Court Rules on Alleged Sexual Abuse and Custody of Child: Mother's Appeal Rejected
Cogger & Druce (No 3) [2023] FedCFamC1A 12 (16 February 2023)
The primary judge found that the child was not at risk with unsupervised time with the father, but was at risk of psychological and emotional harm if living with the mother or if her time with the mother remained unsupervised. The mother appealed on three grounds, but the primary judge's credit findings were not challenged and her reasons for the indefinite supervised time were thoroughly examined. The appeal was ultimately rejected.
Facts:
The parties, who separated in 2016, initially managed their child's custody without court intervention. However, the mother insisted on supervising the father's time with the child, alleging sexual abuse by the father and/or paternal uncle, which was denied by both. Investigations by medical professionals, the Department of Child Safety, and the police found no evidence of abuse. In the 2021 trial, the primary judge determined that the child had not been sexually abused and the mother's evidence was unreliable. As a result, the judge found that the child was not at risk with unsupervised time with the father, but was at risk of psychological and emotional harm if living with the mother or if her time with the mother remained unsupervised.
The mother filed an appeal with three main grounds:
- The primary judge erred in finding the mother an unacceptable risk of psychological/emotional harm to the child due to her actions and beliefs about the child's alleged sexual abuse by the father.
- The primary judge erred in determining that indefinite supervised time with the mother was in the child's best interests, as they did not consider the mother's acceptance of the court's finding that the father was not a risk, nor did they provide reasons for the indefinite supervised time.
- The delay in judgment caused an injustice, as the primary judge did not consider crucial evidence regarding the child's sexualized behavior observed by Dr. R and the kindergarten teacher, leading to a flawed conclusion that the mother was the only one who observed the behavior. Notably, the mother did not challenge the primary judge's credit findings, which formed the basis of the final decisions and orders.
Applicable law:
Family Law Act 1975(Cth) s 60CC - provides that the Court in making parenting orders should take into account the child's best interests.
M v M (1988) 166 CLR 69; [1988] HCA 68 - where the primary judge was not required to make findings as to whether such abuse had occurred but the primary judge considered that it was appropriate to do so in order to resolve the considerations prescribed by s 60CC of the Family Law Act 1975 (Cth).
Analysis:
The primary judge considered and rejected the opinion of the child's therapists, who relied on information mainly provided by the mother. The mother's appeal did not challenge these findings. The primary judge dedicated an entire section of her reasons to considering a long-term supervision order, taking into account the mother's behavior. Delay in judgment itself is not a sufficient ground of appeal, and the primary judge's reasons were thoroughly examined. The mother's counsel accepted that if Ground 1 failed, Ground 3 would also fail.
Conclusion:
The appeal is to be dismissed. The mother is obliged to meet the costs associated with the supervised time spending that is to occur at a contact centre. There is to be no order for costs in relation to the appeal or the Application in the Appeal.
Case: Cogger & Druce [2022] FedCFamC1F 405
Judgment of: ALDRIDGE, KARI & BRASCH JJ
Counsels:
Counsel for the Appellant: Mr Duplock
Solicitor for the Appellant: O’Sullivans
Counsel for the Respondent: Mr Galloway
Solicitor for the Respondent: HCM Legal
Counsel for the Independent Children’s Lawyer: Mr McGregor
Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors