B v R - [2015] NSWCCA 103 - NSWCCA 2014 case summary — Zoe

NSWNSWCCA

B v R

[2015] NSWCCA 103

Court of Criminal Appeal (NSW)|2014-11-10|Before: Ward JA, Simpson J, Wilson J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2014-11-10

Before

Ward JA, Simpson J, Wilson J

Source

Original judgment source is linked above.

Judgment (50 paragraphs)

[1]

diction: Criminal Date of Decision: 15 November 2013 Before: Woodburne SC DCJ File Number(s): 2011/00081711

[2]

INDEX (Para) Ward JA [1] Preliminary observations [9] Allegations of sexual or other abuse [13] Background [17] Conviction Appeal [18] Ground 1 - evidential burden [20] Defences [22] Sudden or extraordinary emergency [33] Self defence [75] Conclusion on ground 1 [81] Ground 2 - ruling re irrelevance of fact of sexual abuse [86] 25 October 2013 ruling [112] 14 November 2013 [121] Ground 3 - admissibility of Dr Waters' report [129] Sentence appeal [143] Ground 1 - failure to make findings in relation to diagnosis of delusional order and inference that Ms B suffered a mental illness [162] Ground 2 - denial of opportunity to cross-examine the father on his victim impact statement [194] Conclusion [208] Simpson J [209] The Crown case [221] The defences [231] The defence case [238] The grounds of appeal [282] Ground 1: "withholding proposed defences from the jury" [283] Section 10.3 [284] Ground 2 [310] Ground 3 [317] The application for leave to appeal against sentence [336] Wilson J [339] Appendix to Ward JA's reasons - Summary of Events

[3]

Judgment

WARD JA: The appellant (to whom I will refer as Ms B in order to preserve the anonymity of her child) was convicted on 29 May 2014 of an offence against s 65Y of the Family Law Act 1975 (Cth).
The conduct that gave rise to her conviction was that, as she admitted, on 24 April 2008, Ms B took her child, then aged three years and eight months, out of Australia at a time when she knew that an interim parenting order of the Family Court of Australia was in force, providing for the child to spend supervised time at a contact centre with the child's father (Ms B's then husband, to whom I will refer as Mr B). Ms B knew both that Mr B had not consented to the removal of the child from the jurisdiction and that there was no Court order permitting this to occur. Ms B's evidence was that she did not know that in acting as she did she was committing a criminal offence, though she accepts that ignorance of the law was no defence.
Ms B's evidence was, and the trial judge accepted, that at the time Ms B took her child out of the country she believed that he had been sexually abused by Mr B and had formed the view that there had not been, and would not be, a proper investigation into the sexual abuse allegations. She believed that her son was suffering ongoing harm during or as a result of the supervised contact sessions that had been ordered by the Family Court. She also believed that an order for unsupervised access was imminent and that the only way to protect her son was to take him out of the country. She thought that in Europe she would be able to obtain a proper investigation of her son and would then be in a position to "negotiate" their return to Australia. Once in Europe, she recorded a number of conversations with her son in which she maintains her son made further unsolicited disclosures of abuse by his father prior to their departure for Europe. These disclosures, she maintains, show the objective reasonableness of her concerns.
The child was located in Amsterdam in September 2010, following internet and media publicity. Ms B was arrested and the child was placed in a child care crisis centre. Mr B, in whose favour a custody order had been made by the Family Court in Ms B's absence after Ms B took their child out of the jurisdiction, brought the child back to Australia in late 2010. Orders have since been made giving him sole parental custody and responsibility of the child.
Ms B was extradited back to Australia in 2011 and prosecuted in the District Court before a jury of twelve for the s 65Y offence, for which a maximum penalty of three years' imprisonment applies.
Following Ms B's conviction for that offence, and a sentencing hearing held before the trial judge, Woodburne SC DCJ, an order was made pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) that Ms B be released upon agreeing to give security (without a surety) in the amount of $500, on recognisance, to be of good behaviour for a period of 28 days. That good behaviour bond expired, apparently without incident, some time ago.
Ms B now appeals from her conviction and seeks leave to appeal from her sentence. The principal ground of appeal in respect of her conviction relates to the decision by the trial judge that Ms B had not satisfied the evidential burden necessary for the two defences Ms B wished to raise (of sudden or extraordinary emergency and of self-defence) to be considered by the jury. As to the outcome of her sentencing hearing, Ms B does not make any complaint as to the imposition of a good behaviour bond on her. Rather, she contends that the sentencing judge erred in not permitting her during the course of that hearing to cross-examine Mr B on his victim impact statement (which she wished to do in order to establish that he was not a victim but the perpetrator of the alleged sexual abuse), and that her Honour erred in not making a positive finding that she, Ms B, does not suffer from a delusional disorder (that having been the conclusion reached by a Family Court appointed expert in the context of ongoing Family Court proceedings following her return).
For the reasons set out below, I am of the view that Ms B's conviction appeal should be dismissed and that leave should be granted for the sentence appeal but that appeal should also be dismissed.

[4]

Preliminary observations

Ms B was represented by successive firms of lawyers at the time the relevant parenting order was made (in February 2008) and at the time she took the child out of the country (in April 2008). She was also legally represented during part of the criminal proceedings. However, by the time of the trial and subsequent sentencing hearing, for reasons that are not apparent on the material before this Court, Ms B was not legally represented. Nor did Ms B have the benefit of legal representation on this appeal.
It is evident from a close review of the transcript of the trial proceedings that the trial judge was at pains to ensure that procedural matters were explained to Ms B and that, so far as possible, the disadvantage faced by Ms B as a self-represented accused was minimised. No criticism could be or has been made as to the manner in which her Honour conducted those proceedings. Indeed, Ms B has commended her Honour's patience during the proceedings.
In the present proceedings, considerable latitude has been afforded to Ms B in the provision by her of successive sets of submissions, including submissions after judgment was reserved. There has been a degree of duplication of material across the five volumes of appeal books, the respective sets of submissions filed by Ms B, her affidavit dated 17 November 2014 (the 'November affidavit'), and subsequent submissions filed in February 2015.
Where reliance has been placed by Ms B on material coming into existence, or events arising, after the conclusion of the criminal proceedings (that necessarily not having been in evidence before the District Court), such as some of the material included in the November affidavit, that will be treated as being by way of submission. Further, as the Crown did not have an opportunity to cross-examine Ms B on her November affidavit (which was filed following the grant of leave for further submissions to be filed going to the way in which Ms B had sought to re-cast ground 2 on the appeal), that too will only be treated as a submission except insofar as it incorporates matters that were in evidence at the trial. So that there is no misunderstanding, however, I would have reached the same conclusions even had that material been tendered formally on this appeal.

[5]

Allegations of sexual or other abuse

It is not necessary at this point to set out in detail the allegations made by Ms B of sexual or other abuse of her son by Mr B. A summary of those allegations, the accuracy of which was largely not disputed, was included as Annexure A to her Honour's reasons on sentencing.
Those allegations had, by the time of the trial, expanded considerably beyond the allegations that Ms B had made at the time that she took her son from the country. For example, by the time of the trial, there were allegations by Ms B of ritual abuse involving the wearing of masks as well as an allegation that Mr B had physically abused his son and had on one occasion defecated on his face. Obviously, disclosures made by the child to Ms B after his removal from the country, and conclusions drawn by her from those disclosures, could not have informed Ms B's state of mind at the time of commission of the act that constituted the offence. Nevertheless, Ms B relied at the trial on her son's post-April 2008 disclosures as evidence that her son was making disclosures consistent with those of someone who had been sexually abused, not as to the truth of the allegations. She maintains that events after she took her son out of the country, including what has happened since his return to the country, demonstrate with hindsight the objective reasonableness of her conduct.
It must be noted that there has been no determination as to the truth or otherwise of the allegations of sexual abuse made by Ms B. Her Honour made clear to the jury that the criminal proceedings against Ms B were not the occasion for a determination as to whether or not any sexual abuse had occurred and at the outset of the trial Ms B disavowed any intention to ask the jury to reach any such conclusion. Mr B has not been charged with any criminal offence in that regard. Nothing in these reasons is to be taken as any comment on whether or not any or all of Ms B's allegations have any valid foundation.
What was of relevance in the criminal proceedings, given the defences that Ms B wished to raise, was Ms B's state of mind or belief at the time she took her child out of the country; the objective reasonableness of her belief that removal of the child from the country was the only reasonable response to the sudden or extraordinary emergency that she believed had arisen; and the objective reasonableness of her response to the circumstances as she perceived them (to paraphrase the relevant elements of the two defences that she sought to raise).

[9]

Defences

Section 10.3 of the Criminal Code (the sudden or extraordinary emergency defence) provides that: (1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency. (2) This section applies if and only if the person carrying out the conduct reasonably believes that: (a) circumstances of sudden or extraordinary emergency exist; and (b) committing the offence is the only reasonable way to deal with the emergency; and (c) the conduct is a reasonable response to the emergency.
The sudden or extraordinary emergency defence requires not just a subjective belief on the part of the accused (i.e., here, Ms B) as to each of the matters in sub-sections 2(a), (b) and (c) but also that such belief be objectively reasonable.
Section 10.4 of the Criminal Code (self-defence) provides that: (1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary: (a) to defend himself or herself to another person; … and the conduct is a reasonable response in the circumstances as he or she perceives them. … (4) This section does not apply if: (a) the person is responding to lawful conduct; and (b) he or she knew that the conduct was lawful. However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.
Again, this defence requires not just a subjective belief on the part of the accused but also that the conduct be, objectively, a reasonable response (in the circumstances as the accused perceives them). The Crown argued in the present case that the defence was inapplicable because the supervised contact visits, which Ms B maintained were causing deterioration in her son's behaviour, were lawful. However, her Honour did not exclude the availability of the defence on that ground.
Section 13.3(3) of the Criminal Code provides that a defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (in which Part of the Criminal Code ss 10.3 and 10.4 are contained) bears an evidential burden in relation to that matter.
Evidential burden is defined in s 13.3(6) of the Criminal Code to mean "the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist". Where a defendant discharges the evidential burden in relation to a defence, then the prosecution bears the legal burden of negativing the defence beyond reasonable doubt (ss 13.1(2), 13.2(1)).
The question whether the evidential burden has been discharged is a question of law for the judge (The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601 per French CJ at [13]). In Khazaal, the High Court considered what was required in order for an accused to discharge an evidential burden (there in relation to an exception from liability contained in s 101.5(5) of the Criminal Code). The plurality (Gummow, Crennan and Bell JJ) held (at [74]) that the operative words in s 13.3(6) required not more than slender evidence. Their Honours did not consider it necessary to determine whether the words "reasonable possibility" excluded evidence which suggested no more than a mere possibility or a bare possibility.
In the present case, her Honour ruled that Ms B had not satisfied the evidential burden in relation to either of the two defences. Her Honour published written reasons for that ruling.
In those reasons, her Honour had regard to the nature of the evidential burden imposed on Ms B, as considered in Khazaal, and to the nature of the test to be applied when determining a defence based on reasonable belief (referring to Oblach v R [2005] NSWCCA 440; (2005) 65 NSWLR 75; (2005) 158 A Crim R 586).
Ms B's first ground on her conviction appeal asserts error on the part of the trial judge in ruling that she had not satisfied the evidential burden necessary for the defences she wished to raise to be left to the jury: Her Honour erred in withholding my defences from the jury on the ground that I had a right of appeal and therefore the evidence was not capable of supporting the possibility that I reasonably believed that committing the offence was the only reasonable way to deal with the emergency and on the ground that my conduct was not a reasonable response in the circumstances as I perceived them because I had the right to be heard at any hearing for a parenting application and the right to appeal the decision (Judgment R v B (No 2) at [108], s 10.3(2)(b) at [130] and [134] - s 10.4(2) of the Code respectively).
The question for her Honour (as articulated by French CJ in Khazaal at [19]) was whether the evidence relied upon by Ms B was incapable of suggesting the reasonable possibility necessary to satisfy the evidential burden on Ms B. Her Honour clearly had regard to the correct test in that respect. Further, it is clear from her Honour's reasons that her Honour approached that task with the trial judge's appropriate reluctance when considering the withholding of potential defences from the jury.

[10]

