Full Court further said:

12. The appeal was brought by the parents of Jamie (“the Appellants”) who now rely on an Amended Notice of Appeal filed on 24 June 2011. They rely upon three grounds of appeal which are as follows:

1.That, contrary to the view expressed by the learned trial Judge, treatment of the condition described as “childhood gender identity disorder” with which “Jamie” was diagnosed is not a special medical procedure which displaces the parental responsibility of the appellants to decide upon the appropriate treatment for their child.

2. That Ground 1 be considered and allowed notwithstanding that no such submission was made to the learned trial Judge, and her Honour proceeded on that basis that:- “There was no dispute in this case that the procedures proposed fell within the definition of special medical procedures” (Judgment [at first instance] paragraph 33).

3. Further and in the alternative to Ground 1, once the diagnosis of childhood gender identity disorder was established and accepted and the treatment approved, the learned trial Judge erred in law and the exercise of discretion in concluding that the treatment for the disorder should be the subject of a further application to the Court when the “stage 2” is about to commence.

13. As is clear from the grounds themselves, only Ground 3 raises an issue which was agitated at trial. The first ground asserts that childhood gender identity disorder is not a special medical procedure which displaces the parental responsibility of the Appellants to decide upon the appropriate treatment for their child. It is conceded in Ground 2 that this is not a matter agitated at trial.

14. Notwithstanding that this issue was not agitated at trial, if her Honour erred in law then the jurisdiction of an appellate court to correct that error can be invoked: Coulton v Holcombe (1986) 162 CLR 1, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Metwally v University of Wollongong (1985) 60 ALR 68.

This being so, there are only really two grounds of appeal: the first is Ground 1 and the second is Ground 3, which is in the alternative.

If the Full Court finds merit in Ground 1 it may still be necessary to consider Ground 3 as the treatment has two distinct stages separated in time by several years. In the course of argument, the public authority agitated the position that stage one and stage two treatment might need to be considered independently, and it was possible that stage one might theoretically fall outside the definition of a ‘special medical procedure’, but stage two might not.

Consequent upon the grounds of appeal, the relief sought by the appellants in their amended notice of appeal dated 24 June 2011 was the following:

[A declaration that:]

a. the treatment for the medical condition known as CHILDHOOD GENDER IDENTITY DISORDER is not a special medical procedure which attracts the jurisdiction of the Family Court of Australia under s. 67ZC of the Family Law Act; and

b. the parents of “Jamie” do not require permission from the Family Court of Australia, or any other [c]ourt of competent jurisdiction to authorise such treatment for their child as they may be advised is appropriate.

2. In the alternative to Order 1 that the Applicant Mother and Applicant Father be authorised to consent to the following special medical procedures on behalf of their child, … (“Jamie”) born … 2000:

a.The administration of puberty suppressant hormones, such as implants of Zoladex (a GnRH agonist) at intervals and at a dosage as may be determined as necessary to achieve suppression of Gonadotrophins and testosterone to pre-pubertal levels under the guidance of Jamie’s treating medical practitioners including by [sic] not limited to [Dr G] (Endocrinologist) and [ Dr C] (Psychiatrist); and

b.Additional treatment of oestrogen as may be considered appropriate by Jamie’s treating Endocrinologist, currently being [Dr G] (Endocrinologist) and in consultation with and on the written advice of Jamie’s treating Psychiatrist, currently being [Dr C] (Psychiatrist).

3. That for all publication and reporting purposes the file number of this case and the names and other identifying features of the parties, the child, the witnesses, the members of the Full Court, the location of the registry, counsel and solicitors involved in this case be suppressed.

The last order was not the subject of any submissions; however a suppression order was made in the appeal on 7 June 2011.

Appellants’ submissions

The appellants’ written submissions assert that any definition of the law concluding that this condition (and other cases with an identical diagnosis) is not a special medical procedure must of necessity “be limited to circumstances where there is unanimous agreement between the relevant people involved with the welfare of the child including, if appropriate, the child” (appellants’ written submissions, 2 September 2011, at [11]).

The appellants accepted that one exception would be where the child in question was under the care of a state government department, such as in Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175 (“Re Alex”). The appellants submitted that it “would be an important safeguard for children in care to ensure that the Court looked at their matter given the absence of a parent whose focus is on the welfare and needs of their own child” (appellants’ written submissions, 2 September 2011, at [11]).

The appellants submitted further that their submissions should not be read as in any way “seeking to remove the oversight of the Court where there is a genuine controversy surrounding the question being determined, for example, if the parents are unable to agree” (appellants’ written submissions, 2 September 2011, at [12]).

The appellants submitted that this matter is one where there was unanimous agreement between the parents and all of the experts about the correct treatment to be administered to Jamie. At first instance, her Honour had ordered that the public authority and a state department be invited to intervene in the proceedings, but neither organisation accepted that invitation. The independent children’s lawyer supported the treatment sought and the matter proceeded at trial without an effective contradictor.

In support of Ground 1, the appellants submit that the present case, as with all cases of childhood gender identity disorder, can be distinguished from the facts in Marion’s case. In that case, the High Court (per Mason CJ, Dawson, Toohey and Gaudron JJ) said at 250:

But first it is necessary to make clear that, in speaking of sterilization in this context, we are not referring to sterilization which is a by-product of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions “therapeutic” and “non-therapeutic”, because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be.

As a starting point, sterilization requires invasive, irreversible and major surgery. But so do, for example, an appendectomy and some cosmetic surgery, both of which, in my opinion, come within the ordinary scope of a parent to consent to. However, other factors exist which have the combined effect of marking out the decision to authorize sterilization as a special case. Court authorization is required, first, because of the significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.

An effective formulation of the ratio of Marion’s case is to be found Nicholson CJ’s decision in Re Alex at [153]:

Marion’s case involved an application for the sterilisation of a l4-year-old teenager with a severe intellectual disability for the purpose of “preventing pregnancy and menstruation with its psychological and behavioural consequences”. The gravamen of the decision was that if a child or young person cannot consent her/himself to a medical procedure, parental consent (which for present purposes may be equated with that of a guardian) is ineffective where the proposed intervention is:

invasive, permanent and irreversible; and

not for the purpose of curing a malfunction or disease.

The appellants contend that there are a number of features that make this case (and other similar ones) distinguishable from the facts in Marion’s case. In particular, at [14] of the appellants’ summary of argument in support of the appeal, the appellants submit that:

What stands out about the facts in Marion’s Case (supra) is;

a. The child was intellectually disabled. Therefore it was unlikely that she would ever be able to express a view about her own welfare.

b. The procedure to be adopted was irreversible and conclusive. The child would, if the procedure was carried out, never be able to give birth.

c.The Court found that there were other interests besides that of the child, which were being considered, that is, the parents’ or carers interests.

d. The condition which was sought to be corrected by surgery was not an illness or bodily malfunction. There was a disconnect between the problem which was sought to be resolved and the means of resolving it.

e. The parents and other carers stood to benefit from the procedure by virtue of the fact that their task was made much more manageable.

The appellants contend that the procedure here is totally reversible up to the age of 16 years approximately, and if, with the passage of time, it is determined that the child should revert to their birth gender, the treatment would stop and puberty and other development would resume.

In relation to Ground 3, they contend that the procedure at stage two is also reversible, although the child might need to undergo a mastectomy as the application of hormonal treatment will lead to the development of breasts.

Secondly, the appellants contend that the condition is a diagnosed psychiatric condition which has been medically recognised with well-recognised treatment strategies. The evidence in the case confirms that the child met the “DSM IV criteria for diagnosis of Gender Identity disorder of childhood (302.6)” (appellants’ written submissions, 2 September 2011, at [15], sub-paragraph (c)). This being so, the appellants contend, there is no rational basis for distinguishing treatment for a psychiatric or psychological condition from a physical ailment or impairment.

Thirdly, the appellants contend that there is no evidence that anyone other than the child stood to benefit directly from the treatment being undertaken. In fact, the evidence indicated that the parents were hopeful that the desire of the child to be a girl was “just a ‘phase’” and that the only thing the parents sought to gain from the treatment was a “well child” (appellants’ written submissions, 2 September 2011, at [15], sub-paragraph (e)).

Fourthly, at [16] in their written submissions, the appellants contended that the need to make an application to the Court, in circumstances where there was “no controversy” and where the procedure was “truly therapeutic”, caused the appellants and the child anxiety, stress and the expense of obtaining legal representation, and further that:

The need to list these types of matters urgently created tension between the medical needs of this child and the court’s need to deal with other urgent cases.

The admissible evidence necessary to enable the trial judge to make an informed decision was material that was already known to the parents and supported the treatment for which the parents sought consent.

Parents in these circumstances should not be subjected to the vagaries of the court’s listing system.

Considerable expense occurs for representation for the parents, independent children’s lawyer and medical practitioners who are required to provide affidavits and give evidence.

All this, it is contended, arose in a milieu in which the evidence given and accepted merely confirmed the existence of a psychiatric or psychological disorder and that the treatment proposed was in the best interests of the child, and should be provided.

It is submitted that Nicholson CJ in Re Alex categorised treatment for childhood gender identity disorder as falling outside treatment for a “malfunction or a disease” (at [153]), thereby requiring an order from the court authorising the parents to consent to the treatment to be administered. It is contended that his Honour’s interpretation of Marion’s case as limiting:

the treatments excluded from court authorisation to diseases or malfunction of organs is too narrow a construction of the High Court’s decision. This construction leaves out the whole area of psychiatry. If his Honour’s construction is correct, whenever a child suffering a psychotic episode needs to be restrained, admitted as an involuntary patient or administered drugs, permission would need to be obtained from the Family Court. Clearly that was not what the High Court intended. There is no cogent reason why psychiatric or psychological condition [sic] should be excluded from the malfunction or disease definition in Marion’s Case … Conversely, there is no reason why permission needs to be sought where the treatment is for a psychiatric or psychological condition.

(appellants’ written submissions, 2 September 2011, at [19])

It is further submitted by the appellants at [20] of their written submissions that “there are many aspects of parental responsibility which are difficult”, such as “[t]o give permission to turn off life support for a dying child … There is no reason to believe that responsible parents with the support of expert medical practitioners cannot or ought not make the best decisions for their child”.

It was further submitted at [22] that gender identity disorder is:

a recognised and diagnosable psychiatric condition [whose] treatment is therapeutic, that is to treat a bodily malfunction or disease. Parents and guardians can and do consent to therapeutic psychiatric treatment for their minor and non-competent children without the authorisation of the Court.

Thus it was submitted that the court has no supervisory role here.

The appellants contended in oral submissions that the decision of the Nicholson CJ in Re Alex (and the cases that followed) was wrongly decided, and this court should find that to be so. In particular, it was submitted that this court should come to a different conclusion from that set out by his Honour at [195], where he said:

The current state of knowledge would not, in my view, enable a finding that the treatment would clearly be for a “malfunction” or “disease” and thereby not within the jurisdiction of this Court as explained by the majority in Marion’s case. To my mind, their Honours were seeking in that case to distinguish medical treatment which seeks to address disease in or malfunctioning of organs. In the context of sterilisation for example, they would seem to have had in mind a malignant cancer of the reproductive system which required an intervention that was medically indicated for directly referable health reasons. The present case does not lend itself to such a comparison.

Submissions of the independent children’s lawyer

The independent children’s lawyer opposed the appeal and made relatively succinct submissions in relation to Ground 1, adopting, essentially, the decision of Nicholson CJ in Re Alex that:

a number of medical procedures have been held by the court to be procedures that are beyond parental power to authorise and require the approval of the court. The treatment of Gender Identity Disorder … by the administration of hormonal therapies has been held to be such a procedure, the first such case being the decision of Nicholson CJ in Re Alex …

(written submissions of the independent children’s lawyer, 23 September 2011, at [3])

The independent children’s lawyer submitted at [7] that, in accordance with Marion’s case:

the treatment of [gender identity disorder] is not a medical procedure for treating “a bodily malfunction or disease” as it is treatment for a psychological condition with an unknown etiology. The treatment is one where an otherwise healthy body’s functioning is altered to address a dissonance between a belief as to gender and the actual gender of the person.

Further, at [8]:

Nicholson CJ in Re Alex … at paragraph 195 said that treatment for [gender identity disorder] is not treatment for a “malfunction” or “disease” and should be distinguished from medical treatment which seeks to address disease in, or malfunctioning of, organs.

The independent children’s lawyer did not take these submissions any further in oral submissions.

Submissions of the public authority

The public authority opposed the appeal and made a number of submissions. First, it was submitted that:

the treatment of childhood gender identity disorder … (stages 1 and 2) is a special medical procedure, with the consequence that consent to the treatment lies outside the scope of parental responsibility and Court authorization is required under s 67ZC of the … Act …

(written submissions of the public authority, 21 February 2012, at [1])

In particular, the public authority submitted that in Marion’s case, the High Court was considering “the limits to the scope of parental power to consent to medical treatment and, specifically, sterilization” (at [2]), and held, per the plurality, “that non-therapeutic sterilization lies outside the ordinary scope of parental powers and requires Court authorization to protect the interests of the child” (at [3]).

At [4], the public authority asserted that the principle in Marion’s case “has not been regarded as confined to sterilization or surgical interventions; it is of broad application.” I observe however that the footnote to this submission refers to Re Alex, a decision which is challenged in this appeal.

The public authority proposed at [5] that the test that must be applied to a medical procedure to establish whether or not it is a special medical procedure, and therefore lies outside the ordinary scope of parental authority, is whether:

a. the medical procedure is non-therapeutic; and

b. there is a significant risk of making a wrong decision about the child’s capacity to consent, or the child’s best interests; and

c.the consequences of making a wrong decision are grave and [sic]

d.the child is not Gillick competent …

Applying the test as described, the public authority submitted that stages one and two treatments for childhood gender identity disorder are non-therapeutic as they are not treatments for a malfunction or disease of the body but for a psychological condition and “will have a significant effect on a healthy physical body” (at [12]).

The public authority contends (at [15]) that:

there is a rational basis for distinguishing the treatment of [childhood gender identity disorder] (a mental disorder within the terms of DSM-IV) from the treatment of other psychiatric disorders. The pharmaco-therapeutic treatment sought for [childhood gender identity disorder] ‘does not treat the psychological imperative at the heart of the condition, but alters an otherwise healthy body to accommodate to the psychological imperative.’ Rather than address a bodily malfunction or disease, the treatment is ‘inextricably associated with the patient’s self-identity’ in a developmental stage when this is still forming.

(emphasis in original; footnotes omitted)

As to the significant risk of making a wrong decision, the public authority did not deal with the issue that the treatment was reversible, but submitted at [20] that:

The [public authority], mindful of the social model of disability, is concerned about the social consequences of treatment, including the risk of rejection by sections of the community and significant others, and the lack of longitudinal studies about the long term social consequences – what percentage of people ultimately regret the choices made and what percentage are satisfied with the outcome – to inform decision making.

Submissions of AHRC

The AHRC supported the appeal in relation to Ground 1, and submitted that absent a dispute about the proposed course of treatment, for example between the views of the child, his or her guardians and treating medical practitioners, “[o]nce a child has been diagnosed with transsexualism by appropriately qualified medical practitioners, Court authorisation should not be required for Stage 1 treatment administered in accordance with accepted treatment guidelines” (written submissions of the AHRC, 22 February 2012, at [13.4]).

It was submitted that court authorisation should not be required because:

13.4.1the treatment is reversible;

13.4.2 there are no alternative treatments available;

13.4.3withholding (or significantly delaying) treatment is likely to have significant adverse psychological and physical effects.

The AHRC submitted (at [13.1]) that the United Nations Convention on the Rights of the Child should be “an interpretive aid” when considering Part VII of the Act:

The [Convention on the Rights of the Child] makes clear that it is important for children to have input into decisions that affect them, including decisions about medical treatment, and that parents have a special responsibility for assisting their children in making these decisions.

It was submitted that it is open to the court to consider separately whether authorisation is required for each of stage one and stage two, and that it is appropriate for a further application to be made to the court regarding stage two when a young person is approaching 16 years of age. The submission noted that:

Treatment guidelines for transsexualism recommend that Stage 2 commence at age 16 because at this age it is expected that the young person will be able to make informed mature decisions and engage in the therapy, while at the same time developing along with his or her peers.

The AHRC submitted (at [13.6]) that “[t]he first question to be determined by a [c]ourt when considering an application for authorisation of Stage 2 treatment is whether the young person is ‘Gillick competent’”. If the young person is not Gillick competent, then (at [13.8]):

in accordance with s 67ZC(2) [the court] should make an assessment about whether to authorise Stage 2, having regard to the best interests of the young person as the paramount consideration. In making this assessment, [the court] should give significant weight to views of the young person in accordance with his or her age and maturity.

In relation to the criteria in Marion’s case, the AHRC submitted at [42] that:

It is clear that it is not sufficient for a procedure to be a “special medical procedure”, such as to require Court authorisation, that the procedure is irreversible (Marion’s case at 250). Similarly, it is not sufficient that the consequences of carrying out or not carrying out the procedure may be grave. In Re Baby D (No 2), Young J considered an application for authorisation of a procedure which involved removing and not replacing a breathing tube from an infant and possibly thereafter providing palliative care and not providing treatment to artificially prolong the life of the infant. Although this was treatment which had very grave consequences, it was held to be within the scope of parental power.

(footnotes omitted)

It is submitted at [43] that:

an essential element for a procedure that requires court authorisation is that there is a significant risk that a wrong decision might be made, either as to the minor’s present or future capacity to consent, or about what are the best interests of a child who cannot consent.

(footnotes omitted)

The AHRC submitted that cases involving children with transsexualism but without intellectual disabilities have different considerations from the capacity of children to consent, either presently or at some future time, to sterilisation operations.

Distinguishing the cases of transsexualism from Marion’s case, the AHRC submitted at [52] that:

There is no suggestion in the particular factual circumstances of this case [and, I would add, in these cases more generally] that the treatment proposed would be of independent benefit to Jamie’s parents (other than as a result of the benefit to Jamie). Nor is there any suggestion in this case that such treatment would be sought by Jamie’s parents if it was not ardently sought by her.

This was not the position in Marion’s case, where the High Court identified that the question of whether a child with an intellectual disability should be sterilised may involve consideration of the “independent and possibly conflicting (though legitimate) interests of the parents and other family members” (at 251, footnote omitted).

The AHRC submitted in relation to conflicting interests of others that, if there was a dispute, it was appropriate for the court to hear and determine the application under s 67ZC. This was said at [54] to particularly be the case where:

there is disagreement about the proposed course of treatment between two or more of the child, his or her parents or guardians and his or her treating medical practitioners;

54.2. there is a real and genuine issue or concern in relation to a medical treatment or procedure that is to be performed on a child.

(footnotes omitted)

The AHRC noted that the stage one treatment was reversible, which did not meet the criteria in Marion’s case. The AHRC submitted further that the condition is medically recognised, being a diagnosis of gender identity disorder of the transsexual type and fulfilling the diagnostic criteria for gender identity disorder as set out in DSM-IV. They submitted that regardless of the ultimate cause, there is no dispute on the evidence that it is a recognised medical condition that is able to be diagnosed. Further, they submitted that Dr G had given evidence that there are now international consensus guidelines for the treatment of transsexualism published by the US Endocrine Society and endorsed in Australia (the “US Guidelines”). In his affidavit of 22 December 2010, Dr G deposed that:

it would be necessary to continue giving [Zoladex] to [Jamie] until she reached the age of about 16 years, when we would, according to the consensus guidelines published by the U.S. Endocrine Society, start administering oestrogen to her.

(emphasis altered)

As set out in the written submissions of the AHRC (at [66]):

The US Guidelines suggest that adolescents are eligible and ready for Stage 1 treatment if they:

66.1 fulfil DSM IV-TR or ICD-10 criteria for gender identity disorder or transsexualism;

66.2. have experienced puberty to at least Tanner stage 2;

66.3. have (early) pubertal changes that have resulted in an increase of their gender dysphoria;

66.4. do not suffer from psychiatric comorbidity that interferes with the diagnostic work-up or treatment;

66.5. have adequate psychological and social support during treatment; and

66.6. demonstrate knowledge and understanding of the expected outcomes of GnRH analog treatment, cross-sex hormone treatment, and sex reassignment surgery, as well as the medical and the social risks and benefits of sex reassignment.

(footnotes omitted)

The AHRC submitted that it is not necessary to identify the cause of transsexualism in order for the court to find that it is a recognised medical condition with agreed procedures for treatment.

The AHRC submitted that there was not an issue that the condition had been properly diagnosed. In considering whether there were alternative treatments available, the AHRC noted that in Re Bernadette (Special Medical Procedure) (2010) 43 Fam LR 467 (“Re Bernadette”), heard in 2007, a divergence of views was expressed about whether treatment should commence before or after puberty. In that case, Collier J concluded at [124]:

I am satisfied there still remains grave dispute within the medical community as to the best treatment that can be offered. I am satisfied that until there is a clear cut line of authority within the medical profession, it would be difficult for parents to reach an informed conclusion in every case.

However, since then, as pointed out by the AHRC, the US Guidelines have been published, which has engendered a stronger consensus on treatment modalities for adolescent transsexualism, including that which arises from childhood gender identity dysphoria. As observed at first instance in this matter (at [68]), the evidence led in this case was to the effect that while:

previously some clinicians felt it was important for children to experience pubertal development of their own biological sex, so that they knew what it was really like to be for example “a boy”, before any changes were made … at the major centres now treating such children, [this is] no longer considered necessary or appropriate in circumstances where a child has a strong and persistent conviction that they are of the opposite gender.

The only alternative to hormonal treatment being the withholding of treatment, it was submitted that the withholding of hormonal intervention was itself likely to have adverse psychological and physical effects. The AHRC said:

72.The primary judge referred to expert evidence that withholding treatment may lead to an increased likelihood of major mental disorder and behavioural difficulties including severe depression and anxiety disorders and risk of self-harm. Studies cited by the same expert suggested that self-harm was common among young people with severe gender dysphoria.

73.Further, if treatment was withheld it would have resulted in Jamie undergoing bodily changes that were opposite to her affirmed sex and which would be irreversible without surgery. Jamie would be likely to find such changes psychologically distressing.

In conclusion as to stage one treatment, the AHRC submitted at [74] that:

it appears that Stage 1 treatment may also not satisfy the second or third criteria in Marion’s case. That is, provided that the condition of transsexualism is appropriately diagnosed and administered in accordance with accepted guidelines, it seems that the risk of making a wrong decision is low and that the consequences of making a wrong decision are not grave (particularly because the treatment is reversible). The much more significant risk appears to be that young people in Jamie’s position are not able to access treatment in a timely way.

In oral submissions, the AHRC submitted that, as from June 2012, there is an explicit requirement under Part VII of the Act for the Convention on the Rights of the Child to be taken into account, albeit that the court has in its decisions under Part VII long recognised the importance and relevance of the principles found in the Convention on the Rights of the Child. At s 60B(4), in listing the objects of Part VII and their underlying principles, the Act states that:

An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

The AHRC emphasised that it was important to bear in mind the rights set out in the Convention on the Rights of the Child, and that it should be an interpretive aid when considering the meaning of the provisions in Part VII of the Act. Drawing on three key principles, it was submitted that:

It is important for children to have an input into decisions that affect them, including decisions about medical treatment.

The views of children should be given due weight in accordance with their age and maturity

Parents have a special responsibility to provide direction and guidance to their children in the exercise by their children of their rights.

Grounds of appeal

Ground 1: Is childhood gender identity disorder a special medical procedure which displaces parental responsibility and requires a determination by the court?

Is Childhood Gender Identity Disorder a Bodily Malfunction or Disease as Defined in Marion’s Case?

The written submissions of the public authority suggested that “there is a rational basis for distinguishing the treatment of [childhood gender identity disorder] (a mental disorder within the terms of DSM-IV) from the treatment of other psychiatric disorders” (at [15]). This, it was submitted (at [15]), was because:

The pharmaco-therapeutic treatment sought for [childhood gender identity disorder] ‘does not treat the psychological imperative at the heart of the condition, but alters an otherwise healthy body to accommodate to the psychological imperative.’ Rather than address a bodily malfunction or disease, the treatment is ‘inextricably associated with the patient’s self-identity’, in a developmental stage when this is still forming.

(emphasis in original; footnotes omitted)

In my view, this assertion could be fairly said to lie at the heart of the public authority’s submissions. The authority submits that the pharmaco-therapeutic treatment sought for childhood gender identity disorder does not treat the psychological imperative at the heart of the condition. However, in my view, that is exactly what it does. If the condition involves self-identity of a different gender from the biological gender with which one is born, then the treatment can be fairly said to address the imbalance of the patient’s self-identity with some, at least, of its bodily representation. In my view, it is not, as the submissions of the public authority propose, the alteration of an otherwise healthy body to accommodate a psychological imperative, but rather it is the alignment of the body with the person’s self-identity.

The difference is a crucial one. The submission, as put, suggests a normative state which, in individual cases, cannot be a rational basis for consideration of the complex issues of transsexualism. Underlying the submission is a suggestion that to have a self-identity which departs from the normative (that is the expected physical characteristics of a particular sex) is abnormal and to treat it is a mere accommodation and not therapeutic. Once it is accepted that there is no normative state, at least not in every person, then the absolute necessity of aligning the self-identity and the physical characteristics becomes apparent. As Chisholm J identified in In Re Kevin (Validity of marriage of transsexual) (2001) FLC 93-087, speaking of intersexual phenomena in general and transsexualism in particular, this should be seen as an example of the diversity in human sexual formation, rather than as an aberration in or departure from the norm. Once this is accepted, it is readily understandable why people with transsexualism are concerned about the psychiatric diagnoses of gender dysphoria or gender identity disorder, as they see themselves as merely an example of diversity in human sexual formation, rather than having a psychiatric condition.

However whilst understanding this discomfort, I do not need to determine whether that characterisation is correct or not for the purpose of these proceedings. Gender identity disorder is a psychological condition identified in DSM-IV (and the new DSM-5, published May 2013). It may be that in time to come, transsexualism will no longer be described as a disorder, but for the time being, and for the foreseeable future, the weight of professional opinion is that it represents a particular category of pathology or mental illness.

As it was in Marion’s case that the categories of medical procedures for which parents must seek court authorisation originated, it is useful to consider precisely what the majority there said.

First, it is important to note that in Marion’s case, the court was dealing with the sterilisation of an intellectually disabled 14 year-old girl. The majority (Mason CJ, Dawson, Toohey & Gaudron JJ) did not consider whether treatment for a psychological condition required court authorisation. In examining the scope of parental power, their Honours said at 236-7:

The two major issues referred to at the beginning of this judgment arise more specifically at this point in an examination of parental consent as an exception to the need for personal consent to medical treatment. As noted earlier, the first issue relates to the important threshold question of consent: whether a minor with an intellectual disability is or will ever be capable of giving or refusing informed consent to sterilization on his or her own behalf. Where the answer to that question is negative the second question arises. Is sterilization, in any case, in a special category which falls outside the scope of a parent to consent to treatment? Is such a procedure a kind of intervention which is, as a general rule, excluded from the scope of parental power?

Under the heading “Is sterilization a special case?”, the majority said at 239-40:

Where their child is incapable of giving valid consent to medical treatment, parents, as guardians, may in a wide range of circumstances consent to medical treatment of their child who is a minor. This is clear in the common law and, by implication, in the Emergency Medical Operations Act which creates an exception to the need for parental consent in the case of emergency treatment. … Where this parental power exists, two principles are involved. First, the subjective consent of a parent, in the sense of a parent speaking for the child, is, ordinarily, indispensable. That authority emanates from a caring relationship. Secondly, the overriding criterion to be applied in the exercise of parental authority on behalf of a child is the welfare of the child objectively assessed. That these two principles become, for all practical purposes, one is a recognition that ordinarily a parent of a child who is not capable of giving informed consent is in the best position to act in the best interests of the child. Implicit in parental consent is understood to be the determination of what is best for the welfare of the child.

… But, the question whether it is in the best interests of the child and, thus, should be authorised is not susceptible of easy answer as in the case of an amputation on other than medical grounds. And the circumstances in which it arises may result from or involve an imperfect understanding of the issues or an incorrect assessment of the situation.

It is useful, at this point, to look at how sterilization has been treated in this regard in relevant cases. That is to say whether, and on what bases, sterilization has been treated as a special case, outside the ordinary scope of parental power to consent to medical treatment.

(footnotes omitted)

Under the heading “Can parents, as guardians, consent to sterilization? Conclusion”, the majority said at 249-50:

There are, in our opinion, features of a sterilization procedure or, more accurately, factors involved in a decision to authorize sterilization of another person which indicate that, in order to ensure the best protection of the interests of a child, such a decision should not come within the ordinary scope of parental power to consent to medical treatment. Court authorization is necessary and is, in essence, a procedural safeguard. Our reasons for arriving at this conclusion, however, do not correspond precisely with any of the judgments considered. We shall, therefore, give our reasons. But first it is necessary to make clear that, in speaking of sterilization in this context, we are not referring to sterilization which is a byproduct of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions “therapeutic” and “non-therapeutic”, because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be.

As a starting point, sterilization requires invasive, irreversible and major surgery. … However, other factors exist which have the combined effect of marking out the decision to authorize sterilization as a special case. Court authorization is required, first, because of the significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.

In my view, it is clear that the majority in Marion’s case was dealing exclusively with the question of sterilisation, and with the sterilisation of an intellectually disabled child who could not give consent. The only member of the court to consider the application of these principles to a pathological condition or psychological disorder was Brennan J, dissenting in part, who wrote at 269:

It is necessary to define what is meant by therapeutic medical treatment. I would define treatment (including surgery) as therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered. “Non-therapeutic” medical treatment is descriptive of treatment which is inappropriate or disproportionate having regard to the cosmetic deformity, pathological condition or psychiatric disorder for which the treatment is administered and of treatment which is administered chiefly for other purposes.

