Simmons & Simmons (2023) FedFamC1A 44

An erroneous procedural ruling which affects the final result of a trial may nonetheless be appellable: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 6.¹

Simmons & Simmons [2023] FedFamC1A 44 is a recent decision of the Full Court considering the appealable error of not admitting into evidence a report of a child’s treating therapist in a case involving allegations of sexual abuse.

The parties had three daughters. The eldest was four at the time of separation in November 2015; the twins were one.

The mother claims that in around March 2016 the eldest daughter disclosed to her that she had been sexually abused by the father. She started observing sexualised behaviours.

A child protection investigation found the allegation of sexual abuse unsubstantiated.

The children commenced overnight time with the father in late 2016.

By 2018 the eldest daughter became increasingly aggressive. She began seeing a psychologist in mid-2018 and made further disclosures of sexual abuse.

The disclosures were not made during a second child protection investigation in late 2018. The allegations were again unsubstantiated.

The time arrangements resumed.

During early 2019 the mother presented the eldest child to “a number of medical professionals”, receiving “varying diagnoses”.

She was referred to a counselling service offered by the Department.

The eldest child began attending on counsellors from two services. In mid-2019 both services recommended the child’s time with the father cease.

By the time of the trial in early 2022, the children had not spent time with the father since August 2019.

Single expert clinical psychologist

A single expert clinical psychologist was appointed by consent. Initially, she recommended the children live with the mother and spend time with the father depending on the Court’s findings in relation to sexual abuse.

In late 2021, a video emerged of the eldest child and one of the twins “engaging in sexualised activity”. The single expert “ultimately reversed her earlier recommendations, opining that orders should be made in line with the father’s proposed orders” because the video evidenced the mother
“struggling to set boundaries for the children”.

Treating psychologist

The eldest child continued attending on a psychologist from the service referred by the Department.

That psychologist prepared a report on the request of the ICL. She opined that the eldest child had in fact been the subject of trauma rather than simply subjected to the message from her mother that she had suffered trauma.

At trial, the judge questioned whether a party intended to adduce that report at trial. Counsel for the mother had not read the report. The trial judge declined to admit it into evidence.

Later in the trial, counsel for the mother applied for a “˜short service subpoena’ to the psychologist. The judge refused.

The Full Court considered the procedural function of the trial judge in respect of rulings in relation to admissibility or use of evidence before the evidence has been adduced and particularly in parenting proceedings, and, referring to Annesley & Pembleton² and CDJ v VAJ, ³ said:

48. … the Court is bound to have regard to the effect that evidence “may have in determining whether the best interests of the child” are served by the admission of that evidence.

In a parenting matter, to refuse to admit the report into evidence must have consideration of the circumstances of the case. The primary judge was asked to consider a change of residence in circumstances where:

• the mother was the children’s primary carer and attachment figure;
• the children had not seen their father for almost 3 years;
• the eldest child genuinely believed that her father had sexually abused her;
• the children would be separated from their infant half-brother.

The trial judge accepted that:

477. … The expert considered this escalation in their problematic behaviour as arising from the mother’s inability to set appropriate boundaries, the eldest child having received the message that her behaviours are a function of trauma, and the influence of the eldest child’s behaviour on the younger child with the result that she had begun to engage in similar behaviours which in turn have adverse psychological and social impacts. …

The Full Court considered the treating psychologist’s report “highly relevant to this finding because it provided a counter narrative to the conclusion reached by the primary judge.”

The Full Court said:

51. While such an order needed to be balanced against the potential long-term psychological consequences for the children, it was nonetheless acknowledged that the orders proposed by the father to achieve that outcome would be likely to cause “significant emotional distress” to the children in being separated from both their mother and their younger half-brother.

52. Before making such an order that in and of itself was likely to cause such significant emotional distress to the children with potential lifelong implications for them, the Court had an obligation to ensure that a decision of such magnitude for these children was based upon
the most comprehensive and relevant evidence that was reasonably available. For reasons which we explain, this included the report of [the treating psychologist].

The appeal was upheld on the basis that:

65. “Having regard to the contents of the report of Ms R to which we have referred, it is
clearly the case that the admission of her report could rationally have affected the
determination of several issues in the proceedings. …”

An example that An erroneous procedural ruling which affects the final result of a trial may nonetheless be appellable: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 6.

¹ Simmons & Simmons [2023] FedFamC1A 44 at [34] (McClelland DCJ, Aldridge and Baumann JJ).
² Annesley & Pembleton [2022] FedCFamC1A 8.
³ CDJ v VAJ [1998] HCA 76.