Sudden or extraordinary emergency

As to the "sudden or extraordinary emergency" defence (for which, as Simpson J notes at [216] below, Ms B asserted only the existence of an "extraordinary" emergency), the question for this Court is whether her Honour erred in concluding that the evidence was not capable of suggesting the reasonable possibility that Ms B reasonably believed that taking her child out of the country was the only reasonable way to deal with the emergency and that she reasonably believed that this was a reasonable response to the emergency.
As to the nature of that emergency, Simpson J has pointed (at [280] below) to Ms B's articulation of this before the trial judge (on 14 October 2013, in the absence of the jury, at T35-37) as one concerning the apprehension that Mr B was potentially homicidal and that she and her child were in physical danger. However, as Simpson J has noted, Ms B's response when asked to identify the emergency in this case was lengthy discursive and not easy to understand. In the course of that response Ms B also referred to the deterioration of her son's behaviour in the course of the supervised contact visits. The evidence that Ms B gave at the trial, and her communications while in Europe with an academic in Adelaide (Professor Briggs), as to the reason that she left the country focussed largely on her concerns as to the alleged sexual abuse and imminence of unsupervised access by Mr B to his son, coupled with her belief that there would be no proper investigation of the alleged abuse. I have therefore approached the matter on the basis that the emergency that Ms B perceived was not confined to a fear of familicide on the part of Mr B. That said, if the nature of the emergency relied upon by Ms B for the proposed defences was so confined, then my ultimate conclusion would be the same.
The Crown, at trial, acknowledged that the evidentiary threshold was a low one and accepted (for the purposes of the argument as to whether Ms B had satisfied the evidential burden necessary for the defence to go to the jury) that there was evidence capable of suggesting as a reasonable possibility that Ms B subjectively believed that: the child had been sexually abused by the father; there had not been, and would not be, a proper investigation into the alleged sexual abuse; the father had psychiatric problems and was suicidal or possibly homicidal; and that the child was "deteriorating" as a result of (the Family Court ordered) contact with the father (as noted in her Honour's reasons at [59]).
As to s 10.3(2)(a), her Honour was satisfied that the evidence was capable of supporting the reasonable possibility that, as at 24 April 2008, Ms B believed that circumstances of extraordinary emergency existed ([61]). Her Honour noted the submissions made by the Crown, first, to the effect that this was not a reasonable belief having regard to various matters (including that the contact sessions with Mr B were supervised) and, second, that the possibility that unsupervised contact might be ordered in the future was not capable of amounting to an extraordinary emergency. Nevertheless, her Honour did not find against Ms B on the discharge of the evidential burden so far as it related to the requirement posed by s 10.3(2)(a) of the Criminal Code ([72]).
Where her Honour found that the evidential burden had not been discharged was in relation to the requirements in s 10.3(2)(b) and (c).
Her Honour concluded that, in circumstances where Ms B had a right of appeal (i.e., from the supervised contact orders), the evidence was not capable of supporting the reasonable possibility that Ms B reasonably believed that committing the offence was the only reasonable way to deal with the emergency ([108]) nor that Ms B reasonably believed that the conduct was a reasonable response to the emergency ([109]-[110]).
The Crown had pointed to other courses of action available to Ms B at the time to demonstrate that there was not a reasonable possibility that Ms B could reasonably have believed that taking her child out of the country was the only reasonable way to deal with the emergency. Those other course of action included: not cooperating with the contact centre; not taking the child to the contact centre; moving the child interstate; as well as taking the child to the police or the Joint Investigative Response Team (JIRT) or DOCS for the investigation of the alleged threats or raising the concerns with the contact centre. Her Honour did not accept that those were other reasonable ways to deal with the perceived emergency. In that regard, her Honour noted that non-compliance with the contact orders would have amounted to intentional contravention of the parenting order, potentially with the consequence that Ms B's concerns of abuse would be ignored and the child placed permanently with the alleged abuser, and that Ms B had already reported her concerns to the police, JIRT and DOCS ([99]).
As to the possibility of an appeal or an urgent application to the Court, at [107] her Honour said: That an appeal may have been expensive did not mean that it was not a reasonably available course of action. Although it may not have been the accused's preference to obtain a loan she was at that time still working and could have done so. Even if the accused was impecunious she could have taken the appeal herself. It is no answer to say she was not aware she could have done so because pursuit of her right of appeal would have led her to discover the necessary mechanism for such appeal and the steps associated with it, including the right to represent herself. That the accused had been advised that the appeal was unlikely to be unsuccessful did not mean that it was not a reasonably available alternative course of action. It was one that did not involve a breach of the law. That the accused might have been unaware of the opportunity of bringing an urgent application does not change the position. Upon giving instructions to lodge an appeal, the necessary steps could have been taken. As the Crown submitted, the relevant concept is of necessity, not expediency or strong preference.
Her Honour thus concluded that the requirement under s 10.3(2)(b) was not satisfied.
Her Honour approached the requirement under s 10.3(2)(c) on the basis that there needed to be some evidence capable of suggesting the possibility that Ms B reasonably believed that the conduct was a reasonable response to the emergency. Her Honour said that a response was not proportionate to the threat if there were reasonable grounds for believing that there were alternative courses of action available (referring to Bayley v Police [2007] SASC 411; (2007) 178 A Crim R 202) and noted that in this case, where there was a right of appeal, there was such a course of action available ([109]-[110]). Her Honour thus concluded that this requirement was also not satisfied in Ms B's case.
In these proceedings, Ms B submits that the other alternative courses of action postulated by the Crown, including the possibility of an appeal, would not have resulted in "a better investigation" because of the Family Court order appointing Dr Waters as the sole court expert to prepare a report (AT 13-20) and the fact that he, in preparation of the report, had not assessed her child. Ms B maintains that Dr Waters (a forensic child psychiatrist) is not an expert in child sexual abuse and should not have been appointed by the Family Court. She has made serious allegations about Dr Waters, accusing him of corruption, bias, misrepresentation and perjury.
Ms B argues that to have made an application for a different expert would have required an affidavit and would only have resulted in the appointment of another Family Court psychologist (AT 13.29). She contends that the Family Court psychologists do not have the skill in assessing sexual abuse (and hence this would not have produced a better outcome). Ms B also says that any such application would have taken too long, and that she was not advised as to the ability to make an urgent application. Ms B said: So, going interstate would not have helped, withholding him from the contact centre I knew I would just be in trouble, even more trouble, I would have to bring him back to contact or lose him, they would just take him out of my care. (AT 13.41-43).
What is clear from Ms B's submissions in this Court, and was apparent from her evidence at the trial, is that in taking her son out of the jurisdiction she was intentionally seeking to prevent or inhibit the enforcement of the supervised contact orders and to put herself and her son beyond reach of the Australian legal system. She maintains that this was the only way she could protect her child from what she believed was his ongoing deterioration as a result of the supervised contact sessions.
Ms B made it very clear on this appeal that her reason for going overseas was the "behaviour" of the Family Court when the decision was made appointing Dr Waters as the expert and granting "excessive contact" to the father (AT 39.33).
Ms B submits that the evidence did not support an assumption that the child was being continually supervised during contact sessions (see [90] and [91] of her appeal submissions) - a submission that seemingly goes to her belief as to the existence of the emergency, not as to whether (considered objectively or otherwise) her action was the only reasonable way to respond to the emergency nor that it was a reasonable response. Ms B also submits that unsupervised contact orders were almost inevitable following Dr Waters' report and contends that her Honour did not adequately consider the risk to the child of the "impending unsupervised contact".
Ms B emphasised in her submissions that: in her opinion appealing provided her with no reasonable alternative course of action; her lawyers had advised her not to appeal; she did not know she could have represented herself in Court; she would not have been able to undertake an appeal herself or to know how to obtain a stay of the orders; and any appeal would have delayed proceedings beyond 5 June 2008 and would not have protected the child from unlawful attack outside of the contact centre (this last submission apparently referring to Ms B's concern that the father might not simply have had suicidal intentions but might have decided to kill them all).
Ms B accepts that her lawyer had told her she could seek a second opinion if she disagreed with the findings in Dr Waters' report but says (submission [166]) that would not have helped protect her child especially given that if that had happened the expert would have been Dr Robinson, a psychiatrist whose name Ms B had initially put forward as an appropriate court expert but who is now the subject of not dissimilar allegations as those made by Ms B against Dr Waters. The basis for Ms B's belief that Dr Robinson would have been appointed as the alternative expert in 2008 was not made clear but is presumably the fact that Ms B had nominated Dr Robinson as an acceptable expert at that time and the Family Court has since appointed her as an expert in Ms B's case.
Ms B maintains that the jury should have been left to decide "whether it would be reasonable that I ignore legal advice, attempt to run an appeal and compete against Dr Waters' report when I knew nothing about the law". That, however, elides the subjective and the objective elements of the respective tests - and, significantly, it does not take into account the different stage of the proceedings at which advice as to prospects of an appeal were given.
As noted above, Ms B relied on events following the recovery of the child as demonstrating the objective reasonableness of her concerns. In particular, she said that independent reports had demonstrated that the child had severely deteriorated in the father's care, was suicidal and had been admitted to a special school (submissions on sentence at [29]-[52]). Ms B also made reference to the fact that, after her return to Australia, she was only able to obtain a Family Court listing five months after she made an application for an urgent hearing.
For completeness, I should note that one of Ms B's complaints in these proceedings is the "failure" of the primary judge to admit into evidence a copy of a letter dated 5 March 2008 in which Ms B's lawyers gave advice as to the prospects of appeal from the orders of the Family Court (see amended written submissions at [42]). That complaint cannot be sustained having regard to a review of the transcript as to what occurred in relation to that document in the absence of the jury. That may be summarised as follows.
Ms B (who gave evidence in part by reading out paragraphs from her February 2008 Family Court affidavit) referred to the letter and informed the trial judge that she wanted to make the point that she had tried to appeal the orders. She was told that she did not need to tender the letter (which was then marked MFI 52). Tender of the document would, of course, have been likely to amount to a waiver of privilege in relation to the advice and matters connected with it, which was presumably part of her Honour's concern when she informed Ms B that she did not need to tender it.
Ms B then said that she would not tender the letter "simply because I am going to have to explain issues I had with advice from my lawyers [and] that's not central to my leaving the country". Following further discussion, in which her Honour explained that tendering the letter would give the Crown the right to cross-examine Ms B on it, the matter was left that the Crown did not object to Ms B having the opportunity to reflect on the question overnight.
Ms B did not address the question of the tender of that document again. Had she wished to do so, it was open to her to tender the document. On other occasions in the trial it was clear that Ms B was keeping track of outstanding tender documents. There is no suggestion that she had simply omitted to tender this document. In any event, there was other evidence before the jury which made it clear that Ms B had obtained advice as to the prospects of an appeal - in an email from Ms B to her lawyers on 7 March 2008 she said, among other things, that: she could not afford to appeal the order for supervised time; she had already taken and accepted the advice of a barrister that it would be unlikely that an appeal would be successful; and therefore she would not appeal; and also made reference to a "stay" of the orders, saying that she did not understand that terminology and therefore could not comment on that. The inference to be drawn from the reference to a stay is that Musgrave Peach had given some advice or made some reference, following the making of the supervised contact orders, not only to Ms B's ability to appeal from those orders but also to the possibility of a stay of the orders. It was not suggested that Ms B could not have pressed for clarification of this from Musgrave Peach or any of the other sources from which it seems Ms B was obtaining advice at the time.
The essence of Ms B's submission on ground 1, as was her argument at trial, is thus her conduct was not voluntary in that she was forced to choose between two conflicting laws, the "law against unlawful harm" and the family contact orders (and she prioritised the protection of her son). Ms B argued that implementing an appeal would have required extensive preparation including a stay of orders and an application for an extension of time and in the meantime she would have breached her duty to protect her child from unlawful harm ([22] of her written submissions).
For ground 1 to succeed in relation to the sudden or extraordinary emergency defence, it is necessary to conclude that her Honour erred in finding that the evidence was not capable of suggesting, as a reasonable possibility, not only that Ms B subjectively believed that there was an emergency and that taking her child out of the country was the only reasonable response to the emergency (and was a reasonable response thereto), but also that such a belief was objectively reasonable.
On Ms B's evidence, as at the time she bought the airline tickets she had only briefly read Dr Waters' report (which had been sent by Dr Waters to the Family Court on 3 April 2008 but was not received by her until about 23 April 2008), and she had not obtained legal advice in relation to that report, but she nevertheless believed that it was imminent that unsupervised access would be permitted. The material before the Court was not capable of suggesting the reasonable possibility that there was an objectively reasonable basis for that belief.
The evidence was capable of suggesting as a reasonable possibility that Ms B believed that her child's behaviour was deteriorating following the commencement of the contact visits (as her Honour in effect found). That may have been the case whether or not Ms B's concerns as to the continuation of abuse during the contact sessions had any valid foundation. Dr Waters, for example, considered that the deterioration could be expected having regard to the frequency of the contact visits. However, that does not lead to the conclusion that the evidence was capable of supporting the reasonable possibility, objectively speaking, that the only reasonable response to deal with that situation was to remove the child from the jurisdiction.
Similarly, though the evidence was certainly capable of supporting a conclusion that the investigation that had been carried out as at 24 April 2008 had not been sufficient to determine the truth or otherwise of the sexual abuse allegations (as Dr Waters himself seems to have conceded when, in cross-examination by Ms B, he indicated that his was only a conditional report and that there was "latitude for doubt" as to some of the areas of concern that had been raised by Ms B), the evidence was not reasonably capable of supporting the reasonable possibility of it being objectively reasonable to conclude, as at 24 April 2008, that there would be no proper investigation in the future of the abuse allegations.
Ms B's conclusion in that regard seems to have been based heavily on what she had read in various literature on child sexual abuse and, in particular, a doctoral thesis written by a Ms Foote. Ms B had not, at that stage, seen the video recording of an interview with her son which had been conducted by JIRT on 10 December 2007. While she had been told that an investigation by the JIRT and the police Child Protection Unit (CPU) was closed, there was no suggestion that it could not be re-opened if circumstances warranted it. The impact of the contact sessions on her son had yet to be properly considered by any expert or the Court. Further, Professor Briggs (an emeritus professor at the University of Adelaide with extensive experience in the area of child protection, with whom Ms B had initiated an email exchange seeking advice before she left the country) had not seen Ms B's child and, in commenting on the situation, was solely relying on the information and instructions given to her by Ms B. Insofar as Ms B calls in aid the conclusion drawn by Professor Briggs, after the event, that the JIRT interview was woefully inadequate, there was no suggestion by Professor Briggs that a proper investigation could not or would not have been carried out had Dr Waters' report been tested or had an application of that kind been made in April 2008.
While Ms B says she was unaware of the legal avenues available to her, and that it was not reasonable to expect her to "second guess" her lawyers, the fact is that she simply did not seek, nor did she wait for, any advice as to what might be able to be done following receipt of Dr Waters' report. Her conclusion was that, whatever it said, it would not assist her.
There is provision under the Family Law Act and Family Law Rules 2004 (Cth) pursuant to which Ms B could have sought an extension of time for an appeal from the supervised contact orders and also for her to have sought a variation of the contact orders.
Dr Waters' report, had Ms B read it carefully at the time, did not support a change to the contact orders to permit unsupervised access. Rather, what Dr Waters recommended was the very same reduction in the number of supervised contact visits that Ms B, through her solicitors, had requested. Ms B's own lawyers had advised her not to read anything into the letter from Mr B's lawyers (seeking consent to unsupervised access in light of the contents of the report and suggesting that the sexual abuse allegations were by then "dead in the water") until they were able to give her advice.
Ms B's legal advice up to the time that she left the country does not support the conclusion that taking the child out of the country was the only reasonable, or even a reasonable, response to concerns as to the deterioration in her son's behaviour while contact visits continued. The advice obtained in early March 2008 from her then solicitors (Musgrave Peach), and then from one or more barristers as to the prospects of an appeal from the orders of the Family Court, can only have been as to the prospects of an appeal at that stage (when no contact visits, and hence no deterioration in the son's behaviour, had commenced). The advice Ms B says she obtained in or about 10 April 2008 was that a change to the contact orders was unlikely until the Court had received Dr Waters' report. That is not surprising since by that time a report must have been imminent (indeed, unbeknownst to Ms B, the report had in fact already been provided to the Court). Ms B also says that her new lawyers had advised her that an appeal was unlikely to succeed. Any such advice again cannot have been given with the benefit of reading and absorbing the import of Dr Waters' report.
The possibility of seeking changes to contact orders in advance of a final hearing must have been apparent to Ms B when her lawyers acted upon her instructions to request such a change. Ms B had the benefit of legal representation and could have asked for advice as to what, if anything, could be done in light of Dr Waters' report.
The position, therefore, is that as at 24 April 2008, when Ms B left the country, she was aware that the report had been received. She chose to leave the country without waiting for advice as to the import of the report and, insofar as she believed unsupervised contact was imminent as a result of that report, without fully comprehending the recommendations in fact made in the report. Her position was, in effect, that whatever the report said it would not have satisfied her because of her belief (without having seen or having been present during the JIRT interview) that the JIRT interview was not adequate and that Dr Waters, of whom she had already formed the view that he was biased (based on an article of his that had been published on the internet), was "dismissive" of the sexual abuse allegations.
Although her Honour does not appear to have relied on this in reaching her conclusion on the availability of the sudden or extraordinary emergency defence, in addition to having a right to appeal to a full court from the February 2008 orders of the Family Court judge there was capacity to bring an urgent application before a judge of the Court on the basis of a change in circumstances. Ms B's lawyers would have been aware of this. She says that they did not advise her of this (although they apparently did speak of a stay) but the evidence shows that Ms B did not give them an opportunity to provide any such advice after Dr Waters' report was received.
Insofar as Ms B, at trial, referred to a concern as to possible homicidal tendencies on Ms B's part, there was simply no evidence of an imminent threat of physical harm to Ms B or to her child. It was not suggested that any actual threat had been made by Mr B. Rather, Ms B seems to have taken from the statistics she had read on familicide, coupled with her perception of Mr B's mental state, that this was a real risk at that time.
The belief that Ms B expressed to Professor Briggs as to the inadequacy of the justice system in Australia, at a time (around June 2009) when she had attended only one court appearance (on 29 February 2008), seems to have been based in large part on the materials that she had read and the conclusions she had formed as to what was likely to happen in the Family Court proceedings. That and the other views expressed by Ms B in her statement sent to Professor Briggs in 2009 (set out in the appendix to these reasons) cannot be accepted as objectively reasonable having regard to the material before this Court as to the manner in which the proceedings in the Family Court were conducted up to the time that Ms B intentionally removed her child from the jurisdiction.
Deterioration in her son's behaviour following contact visits was a matter that could reasonably have been dealt with by an application to the Family Court. The matter was already listed for 5 June 2008 and the very fact that a request had been made for consent to a variation of orders made clear that variation of orders was a possibility. There was no objective basis for the view that Dr Waters' report made it likely that unsupervised contact would be imminent. Rather, he had recommended a reduction in the supervised contact visits (though expressing a view as to Mr B's parenting capacity and found it difficult to conclude there had been sexual abuse). Armed with Dr Waters' report, one would have thought a reduction in supervised contact visits was the more likely result had the matter been brought back before the Court. Delay in listing matters some years later is not indicative of what the position might have been had Ms B not taken matters into her own hands in 2008.
As to Ms B's concern that there would be no proper investigation of the allegations, it had been made clear to her that the case could be reopened by the JIRT if there were further evidence, such as (one would assume) evidence of deteriorating behaviour.
Material relied upon after the event is not relevant to the formation of a belief on her part at the time. With hindsight it might make more obvious the reasonableness of the belief at the time but matters such as delays in Family Court proceedings or deterioration in the child's behaviour on his return cannot be assessed without also taking into account the effect of the disruption and subsequent relocation to Australia, and separation from his mother.
In my opinion, her Honour did not err in concluding that the evidence did not meet the evidential burden (slender as it is) of suggesting that there was a reasonable possibility that the necessary belief by Ms B (that the only reasonable alternative was to remove her child from the country and that this was a reasonable response to the emergency) was an objectively reasonable belief. To reach a contrary conclusion would require it to be accepted that it was objectively reasonable to believe, in effect, that the Family Court and its court appointed experts would not properly consider the material put forward in such a case or would be incapable of so doing, and that neither the appellant's own legal representatives nor the independent children's lawyer would act with a view to the best interests of the child, taking into consideration not only Dr Waters' report but also any evidence of continuing harm at contact centre visits.

[11]

Self defence

A similar conclusion must be reached in relation to the defence sought to be maintained under s 10.4 of the Criminal Code (of self-defence).
Her Honour was satisfied that the evidence relied upon by Ms B was capable of suggesting the reasonable possibility that she believed her conduct in taking the child from Australia to a place outside Australia was necessary in order to defend the child from harm ([121]).
As to the requirement that the conduct be a reasonable response in the circumstances as perceived by Ms B at the time, her Honour noted that this was to be determined by an entirely objective assessment of the proportionality of Ms B's response to the situation Ms B subjectively believed she faced (R v Katarzynski [2002] NSWSC 613 at [22]-[23]). Her Honour also noted that, in determining whether there was evidence capable of suggesting the reasonable possibility that the conduct was a reasonable response in the circumstances as Ms B perceived them, the availability of other possible responses was a material consideration [129].
Her Honour concluded (at [130] and [132]): 130. In circumstances where, as here, the accused had available to her a right of appeal against the interim order, which she chose not to exercise, as well as a right to be heard at any hearing of the application for parenting orders, together with a right of appeal from any such order, the extreme action of taking the child from Australia to a place overseas cannot be objectively viewed as anything other than a fundamentally unreasonable and disproportionate response to the circumstances as the accused perceived them to be. … 132. In circumstances where … the conduct is a fundamentally unreasonable and disproportionate response to the circumstances as the accused perceived them to be the evidence is not capable of raising and does not in fact suggest the reasonable possibility that the accused's conduct was a reasonable response in the circumstances as she perceived them.
Her Honour thus concluded that Ms B had failed to discharge the evidential burden for the defence under s 10.4 of the Criminal Code to be left to the jury because the evidence relied upon was not capable in her Honour's opinion of suggesting the reasonable possibility that the conduct in taking the child outside Australia was a reasonable response in the circumstances as Ms B perceived them ([138]).
Her Honour took into account the circumstances as Ms B perceived them at the time (with one error that is not material - namely her Honour's reference to advice that Ms B had received that she might lose her child if she appealed, whereas the advice she did receive was that she might lose her child if she did not comply with contact orders). Her Honour correctly concluded that taking the step of removing the child from the jurisdiction was not a reasonable response to those circumstances. The fact that the child's distress was reduced when living overseas (according to the material to which Ms B referred) does not alter the fact that this was, as her Honour suggested, an extreme response in the sense of being disproportionate to the circumstances facing Ms B.

[12]

Conclusion on ground 1

The Crown submits, and I agree, that for her Honour to have ruled that the two defences could properly have been left to the jury would have encouraged or permitted the jury impermissibly to exercise a power to dispense with compliance with the law. In R v Rogers (1996) 86 A Crim R 542, Gleeson CJ considered the public policy considerations that had informed the limitations imposed on the availability of the defence of necessity, as follows: The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed (at 546). (my emphasis)
Her Honour was clearly conscious of the need not to usurp the jury's function in determining the issue of reasonableness. She noted the necessity for a trial judge to remain mindful of the onus of proof and had in mind the reluctance of a trial judge to withdraw from a jury any issue that should properly be left for them. Her Honour was well aware that it was a grave responsibility to take defences away from the jury [131] and carefully considered the evidence before her in that context.
There was no error on her Honour's part in concluding that the availability of the appeal process (and, I would add, of the ability to make an application for a variation or stay of the contact orders on a change in the behaviour of the child) meant that there was no reasonable possibility that the evidence could suggest that Ms B had an objectively reasonable belief as to the second and third requirements of s 10.3 or that the response was a reasonable one for the purposes of s 10.4.
Thus, in my opinion, her Honour did not err in reaching the conclusion that the evidential burden was not satisfied. The only objectively reasonable conclusion on the evidence that was before her Honour was that Ms B chose, knowing that she was acting in disobedience to the Family Court contact orders and intending to put herself and her son out of the reach of the Court's control, to take the law into her own hands. The evidence before her Honour was not capable of supporting as a reasonable possibility that a belief by Ms B that this was the only reasonable response to the emergency (and that it was a reasonable response) was objectively reasonable; nor could it support as a reasonable possibility the conclusion that this was an objectively reasonable response to the circumstances as she perceived them.
Ground 1 is not made out.

[13]

Ground 2 - ruling re irrelevance of fact of sexual abuse

The second ground raised on the conviction appeal was expressed in the notice of appeal as follows: 2. Her Honour erred in ruling that the question of whether [Mr B] sexually abused [the child] was not relevant and therefore not to be considered in this trial. Her Honour erred in directing the jury not to consider whether [Mr B] did sexually abuse [the child] and in directing me not to adduce evidence for that purpose.
On any view of the matter, the question whether the child had in fact been sexually abused was not relevant to the issue whether there had been a breach of s 65Y of the Family Law Act, save insofar as it was relevant to the defences that Ms B sought to raise. As to those defences, once her Honour had accepted that there was evidence capable of suggesting as a reasonable possibility that Ms B subjectively held the relevant belief to satisfy the sudden or extraordinary emergency defence or that there were circumstances that would potentially enliven the defence of self-defence, the fact that the sexual abuse allegations may have been true did not take those matters any further. (Of course, if the belief as to sexual abuse was manifestly erroneous, this might affect the objective reasonableness of her belief as to sudden or extraordinary emergency or as to the circumstances giving rise to a defence of self-defence but that was not her Honour's conclusion.)
Ms B maintains, however, that evidence of the alleged sexual abuse supported the objective component of her defences, i.e., that her belief as to the matters in s 10.3 was objectively reasonable and that she was responding to unlawful conduct for the purposes of precluding the exclusion arising under s 10.4 (submissions [84] and [85]). It is submitted that the evidence that her husband was sexually abusive supported her credibility and was "tendency" evidence that it was objectively reasonable for her to fear sexual abuse/unlawful harm both at the contact centre and with unsupervised contact in the near future (submissions [81]-[119]). (It does not appear that Ms B is here referring to tendency evidence in the sense that such evidence is dealt with in the Evidence Act 1995 (Cth). Certainly, no notice of an intention to adduce tendency evidence appears to have been filed.)
In her oral submissions on the appeal, Ms B expressed concern that without the evidence she wished to adduce in relation to the sexual abuse (such as the evidence from Professor Briggs) her Honour may not have understood just how serious was the deterioration in the behaviour of her child once the contact visits had commenced (AT15.15). Such a criticism cannot be sustained in the face of her Honour's comprehensive summary of the sexual abuse allegations in Annexure A to her Honour's reasons for judgment. Moreover, as already noted, her Honour found in effect that there was evidence capable of supporting the reasonable possibility of a conclusion that Ms B held an objectively reasonable belief that sexual abuse had occurred and that the son's behaviour was deteriorating as a result of the contact visits. A finding that there had in fact been sexual abuse or that this was ongoing (even had this been appropriate in the context of the proceedings against Ms B) would not have assisted Ms B to meet the evidential burden on the second and third requirements of s 10.3, nor to enable her to raise the ground of self-defence before the jury (since, again, that turned on whether the conduct was reasonably proportionate to the circumstances as Ms B perceived them).
The Crown submits that once her Honour ruled that neither of the defences was available to be left to the jury evidence concerning the alleged sexual abuse of the child was no longer of relevance to any issue in the trial.
Ms B complains, in her written submissions in response to the Crown's submissions, that evidence supportive of the sexual abuse allegations was excluded at a time prior to all of the evidence and that her Honour could not have known what might have emerged in cross-examination of the witnesses (referring by way of example to concessions made in her cross-examination of Dr Robinson). However, the evidence that Ms B sought to adduce as to liability was outlined to her Honour before her Honour ruled against the admissibility of the particular documents and lines of questioning of which Ms B complains.
Insofar as ground 2 rests on the Court's determination of ground 1, it must logically fail since ground 1 has not been made out. However, in oral argument, Ms B maintained that ground 2 was independent of ground 1 and was in essence a complaint that her Honour had wrongly rejected evidence supporting the conclusion that Mr B had sexually abused the child.
Directions were made for Ms B to identify precisely the evidence that she said was the subject of this ground of appeal, i.e., the evidence which she said her Honour had wrongly excluded, and to provide copies of the material comprising that evidence. In response to those directions Ms B filed the November 2014 affidavit and annexures to which I have already referred and a subsequent 16 page set of submissions in February this year.
The November 2014 affidavit, in summary, recounts the history of the matter, from Ms B's perspective, and the material from which Ms B has formed the belief that the sexual abuse occurred. It contains a mixture of evidence and submissions. Broadly, the ground that it covers includes: the basis on which Ms B has drawn the conclusion that her child was sexually abused by his father; the reason she believed she had no option but to take the child out of the country; her criticisms of the investigation of her allegations of child sexual abuse and of the Family Court proceedings; her commentary on or response to some of the evidence before the Family Court and at her trial; her child's experience while overseas; and her concerns in relation to her child's development since his return.
In that affidavit, Ms B recounts her recollection of the history of her child's development, his early anxiety with other children and attachment to her, the circumstances in which Mr B had interaction and (on her business trips) sole care of the child, the disclosures made by the child and the course of events following her report of those disclosures to the authorities. Ms B refers to material relating to Mr B's mental state and to research carried out by her (some before her departure from Australia and some after she had left) as to child sexual abuse and the way in which investigation thereof should, according to various academics in the field, be carried out.
Some of that material was in fact admitted in evidence at the trial (and hence there is no basis for it to be said that it was wrongly excluded); some of that material was not sought to be tendered at the trial (and hence again cannot be said to have been wrongly excluded); some was not prepared until after the trial, as is apparent from the descriptions of that material in Ms B's November 2014 affidavit and conceded by her, and hence could not have been admitted at trial.
What this Court had understood Ms B was seeking to raise by her wrongful exclusion of evidence complaint was a contention that she had sought to adduce particular evidence and that her Honour had wrongly excluded that evidence. What has become apparent from the written submissions filed in February 2015 in response to the Crown's further written submissions (those in turn responding to Ms B's November affidavit), is that Ms B has understood the leave granted to her for the filing of submissions as to the wrongful exclusion of evidence at the trial as being an invitation to set out the whole of the evidence on which she says she would have relied had she been permitted to put before the jury the issue as to whether or not Mr B had in fact sexually abused her son. An argument of that kind must fail given the conclusion that her Honour did not err in ruling that the question whether Mr B had sexually abused the child was not relevant to be considered in her trial.
Ms B's 2015 February submissions, in effect, re-state her argument that in 2008 she was faced with conflicting legal duties; re-state her submissions as to the alleged sexual abuse and seek to explain why it is that she did not adduce certain of the material she has now put forward and on which she now relies.
Ms B has produced a 14 page annexure responding to the Crown's analysis of the evidentiary status of material in her November affidavit.
In a number of instances, Ms B concedes in that annexure that evidence referred to in her November affidavit was not admitted into the trial (such as her 28 February 2008 affidavit) or was not sought to be tendered and explains that this was due to her inexperience in criminal trials (see the explanation in paragraph 2(b)). In other cases in response to the Crown's submissions, Ms B responds (as in paragraph 2(a) of her annexure) by stating that the evidence she tendered during the trial was not for the purposes of establishing that sexual abuse had in fact occurred and that the material in her November 2014 affidavit is now presented as the whole of the evidence she seeks to rely upon for the purpose of establishing that sexual abuse did in fact occur.
At [2] of her February 2015 submissions, Ms B states: "I required the jury to make a finding on whether [Mr B] sexually abused [her son] because it is what actually happened and because this finding is the objective evidence of the reasonableness of my conduct in response, in addition to findings on risk of attack by [Mr B] - at any time and in any place" (my emphasis). That, however, is not the basis on which Ms B conducted her defence and such a course was expressly disallowed by her at the time.
On 15 October 2013, before the jury was empanelled, in the context of her objection to the admissibility of Dr Waters' report, Ms B stated that she did not want to have the jury try to ascertain the sexual abuse issue. She explained that this was because it was very complex and the fact that the abuse happened was not the reason that she left the country; and because to do so there would need to be an expert with child sexual abuse expertise (T 63.25).
On 24 October 2013 (day 9 of the trial), in the course of argument about what evidence could be given by Professor Briggs, Ms B disclaimed any intention to use Professor Briggs as an expert in this case, stating that she wanted to use Professor Briggs' expertise in general (T 344.32).
On 30 October 2013 (day 13 of the trial) (T 47ff), referring to the "purple lipstick recording", Ms B said "I want to use it not as evidence of the facts asserted but as evidence of the fact that my son spoke to me in a manner consistent with disclosing sexual abuse".
Ms B said: I am using this recording as evidence of the fact that my son spoke to me in a manner that I found concerning and it is objective evidence that that's what he was doing. I am not using it to prove sexual abuse or anything else.
Ms B argued that the purple lipstick recording showed her credibility in circumstances where she had been accused of fabricating allegations. She confirmed again that: I'm not using [the purple lipstick recording to say it] … actually happened. I am using it to say my son was speaking to me. That's, in fact, why I took the recording.
Similarly, in relation to the JIRT interview, Ms B indicated that she wanted to tender it in order to point to a discrepancy in the transcript (namely, that her son had answered the question as to his name correctly at first, by responding with his Christian name, then incorrectly answered the question as to his other name); to counter Dr Waters' comment that her son was unsettled at the interview and to point to "concerning signs" in the video that she submitted would lead one to think that perhaps there should be more than one interview. Ms B had not seen the recording of the JIRT interview or the transcript at the time she left the country (and therefore it could not have informed her state of mind at that time) but maintained that she knew it had been unsuccessful.
In the context of her oral application for a ruling on whether Dr Waters was an expert in sexual abuse, Ms B said: I am not going to try and prove that he [her son] was sexually abused but I do want to prove that [Dr] Waters'… opinion was worthless … because he didn't rely on any appropriate evidence and because he didn't have expertise.
In those circumstances, it is not open to Ms B now to contend that her Honour erred in not admitting evidence going to the truth of the sexual abuse allegations. The fact that, as Ms B states in her most recent submissions, she may now have formed the view that certain matters were wrong - such as her statement that Professor Briggs was not an expert in the case (which Ms B now submits was an incorrect view) that initial incorrect view being said to be "as a result of bias in the way the Family Court appoints experts"); or that she did not seek during much of the trial to have the jury make findings of fact on whether sexual abuse had actually occurred because she accepted the Crown's assertions and the trial judge's ruling that the evidence was irrelevant; or that she wrongly believed she could not seek to ask the jury to find that sexual abuse had occurred and wrongly believed that she could not ask Professor Briggs her opinion on that issue, does not reveal error in the trial judge's rulings on the admissibility of evidence relating to the truth of the sexual abuse allegations. Ms B is bound by the forensic decisions made by her in the trial, whether those were affected by her inexperience or otherwise.
Ms B complains that she was not advised that she could argue otherwise against the proposition that the jury should not be embarking on an enquiry as to whether or not her child was abused. However, it was not for the trial judge or the Crown to advise Ms B what argument she should advance in the conduct of her defence.
The two rulings that were identified by Ms B in oral submissions as incorrect rulings referable to particular evidence or a particular area of cross-examination, and which would fall within the scope of the re-cast ground 2, were a ruling on 25 October 2013 and 14 November 2013 each being in response to an application by Ms B to adduce particular evidence from Professor Briggs, the psychologist with experience in dealing with child sexual assault matters from whom Ms B had obtained advice in March 2008. Her Honour gave short reasons in relation to each application. It is clear from the transcript that there were a number of other areas in which Ms B was permitted to adduce evidence from Professor Briggs.

[14]

25 October 2013 ruling

The context in which this arose was that the Crown had objected to Ms B asking Professor Briggs a number of questions on the basis that they were either irrelevant or that Professor Briggs lacked the necessary expertise to give evidence on those matters.
Ms B was asked, in the absence of the jury, to identify the matters she wished to ask Professor Briggs. Those included: communications Ms B had had with Professor Briggs in the period of time leading up to her departure from Australia going to matters such as the giving of gifts at contact centres; the reasons given by Dr Waters for not interviewing the child in March 2007; delay by children in disclosing abuse; questions as to the investigation that had been carried out; what a thorough investigation would involve; and questions about child sex offenders and their behaviours in grooming children, connected to the circumstance that a child might show a positive friendly emotion to someone who has in fact abused them.
Her Honour accepted that evidence as to those matters might be relevant to the question of the circumstances at the time and as to what was perceived by Ms B, going to the reasonableness of any belief that she may have held at the time. Her Honour indicated that she would allow questions of Professor Briggs to be asked for that purpose. Her Honour considered that Professor Briggs was appropriately qualified to give evidence as to matters such as the age at which young children can be interviewed and as to the investigation of child sexual abuse allegations.
The two areas on which her Honour did not allow cross-examination of Professor Briggs were, first, questions relating to the statement by Dr Waters in his 10 April 2008 report to the effect that Ms B did not disclose anything that could constitute a penetrative act (about which Ms B cross-examined Dr Waters and which Dr Waters effectively conceded was incorrect) and, second, Professor Briggs' comments on the JIRT video.
As to the first, her Honour considered that the question was aimed at Professor Briggs being asked to give a medical opinion, namely what it is that might be discovered after a penetrative act. Her Honour would not permit the witness to give any such medical opinion. Ms B in her February 2015 written submissions maintains that the opinion that she was seeking from Professor Briggs (in her question regarding evidence of anal penetration) did not concern physical evidence of the abuse but was a question asking Professor Briggs to comment on her son's behaviour and disclosures as evidence that he was communicating and behaving consistently with a child who had been anally penetrated. However, the question as put on the voir dire by Ms B was as to whether it was possible that her son could have experienced a penetrative event (T9.34, 15/10/13).
Given that Professor Briggs was not called as a medical expert to give an opinion as to what kind of physical evidence there might have been or might potentially have been of penetrative abuse, there was no error by her Honour in rejecting a line of questioning that went to that issue. As to the line of questioning Ms B now says she intended (by reference to the behaviour that might be exhibited by a child who had suffered anal penetration), that was not obvious from the question she had put but in any event Ms B adduced evidence from Dr Waters in cross-examination to the effect that her son's complaint as to his bottom being sore and her son asking his mother to clean inside his bottom could disclose penetrative abuse.
As to the second area identified by Ms B, her Honour said that: That exercise would appear to be irrelevant to the proceedings in that it must be borne in mind that these proceedings are not concerned with the review of whether or not the child was in fact sexually assaulted, and her opinion as to what may or may not be derived from the video is not relevant to the proceedings.
Again, there was no error in the rejection of questioning along this line, bearing in mind that her Honour did permit evidence to be given as to what a thorough investigation might involve and her Honour did not preclude submissions by Ms B as to what might be discerned from the video.
As to Ms B's criticism of the JIRT interview, in her reasons on sentence her Honour concluded (at [32]) that it would be open to a tribunal of fact to conclude from that evidence that the procedure of having a one-off interview between a three year old child and a person the child had never met before was inadequate in the circumstances of the case. Having viewed the JIRT video in the course of preparing these reasons, I can only agree. Her Honour considered that this was supported by the evidence given in cross-examination by Dr Waters. Professor Briggs herself seemed to indicate that more than a one-off interview would be necessary.

[15]

14 November 2013

On 14 November 2013, Ms B sought to adduce the evidence of Professor Briggs on the reasonableness of the conclusions Ms B drew from what the child had said, as well as the circumstances in which the further disclosures (after he had been taken out of the country) were made. Her Honour said: I am not going to admit this evidence of Professor Briggs on this issue. The relevance of this is as originally flagged, as the jury can be directed, is that it shows the child was making disclosures of the type that the accused said he was making. Although Mr Crown cross-examined the accused on the reasonableness of the conclusion she drew from what was said, as well as the circumstances in which the further disclosure was made, it is clear from MFI 83 that this portion of Professor Briggs' evidence goes to the likelihood of the disclosures being true, and that is a question that is not appropriate for the jury to be diverted into consideration of. So the Court proposes not to admit the evidence before the jury.
A copy of MFI 83 was handed up on the hearing of the appeal. It consists of an email exchange between Professor Briggs and Ms B on 9 November 2013 in which Professor Briggs comments on and attributes possible meanings to what appears in a transcript of a recording between mother and child (the purple lipstick recording). Professor Briggs gives her interpretation of what was being disclosed to Ms B in that conversation.
Ms B maintains (AT 18.20) that Professor Briggs' assessment of the recorded disclosure was that she determined it was "authentic and supportive of finding sexual abuse", though Ms B accepts that, on its face, the recording would not prove beyond reasonable doubt that the offence had occurred.
In light of Ms B's concessions referred to at [105] and [106] above, her Honour's ruling on this area of cross-examination cannot be seen as being in error.
For completeness, I note that annexed to Ms B's November affidavit (Annexure Q) is a copy of what was MFI 82 at the trial. This was another email exchange between Professor Briggs and Ms B on 9 November 2013, in which Professor Briggs gave her opinion as to the techniques for interviewing young children in relation to sexual abuse allegations and concluded that the interview (by the JIRT) was "woefully inadequate" (Professor Briggs went on to express the opinion that if further information was disclosed there should have been another assessment on the child's return to Australia and before he was in the care of the father, an opinion not relevant to the issues in the trial on any view of the matter).
It is not clear whether Ms B complains about the rejection of MFI 82. If she does then that complaint is also unfounded. When Ms B left the country she had not seen the video of the JIRT interview and hence a conclusion that it would be objectively reasonable from that video to consider that the investigation was "woefully inadequate" could not be relevant to whether on the material then known to Ms B such an opinion would have been objectively reasonable.
Insofar as Ms B now relies on Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 to support the adducing of evidence of sexual abuse as contained in her November 2014 affidavit, it should be noted that the leave granted to file submissions identifying what evidence it was said had been wrongly excluded at the trial was not an invitation now to mount a case based on assertions that Mr B had in fact sexually abused her child that have not been tested and to which neither the Crown nor Mr B has had the opportunity in the trial proceedings to respond.
Ground 2 is not made out.

[16]

Ground 3 - admissibility of Dr Waters' report

The last ground on which the conviction appeal is brought is that: Her Honour erred in failing to make findings on the admissibility of Dr Waters [sic] report and specifically its impact on any future Court proceeding and therefore my ability to succeed at an appeal or any application for parenting orders.
A copy of Dr Waters' report was not in evidence at the trial. However, Ms B read out various portions of the report when cross-examining Dr Waters on the conclusions and recommendations contained in his report. Hence some of the content of the report became known at the trial. Ms B accepted on the hearing of the appeal that the Court could infer, from correspondence following the publication of that report, that Dr Waters' report was not favourable to her position. She later annexed a copy of the report to her November affidavit.
There is a certain irony in the contention by Ms B that her Honour erred in failing to make findings on the admissibility of Dr Waters' report. It was in fact Ms B who had objected to the admission of that report in evidence. The Crown had indicated that it was proposing to use the report to refute the potential defences because the report suggested that the sexual abuse probably did not occur and that the mother had developed an "overvalued idea". Ms B had objected that it was an untested report. Ms B says on this appeal that her objection was that it was wrongly defamatory of her (AT 19.45).
Prior to the examination of Dr Waters, there was a discussion between the bench and the Crown, in the absence of the jury, as to the objections Ms B had raised to various portions of Dr Waters' report. After some discussion, the Crown indicated that it proposed not to tender the report but just to have some parts of it, including parts already read out, lead orally. Those parts were described as the introductory part, for the fact that Dr Waters had conducted the interviews and had received certain documents and then the conclusions and recommendations expressed by him. Dr Waters had formed the view that both parents had parenting capacity, albeit the mother probably to a somewhat greater extent.
Ms B then said that she was preparing to cross-examine Dr Waters and had changed her view (as to the admissibility of the report) because she thought it more helpful to her case to raise in cross-examination quite a bit of his report to establish how he formed his opinions.
Her Honour quite properly pointed out to Ms B the need to be aware that cross-examination on certain matters might have the consequence that the Crown prosecutor might raise other things in the report or tender it. Ms B responded that she thought she had no alternative than to address the report because enough of it had gone in.
Ms B cross-examined Dr Waters on his evidence and other portions of the report. She accepts that she tried to cross-examine him fully on the report (AT 19.50) and, in particular, she accepts that she cross-examined him on his conclusions and recommendations and was satisfied that those were the material portions of the report to go to the jury (AT 20.3; 11).
Ms B sought a ruling from her Honour as to whether Dr Waters was an expert in sexual abuse. Her Honour declined to make such a ruling on the basis that there was no utility in so doing. Her Honour made clear that there was no need to rule on the admissibility of Dr Waters' opinion because he had not been called by the Crown to prove that sexual abuse had occurred; rather, he had been called to show that he had made a report that was served on Ms B and what the contents of that report had been.
Ms B submits that it is significant to consider the implications of Dr Waters' report because it would not have protected her child; rather, it would have caused the child to go to the father. As noted earlier, that is not the recommendation that Dr Waters in fact made (as Ms B's cross-examination of Dr Waters made clear when she adduced evidence from him that his doubts as to whether what had been disclosed had or had not occurred, why he had recommended the continuation of supervised access).
Ms B's complaint is not that her Honour wrongly made a ruling on inadmissibility of the report. There was no need for any such ruling since the report was not tendered by the Crown. Ms B does not now say that her Honour erred in not admitting the Dr Waters' report, which she says was significant to show the risk her son was under, but she contends that her Honour denied her the opportunity to submit to the jury that an urgent application to the Family Court in March 2007 would not have succeeded based on that report. Ms B seems to wish to argue that her Honour should have ruled that Dr Waters should not have written the report at all (AT 22.35; 50).
Ms B contends that her Honour should have found that Dr Waters was not an expert (for the purposes of the Family Court proceedings) (AT 24.7; T 24.20 but cf T 24.15) (or perhaps in general as to child sexual abuse) and that his report greatly added to her child's risk and "pretty much sealed his fate" (AT 21.45). She contends that her Honour should have made that finding based on Professor Briggs' evidence and Ms B's own cross-examination of Dr Waters.
Ms B maintains that if Dr Waters was not an expert his report would not be admissible and the imminent danger that Ms B feared could not have occurred. In essence, this is a complaint as to the evidence before the Family Court not the evidence at the trial. However, Ms B's argument is that the fact that the report was not written by a child sexual abuse expert but was available in the Family Court proceedings is objective evidence that she would not have succeeded in an appeal or another interlocutory hearing and therefore could not have protected her child. That argument appears to rest on a misreading of the recommendations in the report but in any event is beside the point.
Whether as framed in the notice of appeal or as articulated orally, ground 3 is not made out. Her Honour did not err in not admitting a report that was not tendered. Dr Waters' evidence at the trial was as to the recommendations and conclusions he had made in his report as the court appointed expert in the Family Court proceedings. Whether he was suitably qualified to provide such a report was a matter for the Family Court judge to determine. He was not being called as an expert witness as such in the criminal proceedings against Ms B.
Ground 3 is not made out.

[17]

Sentence appeal

The Crown submissions on sentence were (at [19]) that a period of imprisonment was the only appropriate sentence but that, as Ms B had already served more than eight months' imprisonment, this should be taken into account. It was submitted to her Honour that the effect of the comparative sentencing cases provided by the Court indicated that Ms B had, by reason of the eight months already spent in custody, already served a term of imprisonment comparable to those that had been handed down in broadly comparable cases.
Ms B argues that the cases to which the Crown had referred were not comparable but does not suggest that any other or lesser sentence should have been imposed on her.
Her Honour accepted (at [54]) that the conduct involved a very serious breach of the Family Law Act and that Ms B was the sole participant in the offence. Her Honour further accepted (at [55]) that the offence was deliberate and planned, although noting that there was very little planning involved beyond deciding in the week before she left: to leave the country taking her child to the doctor, getting her finances in order and purchasing the tickets. At [58] she said: By reason of Ms B's familiarity with the medical system overseas, she had hoped and expected that she could have the issue of what she genuinely believed to be her [child's] abuse investigated above and beyond a single 20 minute interview with someone the child had not had an opportunity to develop any rapport with. Arranging such an investigation was not an easy task and in circumstances where her attempt to negotiate her way back had failed, which may have had something to do with the nature of the attempt, Ms B's efforts to obtain an investigation ultimately resulted in her being placed on a university hospital waiting list.
At [59], her Honour noted that in the result the child was kept away from Australia was two years, four months and 21 days and said that this was obviously a lengthy period for a child who was just three years eight months at the time he left the country. Her Honour also noted that the length of time was brought to an end by the actions of the father in his attempts to locate his child.
At [60], her Honour accepted that the offending involved an intentional course of action designed to frustrate the ordinary process in the Family Court. However, her Honour also took into account "not by way of excuse, but as a matter reflecting upon the moral culpability of the offender, non-exculpatory self-defence, … arising out of what I am satisfied was the genuine belief that the child had been abused by [the] father".
Her Honour accepted (at [61]) that Ms B gave an honest account of the events and had genuinely held the belief that the child had been abused by the father. Her Honour said this was not a case of a person acting out of malice, rather the offender genuinely held the belief that the child had been so abused and was fearful for the safety of her and her child in light of the revelation about her husband's mental condition and having observed his anger and desperation expressed in the circumstances in which he found himself. Her Honour accepted that Ms B sought but did not find the help and support she needed; "[s]he had the firm view, informed by her experience and researches, that the allegation had not and was not going to be properly investigated above and beyond the one ineffective interview of her [child]".
Her Honour also accepted (at [62]) the Crown's submission that the nature of the action taken by the offender was extreme.
At [63] her Honour said: An issue arose in the sentencing proceedings about the admissibility of a victim impact statement read by Mr B. By commission of the offence for which the offender stands to be sentenced, the father did not see his [child] for a period of about two years, four months and 21 days. As might be expected for an offence of this type, he spoke of the distress suffered by him following upon the disappearance of his [child] and the adverse effects flowing from that event (ex B).
Her Honour accepted that the principles stated in R v Constantine (1991) 25 NSWLR 431 (at 438F-439A), in relation to prosecution under the forerunner to the present section, were applicable; and noted the importance of the question of deterrence.
Her Honour also noted that there was no evidence of contrition: Ms B having told the jury she still thought that she did the right thing and that there was no evidence about any cooperation with law enforcement agencies.
Her Honour then took into account Ms B's character and age, means, and physical and mental condition. Her Honour considered that Ms B had good prospects of rehabilitation.
As to Ms B's mental condition, her Honour noted that an issue had arisen as to this. At [78] her Honour said: The issue arose in a highly unusual way. The offender provided the report of Dr R[obinson] to the Court. Dr R[obinson] prepared reports for the proceedings in the Family Court as the single court expert. She expressed the opinion that the offender suffers from a delusional disorder. The offender filed the reports together with submissions in the sentencing proceedings yet it is she who takes issue with the reports and the opinion proffered and effectively asked the Court to reject it.
At [79]-[80], her Honour said: Recognising the fact that in determining the appropriate sentence it is relevant to take into account the fact that an offender was suffering from a mental condition at the time of the commission of the offence or has a mental condition at the time of sentence, the Crown called Dr R[obinson] as a witness in the sentencing proceedings. That cross-examination is a matter of record. Extensive submissions have been filed. The Crown submitted that Dr R[obinson]'s opinion that the offender suffers from a delusional disorder remains relevant on sentence regardless of whether or not the offender agrees with it and regardless of whether the offender wishes it to be taken into account. That is so.
Nevertheless, her Honour said (at [84]) that there were some fundamental difficulties on the basis of the evidence and material placed before the Court in making a finding that Ms B has or had a delusional disorder, including that the reports were prepared for a different forum; some important issues were raised in the evidence yet Dr Robinson adhered to her opinion; Dr Robinson noted the difficulty in being cross-examined by the person she diagnosed with a delusional disorder; and Dr Robinson had also reported to the Family Court her opinion about whether the offender should have contact in the future with her child. Her Honour said: I am not prepared to act on the material put before the Court in this regard in such circumstances. In my view if it were necessary to go on to make the relevant finding, independent evidence by an appropriately qualified expert who had read the trial transcripts and viewed the relevant exhibits would need to be provided.
Her Honour also noted (at [85]) that it had been brought to the Court's attention that on 26 March 2014 the Family Court had made orders to the effect that the child spend no time with the mother but may have electronic communication with her through Skype or the telephone when the child requests to do so. Her Honour said: If the observations or opinion expressed by Dr R[obinson] in Exhibit D are accepted, it appears to the Court there is no or little prospect of the father agreeing to a variation of the orders by way of a parenting plan.
Her Honour considered that a relevant factor to be taken into account was the fact that Ms B was now prohibited from spending any time with her child for the next eight years. Her Honour noted the likely difficulty or the potential for difficulty in electronic communication between the then nine year old child and the mother if the mother were in prison.
At [91], her Honour said: Even if I had thought it appropriate in all of the circumstances to impose any greater punishment than that already inflicted, which I now do not, I certainly do not think it appropriate to impose a penalty of the type that will take away the one connection the child has remaining with the mother (especially in circumstances where the Family Court considered it appropriate that connection be retained).
Taking into account all of the matters being made known to the Court and having regard to the actual imprisonment already served, the course of events over the ensuring years (including the very limited and restricted time during which the offender has been allowed to spend time or communicate with her child) and the present circumstances which include the orders made by the Family Court, her Honour concluded that it was not appropriate at this time to impose any further or additional punishment in the nature of imprisonment full-time or otherwise. In the result, the sentence imposed on Ms B was not a custodial sentence even though her Honour considered that the offence that had been committed was a serious offence.
As to the sentence appeal, the amended grounds of appeal are as follows: 1. Her Honour erred in failing to make findings in regard to the diagnosis of delusional disorder and the inference that I suffered a mental illness. 2. Her Honour erred in denying me the opportunity to cross examine [Mr B] on his Victim Impact Statement that he read into evidence in Court under oath.

[18]

Ground 1 - failure to make findings in relation to diagnosis of delusional order and inference that Ms B suffered a mental illness

The circumstances in which this issue arose, as her Honour noted, are somewhat unusual. The matter had been listed for the sentencing hearing to take place on 4 December 2013. Both the Crown and Ms B had provided in advance written submissions on sentencing. The Crown raised as a preliminary issue that Ms B's submissions had made reference to a report from Dr Robinson, who by then had been appointed as the single expert in the Family Court proceedings. Ms B had been ordered, over objection by her, to see Dr Robinson as part of the Family Court proceedings (AT 26.3). The Crown did not have a copy of that report but noted that Ms B had made reference in her submissions to a delusional disorder in the report. The Crown submitted that if Ms B is or was suffering from a delusional disorder that would be of relevance to penalty and might affect the Crown's submission that a period of imprisonment was the only appropriate sentence.
Ms B indicated that she wished to cross-examine Dr Robinson, asserting that Dr Robinson had committed serious offences. Apparently that allegation relates to Ms B's belief that Dr Robinson had misrepresented and manipulated records. Ms B contended that the contents of the report were biased and misrepresented.
The matter was listed for 28 February 2014 for the purpose of Ms B's cross-examination of Dr Robinson (and for cross-examination of Mr B on his victim impact statement if permitted).
Ms B then issued a subpoena for Dr Robinson to attend for cross-examination on the sentencing hearing but there appears to have been an issue as to the provision of insufficient conduct money for attendance at court of an expert witness. The matter was re-listed before her Honour on 14 February 2014, when the Crown indicated that it would subpoena Dr Robinson.
On 28 February 2014, Ms B indicated that she wished to tender the report of Dr Robinson into evidence on the sentencing hearing, to rely on the fact that its contents were biased and misrepresented. Her Honour pointed out to Ms B that without the report being tendered by her the Court would have no knowledge of it and could not use it in any way in the determination of the sentence (the Crown not seeking on its own behalf to rely on the contents of the report).
Ms B informed her Honour that she had to deal with the report and thought it was significant because her case was so impacted by Dr Waters' report and his failure to investigate her son and: … now here is another psychiatrist, who I will show, has done something similar and in fact possibly worse. I wish to show that these are the current circumstances and they are similar to the circumstances previously that I have faced in the Family Court. I want to show that this is what is happening and I still am struggling with this situation.
Ms B also expressed the concern that Mr B was seeking to show the report to schools and mental health institutions and it would impact greatly on her current circumstances.
The Crown then called Dr Robinson and tendered her report (Exhibit C). A non-publication order was made in relation to the exhibits given that they identified the son. Dr Robinson confirmed that she had made a diagnosis of "the psychotic illness delusional disorder" because Ms B "holds with absolute conviction the belief [her son] has been sexually abused by his father is valid and accurately reflects reality" but Dr Robinson said that the diagnosis did not relate to Ms B's condition five years earlier, on which she considered it inappropriate to comment.
Ms B cross-examined Dr Robinson at length, over two separate days, challenging her expertise in the area of child sexual abuse and challenging the opinion that Ms B now suffers from a delusional disorder. She did not, according to Dr Robinson, seek to cross-examine Dr Robinson in the Family Court proceedings for which that report had been prepared.
During cross-examination, Dr Robinson accepted that she could not be categorical that nothing inappropriate had happened to the son. She said that certainly there were ambiguous behaviours by the son on 6 December 2007. However, Dr Robinson considered that Ms B's response was "markedly concerning" in that Ms B had behaved as if the fact of abuse had been established, without being open to any other reasons for her son's behaviour. Dr Robinson said that once Ms B had gained that conviction she had found other information to support her view and had gone "beyond" what Dr Robinson regarded as the normal or reasonable steps of a mother with that belief.
Dr Robinson conceded that she had not tested the veracity of some of the information that was contained in the report (some of which she said she had included as part of what she referred to as the "longitudinal" history of the matter) but emphasised that her diagnosis was not one based on events viewed in isolation. While at the conclusion of the cross-examination Dr Robinson's position was that (in hindsight) she would have reviewed her report in light of the matters raised in cross-examination, she also said she would not have revisited her opinion as to delusional disorder.
Ultimately (at [84] of her Honour's remarks on sentence), her Honour concluded that she was unable to make a finding that Ms B has or had a delusional disorder. Ms B now seeks to argue that her Honour ought to have made a positive finding that she does not suffer from a mental illness.
Ms B submits that such a finding should have been made as it was objectively relevant to her credibility as a self-represented litigant and to her argument that the Family Court is making decisions based on unreliable and inadmissible expert reports (which she says contributed to her forced departure in 2008).
Ms B further says that if Dr Robinson is correct and she has been delusional since 2008, then this would mean that the whole time that she had represented herself in the proceedings and in the appeal she was suffering from that disorder (AT 27.1).
Ms B does not appear to be arguing any denial of procedural fairness in this regard but, rather, appears to be relying on the fact that she was able to conduct her defence as demonstrating that she is not suffering from a delusional disorder.
One difficulty with a submission that, because Ms B had been able to conduct her case logically and rationally, she could not be suffering from a delusional disorder is that the definition of delusional disorder, as given by Dr Robinson, in effect acknowledges that delusions do not interfere with general logical reasoning (although within the delusional system the logic is perverted). Nor did Dr Robinson accept that, for there to be a delusional disorder, it was necessary that the belief be incorrect, explaining that delusional disorder incorporates the sense of not being able to entertain that their beliefs may be false or that there is no evidence for them; it being the way that Ms B holds her beliefs and their persistence and the way that judgments were made about information that led to Dr Robinson's opinion. In any event this is not the issue.
Ms B did not suggest that the failure to make a finding as to her mental state had impacted in any way adversely on the sentence imposed on her or that any different sentence should have been imposed having regard to her criticisms of the report (AT 27.30).
It is the duty of the judge at sentence to determine the facts relevant to sentencing (R v Isaacs (1997) 41 NSWLR 374 at 377-378, cited with approval in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 at [14] per Gleeson CJ, Gummow and Hayne JJ; at [170] per Callinan J). The duty is limited to those facts that are relevant to the determination of the relevant issue (R v MacDonell (Court of Criminal Appeal (NSW), 8 December 1995, unrep) per Hunt CJ at CL).
Findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. The practical effect of this is recognised as being that, in a given case, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender (Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen at [14] and Callinan J at [170] citing R v Isaacs with approval on the question of fact finding following a jury verdict).
The only relevance to Ms B's sentencing of Dr Robinson's report was that, if Ms B did suffer from a delusional disorder at the relevant time (or even at the present time) that would be a mitigating circumstance for the Court to take into account on sentencing. A finding that there was no delusional disorder would have no relevance other than to remove a potential mitigating factor. (Insofar as that would be a factual finding adverse on sentencing to Ms B, it would have to have been proved beyond reasonable doubt.)
The Crown submitted to her Honour that the Court would have significant concerns that Ms B did have a delusional disorder and recognised that, if so, that would be a mitigating circumstance but said it would not be pressing for a positive finding that Ms B did suffer from a delusional disorder; suggesting instead that the Court take into account that Dr Robinson's evidence provided some explanation as to the reason that the offence might have been committed.
There was no expert evidence other than that from Dr Robinson on this issue. Ms B challenged, in her cross-examination of Dr Robinson, the factual basis for a number of matters referred to by Dr Robinson in the course of her report.
The definition of delusional disorder to which Dr Robinson referred focussed, as I understand it, on the holding of a fixed view (as to the sexual abuse allegations) without being open to the possibility that there might be another explanation.
Ms B accepts that she holds an unshakeable view that her son was sexually abused by his father. Though she did not accept in cross-examination at the trial that the only investigation she would accept was one that agreed with her view or that if anyone failed to support her concern as to the sexual abuse allegations then he or she was incompetent, biased or dishonest, Ms B has since 2008 made very serious allegations against a large number of people who have played a role in the Family Court proceedings or the steps taken once the abuse allegations were made.
In that regard I note that Ms B expressed the belief to her lawyers in 2008 that all of the persons involved in the matter (the judge, her lawyers, the court appointed expert, the JIRT officers and the CPU) were "not unbiased" and has made similar allegations in her later correspondence with Professor Briggs. She has accused the Family Court judge of bias, dishonesty and a conflict of interest in having a professional relationship with the Court appointed expert (because the expert earns fees from the appointment), though her attempt to have the judge disqualified for bias was nevertheless unsuccessful. She has accused Dr Waters of bias and misrepresentation and maintains that he is not an expert at all in the area of child sexual abuse and holds extreme views (part of her criticism being that his assessment that she held an "overvalued idea" does not accord with any use of the term "overvalued" idea in the area of child sexual abuse literature). She has similarly accused Dr Robinson of misrepresentation.
The stance taken by Ms B in her correspondence to Professor Briggs in 2009 (in parts of the letter that were not before the jury) was that she and her son had become victims of abuse from her husband, from the court appointed psychiatrist (who she described as dishonest and supporting her former husband), from the judge (which she said in cross-examination she meant in the way that he had created the orders and caused further harm), who she said she thought was biased or incompetent, from the CPU (who she says did not investigate properly), by the supervised contact centre (the co-ordinator of which was described in the letter as having given "full support" to Mr B threatening her son in contact sessions). She has accused DOCS of misrepresenting her and has accused Mr B's solicitor of making false statements in court. She has accused Mr Christos Christaki (the independent children's lawyer) of manipulation of the court process, insofar as she suggested that he had advised the contact centre of an incorrect date for production of material in answer to a subpoena.
Ms B argued, at the sentencing hearing, that the Family Court has a small group of experts who were biased in reports to pervert the course of justice (submissions on sentencing at [60] - [62]) and says that she provided evidence that the Family Court appointed independent children's lawyer, Mr Christaki, was not providing any independent view of the reports (8 November 2013, T 1063.44-1064).
In her submissions on the conviction appeal, Ms B contends that the Family Court has caused endless litigation and appeals ([82]) and that The Hague failed effectively to implement clause 13(b) of The Hague Convention and prioritised international relations over child safety ([85]).
However, whether or not the above matters could give rise to a conclusion that Ms B suffers from a delusional disorder, her Honour was not satisfied that such a finding could be made on the material before her. That conclusion has not been shown to be infected by any error, nor does Ms B complain about this. As to the complaint that her Honour did not go on to make a positive finding that there was no delusional disorder, suffice it to note that her Honour was not obliged, when sentencing, to make rulings on issues that were not determinative of, or relevant for, the purposes of making the decision her Honour had to make. Given the conclusion that her Honour reached in relation to sentencing, it was not necessary for her Honour to go further than to decline to make a ruling on delusional disorder. Moreover, the fact that Dr Robinson's opinion was not accepted by her Honour as establishing on the balance of probabilities a delusional disorder (her Honour making it clear that she would have required further evidence on that issue) does not mean that the contrary conclusion had been established. Rather, it simply means that there was insufficient evidence for her Honour to draw a positive conclusion on that matter.
Given that there were Family Court proceedings on foot in which rulings of that kind may have been required, it would have been inappropriate for her Honour to comment on that issue beyond making the ruling that her Honour did.
Ms B was not able to indicate any basis on which the failure to make a ruling on this issue was something that had contributed to an error in her sentence. Insofar as she submitted that a finding of no delusional disorder would be relevant in other proceedings (such as the Family Court proceedings) this highlights why it is that her Honour was correct in declining to entertain such an issue.
This ground is not made out.

[19]

Ground 2 - denial of opportunity to cross-examine the father on his victim impact statement

Finally, Ms B claims she has been denied procedural fairness because she was not permitted to challenge Mr B on statements made by him under oath on 4 December 2013 when he read out his victim impact statement. A sealed copy of the victim impact statement was admitted as a confidential exhibit (Exhibit D) at the sentencing hearing. The reason that this evidence was given on oath was that Ms B had foreshadowed an intention to cross-examine Mr B.
At the sentencing hearing there was an issue as to whether Mr B could be classified as a victim. Both parties prepared lengthy submissions on that issue. Ms B argued that the statement was inadmissible. She referred to the decision in R v Nahlous [2013] NSWCCA 90 at [107] and RP v R [2013] NSWCCA 192 at [18] (see addendum to submissions to cross-examine at [1] and [2]). In Nahlous, the Court found that it was not a mandatory requirement, when sentencing, to have regard to a statement by the family of the victim and hence there was no error in not doing so. It is not authority for the proposition that it is an error by a sentencing judge to have regard to such a statement, notwithstanding that the maker of the statement is not a "victim" as defined in the legislation.
Her Honour refused to permit cross-examination, saying that cross-examination would not assist her. Her Honour made reference to the victim impact statement only in a very general way. She referred to the suffering of the kind one might expect of a parent who had lost contact with a child. Ms B's response is that what Mr B missed was being able to "use" his child and had nothing to do with the welfare of the child. Ms B argues that it is speculation to assume that what Mr B experienced is what any normal parent would expect because he was very different from that. She alleges that Mr B went overseas "as an alibi" and using the persona of a victim to deflect from the crime he had committed. Ms B maintains that her Honour breached the principle that findings must be supported by evidence not speculation and that the inability to cross-examine Mr B goes to her sense of whether justice has been done.
Section 16AB(6) of the Crimes Act 1914, which provides that a person convicted of an offence may only test the facts in a victim impact statement by way of cross-examining the maker of the statement and if the Court gives leave to do so, applies only to offences committed or alleged to have been committed on or after the amending provisions commenced on or after 29 June 2013 and hence did not apply.
The object of the proposed cross-examination by Ms B of Mr B (supported by a 70 page submission document) was to establish that he was not a victim of a crime but a perpetrator of the crime. Ms B indicated in her submissions to her Honour that this evidence was likely to involve allegations of alleged rituals in the workplace of the father, allegations of sexual acts being committed by the father and unknown males on the child and that others, including Dr Waters, Mr Christaki and Dr Robinson, had engaged in cover ups, falsification or fabrication of evidence.
Ms B says that she wanted to show that when Mr B said in his witness statement that he had not perpetrated any crime that was false (AT 33.8). She maintains that the publicity campaign by Mr B was highly inaccurate; defamatory and prejudicial to her case; that his travel to Europe to search for the child was "to avoid implications for investigation into sexual abuse offences" in his former work place; and she raised complaints as to the manner in which the child was reintroduced to the father.
At [70] her Honour explained why she did not permit cross-examination of Mr B. Her Honour thought persuasive the Crown's submission that granting leave to cross-examine was unlikely to have any significant impact on any penalty given the Crown concession that the time served in custody to date should be taken into account. Her Honour said she was and remained of the view that such cross-examination would not assist the Court in the determination of penalty.
The Crown notes that the decision not to permit cross-examination was a discretionary decision and submits that no relevant error is demonstrated in the House v The King sense ([1936] HCA 40; (1936) 55 CLR 499). Ms B argues that error in that sense was established because her Honour acted on a wrong principle. Ms B identified that principle as being the principle of law that "if a person reads a statement out in Court under oath and the statement is adverse to a party, the party has the right to cross-examine". She also contended that the comment by her Honour in the sentencing judgment (to the effect that one might properly accept, as a natural consequence of the offence, the distress of which Mr B had spoken in his victim impact statement) was speculative - her complaint in essence being that decisions were to be made based on evidence not speculation. Ms B says that her Honour erred in concluding that she would not be assisted by any cross-examination of Mr B on his victim impact statement because it was impossible to make that determination without knowing what evidence would have been elicited in cross-examination. She cites by way of example what she says emerged from the cross-examination of Dr Robinson (AT 33.13). (It is not necessary here to explore her criticisms of Dr Robinson's report in that regard.)
Ms B says that she wished to adduce evidence in her response to the victim impact statement that would prove that the assertions made by Mr B were inaccurate.
In Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13, Rogers CJ Comm Div, after noting that cross-examination is recognised as an integral feature of adversarial litigation in the legal cultures that have their origin in English common law, said (at [12]), that it was an undoubted fact that "in ordinary court-conducted litigation today to deny a party completely the opportunity to cross-examine a witness would be a denial of natural justice". There, the question arose in the context of a reference out to an expert of certain issues in the case. However, the Court also noted (at [13]) that the ultimate test, there having regard to the issues posed for reference to the referee and other matters, was whether each party had been given a fair opportunity to put his or her or its case and point of view. There was found to be no denial of natural justice in that case.
In Wakim v Mathiew Pty Ltd [2002] NSWSC 405, the Court accepted that the requirements of natural justice may not confer on a party the right to cross-examine in a given case ([29]) and said that in determining whether or not the denial of the right to cross-examine constitutes a denial of natural justice in a given case it is necessary to consider the whole of the circumstances including the legislation, the general practice as understood by the parties and any acceptance by them as to the way in which the proceedings are to be conducted (at [30]).
In GPI Leisure Corp Pty v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, Young CJ in Eq, reviewed the authorities and said (at 22F) that the only actual right is the right to have a fair trial. His Honour also noted that in all proceedings the court has a duty to prevent cross-examination purely for a collateral purpose (at 23D).
The victim impact statement was not applied in a way that was adverse to Ms B's interests on sentence. In circumstances where it is clear from the sentence imposed by her Honour that reliance was not placed on the statements made by Mr B in his victim impact statement in a manner adverse to Ms B, there was no denial of natural justice in Ms B not being permitted to cross-examine Mr B, particularly where the indicated scope of cross-examination bore the hallmarks of cross-examination for a collateral purpose, namely to establish that Mr B had committed criminal offences against his son.
Ground 2 of the sentence appeal is not made out.

[20]

Conclusion

For the above reasons the appeal from conviction should be dismissed. As the merits of the sentence appeal have been fully argued, leave to appeal against sentence should be granted and the appeal dismissed.
SIMPSON J: I have had the advantage of reading in draft the judgment of Ward JA. The following are my reasons for reaching the same conclusions.
On 14 October 2013 the appellant was arraigned before a jury in the District Court on an indictment that charged that, on 24 April 2008, she committed an offence against s 65Y(1) of the Family Law Act 1975 (Cth). Section 65Y provides as follows: "65Y Obligations if certain parenting orders have been made (1) If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2). Penalty: Imprisonment for 3 years. Note: The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1). (2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if: (a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or (b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1). Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code)."
At the trial, the appellant was not legally represented. She conducted her own defence.
The Crown case at trial proceeded over a week, closing on 21 October 2013. The appellant gave evidence. Her evidence in chief proceeded over five days; she was cross-examined over three days. She called three witnesses and tendered a considerable volume of documentation. It was not in issue that:

a relevant parenting order was in force;
the appellant was a party to the proceedings in which the order was made; and
the appellant had taken the child the subject of the parenting order from Australia to a place outside Australia; and
neither of the circumstances set out in s 65Y(2) obtained.

On 20 November 2013 the jury returned a verdict of guilty. On 29 May 2014, pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth), Woodburne DCJ, without passing sentence, released the appellant on recognizance to be of good behaviour for 28 days from that date.
By Notice of Appeal filed on 29 August 2014 the appellant appeals against the conviction, and seeks leave to appeal against the "sentence". She has again appeared unrepresented, and conducted her own appeal.
At trial, the appellant sought to rely on certain provisions of the Criminal Code (Cth) ("the Code"). Part 2.3 of the Code has the general title "Circumstances in which there is no criminal responsibility". The provisions upon which the appellant sought to rely were s 10.3 and s 10.4 which appear in Pt 2.3. It will be convenient to refer to these sections as providing "defences". It was to these defences that the evidence given and adduced by the appellant went.
Section 10.3 and 10.4 provide as follows: "10.3 Sudden or extraordinary emergency (1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency. (2) This section applies if and only if the person carrying out the conduct reasonably believes that: (a) circumstances of sudden or extraordinary emergency exist; and (b) committing the offence is the only reasonable way to deal with the emergency; and (c) the conduct is a reasonable response to the emergency. 10.4 Self-defence (1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence. (2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary: (a) to defend himself or herself or another person; or (b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or (c) to protect property from unlawful appropriation, destruction, damage or interference; or (d) to prevent criminal trespass to any land or premises; or (e) to remove from any land or premises a person who is committing criminal trespass; and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional infliction of death or really serious injury: (a) to protect property; or (b) to prevent criminal trespass; or (c) to remove a person who is committing criminal trespass. (4) This section does not apply if: (a) the person is responding to lawful conduct; and (b) he or she knew that the conduct was lawful. However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it." In relation to s 10.3, the appellant asserted that her conduct was carried out in response to an "extraordinary" (not "sudden") emergency. In relation to s 10.4, she relied upon sub-s (2)(a) - that is, she asserted that she believed that the conduct was necessary to defend herself and/or another person (her son, who was the child the subject of the parenting order).

[21]

The Crown case

The facts giving rise to the Crown case were essentially uncontested.
As at 2008, the appellant was married to a man to whom (in conformity with the judgment of Ward JA) I will refer as Mr B. The appellant and Mr B had a son (A) who was born in August 2004. In 2008 the appellant became convinced that Mr B had been sexually molesting A. She reported her concerns to the Department of Community Services ("DOCS"), and the child was referred to the Child Protection Unit. A was spoken to by representatives of that Department and police, constituting the Joint Investigation Response Team ("JIRT"). JIRT is an interagency investigative team, involving police and DOCS, the function of which is to investigate allegations of sexual abuse of children. Nothing came of that interview.
On 1 January 2008 the appellant left the home she had shared with Mr B. She took A with her, and found alternative accommodation. Mr B unsuccessfully attempted reconciliation. On 31 January 2008 the appellant wrote two letters to Mr B, telling him of her belief that he had been sexually abusing A, and that she would not allow Mr B to have any further contact with A.
There followed some correspondence between Mr B, his solicitor, and the appellant. On 18 February 2008 Mr B filed an application in the Family Court of Australia. The primary order he sought was that he be granted "the parental responsibility" for A, with provision for contact between the child and the appellant.
On 28 February 2008 the appellant made a similar application, seeking an order that she be given parental responsibility, and ancillary orders. One of the ancillary orders she sought was that there be no order as to the child spending time with Mr B.
On 29 February 2008 the Family Court made interim orders. Order 2 required the appellant and Mr B to cooperate in arranging for an assessment by the Central West Children's Contact Service ("the Contact Centre") as to the suitability of Mr B and A to have supervised contact visits. Order 4 was an order (provisional upon an assessment by the Contact Centre of suitability for supervised contact visits) for Mr B to spend specified time with A. It was common ground that Order 4 was "a parenting order" for the purpose of s 65Y of the Family Law Act.
On 25 March 2008 the Contact Centre notified Mr B and the appellant that the applications for supervised contact had been approved, and set out a fortnightly programme for the visits. Thereafter, a number of visits took place, at the Contact Centre, under the supervision of staff.
On 23 April 2008 the appellant purchased airline tickets for herself and A to travel to Europe. The following day, 24 April, they flew out of Australia. No consent within the meaning of s 65Y(2)(a) had been given by Mr B; and no order of a court, within the meaning of s 65Y(2)(b), had been made.
Accordingly, the Crown case was that the appellant had committed an offence against s 65Y(1). All of the essentials of an offence against s 65Y(1) were made out. So much was not in issue in the trial.
For completeness, it may be recorded that, in September 2010, the appellant and A were located in Amsterdam, and were taken into custody. The appellant returned to Australia, in custody. A was placed in the care of Mr B.

[22]

The defences

By s 13.3(3) of the Code, the appellant bore "an evidential burden" in relation to both defences. Accordingly, in relation to the defence under s 10.3(1), the appellant bore an evidential burden in relation to the proposition that she reasonably believed: 1. that circumstances of extraordinary (she did not rely on "sudden") emergency existed; 2. that committing the offence against s 65Y(1) of the Family Law Act was the only reasonable way to deal with the emergency; and 3. that her conduct was a reasonable response to the emergency.
In relation to the defence under s 10.4 (in the circumstances of this case), the appellant bore an evidential burden in relation to the propositions: 1. that she believed that the conduct (of removing A from Australia, in breach of s 65Y) was necessary to defend herself or A; and 2. that her conduct was a reasonable response in the circumstances as she perceived them.
In order to discharge these evidential burdens, it was necessary, by s 13.3(6), that she adduce, or point to, evidence that suggested a reasonable possibility that those circumstances (or, to use the language of s 13.3(6), those "matters") existed.
There are two limbs to the defence under s 10.3, as to each of which a defendant must adduce or point to evidence. The first limb concerns the belief of the defendant as to the three elements stated in sub-s (2). The belief as to which evidence is required is a subjective belief of the defendant.
The second limb also concerns the defendant's belief, but, in this case, the evidence that is required is evidence that would support the proposition that the subjective beliefs were reasonable. Reasonableness of the beliefs is to be assessed objectively: Oblach v R [2005] NSWCCA 440; 65 NSWLR 75 at [59].
Section 10.4 also has two limbs. The first concerns the belief of the defendant that the conduct in question is necessary to defend himself/herself or another person. That belief also is a subjective belief. The second limb in s 10.4 concerns the reasonableness of the response made by the defendant. That calls for an objective assessment, but in the light of circumstances as perceived by the defendant.
Whether the appellant succeeded in discharging the evidential burden in relation to either defence was a question of law for the trial judge (s 13.3(5)). Such a burden may be discharged by "slender evidence". Any evidence adduced or pointed to in support of either defence must be taken at its most favourable to the appellant: The Queen v Khazaal [2012] HCA 26; 246 CLR 601 at [74].

[23]

The defence case

The appellant gave evidence over the period mentioned. Her evidence was intended to be directed to the matters necessary to establish the defences provided by s 10.3(1) and s 10.4(1) of the Code. However, it ranged well beyond those matters, no doubt due to her unrepresented status.
She gave a lengthy account of the reasons that led her to conclude that Mr B had sexually abused A.
She produced a large volume of documentary material. So far as the rules of evidence were concerned, she was given a great deal of latitude, both in her oral evidence and in the documents that were admitted on her tender. Some of her oral evidence was given by her reading from affidavits she had filed in Family Court proceedings, and by reading from other documents, some of which became exhibits. By way of example of the latitude afforded to her, a number of communications (usually email) between herself and her various advisers were admitted apparently (in the absence of any limitation imposed under s 136 of the Evidence Act 1995 (NSW)), as evidence of the truth of their contents.
The appellant's evidence (stripped of irrelevancies) was to the following effect.
Her concerns about A began when she returned from a business trip in June 2007. Carers at the day care centre that A attended questioned her about his behaviour in relation to other children. The appellant gave a number of instances of concern about A's behaviour, from her own observations and reports or comments from others. She then gave a rather graphic description of an interaction, on 6 December 2007, between herself and A, from which she drew the firm conclusion that Mr B had been sexually interfering with A. The following day she consulted a general practitioner, who appropriately made a report to DOCS and referred her to the North Shore Child Protection Unit ("the NSCPU"). She was dissatisfied with the investigations made by those authorities. In evidence, she said: "The other thing that happened was the Child Protection people, they basically said because of his little age, if he can't provide a statement - they said the legal system is not very good at dealing with children of this little age and that it's very likely that he will get unsupervised time with his father and so they said whilst you're in the house, you can protect him, but by the time I went through the next steps and I got to my lawyers, my lawyer said, 'If you stay in the house, people will blame you for not protecting him, not leaving,' so no one actually - the lawyer suggested I leave but up until I met them in January, no one told me what to do, they just said, 'Well it's up to you,' and so it was quite complicated because I didn't really know."
The general practitioner made notes of the consultation with the appellant (Ex 10). The appellant, as she was advised, took A to the Child Protection Unit, and he was interviewed by representatives of JIRT. As mentioned above, the interview was unproductive.
On 11 December 2007 the NSCPU informed JIRT that it would "close the case". On 19 February DOCS also finalised its investigations and noted "Case to be closed no further action".
The appellant gave the following evidence: "… my recollection of what [the representatives of JIRT] said to me was even if he had disclosed sexual abuse the judge would not accept it unless he can prove that he understands the concept of truth and lies … It seemed like there was no possibility because even if he had disclosed it wouldn't have helped. So JIRT recommended I take [A] to ongoing counselling at Ryde. So they told me they will only do that one interview, and then - they said, 'But if you take him to Ryde Community Centre they can have sessions with him and maybe in that course of sessions he would disclose.' But Ryde Community Centre would not meet with [A]. They said, 'We will only have meetings with you and teach you how to teach [A] to protect himself, but we won't see [A], 'because, they told me, they are afraid that the Family Law Court could accuse them of trying to solicit a disclosure'." (T 716)
The appellant then sought assistance from various other institutions or agencies. She said that she was advised that it was unlikely that the Family Court would "automatically" stop Mr B from seeing A if she and Mr B separated. She said she felt "completely powerless to protect [A]". On 24 December she again consulted a general practitioner.
There was increasing conflict between the appellant and Mr B. He appeared to be suffering from "moods". On 22 December 2007 Mr B sought to explain his moods. He told the appellant of an unsatisfactory upbringing and said that he had been using prescribed anti-depressant medication, but had ceased taking it. The appellant observed Mr B to be more actively engaging with A, playing games and the like, which A called "tickle games".
On 1 January 2008 Mr B confronted the appellant about the impediments she was increasingly placing in the way of his engagement with A. He then gave an account of an incident that involved A urinating in a park that he said had occurred while the appellant was away on a business trip.
The appellant formed the view that Mr B knew what her concerns were and that he was giving various explanations that he hoped would exculpate him from allegations of sexual abuse.
On 1 January 2008 the appellant and A moved out of the home, and lived, for a time, with her brother. The appellant believed that A was "doing sexual things" with her brother.
The appellant therefore sought legal advice. She engaged a firm of solicitors called Musgrave Peach who gave her, inter alia, the following advice: "Please be mindful of your safety as it is difficult to predict how your former partner will react to such allegations. We do not advise waiting (illegible word) prior to making an Application. It is clear from his conversation with your mother that he intends to seek ot [sic] spend time with [A]. It is very important at this stage that you seek an order that [A] live with you and that there be no order as to [A] spending time with his father …"
On 27 January 2008 the appellant returned home for the purpose of removing some of her belongings. Mr B made statements which indicated that he had experienced some suicidal thoughts. The appellant feared that he might attempt to harm her, or A, or both.
On 30 January 2008 the appellant wrote to Mr B. She told him that their relationship was over, and that she did not want A to have any further contact with Mr B. This apparently caused Mr B to consult solicitors, and a process of negotiation began. On 5 February, Mr B's solicitor wrote to the appellant. They recorded that Mr B denied any sexual misconduct with A, but said that, nevertheless, he was willing to cooperate in an investigation of the appellant's allegations. They suggested the names of three psychiatrists who might take part in the process. One of the names they mentioned was Dr Brent Waters.
The response made by her solicitors on the appellant's behalf was to agree to the expert investigation, but to maintain her opposition to any contact between A and Mr B.
On 28 February 2008 (as set out above) the appellant and Mr B attended the Family Court. The appellant was confident that an order would be made refusing Mr B any contact with A. That did not happen. Instead, the orders referred to above ([226]) were made. An Independent Children's Lawyer was appointed to represent the interests of A.
The appellant found the proceedings unsatisfactory and demeaning. She said: "We went to the Court on 29 [sic] February and I had never been in a court before, I had never had any of these sorts of proceedings. And I had instructed my lawyers that I don't want any contact with - for [Mr B] to have any contact with [A]. And I fully expected that I would get that because of the circumstances. And I was absolutely astounded at what happened in court. You know, the judge referred to [Mr B] and he called me 'she' and, you know, 'what days does she work?' and, '[Mr B] what days would you like for contact?' and it was incredible. And he - to me it was incredible …" According to the appellant's evidence, the next court date was fixed for some time in June.
Contrary to the appellant's preference, Dr Waters was appointed as a court expert to prepare a report in relation to the welfare of A, and specified certain matters he was requested to consider. The appellant was unhappy about this because she had read some of his writings, which she interpreted as being biased against women who made allegations of sexual impropriety against their partners. She was concerned about Dr Waters' "integrity" and "the quality of his advice".
She said that the judge then "ordered that I have an injunction of silence placed against me" in order to avoid damage to Mr B's career, but made no equivalent order against Mr B. She took that to mean that she could not discuss the issues other than with her counsellor, but that Mr B was free to discuss the issues as he pleased. (It is worth interpolating here that Order 6 of the orders made on 29 February was as follows: "The mother is restrained from providing information about the allegations in this case and particularly her allegations of the father's sexual abuse of [A], to any person or organization other than information the mother provides to a person or organization with whom she seeks legal advice in relation to this case, information sought by Dr Waters or any information that the mother provides to her own treating professional." It might be taken that no equivalent order was made in relation to Mr B because there was no evidence that he had been making allegations of the kind the subject of Order 6.)
The appellant was very unhappy and concerned about the order for supervised contact with Mr B, and sought further advice about that. She was advised that an appeal would cost $14,000 and that the prospects that an appeal would succeed were very remote. She said that she had inadequate funds to pursue an appeal.
On 10 March 2008 Messrs Musgrave Peach gave Notice of Ceasing to Act for the appellant. The reason appears to be their apprehension that she had lost confidence in their services. The appellant then sought advice from a Community Legal Centre, and subsequently from another firm of private solicitors.
On 20 March the appellant sought advice from another barrister, seeking among other things, advice about an appeal against the Family Court orders.
On 25 March the Contact Centre approved the supervised contact between Mr B and A that had been proposed by the Family Court, and notified the appellant of the times and dates for which contact had been arranged. The first was the same day, 25 March. These were for seven 2 hour sessions each fortnight. There were then six subsequent contact visits, the last on 22 April. The appellant took A to the Centre, as required, on these occasions. She developed a concern that Mr B was giving A lollies and inappropriate gifts. She therefore told the Contact Centre that she did not want A given lollies, as these were "directly linked to the abuse of child".
On 3 April Dr Waters provided a report. (The report was not in evidence. Dr Waters gave brief evidence in the prosecution case and was extensively cross-examined by the appellant.) He suggested a reduction in, although not elimination of, the contact visits. Dr Waters expressed doubts as to whether A had been sexually abused. The appellant received this report shortly before she left the country, but did not read it with any care.
In the light of Dr Waters' report, Mr B's solicitors suggested that supervision of his contact visits with A was no longer necessary.
The appellant continued to observe what she regarded as inappropriate and deteriorating behaviour on the part of A. She continued to communicate with JIRT and "child protection". She put A's deteriorating behaviour, as she observed it, down to what happened during visits with Mr B at the Contact Centre. She became extremely concerned about Mr B and "what he might do". She said: "And because the next court date wasn't until June I had to take [A] for another 34 hours of intense contact one on one with [Mr B]. And given that the lawyers had told me, there was nothing I could do before that court date to stop that or to reduce that, so I was getting very - it was very distressing to be sitting up every night with my little boy and to be in that situation … I had thoroughly investigated, from my perspective, every possible avenue. I was speaking to experts and the lawyers. I thought that the lawyers were advising on every possible avenue I could take with the courts and I just did not accept the situation." She came to the belief that the supervision afforded during the visits was inadequate. The appellant provided a great deal of detail about A's conduct, which included apparently sexualised behaviour, inappropriate (even for a three year old) excretory functioning and bedwetting. The inference she drew from this conduct was that Mr B was continuing sexually to abuse A, including during the supervised contact visits.
The appellant had come into possession of a book entitled "Child Abuse and Family Law" which she read and which she found accorded with her own views. She said: "What first impressed me in the book is it explained how on earth a Family Court judge could order four contact visits a week with a man, from my perspective, who was suicidal and mentally ill. It was obviously inappropriate to me before he had even been investigated. It wasn't because [Mr B] has a mental illness or takes medication because there are many people that do that. It was the fact that it wasn't stable and he was struggling with it. He wasn't dealing with it well. The book confirmed to me that child abuse in general was a very real issue and shouldn't be dismissed the way it is sometimes dismissed by the authorities. It explained to me that investigations were superficial and insufficient. It confirmed my concerns about that. It also confirmed my concerns that this supervised contact just cannot be appropriate and was wrong in those circumstances and that child abusers can manipulate and get at children even when they are being supervised. The book explained that the system needs changing and that was certainly my experience."
The appellant read other material concerning the manner in which allegations of child sexual abuse are dealt with in the courts. Putting her own experience together with what she had read, ultimately the appellant formed an adverse view of everybody involved in the legal process with which she was involved - judges, solicitors, barristers, Dr Waters, JIRT and child protection officers. She formed the view that she (and A) would not be able to get justice, or a reasonable assessment of her claims, from the Family Court. She decided to seek independent assessment overseas. Predominantly, it seems, this was to avoid Dr Waters.
The appellant gave evidence that if she thought that the authorities would have investigated adequately, or "done something", she would not have had to leave. It was clear that the "something" she wanted done was the cessation of all contact between A and Mr B.
The appellant saw herself as having "two bad options to choose from". She put them as follows: "One, [A] keeps deteriorating and maybe [Mr B] does what I'm worried he might do and I just hang on until we get to court and maybe they would reduce contact and maybe they would not, and maybe they would give [A] to [Mr B] because now we had this report saying, 'I don't think abuse has happened' or I do the other bad option which is just to leave." She chose the second "bad option".
There was evidence of communications made by the appellant after she had left Australia that cast some light on her state of mind and reasoning processes. One of the persons the appellant contacted while she was overseas was Professor Freda Briggs, an academic with experience in child protection. Although these communications add detail to what has been said above, they do not further advance any issue relevant to the appeal.
The appellant had equipped herself with a small recording device, with a view to recording any statements A might make, but her lawyers advised against using it, telling her to "document" instead anything that A said.
There was a great deal more evidence in the appellant's case, but the above adequately identifies the position she was in as she saw it, which gave rise to her decision to leave the country with A.
Professor Freda Briggs was called in the Crown case by videolink, on 28 October. On the previous hearing day, some issues had arisen concerning the admissibility of evidence. Some of these issues concerned evidence that the appellant proposed to adduce, in cross-examination, from Professor Briggs. In a judgment dated 25 October (that is, before Professor Briggs was called) Woodburne DCJ made rulings, and gave reasons. One of the rulings was that the truth of the sexual abuse allegations was not relevant to the issues in the trial. Included in the judgment was the following: "However, the accused has indicated she is going to go on to ask Prof Briggs to comment on the JIRT video. That exercise would appear to be irrelevant to the proceedings in that it must be borne in mind these proceedings are not concerned with a review of whether or not the child was in fact was sexually assaulted, and her opinion as to what may or may not be derived from that video is not relevant to the proceedings. I distinguish that, however, from the area that was earlier mentioned about her opinion about the investigations that might be undertaken and the necessity perhaps to have more than one interview."
Professor Briggs gave evidence that the appellant contacted her some time in 2008, from Frankfurt in Germany. She gave evidence of a lengthy communication sent to her by the appellant early in 2009. The content of that communication was read to the jury by the Crown prosecutor (for what purpose is not clear to me). Professor Briggs was cross-examined by the appellant.
At the conclusion of the oral evidence, the appellant tendered some additional documentary material. It appears that this evidence consisted of two documents in which Professor Briggs offered certain opinions as to the veracity of the claims of sexual abuse.
On 14 November, when the oral evidence in both the prosecution and defence cases had concluded, various other issues concerning the admissibility of evidence and other legal issues were discussed. It seems (T 1168) that the appellant wished to tender a document identified as "MFI 83", in which Professor Briggs had offered some opinions. Woodburne DCJ gave another brief judgment, in which she said: "I am not going to admit this evidence of Prof Briggs on this issue. The relevance of this is as originally flagged, as the jury can be directed, is that it shows the child was making disclosures of the type that the accused said he was making. Although Mr Crown cross-examined the accused on the reasonableness of conclusions she drew from what was said, as well as the circumstances in which the further disclosure was made, it is clear from MFI 83 that this portion of Prof Briggs' evidence goes to the likelihood of the disclosures being true, and that is a question that it is not appropriate for the jury to be diverted into consideration of. So the court proposes not to admit the evidence before the jury."
This ruling and the ruling of 25 October have given rise to the second ground of appeal.
Also called to give evidence in the Crown case was Dr Waters. As mentioned above, Dr Waters had, prior to the appellant's departure, provided a report, although that report is not in evidence. The manner in which the report of Dr Waters was dealt is the subject of the third ground of appeal, and, I might add, the subject of a great deal of confusion. I will come to that when I deal with Ground 3.
Before the jury was empanelled, there were two days of discussion of evidentiary and procedural matters. It was known that the appellant proposed to raise the defences under s 10.3 and s 10.4 of the Code. At an early stage, Woodburne DCJ asked the appellant to specify "the sudden or extraordinary emergency" on which she wished to rely.
The appellant's reply was lengthy, discursive, non-specific, and rather difficult to understand. What does emerge from it is that the extraordinary emergency that she believed existed was not an emergency concerning apprehended future sexual abuse of A; it concerned an apprehension that Mr B was potentially homicidal and that A, and herself, were in physical danger. This fear was based upon an earlier statement by Mr B that he had experienced suicidal thoughts, her later awareness of his long-standing psychiatric condition, her realisation that she had exposed allegations of sexual abuse against him, and that he was "very, very angry".
The appellant gave a similar answer in relation to the defence under s 10.4.

[26]

Section 10.3

By a combination of s 10.3 and s 13.3, before the defence of extraordinary emergency could be left to the jury, it was necessary that the following questions be answered affirmatively: 1. was the evidence sufficient to suggest a reasonable possibility that the appellant believed: 1. that circumstances of extraordinary emergency existed; and 2. that committing an offence against s 65Y of the Family Law Act (that is, removing A from Australia) was the only reasonable way to deal with the emergency; and 3. that her conduct was a reasonable response to the emergency. (There may be a question as to what the third adds to the second, but that can be passed over.) It should be emphasised that this question focusses purely upon the appellant's subjective beliefs. And it can be mentioned again that the burden may be discharged by only slender evidence, and that the evidence must be taken at its most favourable to the appellant.
If question (i) is answered affirmatively (that is, as to all three elements) the second question is: (ii) was the evidence sufficient to suggest a reasonable possibility that the appellant's beliefs were (objectively) reasonable?
If this question also is answered affirmatively, the onus shifts to the Crown to negative the defence. This could be achieved by proof that the appellant did not (in fact) hold any one of the beliefs referred to in question (i); or that the appellant's belief as to any one of the three elements was not (objectively) reasonable.
The corresponding questions with respect to s 10.4 are: (i) was the evidence sufficient to suggest a reasonable possibility that the appellant believed that removing A from Australia was necessary to defend A? Again, the focus is on the appellant's subjective beliefs. If the answer to (i) is affirmative: (ii) was removing A from Australia a reasonable response to the circumstances as the appellant perceived them? Question (ii) poses an objective test, but is to be answered taking into account the circumstances as the appellant subjectively perceived them.
Woodburne DCJ held that the appellant had, in respect of each defence, failed to discharge the evidential burden.
In her carefully considered and comprehensive judgment she analysed the evidence and the competing arguments. She dealt with the questions relating to each defence compendiously.
At [61] and [73] she held that the appellant had discharged the evidential burden as to her belief that an extraordinary emergency existed. Although she did not say so expressly, it seems that that finding extended to the reasonable possibility that that belief was reasonable.
However, at [108] she held that the appellant had failed to discharge the evidential burden with respect to a reasonable belief that committing an offence against s 65Y was the only reasonable way to deal with the emergency. On what basis she made that finding is not entirely clear. The finding is expressed as follows: "108 In circumstances where the accused had a right of appeal the evidence is not capable of supporting the possibility that the accused reasonably believed that committing the offence was the only reasonable way to deal with the emergency." (italics in original)
Prior to reaching that conclusion, her Honour recounted, in some detail, the competing arguments of the parties. She considered an argument put by the Crown that the appellant had available to her alternatives to taking A from Australia. Those alternatives proposed by the Crown are set out in [78] and were that the appellant could have: "(a) Appealed the order of the judge; (b) Brought an urgent application in the Family Court (relying on fresh evidence of supposed deterioration of the child); (c) Told the Contact Centre details of her concerns, and asked them to be extra vigilant; (d) Not cooperated with the Contact Centre causing it to refuse to supervise future contact session [sic]; (e) Not taken the child to Contact Centre at all; (f) Sought medical certificates excusing the child from attending contact; (g) Taken the child to police/JIRT/DOCS for investigation of the alleged threat; (h) Moved interstate."
Most of these her Honour appears (correctly, in my opinion) to have rejected. However, she does appear to have accepted that an available alternative open to the appellant was to appeal against the Family Court orders of 29 February.
It seems to me that her Honour found that the appellant had failed to discharge the evidential burden on both limbs applicable to s 10.3(2)(b) - first, that the appellant believed that committing the offence was the only reasonable way to deal with the emergency; and second, that any such belief was reasonable.
Her Honour seems to have taken a similar view with respect to s 10.3(2)(c). She made a similar finding: "111 The accused has failed to discharge the evidential burden necessary to enable the defence under s 10.3 of the Code to be left to the jury for its consideration." In each case, the finding was based upon the availability of an appeal against the interim orders of 29 February; a secondary basis was the possibility of an urgent interim or interlocutory application to the Family Court.
Woodburne DCJ identified the issues with respect to the defence provided by s 10.4 as follows: "116 … (i) whether the evidence is capable of suggesting the reasonable possibility that the accused believed her conduct was necessary to defend the child and/or herself (s 10.4(2)(a) of the Code); (2) whether the evidence is capable of suggesting the reasonable possibility that the conduct was a reasonable response in the circumstances as the accused perceived them (s 10.4(2) of the Code); (3) whether the evidence is capable of suggesting the reasonable possibility that the accused was not responding to lawful conduct or did not know the conduct was lawful (s 10.4(4)(a) and (b) of the Code)."
She found that the appellant had discharged the evidential burden with respect to s 10.4(2)(a), saying: "121 I am satisfied that the evidence relied upon by the accused is capable of suggesting the reasonable possibility that the accused believed her conduct in taking her child from Australia to a place outside Australia was necessary in order to defend her son from harm."
However, she found that the appellant had failed to discharge the evidential burden in relation to the objective reasonableness of that response. She said: "130 In circumstances where, as here, the accused had available to her a right of appeal against the interim order, which she chose not to exercise, as well as a right to be heard at any hearing of the application for parenting orders, together with a right of appeal from any such order, the extreme action of taking the child from Australia to a place overseas cannot be objectively viewed as anything other than a fundamentally unreasonable and disproportionate response to the circumstances as the accused perceived them to be."
She then reminded herself of the principles concerning withdrawal of defences from a jury, and went on to say: "132 In circumstances where, however, the conduct is a fundamentally unreasonable and disproportionate response to the circumstances as the accused perceived them to be the evidence is not capable of raising and does not in fact suggest the reasonable possibility that the accused's conduct was a reasonable response in the circumstances as she perceived them."
It may be accepted that the appellant's evidence was sufficient to discharge the evidential burden with respect to the existence of an extraordinary emergency. The finding to that effect by the trial judge tends to mask the identification of what that perceived emergency was. As outlined by the appellant in the opening stages of the trial, the emergency that she perceived was a danger that either A or herself would be subjected to physical (not sexual) violence by Mr B. The danger existed because of the continuing contact visits between A and Mr B. Absent an order for contact visits, her fears would be allayed. Hence, it was the order for contact visits that created the emergency. It was an emergency because the appellant had no faith in the capacity (or motivation) of the relevant authorities in particular the Family Court of Australia to take steps to investigate or protect A.
The defence provided by s 10.3 is based on the common law defence of necessity, although the language is borrowed from s 25 of the Criminal Code (Qld). The generally accepted test was stated in R v Loughnan [1981] VR 443, and adopted, with a modification, in R v Rogers (1996) 86 A Crim R 542. (A decision of this Court constituted by Gleeson CJ, Clarke JA and Ireland J). In Loughnan it was said: "It will be seen … that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. The limits of this element are at present ill defined and where those limits should lie is a matter of debate … The other two elements involved … can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another. The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril … The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?"
In Rogers, Gleeson CJ, citing a decision of the Supreme Court of Canada (Perka v The Queen (1984) 14 CCC (3d) 385), said: "Using the term 'defence' without any implications as to onus of proof, his Lordship pointed out (at 399) that it has been universally recognised that, if the defence of necessity is to have a place in the criminal law, it must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale." A little later, his Honour said: "As with self-defence, considerations of reasonableness and proportionality are essential control mechanisms. Dickson J [in Perka] referred (at 400) to the 'the requirement that the situation be urgent and the peril be imminent', but in a context consistent with the approach that this is a factual matter of relevance to the contention that the breach of the law in question was, in practical terms, unavoidable." His Honour then said: "The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed. This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant's submission that, consistently with the approach to self-defence taken by the High Court in Zecevic [Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; 162 CLR 645], it is now more appropriate to treat those 'requirements', not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response."
Notwithstanding the apparent complexity of the issues, the success of this ground (in relation to both proposed defences) boils down to one stark question: did the potential for appeal against the orders of 29 February, or the potential for a further urgent application in the Family Court, operate in such a way as to render any belief by the appellant that:

removing A from Australia was the only reasonable way to deal with the emergency;
that her conduct was a reasonable response to the emergency;
that removing A from Australia was necessary to defend A; incapable of being objectively reasonable? If not, then in my opinion, the appellant had discharged the slender evidential burden.

The appellant's evidence was that she believed that an appeal was unavailable to her, by reason of cost; but that she also believed, on the basis of advice given to her, that an appeal was highly unlikely to be successful. She said that she was not aware of, and had not given thought to, the possibility of a further application to the court.
Inherent in the proposition that she was justified in removing A from Australia because an appeal would be unsuccessful is a distrust of the processes of the Family Court of Australia. To allow the defence to go to the jury on that basis would be for this Court to condone unlawful action arising out of that distrust. That is something that, in my opinion, this Court cannot, and should not, do.
Similarly, the appellant's perception of the unavailability of an appeal by reason of cost cannot be sustained. She had funds; she was working. True it is, an appeal in which she was legally represented would have caused financial hardship, but financial hardship does not meet the high test of the defence, as explained in Rogers.
That there remained procedures available for the appellant, through proper channels, to protect both herself and A from the harm she apprehended renders the proposition that her beliefs were reasonable incapable of acceptance.
The same reasoning produces the same result in relation to the proposed defence under s 10.4.
For these reasons, I agree that Ground 1 of the appeal must be rejected.

[27]

Ground 2

Ground 2 is framed as follows: "2. Her Honour erred in ruling that the question of whether [Mr B] sexually abused [A] was not relevant and therefore not to be considered in this trial. Her Honour erred in directing the jury not to consider whether [Mr B] did sexually abuse [A] and in directing me not to adduce evidence for that purpose."
I should state at the outset that if the "extraordinary emergency" that the appellant perceived was identified as a danger that A would or might be subjected to sexual abuse at the hands of Mr B, then, in my view, evidence of the truth of the allegations of sexual abuse would be relevant and admissible with respect to the reasonableness of the appellant's beliefs (whatever they were found to be). But, as I have set out above, the risk of sexual abuse was not the extraordinary emergency that the appellant perceived. The extraordinary emergency that she perceived was the danger that A was, or she was, or both were, at risk of some other form of extreme physical violence at Mr B's hands. The allegations of sexual abuse had some relevance to this, in the sense that the appellant's evidence was that one of the reasons for her apprehension was that the complaints of sexual abuse exposed Mr B and provided him with a reason to take extreme action of the kind the appellant feared.
In that respect, the fact that the allegations had been made was potentially relevant to the objective reasonableness of a belief that Mr B might take action of that kind. I do not discount the possibility that the truth of those allegations might have supported the evidence that the appellant's belief was objectively reasonable, although it is becoming rather remote.
I have set out above the relevant rulings made, at the end of the trial, by Woodburne DCJ. At an earlier stage, during the course of the appellant's evidence, she gave the jury directions concerning an audio recording that was in evidence as Exhibit 42. She told the jury that the recording was not tendered for the purpose of establishing that, as a matter of fact, Mr B had committed any sexual misconduct towards A, and she added that the trial was not an inquiry into whether Mr B did or did not commit any such sexual misconduct. She warned the jury in firm terms that they "should not and indeed must not embark upon any such inquiry". She gave a similar direction in relation to the audio visual recording of the interview with JIRT which was in evidence. These directions were consistent with the stance the appellant had taken at the commencement of the trial.
In the discussions at the commencement of the trial, before the jury was empanelled, the appellant stated clearly that she did not want to have the jury "try and ascertain the sexual abuse issue". She said the issue was very complex, the jury would not be able to make a determination, certainly not from Dr Waters' report. She added that the sexual abuse was not the reason that she left the country. It was on that basis that the trial proceeded.
Later, during the course of the trial, in relation to one of the exhibits, she repeated that she was not seeking to make use of it to prove sexual abuse.
In those circumstances, there can be no substance in Ground 2. I would reject it.

[28]

Ground 3

Ground 3 is framed as follows: 3. Her Honour erred in failing to make findings on the admissibility of Dr Waters report and specifically its impact on any future Court proceeding and therefore my ability to succeed at an appeal or any application for parenting orders."
Dr Waters was called in the Crown case. His evidence in chief was brief. He gave evidence of his qualifications and expertise as a child psychiatrist. He said that he had received a request from the Family Court to act as "a single expert witness" for the Family Court proceedings. For that purpose he conducted interviews with the appellant and Mr B, in each case in the presence of A, as well as the appellant's brother and his wife. He did not separately or directly interview A. He identified documentary material with which he had been provided for the purpose of his assessment. He wrote a report, which he identified and which was marked for identification 9.
He said that he gave consideration to any "mental condition" which the appellant might have shown, linked to her allegations. He excluded two diagnoses (paranoid schizophrenia and paranoid state) and accepted the possibility that she had a condition of "overvalued idea" or "fixation with a particular world view". He did not make any diagnosis to that effect.
Dr Waters did say that he had found it difficult to conclude from the materials with which he had been provided that Mr B had molested A. He then recommended a reduction in the regime of contact visits. That was the conclusion of Dr Waters' evidence in chief.
In a discussion before Dr Waters was called, the Crown prosecutor made it clear that he did not propose to tender Dr Waters' report. The appellant indicated that she proposed to cross-examine Dr Waters quite extensively. The Crown prosecutor then reserved his position on the tender of the report, pending that cross-examination. He did not at any time tender the report. Neither did the appellant.
Accordingly, the short answer to this ground of appeal is that her Honour was never asked to rule on the admissibility of the report.
In her written submissions the appellant said: "138 Even if the Crown did not wish to rely on Dr Waters' report, I wished to rely on its inadmissibility in my defence. I wish to show that Dr Waters' opinion was inadmissible by law yet as I realised before departing Australia in 2008 it was going to be relied on to grant [Mr B] unsupervised contact with [A] (Ex: 46, 49). Dr Waters report denied me the possibility to protect [A] from the imminent risk of unlawful sexual abuse from [Mr B]. … 141 However I required her Honour to make legal rulings on the admissibility of the evidence according to expert witness law. The same Makita principles apply in the Family Court as in the District Court …" (The reference to "Makita" is a reference to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.)
In her written submissions, the appellant then went on to make many criticisms of Dr Waters, both personally, and as to his evidence. She attacked his credentials and his expertise.
The transcript of the appeal hearing demonstrates the confusion that attends this ground of appeal. The presiding Judge suggested to the appellant that if the report had not been tendered, or tendered and not pressed, there would be no need for findings as to its admissibility. The appellant replied: "I didn't understand that[.] I assumed, I brought into evidence the conclusions and recommendations of Dr Waters' report in cross-examining Dr Waters and I therefore assumed having adduced that he did not have the expertise and that his findings were unreliable. I assumed that was ample evidence to determine that this report for the purpose of deciding the risk to the child on sexual abuse just doesn't legally meet the rules of expert law and he's not able to write it anyway because he doesn't have the expertise, so--"
When pressed further by the presiding Judge, the appellant said: "As a matter of law I believe her Honour erred, she made findings but she erred in not finding that Dr Waters simply should not have written a report on a child sexual abuse case, on this case because he didn't have the expertise. He is not an expert and therefore that put my situation at risk … The Family Court are accepting bad reports and they have used Dr Waters on many occasions also beyond my case …" (italics added)
The appellant then accepted that her complaint was that Woodburne DCJ should have found that Dr Waters was not an expert, and that therefore his evidence was not admissible in the trial. However, she added: "… but that the likelihood was that they would rely on it because she swore in evidence that [Mr B's lawyer], [the balance of this sentence is impossible to understand. The appellant went on to say] her Honour … didn't state it in so direct terms but Dr Waters' report added to my son's risk greatly because it pretty much sealed his fate in that there was nothing I could do to stop him going to his father unsupervised given the report and I also adduced in evidence from cross-examining [the independent children's lawyer] …
The appellant was then asked if her real complaint was as to the admission of Dr Waters' oral evidence. She did not accept this and said that the evidence was significant to show the risk she had in the Family Court proceedings, and that Dr Waters' report would be used to place her son at risk. She was asked the same question again, and she answered: "My objection is - no I want to admit his evidence in this trial to prove that he should not have written that report and how damning it was to have that evidence used in the Family Court."
She finally accepted a proposition put to her by Wilson J in the following terms: "So is your complaint that her Honour didn't conclude that Professor W was unreliable for the purposes of the Family Court proceedings?"
Ultimately, it appeared to be the appellant's position that Woodburne DCJ ought to have ruled that Dr Waters did not hold the relevant expertise for the purpose of giving evidence in the Family Court, but that the likelihood was that the Family Court would nevertheless have admitted the report, and Dr Waters' evidence, and this supported her view that she would not have succeeded in an appeal or in an urgent interlocutory application.
Plainly, Woodburne DCJ could not rule on the admissibility in Family Court proceedings of any report by Dr Waters. What the appellant now asserts that Woodburne DCJ ought to have done was to rule (i) that Dr Waters did not have the necessary expertise to give evidence (whether by way of report or orally) in the Family Court; (ii) that, nevertheless, the Family Court would have admitted Dr Waters' evidence and; (iii) that the Family Court would have acted upon Dr Waters' inadmissible opinion, to the detriment of herself and A.
On this basis, she argued, the proposition that an alternative to taking A from Australia lay in her right of appeal did not counter the objective reasonableness of her beliefs and should be rejected.
The argument is unsustainable. What it amounts to is an argument that the Family Court would have admitted evidence ruled in the District Court to be inadmissible. It would be quite wrong for Woodburne DCJ to have made such a finding.
In any event, as I have said, the short answer to this ground of appeal is that no ruling of the kind the appellant now claims ought to have been made was ever called for. The appellant said in her oral argument, and in her written submissions, that she wanted Dr Waters' evidence admitted in order (she said) to prove that he did not have the relevant expertise to provide the report. It is true that Woodburne DCJ did not make a definitive ruling on Dr Waters' expertise, but that was because it was unnecessary to the issues raised in the proceedings.
I would reject this ground of appeal.

[31]

Pre- December 2007

Mr B and Ms B were married in August 2004. Their child was born shortly thereafter. From about 18 months, he was observed by Ms B and others to have a fear of being touched by other children (November affidavit at [2]-[3]; in evidence at trial via the reading of [66]-[68]; [81] of Family Court affidavit). (Ms B now considers that this indicates that her son was being abused from that age, although this is not a view that she expressed at the time she took her child out of the country (AB 5/917.35)). Ms B described occasions when her son would not settle well and would cling to her and scream if she tried to leave him at the crèche or with Mr B (November affidavit at [4]-[5]).
Ms B returned to work part-time about a year after her son's birth. By 2007, she was working four days a week as a senior product marketing manager. In that year, she went on three overseas business trips, leaving her son in the primary care of Mr B each time.
Ms B says that on her return from the first of those business trips, in June 2007, her son said to her "Daddy was unkind to me" and that when she later enquired at a playcare centre which her son attended she was told that the word "unkind" was there used to teach children what behaviour was unacceptable. (February 2008 Family Court affidavit at [38]-[39], annexed to November affidavit). Ms B says that she did not interpret this statement at the time as a reference to sexual abuse and denied the suggestion put to her in cross-examination at the trial that the inclusion of this statement in her initial affidavit sworn on 21 February 2008 in respect of the Family Court proceedings (the February 2008 Family Court affidavit) indicated a link in her mind to the sexual abuse allegations (AB 5/907; 908).
Ms B says that after her second business trip, in October 2007, her son started running up to her and ladies in the local shopping centre saying "You've got poo all over you" and that he continued this behaviour "intensely" for a few months (November affidavit at [13(b)]). She says that in October 2007 her son said to her "There's something in my bottom, Mummy. Clean the inside, Mummy. Put your finger in" (November affidavit at [10]). Ms B says that her husband began leaving work early, collecting their son from day care and taking him for walks in the bush (a local nature park); and that on one such occasion she met them returning from the bush and their son had a lollipop (November affidavit at [8]; Family Court affidavit [165] read onto transcript at trial did not refer to seeing child with a lollipop). (Ms B later attached significance to the lollipop, having read of grooming behaviours by sex offenders that included the provision of lollies.)
Ms B says that on her return from her third and final business trip, in November 2007, her son was: no longer sleeping through the night; coming in to her approximately two to three times a night; complaining that he did not like his bed; and asking to sleep with her (November affidavit at [13(d)]; reference to this at trial via Family Court affidavit [15] and T 681.25-32 on 31/11/13). Ms B says that her son increasingly displayed sexualised behaviours (see November affidavit at [14]).

[33]

Report to the authorities 8. Ms B reported her concerns the following day to her general practitioner, who referred the matter immediately to the police Child Protection Unit (CPU). 9. A social worker from the CPU met with Ms B on 7 December 2007 and arranged an interview with the Joint Investigative Response Team (JIRT) on 10 December 2007. Ms B says that she was told by the social worker, among other things, not to tell her husband about the disclosure. 10. Ms B gave evidence at the trial (AB 5/689) that the child protection social worker (whether at the meeting on 7 December 2007 or following the JIRT interview is unclear) said that: …the legal system is not very good at dealing with children of this little age and that it's very likely that he will get unsupervised time with his father. (On its face, the receipt of such advice is hard to reconcile with Ms B's evidence that she fully expected that when the matter came before the Family Court there would be an order for there to be no contact (between father and son) until the allegations were investigated (AB 5/936.50) but it may be that Ms B had discounted or not accepted the opinion of the social worker in that regard.) 11. Ms B also gave evidence at the trial that the CPU social worker advised her that it would not be worth having her son physically examined as it had been more than 48 hours since her husband had any opportunity to be with him (AB 5/689). This may be a reference to advice given to Ms B over the telephone by a doctor who was contacted by the CPU case worker at the meeting on 7 December 2007 (AB 5/812). In her November affidavit, Ms B says that it was a doctor at the CPU who told her that a physical examination would be futile as DNA evidence would no longer be present (Family Court affidavit [155] that there was no point looking for DNA). Ms B appears to take issue with the fact that the doctor did not consider looking for physical damage such as anal scarring (November affidavit at [23(a)]), though by this stage it does not appear that Ms B had made any allegation as to the father putting his finger in the child's bottom (that disclosure she says was made to her by her son on 30 February 2008 (AB 5/866)). Ms B gave evidence that that same doctor, when she later contacted her to say that her son was complaining of a sore bottom, simply advised her to apply Bepanthene cream (AB 5/812). 12. On 10 December 2007, Ms B took her son to the JIRT appointment. She met with a detective constable and a DOCS caseworker. The DOCS caseworker, Ms McCluskey, interviewed the child in the absence of Ms B. That interview was recorded and the recording was admitted as Exhibit 41 at Ms B's trial; a transcript of the interview is in the appeal books (AB 1/392; Exhibit 59 at the trial) and is an annexure to the November affidavit (Annexure P). 13. Ms B's evidence at the trial was that, after the JIRT interview, she was told that the child did not disclose any sexual abuse and that even if he had done so a judge would not accept it unless the child could prove he understood the concept of truth and lies. Ms B did not see the JIRT interview video until after her return to Australia, when it was subpoenaed for the purpose of the legal proceedings. Therefore, matters to which she now points on the recording (such as her son's reference to "hurties" and his reluctance to acknowledge his father) could not have informed her state of mind at the relevant time. However, Ms B maintains that she knew at the time that the interview was inadequate. 14. Ms B says that after the interview she was told the case would be suspended and it was suggested that she go to a community health service and seek some ongoing counselling for her son (AB 5/866). 15. The CPU apparently decided to close the case on 11 December 2007 (file note at AB 1/228). The JIRT subsequently closed its case following an assessment consultation on 19 February 2008 (as recorded in a file note of 21 February 2008) (AB 1/230). 16. In her November affidavit, Ms B deposes to her belief that Mr B knew about the meeting with the JIRT and had "managed to threaten" their child before the interview. She says that this was the only recording in which her son "did not speak spontaneously and resisted talking about his father" and that her son was tired and yawning during the interview (November affidavit at [22]; [27]). Ms B accepts that she had not at that stage told Mr B about the 6 December 2007 incident but believes that Mr B knew that their son had told her "something" and was focussed on finding out what that was (November affidavit at [27]). (It is not clear that this was a belief that Ms B had formed as at 10 December 2007 or even as at the time that she left the country. Given her reference to her son's behaviour during the recording, it appears to be a construction that Ms B has later placed on events.) 17. Ms B contacted a community health service, as had been advised by the JIRT, but says that they would not meet with her son (AB 5/866) because they were afraid the Family Court could accuse them of trying to solicit a disclosure. Ms B says that she also contacted a child advocates' charity, and was given similar advice. In her February 2008 Family Court affidavit, parts of which were read out to the jury in the course of Ms B's evidence in chief, Ms B lists the various professionals she consulted in December 2007 (at [157]). 18. In her February 2008 Family Court affidavit (at [53]-[58]), Ms B deposes that she had attended a Women's Legal Service on 21 December 2007 and that this step enabled her to establish contact with the solicitors that she ultimately "formally" instructed on 25 February 2008 (Musgrave Peach). However, she did not speak with a solicitor from that firm (Ms Lister) until the office reopened in January 2008, by which time she had already made her plans to leave Mr B. 19. Ms B says that on 22 December 2007 Mr B disclosed to her, for the first time, that he had been on anti-depression medication for some time but that he had ceased taking the medication (November affidavit at [28]; corresponding evidence at [92] of Family Court affidavit read out at trial). 20. Both Mr and Mrs B accept that there was a high level of tension in the home at that time. Ms B was apparently seeking to prevent her husband spending any time alone with their child in order to protect their child from abuse. Ms B had still not at this stage told Mr B of the statements and actions made by their child on 6 December 2007 or of her suspicions that he had sexually abused their child (see February 2008 Family Court affidavit at [60] which was read out at trial). However, she says that she told him on 22 December 2007 that her son had said that he had been "unkind" to him (February 2008 affidavit at [95], not read onto transcript at trial but was reference to "unkind" at T 687 31/10/13). 21. Ms B consulted her general practitioner again on 24 December 2007 (AB 1/231); she again spoke with the JIRT on 27 December 2007 (AB 1/232); and she contacted the police around that time (November affidavit at [38]; T 690.2-6 31/10/13).

[35]

Commencement of Family Court proceedings 24. On 30 January 2008, Ms B wrote to her husband to confirm that their relationship was over and that she had no intention of any reconciliation (AB 1/82). A lawyer at Musgrave Peach, who first acted for her in the Family Court proceedings, had assisted her to draft that letter (AB 5/764). 25. In her letter, Ms B wrote that her decision to end their relationship and discontinue any association with Mr B was "solely related to revelations made to me by [the child] over the course of a number of months, but in particular the evening of December 6th, 2007". She wrote that the child had described to her what amounted to acts of adult sexual behaviour by her husband towards him that left her in no doubt that Mr B had been sexually abusing him; that she had been in regular contact with professionals in the area of child protection; that she wished to obtain a parenting order that the child live with her and that Mr B "have no further contact with him of any nature"; and that if Mr B did not consent to orders to that effect she would proceed with legal action and "utilise every avenue available" to secure the child's safety and protection. The letter did not suggest that Ms B was seeking only a temporary order pending further investigation of the allegations. 26. Mr B apparently then instructed solicitors to act for him. On 5 February 2008, Slade Manwaring wrote to Ms B noting that allegations of sexual abuse had been made (though, as noted above, details of the allegations had not yet been provided to Mr B by Ms B other than that her son had said in June 2007 that his father had been "unkind"); recording Mr B's denial of having done anything of any nature that might be construed as abusive to his son; and advising that Mr B was willing to undertake an investigative process (of the kind that it was said would normally take place if allegations of this kind were made in the course of contested proceedings) in relation to Ms B's concerns (AB 1/84). 27. The letter went on to note that there were a number of specialist psychiatrists that performed those services regularly in Family Court cases in Sydney and identified three such psychiatrists, the third of whom was Dr Waters. The letter acknowledged that Ms B or her legal advisor might have another list of names from which a person could be chosen but suggested that, to get the matter started, Dr Waters be the nominated psychiatrist. A photocopy of his curriculum vitae was enclosed (AB 1/87) listing Dr Waters' qualifications, past appointments and other matters. Ms B seems to have concluded, from the fact that Mr B's lawyers had nominated Dr Waters, that he was "aligned" with her ex-husband. 28. Musgrave Peach responded to Slade Manwaring on behalf of Ms B by letter dated 13 February 2008 (AB 1/91), advising that Ms B was prepared to instruct an expert by consent but that she wished to make it clear that her position was to seek orders that the child live with her and that there be no order made for the child to spend time with his father. In the letter, they further stated that Ms B did not agree to the child spending any time with Mr B pending the release of the expert's report. Musgrave Peach said that they were making enquiries as to the availability and costs of appropriately qualified experts. 29. Ms B's instructions to her lawyers at this time were that she objected strongly to her son spending any time with his father "now or in the future" (AB 1/243) based on her concern that Mr B had exhibited extremely inappropriate sexual behaviour towards the child, that he might do so again and that contact between them might bring back fearful memories. Ms B informed her lawyers that she was extremely concerned for her son's safety in Mr B's care and emphasised her belief that a female expert should be appointed and that a male expert would be inappropriate. (Both experts nominated by Ms B's lawyers are female; Dr Waters is male.) 30. By letter dated 18 February 2008, (AB 1/108) Musgrave Peach notified Slade Manwaring that Ms B would consent to the appointment of one of two other psychiatrists, Dr Robinson or Professor Quadrio, as the single expert. Ms B says that she knew nothing about those psychiatrists at the time but that they had been recommended by her lawyers (AB 5/740). She now maintains that Dr Robinson is not an expert in child sexual abuse and that, had Dr Robinson been appointed, no better outcome in terms of a proper investigation of her allegations would have been obtained. (Dr Robinson, who was later appointed the Family Court expert after Ms B, following her return, challenged Dr Waters' appointment, has since assessed Ms B as having a delusional disorder.) 31. On 18 February 2008, Mr B filed an initiating application in the Family Court seeking both interim and final parenting orders, including an order for the child to live with each of his parents on alternate days and that Dr Waters be appointed as the Court's expert (AB 1/43). That application was accompanied by a Notice of Child Abuse or Family Violence in which it was noted that Ms B alleged that Mr B had sexually abused the child. Although issue was later taken by Ms B at the trial as to the content of this notice, Mr B's solicitor's evidence was that he had prepared the notice based on his instructions from Mr B and that it was in standard form (AB 4/382). 32. Ms B filed a response to Mr B's Family Court application on 28 February 2008, seeking final orders that she have sole parental responsibility for the child and that the child live with her with no order being made for the child to spend time with the father. The application sought the appointment of Dr Robinson as the Court expert in the proceedings to enquire into and report to the Court on various matters including issues relating to any sexual or other abuse of the child (AB 1/115). 33. On 29 February 2008, the proceedings came before the Family Court for the first time. Ms B was represented by a barrister and solicitor on that occasion and submissions were made by both parties. (Ms B is critical of her then barrister's performance during these submissions and expressed scepticism as to whether the Family Court judge had "even read" her affidavit.) 34. A parenting order was made, pending further order, (AB 1/130) pursuant to which provision was made for Mr B to spend time with his son at a supervised contact centre. The parties were ordered to comply with any appointments made by the contact centre for supervised time and to comply with all reasonable rules, requests or directions of the contact centre. Dr Waters was appointed as the single court expert to prepare a report in relation to the welfare of the child. Both parties were otherwise restrained from (without the leave of the Court) causing the child to be examined by a medical practitioner or other expert solely for the purpose of the proceedings. A non-publication order was also made on that occasion. (Ms B has since accused Mr B's solicitor of misrepresenting to the Family Court matters in relation to Mr B's application for the non-publication order.) 35. Also on 29 February 2008, a solicitor, Mr Christos Christaki, was appointed by the Family Court to act as the independent children's lawyer. (Ms B has also been critical of Mr Christaki's conduct as the independent children's lawyer. She cross-examined Mr Christaki at the trial on his role and duties as the independent children's lawyer.) 36. Ms B made it clear in her correspondence to her lawyers (AB 1/247) following the 29 February 2008 hearing that she was very distressed by the outcome of the Family Court proceedings and, in particular, with the making of the order for supervised contact. She believed (and is still firmly of the view) that contact between father and child was not appropriate until the allegations were investigated (see submissions on conviction appeal [12]). Her principal position, as stated in her early correspondence to Mr B, was that there should be no further contact at all between them. She gave evidence at the trial that she was upset about Dr Waters' appointment because she had already read "concerning" things about him and felt that he was biased (AB 5/740).

[37]

Ms B's legal representation 39. Musgrave Peach ceased to act for Ms B on about 10 March 2008. It appears that they formed the view that Ms B had lost confidence in their services. (Such a conclusion might readily have been drawn from the content of Ms B's correspondence around that time.) 40. On 7 March 2008, in a second email on that day to her lawyer, (AB 1/247) Ms B raised various matters as to the conduct of the proceedings. She referred to Musgrave Peach having told her not to seek support from any source other than the firm and made it clear that this would continue (i.e., that she would continue to seek other advice as she chose). Ms B's evidence at the trial was that at around this time she had been contacting Rosie's House, an organisation that deals with parents/children who have been abused and gives them counselling (AB 5/743); and had been in communication with a person from ChildWise (described as a charity advocating for children in Victoria) who had advised her to go to Cara House Counselling (AB 5/745). Whether or not this is the context in which advice was given by Musgrave Peach for Ms B not to seek support elsewhere is not clear. 41. Ms B gave evidence that her lawyers had stopped meeting with her in person (AB 5/937.3) and that the next document she received (after her 7 March email as to the distressing outcome of the February hearing) was a letter from her lawyers saying that they had ceased to act for her. However, she then qualified this by saying that she thought she had also received a letter from her lawyers referring to a loss of confidence by her in their services (AB 5/774). 42. By letter dated 10 March 2008 (AB 238) Musgrave Peach wrote to Mr B's lawyers, Slade Manwaring, advising that they had ceased to act for Ms B and enclosing a copy of a notice of ceasing for their records. 43. At around this time, Ms B complained to ChildWise that her lawyers had ceased to act for her on the eve of her interview with Dr Waters (AB 1/239) but said that she had been able to obtain some assistance prior to her interview with Dr Waters from a pro bono legal centre (AB 5/785).

[38]

Dr Waters' interview 44. On 11 March 2008, Dr Waters interviewed Mr B and Ms B, as well as Ms B's brother and his wife. Ms B's evidence was that she was not expecting a positive interview with Dr Waters because she had read an internet article by him that seemed extremely biased and she had read "very negative" information about him (AB 5/775). He interviewed each of Mr and Ms B both separately and in the presence of their son. He did not interview the child separately (for reasons explained in his subsequent report). Dr Waters had not seen the JIRT video (access to which was only obtained by Ms B on subpoena after her return to Australia) nor had he read the transcript of that interview when he made his report. 45. Shortly after the interview, Mr B contacted Dr Waters, who made a file note on 14 March 2008 (AB 1/225) of that telephone conversation in which Dr Waters noted: some extra comments "threat of self-harm" - didn't know what's going on - about 2-3/7 before - She [mother] sent in the letter explaining reasons hadn't seen her for while - near end Jan I said just feel like doing self in - probably lowest point - desperate & felt really bad. (emphasis as per original) 46. Neither Mr B's therapist, Dr Chandran (who saw him in January 2008) nor Dr Waters (who saw him in March 2008) considered Mr B to be suicidal (Dr Waters at AB 4/575; Dr Chandran at AB 5/1104) spoke of Mr B speaking in terms of powerlessness, helplessness and despair and said that if Mr B had spoken about suicide he would have written it in his notes and he had not done so. Dr Waters explained the reference in his notes to "threat of self-harm" as being his question to Mr B and said that Mr B's response was that he was feeling desperate. Dr Waters' evidence was that Mr B had said he did not have the intention to kill himself. Neither of those psychiatrists thought there was a need to take any steps in relation to any such risk. Ms B emphasises, however, that Dr Waters' evidence was that it was not possible to say with certainty that Mr B was not going to commit suicide (AB 4/574). 47. There was no suggestion in the evidence from either psychologist that Mr B had any homicidal ideation.

[40]

Supervised contact visits 49. The first supervised contact visit under the arrangements set by the Family Court took place on 25 March 2008. Prior to this (on 10 March 2008) Ms B had attended the contact centre service for an intake assessment and had expressed her concerns that Mr B had sexually abused the child and that lollies were linked with the abuse. A note was made at the centre to the effect that the giving of lollies in contact visits should be avoided if possible (AB 1/184 Ex V at trial - intake assessment form). 50. Supervised contact visits thereafter occurred on 28 and 29 March, and 1, 4 and 12 April 2008. 51. