FAMILY LAW – APPEAL – CHILDREN – where the trial judge was found not to have erred in refusing to accept the evidence of one expert as to whether the child was at risk of abuse when living with the father, when a number of other experts were of the opinion that the child was not at risk of abuse from the father – where the trial judge was found not to have erred in ordering that the mother’s time with the child to be supervised on an indefinite basis – appeal dismissed.

[2012] FamCAFC 189  Coversheet and Orders Page 1
FAMILY COURT OF AUSTRALIA
LINDSAY & BAKER  [2012] FamCAFC 189
FAMILY LAW – APPEAL – CHILDREN – where the trial judge was found not to
have erred in refusing to accept the evidence of one expert as to whether the child
was at risk of abuse when living with the father, when a number of other experts were
of the opinion that the child was not at risk of abuse from the father – where the trial
judge was found not to have erred in ordering that the mother’s time with the child to
be supervised on an indefinite basis – appeal dismissed.
Family Law Act 1975 (Cth)
Champness & Hanson (2009) FLC 93-407
Rice & Asplund (1979) FLC 90-725
APPELLANT:  Ms Lindsay
RESPONDENT:  Mr Baker
INDEPENDENT CHILDREN’S LAWYER:  Damien Carter
FILE NUMBER:  BRF 11130  of 2003
APPEAL NUMBER:  NA 135  of 2010
PLACE DELIVERED:  Canberra
PLACE HEARD:  Brisbane
JUDGMENT OF:  Bryant CJ, Finn and Strickland JJ
HEARING DATE:  4 November 2011
LOWER COURT JURISDICTION:  Family Court of Australia
LOWER COURT ORDERS DATE:  28 May 2010 &
1 December 2010  
LOWER COURT MNC:  [2010] FamCA 421
DATE DELIVERED:  15 November 2012  [2012] FamCAFC 189  Coversheet and Orders Page 2
REPRESENTATION
APPELLANT:  In person
RESPONDENT:  In person
COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:
Ms Frizelle
SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:
Carter Farquar  [2012] FamCAFC 189  Coversheet and Orders Page 3
ORDERS
(1) The appeal against the orders of the Honourable Justice Bell made on 28 May
2010 and on 1 December 2011 be dismissed.
(2) There be no order for costs in relation to the appeal.  
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Lindsay & Baker has been approved by the Chief Justice pursuant to s 121(9)(g) of the
Family Law Act 1975 (Cth).[2012] FamCAFC 189  Reasons Page 1
Appeal Number: NA 135 of 2010
File Number: BRF 11130 of 2003
Ms Lindsay
Appellant
And
Mr Baker
Respondent
And
Damien Carter
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
1. This is an appeal by Ms Lindsay (“the mother”) against parenting orders made
by Bell J on 28 May 2010 and 1 December 2010 in relation to the child, B, who
was born in October 2002 and is the child of the mother’s short relationship
with Mr Baker (“the father”).
2. His Honour’s orders of 28 May 2010 in effect provided that the child should
live with the father, that the father should have sole parental responsibility for
the child, and that the mother should spend time with the child on a supervised
basis pending a report in respect of that supervised time and a review by his
Honour at the end of 2010.
3. His Honour’s order of 1 December 2010 in effect provided for the mother’s
time with the child to be supervised on an indefinite basis.
4. The father who, like the mother, was unrepresented  before us, opposed the
appeal as also, importantly, did the Independent Children’s Lawyer (“the ICL”)
who was represented by Counsel before us.
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE  [2012] FamCAFC 189  Reasons Page 2
BACKGROUND HISTORY
5. The parties’ relationship apparently broke down at about the time of the child’s
birth in October 2002 when the parties were living  in northern New South
Wales. The child then remained living with the mother (which he continued to
do until February 2008).
6. Interim parenting orders were made in the New South Wales Local Court on
16 October 2003 providing for the child to live with the mother and spend time
with the father. However, it appears that until the end of May 2004 the father
only spent time with the child on a limited number  of occasions and at a
contact centre.
7. Following the filing of various applications by both parties (including
contravention applications by the father), orders were made by consent on
30 June 2004 by the Family Court providing for the  child to live with the
mother, who was to have sole parental responsibility, and for the child to spend
supervised time with the father at a contact centre. It seems that the father was
thereafter eventually able to spend some time with the child on an unsupervised
basis.
8. However, both parties continued to file applications, and the matter came
before Bell J on 20 October 2005. On that occasion  both parties were
represented by Counsel and orders were made for the child to live with the
mother and to spend unsupervised time with the father initially during the day
at a contact centre, but extending later to alternate weekends and then school
holidays.
9. The mother alleges that after the first time the child spent with the father on
22 October 2005, the child made disclosures of inappropriate behaviour on the
part of the father, and that he continued to make such disclosures following
other times with the father. Details of the disclosures made by the child and the
investigations which followed are detailed by Bell J in his reasons for judgment
of 28 May 2010 at [15] to [28] and need not be repeated here.
10. Suffice it to say that a trial took place before Carmody J on 27 and 28 February
2007, with judgment being delivered on 15 March 2007. At that trial both the
mother and the father appeared without legal representation and the ICL was
represented by Counsel.
11. Carmody J ordered that the child continue to live with the mother and spend
unsupervised time with the father on a gradually increasing basis.
12. In his reasons for judgment delivered on 15 March 2007 Carmody J
summarised this case as it had come before him in the following way:
2. The parents’ relationship broke down in October 2002.  The child
has resided with the mother all his life and spent mainly supervised
time with the father since separation. [2012] FamCAFC 189  Reasons Page 3
3. Past attempts to introduce unsupervised time have failed due
initially to welfare concerns arising out of the father’s admitted
heroin addiction but that is now under control and the only current
impediment to unrestricted contact is that the asserted risk of sexual
related harm to the child based on alleged disclosures and
behaviours the mother interprets as suggestive of abuse by the
father.
4. The father denies any indecent conduct and contends that the child
should be ordered to live with him as a safeguard against ongoing
emotional abuse at the mother’s hands and to ensure that he receives
the benefit of having a meaningful relationship with both parents.
5. On his case the mother is intrinsically contact averse, has a history
of non-compliance with court orders and is bent on destroying what
little relationship he has been able to establish with his son by
wilfully misconstruing patently improbable statements and giving
normal childish actions an unwarranted sinister connotation. He also
claims that the mother’s admitted encouragement of  the child to
repeat false allegations against him to others not only distresses the
child but has the purpose or effect of exacerbating the rift that has
developed between them.
6. Counsel for the Independent Child’s Lawyer dismisses the mother’s
“unacceptable risk” claims as verging on the fanciful and, in line
with the family consultant’s report,  proposes that increasing periods
of unsupervised overnight time be gradually re-introduced over the
next twelve (12) months so that by April next year the child will be
spending each alternate weekend from Friday afternoon to
Wednesday afternoon and each other Wednesday from 9.00am to
Thursday 9.00am as well as designated special days and half school
holidays.
13. Later, having reviewed the evidence before him, Carmody J reached the
following conclusions:
103. There is, as I have already concluded, no reasonable ground for
believing that the father has sexually abused the child in the past
and no other event or circumstance suggestive of an unacceptable
risk of physical harm in allowing the child to have unsupervised
time with the father is apparent to me. Nor am I persuaded that there
is a real chance of emotional or psychological danger to the child as
a result of having unsupervised time with the father.
…
110. The father says that the child should live with him but this is
contrary to the recommendation of both the family reporter and
Counsel for the Independent Children’s Lawyer. I do not think it [2012] FamCAFC 189  Reasons Page 4
would be in the best interests of the child to take him away from the
primary carer of a lifetime and place him in the hands of a genuine
and well meaning but inexperienced parent with whom he has had
little to do and is unsure of and (sic) this stage of his development. I
do not think he would be able to adjust to that transfer and that the
risk of emotional harm outweighs any potential benefit in doing it.
…
114. There is a serious question mark over the mother’s willingness and
ability to encourage and facilitate a close and continuing
relationship between the child and the father. Her  past history
suggests that she will struggle with this. Her attitude to contact is
not entirely appropriate and is incompatible with her responsibility
to encourage the establishment and maintenance of a meaningful
relationship between the father and the child.  I am willing at this
stage to take her at her word that she will accept my findings on the
sexual abuse question and comply with final orders even if she did
not do so in respect of those made at interim proceedings. She did
seem to me to be genuine when questioned about this and I believe
her when she says that she has received strong advice which she
accepts to comply.
115. If my faith in her proves to be misplaced then of course she runs the
very real risk of a reversal of residence application against her
succeeding in the future.
116. Having regard to the limited unsupervised time he has spent with
his father since separation, the tenuous nature of the relationship and
the damage done to the parental relationship by the sexual abuse
allegations and non-compliance with contact orders  I think the
overall best interests of this child will be best promoted by the
graduated and increasing levels of unsupervised time recommended
by the family reporter and reflected in the proposed orders of the
Independent Child’s Lawyer.
14. An appeal by the mother and a cross-appeal by the father against Carmody J’s
orders were dismissed by the Full Court on 26 October 2007.
15. It appears from the reasons for judgment of Bell J of 28 May 2010 at [30] –
[31], that by November 2007 the father again had to file contravention
applications in an attempt to spend time with the child and that the mother was
again making allegations of abuse to the Queensland department  responsible
for child welfare matters. (That department has operated under various names
during the life of this case, and we will therefore throughout these reasons
simply refer to it as “the Department”). [2012] FamCAFC 189  Reasons Page 5
16. On 12 February 2008 Carmody J, on the father’s application, issued a recovery
order which required that the child be delivered to the father and that he live
with him until 27 February 2008.
17. On 27 February 2008 Carmody J made further orders providing for the child to
live with the father and spend supervised time with the mother.
18. On 31 March 2008 further orders were again made by Carmody J in relation to
the mother’s time with the child (with only “changeovers” being supervised),
and in relation to the preparation of a further family report, the filing of further
material by the parties and for the transfer of the matter to another judicial
docket. Those orders were subsequently varied by Carmody J on 20 May 2008
to provide for the child to stay overnight with the mother on one night each
week.
19. According to Bell J at [37] of his reasons of 28 May 2010, the father had to
apply for a location order on 11 August 2008 because the mother had
disappeared with the child and then kept herself and the child hidden until
November 2008 when the child was recovered – a recovery order having been
issued by Murphy J on 8 September 2008 which provided for the child to be
delivered to the father.
20. On 21 November 2008 Murphy J made orders suspending all face-to-face time
between the mother and the child for a period of six weeks to be followed by
supervised time once a week at a contact centre.
21. During the course of 2008 and 2009 various expert investigations were carried
out and reports written in relation to this case and to which we will later refer.
THE PROCEEDINGS IN 2010 BEFORE BELL J
22. There was then a four day trial before Bell J on 15 to 18 March 2010. Again at
that trial each of the parents was self-represented and the ICL was represented
by Counsel.
Orders made on 28 May 2010
23. His Honour delivered his reasons for judgment on 28 May 2010 and made the
following orders:
(1) The Applicant’s application is dismissed.
(2) That the child B born … October 2002 live with the father.
(3) That the father have sole parental responsibility for the long-term
and short-term care, welfare and development of child.
(4) That pursuant to Section 65L of the Family Law Act 1975: [2012] FamCAFC 189  Reasons Page 6
(a) the mother spend time with the child on a week  day to be
nominated by the Senior Family Consultant of the Family
Court of Australia Brisbane Registry, once a fortnight for
two hours after school in the Court precincts;
(b) such time and compliance with these parenting orders is to
be supervised by Ms [B] or another Family Consultant as
nominated by the Senior Family Consultant, with the father
to deliver and collect the child;
(c) the parties shall do all things, sign all such documents, attend
all such appointments and ensure the child attend all such
appointments as are reasonably necessary for such
supervision;
(d) the Family Consultant shall prepare a report, in respect of the
supervision, and contact with the parties and child and it is
requested that such report be available prior to November
2010; and
(e) the Family Consultant is at liberty to consider any or all
documents in this matter which the Family Consultant
considers would be of assistance in preparing the report.
(5) That the mother spend time with the child on a week day in the off
week after school for two hours supervised at a Contact Centre –
subject to the Independent Children’s Lawyer being able to organise
a Contact Centre for this purpose.
(6) That the Independent Children’s Lawyer endeavour to ascertain a
responsible adult approved by the Independent Children’s Lawyer
who may be able to supervise the mother’s time with the child
between the hours of 6:00 am and 9:00 pm on Saturday or Sunday.
(7) That the mother attend further psychiatric counselling in relation to
her allegations against the father with a professional approved by
the Independent Children’s Lawyer and that a report be made by the
said psychiatrist and/or psychologist.
(8) That the mother be permitted to send letters, cards and gifts to the
child.
(9) That the matter be brought back before the Honourable Justice Bell
no later than 30 November of this year for review. [2012] FamCAFC 189  Reasons Page 7
(10) The parties be at liberty to apply to re-list the matter on forty-eight
(48) hours’ notice to the other parties with regards to any variation
of this Order.
Summary of reasons for orders made on 28 May 2010
24. It will be necessary for us to refer later at various places in these reasons to his
Honour’s reasons for the orders which he made on 28 May 2012. However, we
explain at this point that he commenced his reasons with a detailed history of
the proceedings between the parties since, in his Honour’s words, the child was
“about one year old” (Reasons [1] to [29]). In the  course of that history his
Honour referred at considerable length to the allegations which the mother had
made in the trial before Carmody J and to certain of the expert or independent
witnesses and evidence in that trial.
25. His Honour then described the events, the expert or independent inquiries and
reports, and the proceedings which had followed Carmody J’s decision
(Reasons [30] to [79]).
26. In this context his Honour focused particularly on  the evidence of a social
worker in the Department, Ms W who, according to his Honour, had prepared a
report on 23 March 2009 which was based on assessments which had already
taken place. Although Ms W had not interviewed the child or his parents, she
had come to the conclusion that the child “had probably been sexually abused
by the father”. His Honour explained at some length his reasons for rejecting
Ms W’s evidence (Reasons [52] to [75]) and preferring the evidence of Ms Y,
who is a former officer of the Department and had prepared a report following
Ms W’s assessment.
27. At [80] of his reasons his Honour concluded in relation to the issue of abuse or
risk of abuse to the child:
80. Notwithstanding there may be matters which I have overlooked in
the extensive evidence before me which may be of some assistance
to either of the parties, I am quite satisfied on the evidence that there
is no evidence or any sufficient evidence to convince me that the
child, [B], is being sexually assaulted, nor is there any unacceptable
risk of his being sexually assaulted whilst in the primary care of the
father, in whose care he has been since 2008 when the child was
recovered pursuant to a recovery order.
28. His Honour then considered the relevant matters in s 60CC of the Family Law
Act 1975 (Cth) (“the Act”) (Reasons [81] to [102]). In this context his Honour’s
concerns that the mother might “again abscond” with the child clearly emerged.
His Honour’s conclusion was that there would need to be supervision of the
mother’s time with the child, and that it would be necessary for the ICL to work
out the necessary supervision arrangements, which his Honour would review
later in the year. [2012] FamCAFC 189  Reasons Page 8
Proceedings on 26 November 2010
29. Pursuant to his Honour’s orders of 28 May 2010, the matter came back before
him on 26 November 2010 (See transcript, 26 November 2010). It is clear from
the transcript of that day that his Honour had before him an updating report
from the family consultant, Ms B, dated 1 November  2010, in which she
maintained her recommendation that the child continue to live with the father.
She also recommended that the child have a supervised twelve hour period four
times a year with the mother, but with weekly telephone communication. (Ms
B had previously prepared a number of family reports dated 24 February 2009,
17 June 2009, and 3 February 2010 and she had given oral evidence at the trial
before Bell J in March 2010).
30. Counsel for the ICL submitted that Ms B’s recommendations for four periods
each year be accepted. However, the father submitted that four times a year
would not be enough and that the child would be disappointed, and his Honour
indicated some agreement with that view.
31. There was also before his Honour on 26 November 2010 an affidavit from the
ICL (sworn/affirmed 24 November 2010) attaching reports from Ms C who had
been supervising the contact between the child and  the mother
together with an affidavit (sworn/affirmed 25 November 2010) from the mother
responding to matters raised in Ms C’s reports.
32. There was also a report from a psychologist, Dr M, prepared pursuant to Order
7 of the orders of 28 May 2010, in which Dr M concluded that the mother
continued to hold the belief that the father had sexually abused and was
continuing to abuse the child, and that the mother  “was not amenable to
reconsider her position”.
33. After the mother had raised some matters concerning his Honour’s decision in
May, which his Honour correctly explained were matters for an appeal, his
Honour said that if the mother would consent he would make an order that day
(concerning the mother’s future time with the child) otherwise the matter would
“be set down for hearing again”. The mother responded that she “would like it
to go to hearing”. His Honour then said that he would adjourn the matter to a
Registrar for the fixing of a date for a two day hearing in the following year.
34. Finally, on 26 November 2010 his Honour dismissed an application which the
mother had filed on 8 November 2010 seeking orders for a police investigation
into allegedly missing subpoenaed documents.
Proceedings on 1 December 2010
35. The matter next came before Bell J on 1 December 2010. Counsel for the ICL
advised his Honour at the outset that it was the position of the ICL that there
was no need for a further hearing given that a trial had occurred in March and
that the only matter left for determination was the ongoing arrangement for [2012] FamCAFC 189  Reasons Page 9
supervised time between the mother and the child. Counsel also advised his
Honour that the ICL had been able to engage a new supervisor, a Ms P, as Ms C
would no longer be available as from 12 December 2010.
36. After some further discussion with all parties concerning the terms of the order
he proposed to make, and having explained to the mother that he had been
“confused” at the previous hearing (when he had mentioned the possibility of a
two day hearing), his Honour made an order which in its engrossed terms is as
follows:
1. The mother spend time with the child [B] born …  October 2002
each alternate weekend for a period of no more than three hours on
a Saturday or a Sunday such time to be supervised by Ms [P] or
such other person appointed by the Independent Children’s Lawyer,
the costs of such supervision to be borne equally between the
parties.
SCOPE AND CONDUCT OF THE PRESENT APPEAL
37. On 24 December 2010 the mother filed a notice of appeal against his Honour’s
order of 1 December 2010. The mother had not at that stage filed an appeal
against the orders of 28 May 2010.
38. The matter came before the Appeal Registrar for a procedural hearing on
16 March 2011 and was adjourned to afford the mother the opportunity to seek
to file an appeal against the orders made on 28 May 2010.
39. On 6 May 2011 the mother filed an application seeking leave to file a notice of
appeal out of time against the orders of 28 May 2010. The other parties
eventually consented to that application.
40. It was necessary for the Appeal Registrar to conduct a number of further
hearings in order to have the appeals ready for hearing by this Court. We need
not detail the applications dealt with nor the orders made at those hearings. We
need only say that it was necessary for the matter  to be listed before us for
mention on 2 November 2011, and at that mention we  made orders which
permitted the mother to file a further amended notice of appeal (which she did
on 4 November 2011) in which she appealed both the orders of 28 May and
1 December 2010.
41. The mother’s original notice of appeal filed on 24 December 2010 contained
23 grounds of appeal.
42. On 16 September 2011 the mother filed an amended notice of appeal in which
each of the original 23 grounds appeared (at least in substance) but was crossed
out. There was then a new and, in many cases, different ground inserted
immediately after the crossed out original ground.  In addition new Grounds
24 to 37 were inserted. [2012] FamCAFC 189  Reasons Page 10
43. The mother also filed on 16 September 2011 a summary of argument which
addressed each of the 37 grounds in the amended notice of appeal. This was
done by repeating each ground and then adding some  additional material or
references in relation to that ground.
44. In addition, a further ground, Ground 38, appeared at the end of the summary
of argument. This appears to have happened because what was Ground 29 in
the amended notice of appeal was split in the summary of argument into two
paragraphs, with the second paragraph being numbered 30 and all subsequent
grounds given a higher number.
45. On 4 November 2011, the day of the appeal hearing, the mother filed a further
amended notice of appeal which contained the same 37 grounds of appeal
presented in the same way as in the amended notice  of appeal filed on 16
September 2011 (that is, with the grounds from the  original notice of appeal
crossed out and a new ground inserted below each original ground, and with
new Grounds 24 to 37). However, in the further amended notice of appeal
Ground 6 was abandoned (this was done by all material under the heading
“Ground 6” being crossed out). The only other difference between the further
amended notice of appeal and the amended notice of appeal was that the former
stated that the appeal was against the orders of 28 May 2010 as well as against
the order of 1 December 2010.
46. We have only mentioned these matters concerning the various notices of appeal
because Counsel for the ICL had filed her written summary of argument on
1 November 2011, and in that document Counsel had addressed the grounds of
appeal as they appear in the mother’s amended notice of appeal (filed 16
September 2011).
47. Given that there was no difference between the grounds as contained in her
amended notice of appeal, and the grounds contained in the further amended
notice of appeal (apart from the abandonment of Ground 6), Counsel for the
ICL was not at a disadvantage before us and was able to address orally without
difficulty those grounds which she considered she needed to address. When
later in these reasons we address the grounds of appeal, we will do so
according to the numbering which appears in the amended notice of appeal and
further amended notice of appeal.
48. We also mention in this context that in her written summary of argument
Counsel for the ICL endeavoured to group the grounds of appeal into eight
categories, but having done that she further grouped them into two categories
being: first, improper and unarguable grounds which have no substance and
should be dismissed, and second, grounds that are appealable (being Grounds
4, 5, 12, 13, 23, 29 and 31).
49. We do not propose to adopt these groupings. Rather  we considered it more
appropriate given the mother’s self-represented status and her obvious concerns [2012] FamCAFC 189  Reasons Page 11
about this matter, for us to address individually each of her grounds or
purported grounds (at least as best as we have been able to understand them),
notwithstanding the time and work that this has taken.
50. For his part, the father had prepared as his summary of argument a short
document (which he filed on 10 October 2011) in which he stated that Bell J
had “considered all of the evidence before him, from the Family Report writers,
the Queensland police, the Department of Communities, the psychiatrist and
psychologists reports, the contact centres and supervisors and the parties
involved to arrive at the decision he made.” The father then sought, as
mentioned at the outset of these reasons, that the orders of Bell J be upheld and
the appeal be dismissed. The father added little by way of oral submissions at
the hearing before us.
THE GROUNDS OF APPEAL
51. We will now set out the precise terms of each ground of appeal as it is
contained in the mother’s further amended notice of appeal (filed 4 November
2011) and we will then consider that ground.
Ground 1: “In hearing this matter His Honour has not fulfilled his obligation to
comply with legislative administrative procedural requirements and his determination
has been made outside jurisdiction, in that having said ‘It is not a matter for the Court.
If the Bar Association has seen fit not to have solicitors sitting beside counsel then I
can’t interfere with the Bar Association,’ his Honour has continued to hear the matter
with the independent child lawyer seated at the bar table addressing his honour during
proceedings. Counsel and the ICL have similarly not fulfilled their professional
obligations.”
52. This purported ground of appeal is directed to a passage in the transcript of
15 March 2010 at page 32 when his Honour was discussing with Counsel for
the ICL a timetable for the attendance of the witnesses during the trial. During
the course of that discussion, Counsel indicated that she would need to speak to
her instructing solicitor about the availability of certain witnesses. His Honour
then made the statement which appears in italics in this ground. There was no
error in his Honour continuing to hear the matter despite his concern that
Counsel’s instructing solicitor was not with her. Nor in our view, can any
criticism be made of the ICL and his Counsel on account of this matter.
Ground 2:  “His Honour made an error of law in not determining at the
commencement of proceedings who’s application he was hearing, and by what course
the hearing for final parenting orders had come before him, resulting in a
misconception from the onset of the nature of his duty, and a failure to recognise the
necessary conditions for the exercise of his jurisdiction.” [2012] FamCAFC 189  Reasons Page 12
53. It is true that Bell J did not identify at the commencement of his reasons for
judgment delivered on 28 May 2010, which party was the applicant and which
was the respondent and the precise orders which each was seeking. Nor does he
appear to have identified these matters at the commencement of the trial.
54. However, throughout the trial his Honour appears to have treated the mother as
the applicant given that he permitted her to cross-examine witnesses before the
father did so, and given also that the cover page of his reasons for judgment of
28 May 2010 show the mother as the applicant. In our view, this was the
correct approach because by the time of the trial before his Honour the child
was living with the father (pursuant to the orders  made by Murphy J on
8 September and 21 November 2008) and the mother’s case before his Honour
was that the child should return to live with her and have only supervised time
with the father (as is clear from her Case Information document filed on
12 February 2010). It is also abundantly clear from his Honour’s reasons for
judgment what orders each party was seeking.
55. In her oral submissions directed to this ground, the mother appeared to make
similar complaints in relation to the proceedings before his Honour on
26 November 2010.
56. There can certainly be no substance in these complaints because at the very
commencement of the proceedings on 26 November 2010, his Honour enquired
as to whose application was before him, and it is clear from the exchange
which followed, that it was the application of the ICL for a determination for
the time which the mother was to spend with the child (as required by the
orders of 28 May 2010).
57. There was also before his Honour on 26 November 2010 the application by the
mother for a police investigation into allegedly missing subpoenaed material,
which his Honour dismissed. The time at which that  application was being
determined and that it was the mother’s application is entirely clear from the
transcript of that day.
58. Finally, we observe that to the extent there may have been an expectation on
the mother’s part after the proceedings on 26 November that there was to be a
further two day hearing, this “confusion” on his Honour’s part was adequately
explained to her by him on 1 December 2010.
Ground 3: “His Honour made an error of law in not hearing this matter on a De
Novo basis and applying Rice and Asplund principles in light of the fact that
subsequent to final parenting orders made by Justice Carmody in March 2007, and an
appeal against those Orders, dismissed on 26/10/2007 the listing for final parenting
orders did not eventuate as a result of a fresh application by either parent, but from
Orders of Justice Carmody dated 31 March 2008, listing the matter for allocation into [2012] FamCAFC 189  Reasons Page 13
another judicial docket, and Orders of 20/5/2008, stating the application for final
parenting orders remain open.”
59. On its face this ground seems to complain that Bell J erred in deciding this case
only on the basis of evidence which became available after the trial before and
decision of Carmody J in February – March 2007 and not on the basis of the
evidence which was before Carmody J.
60. It will be clear from the summary of Bell J’s reasons of 28 May 2010 which we
earlier provided, that his Honour did canvass at considerable length in those
reasons the allegations and other evidence which had been before Carmody J in
February 2007. However, it was unnecessary for Bell J to go behind, or second
guess, so to speak, the decision reached by Carmody J (which had itself been
subject to appeal). What was necessary for Bell J to do, and what he did do,
was to consider the allegations made and other evidence, which had become
available, subsequent to Carmody J’s decision. As his Honour’s treatment of
what can be termed “new material” is, in our view, the most significant issue in
this appeal and as it is raised in other grounds of appeal, we will return to it
after canvassing all other grounds.
61. Finally, at this point in relation to Ground 3, we would say that we do not read
Bell J’s reasons of 28 May 2010 as containing any application of the principles
in  Rice & Asplund  (1979) FLC 90-725, and also that the orders made by
Carmody J on 31 March and 20 May 2008 which are referred to in the ground
were either of a procedural nature or adjusted the supervision arrangements and
are of no present significance.
Ground 4: “His Honour made an error of law in stating on the 26 November 2010,
‘I’m functu officio’, and ‘This is not a review’, in light of his Orders of 28/5/2010
which state at paragraph (9) ‘That the matter be brought back before the Honourable
Justice Bell no later than 30 November for a review’, and paragraph 87 of Reasons for
Judgment of 28/5/2010 where he wrote ‘that the Independent child lawyer should at
the end of six months bring the matter back on for a hearing before me.’”
62. Earlier in our account of the various proceedings before Bell J in 2010, we
explained that his Honour’s orders of 28 May 2010 required that the matter
should come back before him before the end of November that year so that he
could review the arrangements for supervision of the time which the mother
was to spend with the child. We have also explained the confusion on his
Honour’s part on 26 November 2010, which he acknowledged on 1 December
2010, as to the need for another two day trial. In addition we have explained
that on 26 November the mother had endeavoured to raise matters with his
Honour arising out of his decision on 28 May 2010,  which his Honour had
correctly explained were matters for an appeal and not for the limited “review”
which he was then conducting. Nothing more need be said about these matters [2012] FamCAFC 189  Reasons Page 14
save to make clear that there was no error on his Honour’s part as asserted by
Ground 4.
63. Before leaving Ground 4, we mention that in her oral submissions the mother
referred to an order made on 3 November 2010 by a Registrar which required
the Director-General of the Department of Communities (Child Safety
Services) “to provide an update of the Magellan Report”. It appears that this
order caused the mother to believe that there was to be a further trial.
64. (It should be explained that “the Magellan” list is a case management system in
the Family Court for serious child abuse cases. “Magellan” reports are
compiled for the assistance of the Court by child welfare departments).
65. It would appear that the order of the Registrar was made under a
misapprehension by the Registrar that such an updated report was required for
the review required under the orders of 28 May 2010. As will be seen from
those orders, which are earlier set out, no updated Magellan report was
required; only a report by a family consultant was required.
66. We also mention that there was before us at the hearing of the appeal (as
“Exhibit 1”) an email from the Department to the Registrar responding to her
order and explaining that the Department had not had any further contact with
the family since the provision of a report on 3 March 2010 and that there was
therefore no information to update.
Ground 5: “His Honour was estopped from making final orders  on 1 December
having said on the 26/11/2010 that there would be a further two day hearing of this
matter in May or June of 2011. As a result errors of fact, brought to his Honour’s
attention on 26/11/2010 have not been addressed, time has been lost, natural justice
denied and the matter has gone to Appeal.”
67. The matters raised by this ground have been addressed under Ground 4 and
found to be without substance.
Ground 6:  Abandoned.
Ground 7:  “His Honour made an error of law in dismissing the  appellant’s
application dated 8/11/2010 (appeal book page 520) seeking Orders that the Court
request a police investigation into missing documents and irregularities contained in
subpoenaed documents as described in the appellant’s affidavit of 8/11/2010, as unless
these matters are investigated decisions can not safely be made.”
68. We consider that his Honour did not make an error of law in dismissing on
26 November 2010 the mother’s application for an order that the police
investigate allegedly missing documents and other “irregularities” in relation to
subpoenaed documents. The reasons for this application by the mother are
apparently to be found in her affidavit (filed 8 November 2010). Nothing said [2012] FamCAFC 189  Reasons Page 15
in that affidavit would have made it appropriate for such an order to be made
directed to the police.
69. We do however note from a passage of the transcript of 15 March 2010 (pages
127 – 128) that his Honour had some concerns about  the state of the
subpoenaed material and was having Registry investigations made.
Ground 8:  “His Honour failed to exercise his jurisdiction by  not obtaining from
Relationships Australia records of supervised visits with the father in 2007, which
were subpoenaed, but were not contained in the Court file. These records are relevant
to the matter to be decided.”
70. Counsel for the ICL drew our attention to a passage at pages 105 – 108 of the
transcript of 15 March 2010 where there was extensive discussion of the
subpoena to Relationships Australia. That discussion is not easy to follow
although it emerges elsewhere in the transcript that his Honour was concerned
about missing subpoenaed documents and asked for a Registry investigation.
However, we are prepared to accept the submission of Counsel for the ICL that
the material which had been provided complied with the subpoena.
71. We note that included in the material in the “Exhibit Book” tendered by the
ICL there is an “intake” form dated 20 November 2009, a medical consent
form dated 1 December 2009, a report of supervised time spent by the father
with the child on 22 March 2008, and a sheet of the file notes dating from
14 October 2007 to 22 May 2008.
Ground 9:  “His Honour failed to exercise his jurisdiction in not allocating time to
hear evidence from CSO Ms [Q] whom I had subpoenaed to give evidence. The child
made disclosures of abuse to Ms [Q] on 23/1/2008. His Honour had an obligation to
hear evidence from Ms [Q]. Failure to call her makes findings unsafe.”
72. It appears from the transcript of 15 March 2010 (at pages 64 and 110) that a
subpoena had been issued to a Ms Q, a Child Safety Officer, to attend to give
evidence. However, Ms Q had apparently asked if she could come to court on a
later date in the week of the trial because she had child care problems. His
Honour ruled that she would have to come earlier than her preferred date
presumably because he believed that the trial would have finished by that later
date.
73. The matter of Ms Q’s attendance at the hearing (as opposed to references to her
work) appears not to have been raised again. As we  explained to the mother
when she was before us, it was for her to have reminded his Honour about Ms
Q if she wanted her to give evidence.
Ground 10:  “Natural justice has been denied in that since being re listed as a
Magellan matter in 2008, the case has not been heard consistently by one Judge, as a [2012] FamCAFC 189  Reasons Page 16
result benefits derived from the Magellan program available to other litigants under
the program have been not been (sic) available in this case.”
74. Again as was explained to the mother when she was before us, it is desirable if
serious child abuse cases (“Magellan” matters) can continue to be heard by the
same judge. The difficulty in this case was that Carmody J had retired from the
Court before the trial before Bell J.
Ground 11:  “His Honour has made an error of law, and denied natural justice by not
permitting the appellant to make an opening statement. This is a breach of proper
hearing and failure to act according to substantial justice.”
75. The transcript of the opening day of the trial (Transcript 15 March 2010, page
9) reveals that his Honour did not permit the mother to make an opening
statement for the reason that she had prepared a Case Information document.
There was no error on his Honour’s part in those circumstances.
Ground 12: “His Honour has made an error of law in not providing Reasons for
Judgment for Final Orders.”
76. His Honour did provide reasons for judgment on 28 May 2010 for the final
orders made that day. In so far as his Honour conducted a review on
26 November 2010 and 1 December 2010 of the supervision arrangements for
the mother’s time with the child (as provided for in the orders and reasons of
28 May 2010), it was unnecessary for him to provide formal reasons for
judgment. His reasons for the order made on 1 December 2010 are clear from
the transcripts of 26 November 2010 and 1 December 2010. There is therefore
no error as asserted in this ground.
Ground 13:  “His Honour has made an error of law in not providing a sunset clause
for supervision of visits.”
77. While we acknowledge the indefinite supervision of  a child’s time with a
parent is generally undesirable, it was well within his Honour’s discretion in
the circumstances of the present case, particularly having regard to the location
and recovery orders which have been necessary in the past for his Honour to
make the order for indefinite supervision. (See in this regard the discussion in
Champness & Hanson (2009) FLC 93-407 [215] to [221]).
Ground 14:  “His Honour has demonstrated actual bias in his pre judgment of this
matter, apparent in his comment at paragraph 80 of his Reasons for Judgment where
he wrote  ‘Notwithstanding there may be matters which I have  overlooked in the
extensive evidence before me which may be of some assistance to either of the parties,
I am quite satisfied on the evidence that there is no evidence that there is no evidence [2012] FamCAFC 189  Reasons Page 17
(sic) or any sufficient evidence to convince me that the child, [B] is being sexually
assaulted whilst in the primary care of the father’.”
78. The mother submitted orally to us that this statement indicated that his Honour
was committed to his conclusion no matter what evidence he may have
overlooked.
79. His Honour had before him an enormous volume of evidence in the form of
affidavits from the parties and from other persons. In addition he had tendered
documents from the ICL which was referred to as “the Exhibit Book” and
which extended to nearly a thousand pages and occupied four appeal books
before us.
80. It is therefore hardly surprising that his Honour included reference to the
possibility that he had overlooked something. But we are certainly satisfied
having considered that material ourselves, that his conclusion was reasonably
open to him as we will further explain in due course.
Ground 15:  “His Honour displayed apprehended bias in stating ‘I don’t want to know
that’ in response to counsel advising him Ms [Q] (CSO to whom the child disclosed
abuse) had been subpoenaed to give evidence.”
81. The context in which his Honour made the remark, which is the subject of this
ground, was in a discussion about apparently missing subpoenaed documents.
His Honour’s remark was a response to a statement by Counsel for the ICL
apparently concerning the witness, Ms Q, that “in respect of the one before this
one, your Honour, she has actually been subpoenaed  to give evidence only”
(Transcript 15 March 2010, page 127, lines 31 to 32).
82. If, as mentioned in relation to Ground 7, his Honour was concerned about
missing subpoenaed documents, he would not have wanted to hear about a
subpoena which was only directed to the attendance  of a witness. He was
certainly not displaying “apprehended bias” by the remark in question.
Ground 16:  “His Honour displayed apprehended [bias] during discussion of
witnesses to be called; the appellant said ‘[Ms W] is the senior practitioner […]. She
has been saying the child is at risk of harm since March 2009. She has said that he
has probably been--’ his honour did not allow me to finish my sentence, and and (sic)
responded by saying ‘I don’t want to hear what she will say. What do you want her
for?’”
83. The exchange between his Honour and the mother to which this ground is
directed occurred early in the trial when his Honour was establishing a
timetable for the calling of witnesses.
84. His Honour was correct in saying that the mother should not tell him what Ms
W would actually say, but rather she should tell him the purpose of Ms W’s [2012] FamCAFC 189  Reasons Page 18
evidence. This the mother was able to do – the purpose being that Ms W’s
evidence conflicted with that of Ms Y and Ms S (as  we will later discuss).
(Transcript 15 March 2010 page 18, lines 34 to 41).
85. It is important to observe that Ms W did give evidence during the trial. There is
no substance in this ground and its claim of apprehended bias.
Ground 17:  “His Honour demonstrated apprehended bias in his remark”  your (sic)
the one who – want them. Your (sic) the one who should follow it up” in relation to
records of the father’s visits with the child at Relationships Australia in 2007 which
the centre confirmed with me they had sent, but were missing from the subpoenaed
file, in light of the fact that I am unable to obtain the records without permission of the
Court, and it is within his Honours (sic) jurisdiction to obtain the records, and unsafe
to decide a matter when records are missing from the file.”
86. The mother explained to us that this was a different complaint to that contained
in Ground 8 (which was directed to the allegedly missing subpoenaed
documents from Relationships Australia), in that this ground asserted
apprehended bias on the part of his Honour in the way he dealt with the
allegedly missing subpoenaed documents from Relationships Australia.
87. We do not agree that there could be any apprehension of bias on his Honour’s
part in the way in which he dealt with the issue of missing subpoenaed
documents. As we have earlier pointed out, his Honour apparently initiated an
enquiry within the Registry in relation to missing  subpoenaed documents.
Specifically, in relation to the documents from Relationships Australia, we have
earlier accepted what we understood to be the submission of Counsel for the
ICL, that all material required to be produced by that organisation was
produced.
Ground 18:  “His Honour has demonstrated apprehended bias in quoting Mr [R] at
paragraph 28 of his Reasons for Judgment where he wrote ‘I note in Mr [R]’s report,
see 8.2.2 that he is of the view that in respect of issues of sexual abuse argued by the
mother to be indicative of sexual abuse are not necessarily indications or even strong
indicators of sexual abuse’ without including that Mr [R] also wrote at paragraph 8.2.2
‘In respect to the allegations of sexual abuse, the report writer does not see it as his
role to determine whether or not sexual abuse has occurred’, and at paragraph 8.2.10
‘It is my opinion that a comprehensive psychological assessment of the child may be
beneficial’, at paragraph 8.2.3 ‘it probably would  not be in the best interests of the
child to leave the mother and live with the father as the father is proposing’, at 8.2.8
‘If the Court decides that there is insufficient evidence to indicate that there is an
acceptable risk ‘..’it is still considered to be in the best interests of the child to
continue living with the mother’ .. and ‘parenting times with he (sic) father should in
this eventuality be supervised initially. After several successful supervised sessions,
supervised periods should be gradually introduced by sandwiching short periods (for [2012] FamCAFC 189  Reasons Page 19
example two hours) of unsuperviesed (sic) time between two periods – each of half an
hour – of supervised time. The unsupervised component could be gradually increases
(sic) to say, six hours and following six months or so of such sessions, there could be a
review’. ..’the reasons for his regimen are several fold – it give us (including the
Court) a chance to observe the development of the relationship between the father and
the child in a safer manner’.”
88. Mr R is a psychologist who prepared a family report dated 15 June 2006. It was
in that report that the passages referred to in this ground are to be found.
89. It would seem that the complaint in this ground is that his Honour only selected
one passage from Mr R’s report and not other passages which might have been
more favourable to the mother. Even if that be so, we consider it would be of
no consequence because the circumstances of the case had so changed since Mr
R prepared that report, in particular the child had been moved to live with the
father following the mother’s absconding with him.
Ground 19:  “His Honour demonstrated apprehended bias in Ordering psychological
report of the mother on 25/5/2010 (sic) [28/5/2010] in light of the fact that the Court
had twice previously Ordered psychological reports of the mother, and at the time had
the benefit of three psychological reports of the mother, yet had no psychological
reports of the father, who admittedly has a history of heroin addiction and was
considered to have probably sexually abused the child, thought to be at ongoing risk
of probable sexual abuse by the father as documented by the senior practitioner.”
90. There could be no substance in this ground without the mother establishing to
our satisfaction that she had asked the Court to order a psychological
assessment of the father, and also that the Court had refused to do this for
reasons which were inadequate. She has not done this.
Ground 20:  “His Honour has demonstrated apprehended bias in his comments at
para 88 of Reasons for Judgement (sic) where he wrote ‘Best to be said that I have not
looked into the respective histories of the parties’…, yet in the same paragraph wrote
‘I need no more refer in relation to the mother than to Dr [G’s] report’ and ‘in her
extensive history she sets out those matters which some people might consider to be of
importance in the early childhood development of the mother’ It is evident in this
comment that it is the father’s history his honour has not looked into. A fair minded
observer may perceive that his Honour has not brought an impartial and unprejudiced
mind to the resolution of this matter in light of the father’s criminal history, and the
fact that sexual abuse by the father was suspected.”
91. We think that all his Honour was saying in the first sentence of [88] of his
reasons was that he did not intend to refer to or discuss the histories of the
parties except to refer to Dr G’s report in relation to the mother. [2012] FamCAFC 189  Reasons Page 20
92. Dr G is a psychiatrist who interviewed the mother on 17 March 2008 and
prepared a psychiatric assessment of the mother dated 20 March 2008 pursuant
to the orders made by Carmody J on 12 February 2008.
93. Given the serious matters contained in the concluding opinion in Dr G’s report
– some of which are set out in our discussion of Ground 24, we consider that
his Honour was justified in referring to her report and no complaint of
apprehended bias arising out of this matter could have substance.
94. To the extent that this ground complains about the  lack of such a report in
relation to the father, we refer again to what we said in relation to the last
ground (Ground 19).
Ground 21:  “His Honour has demonstrated apprehended Bias in his statement at
page 25 para 40 of Reasons for Judgment where he says in regard to the Care
Agreement to which parental consent was sought by the Department ‘it was signed by
you. It’s of no force and effect’. The fact that the father refused to sign is immaterial to
significant issue, being the child was considered to be at risk of harm from the father,
and a neutral environment considered to be in his best interests, and a pre requisite for
further disclosures of probable sexual abuse.”
95. There is no reference in [40] of Bell J’s reasons to a “Care Agreement” (which
is apparently a document which parents can be requested to sign by the
Department and which would provide for the child to be put into foster care).
However our searches have revealed that at page 25 line 40 of the transcript of
the first day of the trial (15 March 2010) in the course of an exchange between
the mother and his Honour, there is discussion of a child protection care
agreement. During that discussion his Honour said the words attributed to him
in this ground. We have been unable to locate a copy of the agreement in
question, but in any event do not consider that his Honour’s words when read
in the context of the discussion during which they were said, could possibly
support a successful apprehended bias claim.
Ground 22:  “His Honour has made an error of fact at paragraph 39 of his Reasons
for Judgment where he wrote in regard to the child’s 93A interview with police on
20/11/2010, ‘notwithstanding that [B] made no disclosures. he was returned to the
father – that was on 20 November 2008’ in light of evidence contained in
departmental and police files documenting that the  child disclosed abuse on
20/11/2010,  and police tapes of the interview on 20/11/2010.”
96. Paragraph 39 of his Honour’s reasons needs to be read in context with
paragraph 38. Those paragraphs are as follows:
38. There were, I believe, two discs of evidence tendered to this Court,
which is most unsatisfactory to the Court, but I was able to see one
which was a video and the other which was solely audio.  The [2012] FamCAFC 189  Reasons Page 21
mother has touched upon the child exhibiting signs of distress in the
video in which he tends to move towards a corner.  I am also of the
opinion that this would be, in effect if I might say, normal behaviour
for a child which has suffered such a terrible existence over a period
of many years.
39. The audio recording is quite sad in that it was indicated to the child
that he was to go with his father after he had been removed from his
father for about three months and he exhibited signs of distress.  My
heart bled for him having been put in such a position by the mother
and notwithstanding that [B] made no disclosures, he was returned
to the father – that was on 20 November 2008.
97. We clarified with the mother when she was before us that the reference to “20
November 2010” in this ground should in fact be to “20 November 2008”.
98. It appears from a document on the Department’s files which was one of the
ICL’s tendered documents before Bell J, that the child may have made
disclosures to the police on or about 20 or 21 November 2008, and that he had
made disclosures prior to that date. His Honour therefore may have made the
error of fact as is asserted by this ground, although we cannot be certain that his
Honour was not in fact referring to the tapes which he had listened to and
saying that they contained no disclosure by the child.
99. However even if there was such an error by his Honour, it would not be a
material error which would cause us to interfere with his decision. This is
because it is clear from other passages in his reasons, that his Honour was well
aware that the child had made disclosures. More importantly, disclosures of
themselves do not establish that abuse has occurred; rather disclosures have to
be investigated (as they have been in this case) and findings made.
Ground 23:  “His Honour has made an error of fact by stating on 1/12/1010 (sic)
regarding a psychological report Ordered on 28/5/2010 and written by Dr [M] ‘He
didn’t give a disgnosis’ (Appeal book Page 699) in light of the fact that Dr [M]
(clinical and forensic psychologist with specific training, qualifications and expertise
in assessing, evaluating and treating individuals with complex mental health concerns
and personality problems) wrote under the heading ‘PRESENTATION & CLINIAL
OBSERVATIONS’ at para 22 ‘she did not display any symptoms indicative of thought
disorder or related psychotic like symptomatology’”
100. The words attributed to his Honour in this ground appear in the transcript of
1 December 2010 at page 2 line 33. Read in context  these words may well
amount to no more than a question on his Honour’s part as to whether a
diagnosis had been provided by Dr M. Thus we cannot be satisfied that his
Honour did make an error of fact, but even if he did, it has not been established
that anything would turn on such an error. [2012] FamCAFC 189  Reasons Page 22
Ground 24:  “His Honour made an error of fact at para 89 of his Reasons for
Judgment where he wrote ‘Dr [G] is of the opinion that the mother’s conviction that
[B] is being sexually abused by his father could perhaps be brought about as a result
of her own history or sexual abuse’. Dr [G] wrote ‘I believe it is possible that
hypervigilance and over protectiveness of her children may be a consequence
attributable to sexual abuse’”
101. It appears correct that in the concluding paragraphs of her report (which we
earlier mentioned) Dr G used the words which are attributed to her in this
ground rather than in his Honour’s interpretation of those words as appears in
the opening sentence of [89] of his reasons. While  it might be said that the
words as interpreted by his Honour are stronger than those actually used by
Dr G, nothing would turn on this. Rather the important paragraphs from the
doctor’s conclusions were quoted accurately later in paragraph 89 and then in
paragraph 90 of his Honour’s reasons and are as follows:
I consider that her psychological stance is increasingly entrenched as she
has undertaken the adversarial process of litigation and I believe that it is
improbable that she will be able to comply with Orders for unsupervised
time with the father.
As things stand I believe that it is highly improbable that she will ever be
able to facilitate contact between the child and the father and since the
Court has determined that sexual abuse of the child by the father is unlikely
to have occurred this in itself would be to the detriment of the child.
Ground 25: “His Honour has made an errors of fact at par 9 of Reasons for
Judgment where he wrote he wrote (sic)‘There are other machinery provision orders
had been made and eventually the father was permitted to go on outside excursions
with the child [B], with a staff member from the contact centre’ Prior to Orders of
October 2005, there were no Orders made for unsupervised time between the child
and father.”
102. We do not understand the complaint in this ground given that the “outside
excursions” continued, according to what his Honour said in the passage
quoted in the ground, to be supervised by a contact centre staff member.
Ground 26:  “His Honour has made an error of fact at par 4 of Reasons for Judgment
where he states ‘The independent child lawyer was appointed pursuant to an Order of
this Court dated March 9 2010’ in light of the fact that the independent child lawyer
was appointed pursuant to an Order dated 18/4/2006.”
103. If this was an error on his Honour’s part, it is immaterial.
Ground 27: “His Honour has made an error of fact at par 8 of his Reasons for
Judgment where he wrote ‘she further sought orders that the mother be permitted to [2012] FamCAFC 189  Reasons Page 23
travel with the child overseas provided she provides the father with evidence of a
return air ticket and itinerary.’”
104. Again, if this was an error, it is immaterial.
Ground 28: “His Honour has failed to considered (sic) matters fundamental to the
issue to be determined, making his findings unsafe. This is apparent in his statement at
para 88 of Reasons for Judgment he wrote ‘Best to be said that I have not looked into
the respective histories of the parties’”
105. We have already  in the context of Ground 20  discussed and suggested an
explanation for this statement by his Honour, and therefore do not need to
address this ground further.
Ground 29:  “His Honour has an obligation to consider the child’s views as they were
in evidence before him.
His Honour has made an error of law in accepting the findings of Ms [Y’s]
investigation’s (sic) and Assessment & Outcome Report – 11/11/2009 which resulted
in the closure of the child’s departmental file; it is not supported by facts contained in
case notes, is misleading, and biased, and the investigation plan has not been adhered
to, and the Family Risk Assessment summary of the father finds the child to be at high
risk of abuse in the father’s care, and it is stated in the review – ‘During this time
DOCM(CSS) completed a review of his case and we understand a new assessment is
recommended’.”
106. As Counsel for the ICL submitted (at paragraph 51 of her written submissions),
his Honour did take into account the child’s expressed views by means of the
various expert reports which were before him and on the basis of which he was
able to conclude at [97] there is a relationship between the boy and his mother
and that he is excited to be with his mother. There is thus no merit in the first
part of this ground.
107. We will return to the substance of the second part  of this ground when we
discuss what we have identified in the context of Ground 3 as the principal
issue in the case.
Ground 30: “His Honour failed to give real and substantial consideration to the facts
of the case, and answer the question whether on the evidence, access could represent
an unacceptable risk of harm to the child, resulting in an error of law in light of the
result of the father’s Family Risk Assessment, which finds the child is at high risk of
abuse in his father’s care, and states that the case will remain open for further
intervention. At section 1 & 2 of this assessment question 3 has been answered
incorrectly resulting in a lower than factual risk level.”[2012] FamCAFC 189  Reasons Page 24
108. Again, this is a matter to which we will return when considering the essential
issue in the appeal.
Ground 31:  “His Honour had an obligation to consider the Expert witness report of
[Ms H], Ordered on 31/3/2008. [Ms H] wrote ‘It is my opinion that Ms [Lindsay]s
concern about the safety of her son [B] is based on what appears to be a reasonable
assumption and one that many parents would hold, irrespective of the individual
adult’s sexual abuse history, given [B]’s overt sexualised behaviour, and other
behaviours displayed by [B] which are of concern and lastly the disclosures made by
[B] not only to his mother, his grandmother and sister, but also to childcare
workers.’”
109. It appears from a report which Ms H, a psychologist, prepared on
4 June 2009 that the mother attended counselling with Ms H with a view to
resolving issues with respect to her own sexual abuse and how that may impact
on her parenting of the child. The report was in evidence before his Honour,
and the subject of the mother’s two counselling sessions with Ms H was
discussed with the mother during her cross examination by Counsel for the
ICL.
110. Given the vast amount of evidence which his Honour had before him, we do
not consider that he was in error in not making reference to Ms H in his reasons
for judgment.
Grounds 32: “His Honour had an obligation to consider disclosures of sexual abuse
made by the child to childcare staff on the 9/2/2007, notified to the Dept. by the
Director of the centre on 11/2/2007, which due to an error of fact were not given
weight at the hearing in February 2007, or the subsequent appeal.”
Ground 33:  “His Honour has an obligation to consider that the  SCAN AM Team
were not able to provide appropriate recommendations or services for the child in the
absence of relevant information, available but not shared with the team by Dept. and
QPS. SCAN AM Team Supplementary Information – 19/2/2009 provided by Police
does not include information regarding the child’s 93A interview on the 20/11/2008 on
which date the child disclosed sexual abuse and death threats by the father. SCAN AM
Team minutes dated 20/2/2009 record CSO advised the team ‘Child has not disclosed
any concerns in relation to sexual abuse.’ The Dept. file contained mandated
notifications of disclosures of sexual abuse by the child at that dated.”
Ground 34:  “His Honour had an obligation to consider disclosures of sexual abuse
made to CSO’s on 23/1/2008, evidence of which was tendered on 15/3/2010. Failure
to consider these disclosures makes his Honour’s findings unsafe.”
Ground 35:  “His Honour had an obligation to consider a mandated report received
on 14 September 2009, referred to in Screening Criteria/Response Priority Summary [2012] FamCAFC 189  Reasons Page 25
29/10/2009 which records it is probable the child’s immediate safety is threatened, and
sexual abuse by the father is suspected. A 24 hour response was recommended. A copy
of the even intake – […] /Form ID […] is not contained in Court files.”
Ground 36:  “His Honour has an obligation to consider that the  Dept. opened an
‘Intervention with parental agreement’ with the father, in February 2009.”
Ground 37: “His Honour has an obligation to consider that the Dept. sought parental
consent to a ‘Care Agreement’ in June 2009. A neutral environment was considered to
be in the child’s best interests. The father refused to sign the agreement.”
111. The matters in these grounds will be discussed shortly when we turn to the
principal matter in the appeal being the new material before his Honour relating
to the risk to the child of sexual abuse.
THE NEW MATERIAL BEFORE BELL  J RELATING TO ALLEGATIONS
OF ABUSE OR RISK TO THE CHILD
112. We return now to the matters which were raised by Grounds 3, 29, 30 and 32
to 37, and which we consider to be the essential matters in the appeal, being
Bell J’s approach to, and conclusions regarding the events which occurred, and
the independent reports or assessments made, following Carmody J’s decision
on 15 March 2007. There was also a suggestion in the mother’s case that there
may have been disclosures from the child which had been made prior to, but
were not available at, the trial before Carmody J, but were available at the trial
before Bell J.
113. We propose to approach these matters first by tracing in greater detail than was
done in the earlier background history in these reasons, the events, proceedings,
investigations and reports which followed Carmody J’s decision in March
2007, either as recorded in Bell J’s reasons of 28 May 2010 or as drawn to our
attention in the context of the appeal. We will then consider the grounds of
appeal directed to these matters.
The relevant history
114. On 12 February 2008 Carmody J issued a recovery order in relation to the
child. Whether such an order was required because the child had disappeared or
because he was not being made available for time with the father is not clear,
but it matters little.
115. Carmody J also ordered that the child should live with the father until
27 February 2008 and have no contact with the mother pending further hearing,
and that the mother was to be psychiatrically examined within the following
two weeks. These orders apparently provide the reason for the psychiatric
assessment of the mother by Dr G in March 2008.  [2012] FamCAFC 189  Reasons Page 26
116. On 27 February 2008 at a hearing at which the mother was represented by
Counsel, Carmody J made further orders that the child live with the father and
that the child have supervised time with the mother on a graduated basis. His
Honour also ordered that the mother attend upon a clinical psychologist, Dr L,
“with respect to the issues raised in the Family Report dated 15th June 2006 at
paragraph 8.2.3”. That family report had been prepared by Mr R (a
psychologist in private practice) and in paragraph  8.2.3 it was recommended
that the mother participate in counselling to assist her in managing the reported
sexualised behaviour of the child and to assist her to understand and accept the
need for the child to develop a positive relationship with the father.
117. On 31 March 2008 Carmody J made further orders varying the arrangements
for the time which the mother would spend with the  child and ordering a
further family report “to assess the present interim orders”.
118. As a result of those orders, a family report dated 16 June 2008 was prepared by
Ms J, and in which it was recommended that the child continue to live with the
father.
119. On 11 August 2008, the father had to apply for a location order because the
mother had disappeared with the child. A recovery order was subsequently
issued by Murphy J on 8 September 2008. The child was not recovered until
November 2008 when he was returned to the father’s care. Orders were made
by Murphy J on 21 November 2008 suspending the mother’s time with the
child for a period of six weeks.
120. As recorded by Bell J at [40] and [41] of his reasons of 28 May 2010, an
assessment prepared by a departmental officer, Ms E, on 13 February 2009
concluded that the child was safe, and a family report prepared by a family
consultant, Ms B, on 24 February 2009 recommended that the child’s time with
his mother be supervised (and that he continue living with his father).
121. Also at [40] of his reasons, his Honour suggests that a “Magellan” report
prepared by the Department on or about 14 February 2009 concluded that the
order placing the child in the father’s care was placing him at risk. However,
the second last paragraph of that report in fact states that it was not considered
that that order was placing the child at risk. There is clearly a typing error in his
Honour’s reasons.
122. Importantly for present purposes, his Honour recorded in [41] that on 23 March
2009 Ms W (a social worker with the Department) had concluded that, in his
Honour’s words, the child “had probably been sexually abused by the father”.
123. A case note summary prepared by Ms W is contained in the Department’s files,
in which she referred to her concerns about this case which she had previously
recorded on the Department’s files in July 2008 and February 2009. While
apparently acknowledging the need for a “far more holistic” assessment, she [2012] FamCAFC 189  Reasons Page 27
expressed the view that the child had probably been sexually abused by the
father and was at ongoing risk of such abuse by the father.
124. On 14 September 2009 and in light, it would seem, of Ms W’s concerns,
another officer of the Department, Ms S, prepared a report which contained an
extensive history of the Department’s involvement with the family and of
notifications to it, and concluded with a recommendation that because a
thorough departmental assessment of the sexual abuse concerns had never been
conducted, there should be “a thorough, comprehensive and holistic
investigation and assessment undertaken” for the apparent purpose of the
Department being able “to provide clear advice” to the Family Court. It was
also recommended that while that investigation and  assessment were
undertaken, the child remain living with the father.
125. At [72] of his reasons of 28 May 2010 Bell J indicated that Ms S’s report was
dated 14 September 2008. It is true that a copy of that report which appears in
the Appeal Book bears the date 14 September 2008. However it is clear that the
date should be 14 September 2009 given that the report refers to events in the
period between 14 September 2008 and 14 September 2009 and the correct
date of 14 September 2009 is confirmed by another document dated 4
November 2009 on the Department’s file. The transcript of the trial also
contains clarification of the date (Transcript 16 March 2010, page 226, lines
19-36).
126. Ms Y and Ms U then carried out the investigation and assessment
recommended by Ms S. Both parents and various members of their families
were interviewed during their investigation, and other professionals who had
been involved with the parties or the child (but not all such professionals) were
also contacted.
127. In their report Ms Y and Ms U concluded that the child appeared not to have
been harmed, or to be at risk of harm, in his father’s care and was not in need
of protection, and that the departmental file on the family should be closed.
128. We emphasise at this point that so far as there may have been any concern on
our part during the hearing of the appeal that officers of the Department had
been concerned that the allegations of abuse of the child had not been properly
investigated, that concern was addressed and overcome in Ms Y’s report.
129. In his reasons for judgment of 28 May 2010, Bell J referred in considerable
depth to the reports of Ms W and of Ms Y. He also had the advantage of
hearing both of them cross-examined, as well as Ms S.
130. As his Honour indicated in his reasons (at [51], [52] and [55]), of all the
numerous experts who had been involved with the child, it was only Ms W who
supported the mother’s view that the child has and will be the subject of abuse
by the father. Further, his Honour was critical of Ms W for her reliance on what [2012] FamCAFC 189  Reasons Page 28
she called the “Accommodation Syndrome” which she was then unable to
explain adequately to his Honour. As his Honour emphasised at [71] Ms W
conceded “that she did not see anybody personally when she was completing
the review”.
131. His Honour ultimately preferred the evidence of Ms Y (who in his opinion had
carried out “an in-depth and effective consideration of all the material”) to that
of Ms W, in reaching his conclusion at [80] that the child had not been sexually
abused, nor was he at an unacceptable risk of abuse, by the father. In our view,
his Honour’s preference for Ms Y’s evidence, and also his conclusion that the
child had not been abused and was not at risk of abuse by the father were well
open to him.
132. We will return now to consider the grounds of appeal which appear to have
relevance to the matters just discussed. The grounds in question have been set
out in full earlier and we will here for the most part only summarise them.
The relevant grounds of appeal
133. In the second paragraph of Ground 29 the mother asserts error on his Honour’s
part in accepting Ms Y’s report. As we have earlier explained, his Honour was
entitled to accept Ms Y’s evidence and was certainly not in error in so doing.
We do not understand the suggestions in the ground in question that there is
still to be a review, and can only conclude that the mother has misunderstood
some part of Ms Y’s report.
134. We do not accept the assertion in Ground 30 that his Honour “failed to give
real and substantial consideration to the facts of the case” and that he failed to
“answer the question whether on the evidence, access [presumably to the
father] could represent an unacceptable risk of harm to the child”. A reading of
his reasons for judgment reveals that his Honour reviewed in depth the history
of the case and the enormous amount of evidence which was before him.
135. In  Ground 32 the mother asserts that his Honour “had an obligation to
consider disclosures of sexual abuse made by the child to childcare staff on the
9/2/2007, notified to the Dept. by the Director of  the centre on 11/2/2007,
which due to an error of fact were not given weight at the hearing in February
2007, or the subsequent appeal.”
136. This is the ground which raises the issue of material available at the time of the
trial before Carmody J, but not relied on in that trial. At the hearing before us,
we were provided with material from the T Child Care Centre which was
produced to the Court on 24 February 2010 under subpoena, and which was
apparently before Bell J at the trial in March 2010.  
137. Even if it is true that the material in question was not in evidence at the trial
before Carmody J, although it originated before the date of that trial, what is
being referred to in this ground is a notification to the Department (and indeed [2012] FamCAFC 189  Reasons Page 29
the child care centre material indicates that its staff were in contact with the
Department).
138. There are many documents on the Department’s files  which summarise the
notifications received (including a notification on 12 February 2007), but
ultimately the Department decided not to pursue these notifications. Given the
level of investigation which has been carried out by the Department,
particularly the review carried out by Ms Y after concerns raised by Ms W and
Ms S, there would be no justification for our interfering with Bell J’s decision
on the basis that it is unclear whether or not he had regard to the material from
the child care centre.
139. Ground 33 asserts that Bell J had an obligation to consider that information
concerning the child’s disclosures of “sexual abuse” and “death threats by the
father” which were made on 20 November 2008, were not made available by
the police and the Department to the SCAN AM team (which we understood to
be a government organised body which investigates claims of child abuse) for
purposes of that team’s report or records dated 20 February 2009.
140. That the child’s disclosures made on 20 November 2008 were not made
available to the SCAN AM team seems improbable when Ms S’s report of 14
September 2009 is read, particularly the statement  made in the second last
paragraph of the section numbered 4 in her report, that the matter was referred
to SCAN by the Department on 4 February 2009 “based on the allegations
made in November 2008”. However, if there was some fault on the part of the
police or the Department as alleged in this ground, that is not a matter that
establishes error on the part of the trial judge. His Honour was clearly entitled
in the circumstances of this case to rely on the Department’s investigations and
its ultimate conclusion to close the file based on the report of Ms Y.
141. Ground 34 asserts that his Honour had an obligation to consider disclosures of
sexual abuse made to child safety officers on 23 January 2008 and that failure
to consider these disclosures makes his findings unsafe.
142. Again, the child’s disclosures on 23 January 2008 are specifically mentioned in
the section numbered 4 in Ms S’s report of 14 September 2008. We repeat yet
again that that report was the reason why Ms Y then carried out her
investigation and report, and his Honour was entitled to accept Ms Y’s
conclusions that the child was not at risk in the father’s care.
143. Ground 35 asserts that his Honour had an obligation to consider “a mandated
report received on 14 September 2009, referred to in Screening
Criteria/Response Priority Summary 29/10/2009 which records it is probable
the child’s immediate safety is threatened, and sexual abuse by the father is
suspected. A 24 hour response was recommended. A copy of the event intake –
[…]/Form ID […] is not contained in Court files.” [2012] FamCAFC 189  Reasons Page 30
144. Notwithstanding the reference in this ground to the “Event intake […]/Fam ID
[…]” not being in “Court files”, that document does appear in the Exhibit Book
tendered by the ICL in the section of that Book containing the material
provided to the court under cover of the letter from the Department dated 18
February 2010. The document in question is a record of a notification to the
Department. What matters for present purposes is that this document was
created before Ms Y completed her report, and it can be assumed that it was
before her when she prepared her report.
145. Ground 36 asserts that his Honour had an obligation to consider that the
Department “opened an ‘Intervention with parental agreement’ with the father,
in February 2009”. Being apparently the Department’s document, it can be
assumed that Ms Y would have taken this agreement into account in her
investigation and report if indeed it had any significance. It has certainly not
been established that his Honour erred by allegedly failing to have regard to
this agreement.
146. Ground 37 again asserts an obligation on his Honour, being “to consider that
the Dept. sought parental consent to a ‘Care Agreement’ in June 2009. A neutral
environment was considered to be in the child’s best interests. The father
refused to sign the agreement.”
147. As with the previous ground, if the matters contained in the ground were of
concern to the Department, it is to be expected that it would have been raised
before his Honour by the Department. That appears not to have been done, and
no criticism can be made of his Honour on account of this matter.
CONCLUSION
148. It emerges from our consideration of the grounds which we have just
considered that none of them have been found to have merit. It also emerges
from what we have said that we have ourselves considered in depth the
evidence which was before Bell J, particularly the  material from the
Department. We have also considered the oral evidence of the officers of the
Department and of other professional experts which  was given before his
Honour. We are thus able to be satisfied that there would be no basis for our
interference with his decision. The appeal will therefore be dismissed.
COSTS OF THE APPEAL
149. As the appeal is to be dismissed and the father did not ultimately seek an order
for costs in that event as neither did the ICL, there will be no order for costs
with each party bearing their own costs of the appeal. [2012] FamCAFC 189  Reasons Page 31
I certify that the preceding (149) (one hundred and forty nine) paragraphs are a
true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ,
Finn and Strickland JJ) delivered on 15 November 2012.
Associate:
Date: 15 November 2012