Should Re Alex be followed?

It is accepted that it was the decision of Nicholson CJ in Re Alex that extended the definition of medical procedures requiring court authorisation to childhood gender identity disorder cases. Having regard to the comments of the High Court to which I have referred, I now turn to consider the correctness of the decision of Nicholson CJ in Re Alex.

In oral submissions, counsel for the appellants said:

The difficulty which we have to confront and overcome is the line of single judge authorities commencing with his Honour, [t]he Chief Justice’s decision in Re Alex, where his Honour concluded that the condition does not fit the description of a bodily malfunction or disease. His Honour’s statement on that point is to be found at paragraph 195 of his Honour’s judgment, where his Honour says:

The current state of knowledge would not, in my view, enable a finding that the treatment would clearly be for a “malfunction” or “disease” and thereby not within the jurisdiction of this court as explained by the majority in Marion’s case. To my mind, their Honours were seeking in that case to distinguish medical treatment which seeks to address disease in or malfunctioning of organs. In the context of sterilisation, for example, they would seem to have had in mind a malignant cancer of the reproductive system which required an intervention that was medically indicated for directly referable health reasons. The present case does not lend itself to such a comparison.

It is this paragraph and the distinction there made by his Honour which we say is a fundamental point which we have to overcome, and which we say was incorrectly decided at the time. The decision was made by his Honour in circumstances where he pointed out in paragraph 191 that there were no specific submissions by the parties in that case. His Honour then goes on to examine the evidence, which touched upon the causes of gender identity disorder, as it was before his Honour in that case. And his Honour concluded that because the cause or aetiology of the disease was not known, it could not be treated as a malfunction or disease.

So what we say, in our respectful submission, is that the definition, which his Honour limited to malfunction or disease of a physical nature, is both unjustified on the reading of Marion’s case and also unjustified on the evidence as found in the present case by the learned trial judge.

(transcript 6 March 2012, p 4, lines 11-40)

In my view, it is the propositions that arise from the Chief Justice’s decision in Re Alex that require consideration, rather than the outcome of the case. That is because his Honour was dealing with a case in which it was not a parent who was approaching the court in respect of the question of whether treatment lay within parental authority. The legal guardian for Alex, responsible for his care, was a government department, pursuant to an operative care order made by a children’s court under child welfare laws. Thus, having regard to the fact that there was no parent who was able to provide parental consent, his Honour’s determination that consent to the treatment was a matter solely within the welfare power of the court may be arguably correct, whatever other bases his Honour may have had for coming to that same conclusion.

The case is arguably distinguishable on this basis, but Nicholson CJ relied upon a number of other matters to justify the requirement for the court’s oversight. It is necessary to examine these matters.

Nicholson CJ observed (at [180]) that the application before him “would seem a novel one and [he] was not referred to any Australian or overseas authority with similar fact characteristics”. As his Honour noted, “no surgical intervention [was] sought or indeed contemplated by any of the parties or witnesses while Alex [was] under the age of at least 18 years” (at [3]). His Honour described the matter before him as “whether [he] should authorise medical treatment involving the administration of hormonal therapies that will begin what is colloquially described as a ‘sex change’ process” (at [4]). His Honour, at [178], considered whether Marion’s case should be read as “confining the reasons for authorisation to surgical interventions only”, and concluded that it is not surgical interventions alone that fall outside the scope of parental power to consent to medical procedures on behalf of a child. Having regard to the proposed sterilisation that was before the court in Marion’s case, his Honour posited that the same principles as in Marion’s case would apply “if authorisation [was] sought for an alternative intervention of similarly irreversible effect for the same purpose, for example the use of radiation or pharmaceuticals” (at [178]) (emphasis added).

His Honour considered whether the administration of stage one hormones, as a reversible medical treatment, in fact required the court’s authorisation. He noted the contrast between stage one treatment – the administration of a combination of oestrogen and progestogen – and stage two, which would have, according to the expert evidence, irreversible consequences.

In this instance, his Honour was not being asked to make orders in relation to the second stage. However, his Honour was asked not to view the reversible first stage in isolation from the second stage, which could have irreversible consequences. According to his Honour, it was regarded as common ground that what was before him for determination was a “staged clinical program [that] should be seen as part of a single package” (at [186]). His Honour observed that it had been put to the court, “on the basis of the expert evidence”, that “to authorise the first stage of treatment but leave the subsequent stages for future application and determination by this Court would be destructive and anxiety-provoking” for Alex (at [186]). Given that all parties sought an order authorising both stages of treatment, his Honour accepted that he should treat the stages of treatment as a single treatment plan, and did so.

The parties in this appeal approached the matter somewhat differently. First, the decision by Dessau J treated stages one and two separately, permitting only stage one treatment. The appellants themselves focussed their main argument on the assertion that treatment (stages one and two) for the medical condition of childhood gender identity disorder is not a special medical procedure attracting the jurisdiction of the Family Court under s 67ZC of the Act. By this argument, the parents of Jamie would not require permission from the court at all to authorise such treatment. Alternatively, they argued that if unsuccessful on their primary submission, then stages one and two should be considered together.

The position of the AHRC was clear. They submitted that stage two treatment should continue to be regarded as “a special medical procedure that requires authorisation” (transcript 6 March 2012, p 42, lines 9-10). In relation to stage two treatment, they submitted that before determining whether or not to authorise stage two treatment, the threshold question for the court is whether the child has the competency to authorise such treatment on his or her behalf. That is a matter to which I will return later.

The AHRC made it clear that they were not seeking to submit that a child should be able to consent to a sterilisation procedure, and that their submissions were limited to treatment mechanisms for childhood gender identity disorder in young people.

At [153], Nicholson CJ summarised Marion’s case thus:

The gravamen of the decision was that if a child or young person cannot consent her/himself to a medical procedure, parental consent (which for present purposes may be equated with that of a guardian) is ineffective where the proposed intervention is:

invasive, permanent and irreversible; and

not for the purpose of curing a malfunction or disease.

In applying those criteria to Re Alex, Nicholson CJ found that: “the evidence does not establish that Alex has the capacity to decide for himself whether to consent to the proposed treatment” (at [168]). As to the question of whether the proposed treatment was invasive, permanent and irreversible, his Honour treated both stages together and satisfied himself that the second stage, in particular, would have irreversible consequences.

I cannot be certain, however, his Honour would have come to the same conclusion had he considered only stage one. At [185], his Honour said:

I was asked not to view the reversible first stage in isolation from the second stage of hormonal therapy which would have irreversible consequences and may involve injections or an implant.

(emphasis added)

In my view, the evidence is clear that stage one is a reversible process, and therefore, unlike his Honour, I do not think that it can be described as “invasive, permanent and irreversible” (at [153]).

In relation to whether the treatment was for the purpose of curing a malfunction or disease, Nicholson CJ pointed out that there were no specific submissions before him in this regard, and that the High Court’s definition in Marion’s case was framed in the context of an application for a sterilisation that was not, in the strict sense, medically required.

At first instance in this matter, Dessau J set out at [82] the evidence before the court:

Dr G saw no problems in carrying out the first stage of treatment. It is fully reversible. It has no side-effects. As he said, “Endocrinologists have been prescribing it for years in children much younger than [Jamie], to arrest precocious puberty”. It would enable Jamie’s mental development to proceed “normally”, without the “terrible impediment” of gender dysphoria. Dr G cited that blocking puberty at an early age has been shown in other centres to be beneficial, and is recommended in clinical guidelines published in 2009 by the US Endocrine Society.

Hence there was no debate at first instance that stage one, which I am here considering, was fully reversible. Unlike Nicholson CJ in Re Alex, Dessau J did not examine in detail the aetiology of Jamie’s condition. I do not suggest that it was essential to do so. As I have indicated, in considering whether the treatment is a response to a “malfunction or disease”, if that is the focus of the enquiry, it is sufficient that the condition is a psychiatric or psychological condition as defined by DSM-5 (or DSM-IV, as it stood at the time of hearing), and that the evidence is confirmatory.

At [47], Dessau J wrote:

On 12 January 2011, [Dr N] prepared a report in relation to Jamie. … The diagnostic conclusion was that Jamie “meets DSM-IV Criteria for the diagnosis of Gender Identity Disorder of childhood …”.

Although Dr C did not in his written report specifically address it, a number of academic papers attached to his affidavit discuss the aetiology of gender identity disorder and the current inability to conclusively explain the phenomenon. For example:

In summary, neither biological nor psychological studies provide a satisfactory explanation for the intriguing phenomenon of [gender identity disorder (“GIDs”)]. In both disciplines, studies have been able to correlate certain findings to GIDs, but the findings are not robust and cannot be generalized to the whole population.

Further:

The development and maintenance of gender identity disorders is held to be a multifactorial pathological process, in which individual psychological factors exert their effects in concert with biological, familial and sociocultural ones. From the point of view of developmental psychology, it would be wrong to imagine that patients with GID constitute a homogeneous group with a uniform pathogenesis. Different theoretical conceptions imply different – complementary, not necessarily contradictory – notions of the possible causes of GID. In view of the still unsatisfactory state of the data, any generalizations should be made with caution.

Neurobiological genetic research has not yet convincingly shown any predominant role for genetic or hormonal factors in the etiology of GID.

…

On the other hand, studies of gender identity in patients with various types of intersex syndrome (e.g. complete versus partial androgen receptor defects) have led to the formulation of a biological hypothesis for the etiology of gender identity disorders, in which these are caused by hormone resistance restricted to the brain. In addition, neuroanatomical findings in the dichotomous brain nuclei of transsexual patients provide further evidence for a biological component in the complex etiology of GID. Contrary to earlier assumptions, gender identity cannot be changed by external influences alone, i.e., attempts at so-called “re-education,” even when these attempts are begun as early as first year of life; this implies an early somatic determination of gender identity. Moreover, because bodily and genital sensations exert a major effect on psychosexual and gender-identity development, one must assume that the overall process involves an interaction of biological and psychosocial factors. Etiological and pathological influences should thus be sought in both areas.

…

The diagnosis and treatment of gender identity disorders in childhood and adolescence falls within the expertise of child and adolescent psychiatrists, who should, however, regularly call upon the expertise of colleagues in sexual medicine and paediatric endocrinology.

(footnotes omitted)

The point, I think, is that despite the inability to identify conclusively the aetiology of gender identity disorder, it has been identified as a disorder in DSM-IV and in its recently published successor, DSM-5.

At [195], Nicholson CJ in Re Alex stated that:

The current state of knowledge would not, in my view, enable a finding that the treatment would clearly be for a “malfunction” or “disease” and thereby not within the jurisdiction of this Court as explained by the majority in Marion’s case. To my mind, their Honours were seeking in that case to distinguish medical treatment which seeks to address disease in or malfunctioning of organs.

As his Honour said, later in that paragraph, “[t]he present case does not lend itself to such a comparison”.

It is undoubtedly the case that the majority in Marion’s case were speaking of medical treatment seeking to address disease or malfunctioning of organs. It is conceivable, therefore, that the majority did not have in contemplation at all that a psychiatric disorder would fall within a group of cases in which the court’s authorisation for treatment would be required. However I see no reason to limit their observations to a physical disease, particularly as Brennan J directly addressed the application of the principle to psychiatric disorders and considered it therapeutic provided the treatment is appropriate for and proportionate to the purpose for which it is administered.

Thus where the question is whether the treatment relates to a disease or malfunctioning of organs, including psychological or psychiatric disorders, then, in my view, if the treatment is in response to a disorder, even a psychological or psychiatric one, it is administered for therapeutic purposes. For that reason alone, in my view, the treatment at stage one for gender identity disorder would not fall within the category of cases which the High Court was considering in Marion’s case.

It also appears that the novelty of the condition described by Nicholson CJ is no longer supportable. The cases since Re Alex (see footnote 1 above) would indicate that the condition is not as unusual as it presented itself in 2003 when Re Alex was decided. The cases referred to above followed the approach taken by Nicholson CJ in Re Alex. This may be simply because it was not until Re Bernadette that the issue of whether it was in fact necessary for the court to determine whether treatment should be provided was raised.

Before leaving this ground, I need to address the submission of the public authority that stage one falls within Marion’s case because there is a significant risk of making the wrong decision where the treatment is invasive, permanent and irreversible.

The public authority submitted that the specific factors contributing to the significant risk of making the wrong decision are (at [23]):

a. the aetiology of the disorder is not understood;

b. the procedures to treat it/ respond to it are experimental;

c. the procedures are ethically complex and contentious;

d. the procedures will commence or continue a gender change process, a major life-altering decision; and

e. there are differing professional opinions as to how a child or adolescent should be treated for gender identity disorder.

(footnotes omitted)

I note, however, in relation to these submissions that the evidence in this case was overwhelmingly indicative of the treatment being a common treatment:

Zoladex, a GnRH analogue, [used] to block puberty … was described by Dr G as routinely used in the hospital to treat children with precocious puberty, as well as patients with gender identity disorder. He described it as almost always effective in suppressing pituitary gonadotrophins, which then shut off testosterone production by the testes for as long as treatment is continued. In Dr G’s experience, it has never caused any unwanted side-effects.

(first instance judgment at [55])

The public authority submitted at [24] that:

The specific factors arising that may contribute to a significant risk of a wrong decision and the gravity of the consequences arising from a wrong decision need to be considered in a systematic and holistic way for the purposes of establishing whether or not a procedure is a special medical procedure. A limited focus on whether a procedure is invasive or reversible does not address the potential factors arising out of various domains that may contribute to a medical procedure being special as required by the special medical procedure test.

(footnotes omitted)

The public authority further submitted that stages one and two are part of one treatment plan and the special medical procedure test needed to be applied to the treatment plan as a whole.

However, many conditions result in different views about what treatment should be given – for example, whether a condition might be treated with medication or surgery, and which medications might be more effective than others. The possibility of different treatments, provided they are not invasive, permanent and irreversible, would not render the treatment as requiring the court’s approval on that ground alone. Counsel further submitted that it was necessary to emphasise the complexity of the issues involved and the evolving nature of the therapy, and to identify the attendant risks. Counsel said:

And so one might say that there are certain conditions which will always or just about always require court authorisation. There may well be other conditions which will commonly or sometimes require court authorisation. It will depend. It will depend on the facts coming out in the case, and also the evolving state of medical knowledge and similar.

(transcript 6 March 2012, p 33, lines 12-16)

While I agree that there may be cases when issues present themselves as requiring the court’s authorisation due to the evolving state of medical knowledge, the question is whether the treatment at stage one involves such a condition. In my view it does not for the reasons explained.

It is also important in these cases to identify that, unlike Marion’s case, it is unlikely that the parental interests would be anything other than the welfare of the child (as opposed to having a collateral interest in having the treatment carried out). Accordingly, I agree with Ground 1 of the grounds of appeal, to the extent that it is confined to stage one of the treatment, so that, contrary to the view expressed by the trial judge, stage one of the treatment of the condition described as “childhood gender identity disorder”, with which Jamie has been diagnosed, is not a special medical procedure that displaces the parental responsibility of the appellants to decide upon the appropriate treatment for their child. Properly advised and informed, parents are in a position to make such decisions.

In summary, I conclude that stage one treatment of childhood gender identity disorder is reversible, is not attended by grave risk if a wrong decision is made, and is for the treatment of a malfunction or disease, being a psychological rather than physiological disease. As such, and absent controversy, it falls within the wide ambit of parental responsibility reposing in parents when a child is not yet able to make his or her own decisions about treatment.

Having so concluded, I now turn to Ground 3.

Ground 3: Did the trial judge err in law and in the exercise of discretion by concluding that stage two treatment for childhood gender identity disorder should be the subject of a further application to the court prior to its commencement?

As this ground is couched in the alternative, it could potentially be disposed of on the basis that the appellants have been successful in relation to Ground 1. However there is implicit in the ground an assumption that stages one and two should be dealt with together. Thus Ground 3 is not really in the alternative but is an adjunct to Ground 1; that is, whatever finding the court makes, stages one and two should be treated together.

It will be obvious from what I have said about the aspects of stage one which distinguish it from stage two that I think there is a relevant distinction. The complete reversibility, with few, if any, side effects, of stage one is a significant issue. Stage two is acknowledged to be different. Her Honour concluded at [127] of her reasons that the treatment at stage two was “irreversible in nature” and found at [60] and [84] that:

60.Oestrogen treatment brings about feminisation of the body. It also stimulates a marked increase on bone mineral density, which is beneficial. It has effects on growth plates in the long bones, promoting the eventual closure of the growth plates, but in the doses Jamie would receive, the effect would be slow. Growth velocity may be stimulated in the first year of oestrogen administration, but would slow after one to two years. Jamie’s height would be less, by three to four centimetres, than if male puberty had been completed.

…

84.The part of the stage two treatment that warrants particular consideration is that the introduction of oestrogen will cause breast growth. If Jamie were thereafter to choose to live as a man, the breasts could only be removed by surgical intervention.

In addition, her Honour was also aware of the possibility that things might change, writing at [128]:

Although Dr C talked about it being likely that Jamie’s trajectory is reasonably predictable, in the sense that her gender identity dysphoria has existed since early childhood, and she has now lived entirely as a girl for several years, it is impossible to predict how life will unfold for a 10-year-old child by the time she is a young person of around 16 years’ of age. Although one hopes that her life will go from strength to strength, there are all sorts of vagaries and potential factors that may intervene. There is her own health, the health of her parents or brother, the relationship of her parents, her relationship with her parents, her relationships generally, her schooling, and/or advances in medical science, to name some obvious ones.

In deciding not to treat stages one and two together, her Honour said, “I simply cannot determine in 2011, when Jamie is still only 10, what is likely to be in her best interests in 2016 or 2017 when she is aged sixteen” (at [130]).

As the appellants’ case was that stages one and two should be dealt with together, their written submissions did not address the issue of whether there might be another reason not to treat them together – that is, the question of the child’s capacity to consent to stage two treatment. That is, is the child Gillick competent?

In Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, it was said by Lord Scarman at 88-90:

In the light of the foregoing I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances. Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent: but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parent’s consent.

In oral submissions, the appellants addressed this issue:

This case needs to be distinguished again from the facts in Marion’s case because there the High Court were dealing with a child who was never going to be Gillick competent on the view as it stood at the time when the hearing took place. No such conclusion can be drawn here and indeed her Honour is already almost at, but not quite prepared to say because of the child’s young age, that the child is totally Gillick competent to give a decision. That finding, your Honour, can’t be criticised and it can’t be argued against but it does have consequences and the consequences are that when we come to appeal ground 3 the possibility of Jamie being Gillick competent when she turns 16 and when the stage 2 treatment is to commence is very strong and what we will be saying when we return to ground 3 is that her Honour completely overlooked that as a possibility when concluding that the stage 2 treatment should be subject of a separate application.

(transcript 6 March 2012, p 9, lines 13-24)

As to who should determine Gillick competence, the appellants proposed that:

in the first instance it is the doctors who would need to satisfy themselves … whether Jamie is Gillick competent and if they couldn’t satisfy themselves of that fact then … the parents would top up, as it were, whatever other analysis and decision-making is needed to ensure that full consent can be given but principally Gillick competence is a matter for the clinician and only in cases where there is doubt the court becomes involved and again they would fall into the band of cases that we would say contain a controversy.

(transcript 6 March 2012, p 13, lines 8-15)

I understand the submission here to be meaning that it is for the clinicians to decide whether the child is Gillick competent, but if the child is not, or if there is doubt, the court would become involved and an application would be necessary. I observe that the orders made by her Honour related to enabling the parents to authorise stage one treatment, and the application was otherwise dismissed. Her Honour did not deal, in the orders at least, with the question of whether there should be a return to court when stage two is pending. But that is hardly surprising, and her Honour canvassed various possibilities, including that Jamie may not wish to continue with the treatment. At [131], her Honour did give some indication of her views about whether there would need to be a further application, and seemed to consider that it would be necessary.

However, I also note that the question of Gillick competence in relation to stage two was not really put to her Honour. The matter was though squarely raised in the appeal.

The AHRC emphasised that the Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities provide for a number of rights that are engaged by these proceedings. In particular, it was submitted that the Convention on the Rights of the Child should be an interpretive aid when contemplating the meaning of the provisions in Part VII of the Act and, further, that even prior to the amendment to s 60B coming into effect, s 67ZC implements relevant parts of Australia’s obligations under the Convention on the Rights of the Child. In particular, the principal legislation is to be construed so as to give effect to, and not to breach, Australia’s international obligations. Where a construction that is consistent with international law is open, that construction is to be preferred over a construction that is inconsistent with international law (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). As the Act and the Convention on the Rights of the Child share an underlying common purpose or object, namely a concern that decisions are made in a child’s best interests, in an application under s 67ZC, it is appropriate for the court to have regard to the relevant provisions of the Convention on the Rights of the Child. This is the more so since the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) received Royal Assent on 7 December 2011. From 7 June 2012, s 60B(4) provides that: “An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989”. The provision, however, is not equivalent to incorporating the Convention on the Rights of the Child into domestic law.

In particular, in addition to the best interests test, Articles 5 and 12 of the Convention on the Rights of the Child are apposite to the question of Gillick competence, in my view. As described by the AHRC in their written submissions:

10. … this proceeding engages a number of rights under the [Convention on the Rights of the Child, including:]

10.3. respect for the responsibilities, rights and duties of parents, legal guardians or other persons legally responsible for children, to provide, in a manner consistent with the evolving capacities of the children, appropriate direction and guidance in the exercise by the children of their rights (Article 5);

10.4. assurance to children who are capable of forming their own views the right to express those views freely in all matters affecting them, the views of children being given due weight in accordance with their age and maturity (Article 12(1));

10.5. in particular, children shall be provided the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law (Article 12(2)); …

…

I agree with the submission of the AHRC that the Convention on the Rights of the Child makes it clear that it is important that children have input into decisions that affect them and that parents have special responsibility for assisting their children in making these decisions:

Children are rights bearers and not merely objects of protection. Further, there is a strong presumption that the realisation of children’s rights will occur in the context of the family unit in a manner which accommodates a child’s evolving capacities.

(written submissions of the AHRC, 22 February 2012, at [26]) (footnotes omitted)

The AHRC submitted that that it was open to the court to consider separately whether authorisation was required for each of stages one and two, and that stage one could be distinguished from stage two on the basis that the first question was whether the child was competent to make a decision (that is, Gillick competent) to authorise the treatment.

The public authority submitted that where a child is Gillick competent, the child has the authority to make the decision. The public authority submitted at [49] of their written submissions:

the correct approach is that set out in Marion’s Case and as described by Bryant CJ in Re Alex (2009), that is, if the child is Gillick competent court authorization of the special medical procedure is not necessary. However, it is up to the Court to decide whether the child is Gillick competent or not.

(footnote omitted)

The public authority then addressed squarely the question of what should happen if a child is Gillick competent, posing the question: “[D]oes that mean the court does not have jurisdiction in respect of the treatment for childhood gender identity disorder or a range of other conditions?” (transcript 6 March 2012, p 30, lines 15-18).

The public authority then responded to the question posed:

A hardline position could even be, though, your Honour, if a child is consenting and able to consent, even if there is a controversy, the court doesn’t have jurisdiction. Next along the spectrum is, if a child is Gillick competent and there is a controversy, then the court has jurisdiction. And the next along the spectrum, and one for which the [public authority] has some attachment, is that regardless of the capacity of a child given the fundamental nature of treatment for a condition of this kind or comparable special medical procedures, it should be the court which authorises the provision of treatment.

(transcript 6 March 2012, p 30, lines 22-30)

That argument is synthesised into the following submission:

The orientation of the [public authority] and I’m choosing the words carefully – is to prise the jurisdiction of this court as a monitoring, oversighting check and balance, and therefore to tentatively urge upon the court that regardless of the child’s attitude or capacity, more particularly, in terms of Gillick competence, this court should retain and exercise its role as an oversighting body.

(transcript 6 March 2012, p 20, lines 38-43)

The public authority confirmed that its position was that the threshold question, “Is the child Gillick competent?” has to be determined by the court. The submissions indicate that there are two questions, and I deal with each in turn below.

The first is whether, if the child is Gillick competent, there remains any role for the court at all. In my view, there does not. The Convention on the Rights of the Child, in particular, mean that it is essential, by art 12.1, to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”. Further, by art 5, there is to be:

respect [for] the responsibilities, rights and duties of parents, … members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of [their] rights …

It is also important to note that the treatment guidelines for transsexualism recommend that stage two commence at about age 16. Whilst every case has to be considered according to the level of maturity and understanding of the particular child, 16 is an age at which children are regarded, for some purposes, as persons capable of autonomous decision-making. While legislation provides that the age of majority in all states and territories of Australia is 18 years, there are many jurisdictions in which the legislation allows a child over 16 to be autonomous in deciding about their medical treatment.

For example, in South Australia, “[a] person of or over 16 years of age may make decisions about his or her own medical treatment as validly and effectively as an adult” (Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 6).

In New Zealand, pursuant to s 36(1) the Care of Children Act 2004 (NZ), a child of age 16 years or over can give consent as if of “full age” to the following types of medical intervention:

(a) any donation of blood by the child:

(b) any medical, surgical, or dental treatment or procedure (including a blood transfusion …) to be carried out on the child for the child’s benefit by a person professionally qualified to carry it out.

In the United Kingdom, s 8 of the Family Law Reform Act 1969 (UK) presumes young people aged over 16 years or over to be capable of giving effective consent to any surgical, medical or dental treatment. The section reads:

(1)The consent of a minor who has attained the age of sixteen years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian.

(2)In this section “surgical, medical or dental treatment” includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment.

(3)Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.

In my view, it would be contrary to the Convention on the Rights of the Child, and to the autonomous decision-making to which a Gillick competent child is entitled, to hold that there is a particular class of treatment, namely stage two treatment for childhood gender identity disorder, that disentitles autonomous decision-making by the child, whereas no other medical procedure does. The High Court in Marion’s case, adopting the formulation in Gillick, held at 237 that a child is capable of giving informed consent when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”.

I see no basis for reading this down because the treatment is for childhood gender identity disorder. Indeed, one might think that, of all the medical treatments that might arise, treatment for something as personal and essential as the perception of one’s gender and sexuality would be the very exemplar of when the rights of the Gillick-competent child should be given full effect.

The second and more vexing question posed is who should determine the question of Gillick competence. Is it the medical doctors, or is it necessary for an application to the court to be made for an assessment as to whether the child is competent to give informed consent to the procedure?

With some reluctance I conclude that the nature of the treatment at stage two requires that the court determine Gillick competence. In Marion’s case, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child’s capacity to consent, and secondly because the consequences of a wrong decision are particularly grave.

It seems harsh to require parents to be subject to the expense of making application to the court with the attendant expense, stress and possible delay when the doctors and parents are in agreement but I consider myself to be bound by what the High Court said in Marion’s case.

That application however would only need to address the question of Gillick competence and once established the court would have no further role. The material in support of such an application, whilst needing to address the proposed treatment and its effects, and the child’s capacity to make an informed decision, would not need to be as extensive as an application for the court to authorise treatment and I can see no reason why any other party need be involved, absent some controversy. It would be an issue of fact to be determined by the court on the material presented.

Conclusion

I summarise the decision that I have reached in relation to these matters:

Stage one of the treatment of the medical condition known as childhood gender identity disorder is not a medical procedure or a treatment which falls within the class of cases described in Marion’s case which attract the jurisdiction of the Family Court of Australia under s 67ZC of the Act and require court authorisation.

If there is a dispute about whether treatment should be provided (in respect of either stage one or stage two), and what form treatment should take, it is appropriate for this to be determined by the court under s 67ZC.

In relation to stage two treatment, as it is presently described, court authorisation for parental consent will remain appropriate unless the child concerned is Gillick competent.

If the child is Gillick competent, then the child can consent to the treatment and no court authorisation is required, absent any controversy.

The question of whether a child is Gillick competent, even where the treating doctors and the parents agree, is a matter to be determined by the court.

If there is a dispute between the parents, child and treating medical practitioners, or any of them, regarding the treatment and/or whether or not the child is Gillick competent, the court should make an assessment about whether to authorise stage two having regard to the best interests of the child as the paramount consideration. In making this assessment, the court should give significant weight to the views of the child in accordance with his or her age or maturity.

Accordingly, I conclude that Order 1 of the orders made on 28 March 2011 should not have been made and should be set aside. The decision to continue the treatment ordered by her Honour is within the proper limits of parental responsibility.

Costs

At the conclusion of the appeal, we were informed that no party would seek an order for costs.

Finn J

Introduction

On 10 January 2011 the parents of a child who was born a male in 2000, but who had been diagnosed in 2007 with gender identity disorder, filed an application in the Family Court of Australia seeking, by way of final orders, that they be authorised to obtain the following special medical procedures on behalf of the child:

The administration of puberty suppressant hormones, such as implants of Zoladex (a GnRH agonist) at intervals and at a dosage as may be determined as necessary to achieve suppression of Gonadotrophins and testosterone to pre-pubertal levels under the guidance of the child’s treating medical practitioners including but not limited to Dr G (Endocrinologist) and Dr C (Psychiatrist);

Additional treatment of oestrogen as may be considered appropriate by the child’s treating Endocrinologist, currently being Dr G (Endocrinologist) and in consultation with and on the written advice of the child’s treating Psychiatrist, currently being Dr C (Psychiatrist).

That application was heard by Dessau J on 28 March 2011. On that day her Honour made an order (Order 1) authorising the parents:

to consent to treatment on behalf of their child … under the guidance of the child’s treating medical practitioners including but not limited to his endocrinologist Dr G and his psychiatrist Dr C, for the administration of Zoladex (a GnRH agonist) and cyproterone acetate in such dose, in such manner and with such frequency as determined in consultation with the treating medical practitioners to achieve suppression of gonadotrophins and testosterone to pre-pubertal levels.

Her Honour also ordered (Order 4) that:

all existing applications shall be adjourned for Reasons for Judgment and further orders on a date to be advised to the parties.

On 6 April 2011 her Honour made a further order (Order 1):

That the parents’ application filed 10 January 2011 shall be otherwise dismissed.

Her Honour’s Order 1 of 28 March 2011 and her Order 1 of 6 April 2011 are the subject of this appeal by the parents of the child.

On 6 April 2011 her Honour published reasons for judgment in relation to her orders of 28 March and 6 April 2011.

In her reasons for judgment her Honour referred to the child in question as “Jamie”, and she referred to the treatment to which the parents had sought to be able to consent in sub-paragraph (a) of paragraph 1 of their initiating application as “stage one” treatment and to the treatment referred to in sub-paragraph (b) of paragraph 1 of their application as “stage two” treatment. The name “Jamie” and the references to “stage one” treatment and “stage two” treatment have continued to be used in the proceedings before this court.

The expression “special medical procedures” (or “special medical procedure”) was also used in her Honour’s reasons (as it had been in the parents’ initiating application). This is not an expression found in the Family Law Act 1975 (Cth) (“the Act”).

However, as her Honour explained at [33], the authorities refer to certain procedures as “special medical procedures”, being procedures which, in her Honour’s words, “fall beyond [the bounds of a parent’s responsibility to be able to consent to medical treatment for and on behalf of their child,] and require determination by the court, as part of the court’s parens patriae or welfare jurisdiction”. Her Honour cited the High Court decision in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (“Marion’s case”) in support of this proposition.

It is to be noted, however, that the expression “special medical procedures” does not appear in that High Court decision, nor in Nicholson CJ’s later decision at first instance in that case (In Re Marion (No 2) (1994) FLC 92-448). The expression would seem to have first appeared in the unreported ex tempore decision of Gun J in Telfer & Telfer (Unreported, Family Court of Australia, Gun J, 11 July 1994), and has been used frequently since.

I have reservations concerning the usefulness of the expression “special medical procedure”. I consider that it would be preferable to refer to a “medical procedure which requires court authorisation”.

I note that the expression “Medical Procedure” appears in Part 4.2 of the Family Law Rules 2004 (Cth) (“the Rules”) which is the part of the Rules concerned with “Specific Applications” and the procedure for making such applications. The Dictionary for the Rules then contains the following definition of “Medical Procedure Application”:

Medical Procedure Application means an Initiating Application (Family Law) seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease.

Example

An example of a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease is a procedure for sterilising or removing the child’s reproductive organs.

I also have some reservations, as will emerge from my later reference to passages from the judgments of members of the High Court in Marion’s case, about the use of the word “bodily” in the definition (whatever that word may be intended to mean) and about the precision of the language in the example given in the Rules.

Having explained the expression “special medical procedures”, Dessau J observed at [33] that there “was no dispute in this case that the procedures proposed fall within the definition of special medical procedures”.

After reviewing in depth the expert evidence which was before her concerning the child’s condition and wishes as well as the nature of the treatment proposed and the risks to the child if the treatment was not undertaken, her Honour concluded at [119] that stage one of the treatment (which she had earlier found at [58] to be reversible) was in the child’s best interests and that it needed to commence as a matter of urgency.

In relation to stage two of the treatment, it was the position of the child’s parents, supported by the child’s doctors, that her Honour should authorise them to approve stage two treatment at the same time as she authorised the approval of stage one, leaving them and the child to decide at the appropriate time whether or not it should occur (at [126]). Her Honour was satisfied in line with previous decisions of her own and of other single judges, that the two stages of treatment can be viewed as one treatment plan, but she was equally satisfied that whether the two stages of the one treatment plan should be approved at the same time depends on all the circumstances of the case (at [123]).

The issue in this case, as explained by her Honour at [127] of her reasons, was whether the court could “comfortably determine this 10-year-old child’s best interests, and therefore approve a particular procedure or treatment, irreversible in nature, not due for six years.” Her Honour determined (at [130]) that she should not do so, and thus apart from having made the order in relation to the stage one treatment, she otherwise dismissed the parents’ application. The practical result of her Honour’s dismissal of the balance of that application is that the parents would have to make a further application to the court for authority to consent to stage two treatment once it was required.

Before turning to the grounds of appeal and the issues which they raise, it is important to note that in her reasons for judgment, Dessau J recorded at [49] that no-one “has taken issue with the diagnosis” of gender identity disorder made in relation to the subject child. No issue has been taken on this appeal regarding that diagnosis.

I would also explain that the evidence concerning the effects, particularly the physical effects, on the child of the two stages of the proposed treatment were well explained by her Honour in her reasons. Because an appreciation of these effects is necessary in order to understand the very significant issues raised by this appeal, I will here set out her Honour’s principal findings concerning the effects of the two stages of treatment.

In relation to the effects of stage one treatment her Honour concluded:

57.According to Dr G, Zoladex will slow the process of maturation and the growth plates of the long bones. Sperm production in the testes will also be arrested. Penile erections … will cease during the Zoladex treatment. Bone mineral density will increase during treatment.

58.The effects of Zoladex and the suppression of puberty last only while it is being given. The effects are reversible.

…

82.Dr G saw no problems in carrying out the first stage of treatment. It is fully reversible. It has no side-effects. As he said, “Endocrinologists have been prescribing it for years in children much younger than Jamie, to arrest precocious puberty”. It would enable Jamie’s mental development to proceed “normally”, without the “terrible impediment” of gender dysphoria. Dr G cited that blocking puberty at an early age has been shown in other centres to be beneficial, and is recommended in clinical guidelines published in 2009 by the US Endocrine Society.

…

104.… as the stage one procedure is fully reversible, without long-term effects on fertility, the child will be free to change her mind at a later date …

In relation to stage two which involves oestrogen treatment and which her Honour concluded at [127] of her reasons was “irreversible in nature”, she made the following additional findings:

60.Oestrogen treatment brings about feminisation of the body. It also stimulates a marked increase in bone mineral density, which is beneficial. It has effects on the growth plates in the long bones, promoting the eventual closure of the growth plates, but in the doses Jamie would receive, the effect would be slow. Growth velocity may be stimulated in the first year of oestrogen administration, but would slow after one to two years. Jamie’s final height would be less, by three to four centimetres, than if male puberty had been completed.

…

84.The part of the stage two treatment that warrants particular consideration is that the introduction of oestrogen will cause breast growth. If Jamie were thereafter to choose to live as a man, the breasts could only be removed by surgical intervention.

…

105.… stage two of the treatment … would entail irreversible physiological feminisation

Again, none of these findings by Dessau J were challenged on the appeal.

The grounds of appeal

The grounds of appeal contained in the parents’ amended notice of appeal (filed on 24 June 2011) directed to the orders which authorised the parents to consent to stage one treatment and which dismissed the balance of their application, were as follows:

1.That, contrary to the view expressed by the learned trial Judge, treatment of the condition described as “childhood gender identity disorder” with which “Jamie” was diagnosed is not a special medical procedure which displaces the parental responsibility of the appellants to decide upon the appropriate treatment for their child.

2. That Ground 1 be considered and allowed notwithstanding that no such submission was made to the learned trial Judge, and her Honour proceeded on the basis that:- “There was no dispute in this case that the procedures proposed fell within the definition of special medical procedures” (Judgment [at first instance] paragraph 33).

3. Further and in the alternative to Ground 1, once the diagnosis of childhood gender identity disorder was established and accepted and the treatment approved, the learned trial Judge erred in law and the exercise of discretion in concluding that the treatment for the disorder should be the subject of a further application to the Court when the “stage 2” is about to commence.

In their amended notice of appeal the parents sought from this court a declaration that:

…

a. the treatment for the medical condition known as CHILDHOOD GENDER IDENTITY DISORDER is not a special medical procedure which attracts the jurisdiction of the Family Court of Australia under s. 67ZC of the Family Law Act; and

b. the parents of “Jamie” do not require permission from the Family Court of Australia, or any other Court of competent jurisdiction to authorise such treatment for their child as they may be advised is appropriate.

In the alternative to such a declaration, the parents sought an order to the effect that they be authorised to consent to both stage one and stage two of the treatment.

Both the Australian Human Rights Commission (“AHRC”) and the public authority were permitted to intervene in the proceedings before this court. The independent children’s lawyer also appeared. The position taken on the appeal by each of these parties is more fully explained in the reasons of the Chief Justice. But, in summary, the public authority and the independent children’s lawyer opposed the appeal, as did the AHRC (at least in relation to the assertion by the appellants that court authorisation is not necessary for stage two of the treatment).

There was, however, no opposition by any party to the parents being permitted, as they were, to argue their first ground of appeal, being in essence that in the circumstances of this case, it was unnecessary to obtain court approval for either stage of the treatment proposed for the child, notwithstanding that this point of law had not been taken below.

Issues raised by this appeal

The primary issue raised by this appeal is whether it is within the scope of the parental authority conferred on parents by s 61C of the Act to consent to treatment of the type proposed for the child in this case to treat the condition known as gender identity disorder, or whether it is necessary for there to be court authorisation of the treatment under s 67ZC of the Act (the so called “welfare” or “parens patriae” power). As already indicated, the proceedings before Dessau J were conducted on the basis that such court authorisation was necessary with the issue now before us not being raised before her Honour.

A subsidiary issue raised by the appeal is whether, if court authorisation is required for both stages of the treatment, Dessau J erred by authorising only stage one of the treatment and refusing court authorisation for stage two until that stage of the treatment was necessary. I can dispose of this subsidiary issue at this point by saying that I agree with her Honour that whether the two stages of the treatment should be approved by the court at the same time (assuming, of course, that such approval is necessary for both stages) will depend on all the circumstances of the case, and I do not consider that her Honour erred in the exercise of her discretion, in refusing to authorise stage two of the treatment at the time when the matter was before her, having regard to the reasons which she gave for that refusal.

In relation then to the primary issue in this appeal, being whether court authorisation is necessary for stage one and/or stage two of the treatment in question, there cannot, of course, be any question that in circumstances where there is a disagreement in relation to proposed treatment between the parents and/or their child or with the child’s treating doctors, an application to the court will be necessary. However, in this appeal, we are concerned solely with cases where there is no disagreement between the child, the parents and the treating doctors.

This is also not a case which involves a child who is under the legal guardianship of a government department or official. Special considerations may well apply in such a case.

In Marion’s case the High Court determined (by majority) that court authorisation was necessary for the sterilization of a fourteen year old intellectually disabled girl. In explaining their reasons for this decision Mason CJ, Dawson, Toohey and Gaudron JJ said (at 249-50):

There are, in our opinion, features of a sterilization procedure or, more accurately, factors involved in a decision to authorize sterilization of another person which indicate that, in order to ensure the best protection of the interests of a child, such a decision should not come within the ordinary scope of parental power to consent to medical treatment. Court authorization is necessary and is, in essence, a procedural safeguard. Our reasons for arriving at this conclusion, however, do not correspond precisely with any of the judgments considered. We shall, therefore, give our reasons. But first it is necessary to make clear that, in speaking of sterilization in this context, we are not referring to sterilization which is a by-product of surgery appropriately carried out to treat some malfunction or disease. We hesitate to use the expressions “therapeutic” and “non-therapeutic”, because of their uncertainty. But it is necessary to make the distinction, however unclear the dividing line may be.

As a starting point, sterilization requires invasive, irreversible and major surgery. But so do, for example, an appendectomy and some cosmetic surgery, both of which, in our opinion, come within the ordinary scope of a parent to consent to. However, other factors exist which have the combined effect of marking out the decision to authorize sterilization as a special case. Court authorization is required, first, because of the significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.

Although in Marion’s case the High Court was concerned with the sterilization of a disabled child, the principles contained in the second paragraph of the passage just cited have subsequently been applied in a number of cases where other serious forms of medical treatment were proposed for a child (see the examples provided by Nicholson CJ in Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175, [175]). In the present appeal there was particular emphasis on those principles in the submissions of both the public authority and the AHRC; indeed, it was submitted by senior counsel for the public authority that this court is bound by the decision in Marion’s case. (transcript 6 March 2012, p 4, lines 1-2) I will return to the principles contained in the second paragraph of the above-cited passage after making some reference to what is said in the first paragraph of that passage.

In that first paragraph their Honours considered it necessary to draw a distinction between a therapeutic and a non-therapeutic procedure, although they considered the distinction could be uncertain and they did not further discuss it. Relevantly, however, for present purposes there is nothing in their Honour’s observations which can, in my view, be taken as limiting their observations to only a physical, as opposed to a psychiatric or psychological, malfunction or disease.

Brennan J, in his reasons in Marion’s case, was able to explain the therapeutic – non-therapeutic distinction (including, it should be noted, particularly for present purposes, in relation to psychiatric disorders) in the following way (at 269):

It is necessary to define what is meant by therapeutic medical treatment. I would define treatment (including surgery) as therapeutic when it is administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered. “Non-therapeutic” medical treatment is descriptive of treatment which is inappropriate or disproportionate having regard to the cosmetic deformity, pathological condition or psychiatric disorder for which the treatment is administered and of treatment which is administered chiefly for other purposes.

In his oral submissions to us (transcript 6 March 2012, p. 22, lines 31-34) senior counsel for the public authority endeavoured to distinguish Brennan J’s definitions of therapeutic and non-therapeutic treatments from the views “of the plurality”. But I am not persuaded that Brennan J’s definitions should not provide some assistance in considering the difficult issues raised by this case.

Conclusion in relation to stage one treatment

Given the evidence before Dessau J of the child’s condition and the risks faced by her if she did not receive stage one of the treatment, that stage of the treatment can be seen as therapeutic. Furthermore, given that stage one of the treatment is reversible, the concerns of the High Court majority in relation to the risks of a wrong decision and resulting grave consequences do not arise. There is also no dispute between the child, her parents, or her doctors that the stage one treatment should be undertaken. I am therefore satisfied that that stage of the treatment did not require court authorisation. I thus agree with the conclusion reached by the Chief Justice that:

[108]… stage one treatment of childhood gender identity disorder is reversible, is not attended by grave risk if a wrong decision is made, and is for the treatment of a malfunction or disease, being a psychological rather than physiological disease. As such, and absent controversy, it falls within the wide ambit of parental responsibility reposing in parents when a child is not yet able to make his or her own decisions about treatment.

Discussion and conclusion in relation to stage two treatment

Stage two of the proposed treatment presents greater problems if only because it is, as found by Dessau J at [127] of her reasons, “irreversible in nature” (at least not without surgery as was recognised at [84] of her Honour’s reasons). This consideration must, in my view, remain important, even when it is accepted that the treatment can be categorised as therapeutic, and in this regard the concept of proportionality referred to by Brennan J must come into play.

In the passage cited above from the majority judgment in Marion’s case, it was recognised that some forms of medical treatment are irreversible and yet do not require court authorisation. However, their Honours proceeded to hold that such authorisation was required at least for sterilization “because of the significant risk of making the wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of a child who cannot consent”, and also because of the “particularly grave” consequences of a wrong decision.

Such risks of a wrong decision and the grave consequences of a wrong decision must similarly exist in relation to stage two of the proposed treatment in this case when regard is had to the effects of that treatment as explained by Dessau J in the passages from her Honour’s reasons earlier set out. Thus, in my view, in a case such as this, the therapeutic benefits of the treatment would have to be weighed or balanced against the risks involved and the consequences which arise out of the treatment being irreversible, and this would seem to be a task appropriate for a court, given the nature of the changes that stage two of the treatment would bring about for the child.

However, there is in this case, or at least there will be in time, a significant difference from Marion’s case, and that is that the subject child may be able to give consent to the proposed treatment. In this case stage two of the treatment would commence when Jamie is about 16 years of age, and at that time she may well have the capacity to consent to her own medical treatment in accordance with the principles in the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. (That decision was recognised as part of the common law of this country by Mason CJ, Dawson, Toohey & Gaudron JJ in Marion’s case (at 237).)

The question thus becomes in this case, whether the determination as to whether Jamie in fact has “Gillick competence” to fully understand and give informed consent to stage two of the treatment at the time it is to commence, is to be left to her doctors and parents to decide, or whether the court should make that decision, at least as a threshold issue. It was strongly submitted on behalf of both the public authority and the AHRC that it is the court that should make that decision, and that this was required because of what the High Court majority said in Marion’s case in relation to the risk of a wrong decision being made regarding the child’s capacity to consent to treatment that is irreversible and also in relation to the particularly grave consequences of a wrong decision.

I am extremely reluctant to impose upon the child and her parents the costs and stress of further court proceedings, particularly when the court may ultimately reach the same decision which the child and her parents had already reached with the child’s doctors.

Nevertheless, I have concluded that at least the question of a child’s capacity to consent to treatment which has the irreversible effects of stage two treatment must remain a question for the court. I have reached this conclusion because of the requirement by the High Court majority in Marion’s case for court authorisation for irreversible medical treatment in circumstances where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment and where the consequences of such a wrong decision are particularly grave, as they would be in this case.

In reaching this conclusion I have also taken into account the persuasive submissions made on behalf of the AHRC and the public authority which support continued court involvement in decisions concerning stage two treatment.

If the court was completely satisfied of the child’s capacity to consent to stage two treatment, it would be unnecessary for it to have to authorise the treatment. That could be left to the child. But if the court had any doubt about that capacity, then it would have to determine for itself the question of whether the stage two treatment should be authorised.

What orders should this court make?

All members of this court have concluded that Jamie’s parents did not require court authorisation for stage one of the proposed treatment. The appropriate course would therefore be to allow the appeal against the order providing for such authorisation and to discharge that order. I stress that this course does not reflect any error on the part of Dessau J, but rather it is necessary because of the point of law argued on the appeal and not before her Honour. As is said by the Chief Justice, the decision for that treatment to continue will be a matter for Jamie’s parents exercising their parental responsibility.

In my view, it would not be in accord with the reasons of this court, or indeed within any power contained in the Act, for it to make the declaration sought by the parents in their amended notice of appeal. Nor would the order which they seek in the alternative to the declaration be in accord with the reasons of any member of this court.

No party sought an order for costs in relation to the appeal, and thus there will be no order for costs.

Strickland J

I have had the advantage of reading the draft reasons for judgment of the Chief Justice and of Justice Finn. I agree with the outcomes proposed by both of my colleagues and generally for the reasons set out by each of them.

In summary, I agree that on the evidence before the trial judge stage one of the treatment can be described as therapeutic. Further, because the stage one treatment is reversible, none of the concerns expressed by the High Court in Marion’s case as to the risks of a wrong decision and any resulting grave consequences arise.

Thus, given there is no dispute between the child, her parents or her doctors that the stage one treatment should be undertaken, that treatment did not require court authorisation. It falls within the wide ambit of parental responsibility reposing in parents when a child is not yet able to make his or her own decision about medical treatment.

In relation to stage two treatment, I agree that the therapeutic benefits of the treatment need to be weighed against the risks involved and the consequences which arise out of the treatment being irreversible, but that given the nature of the changes that would result for the child that treatment should require court authorisation. This would not be the case though where the child is able to give consent to the proposed treatment.

Whether the child is able to fully understand and give informed consent to stage two treatment, and thus court authorisation is not required, is a threshold issue that the court must decide. This is because of the requirement by the High Court majority in Marion’s case that it is for the court to authorise medical treatment that is irreversible where there is a significant risk of the wrong decision being made as to the child’s capacity to consent to the treatment, and where the consequences of such a wrong decision are particularly grave.

I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn & Strickland JJ) delivered on 31 July 2013.

Associates:

Date: 31 July 2013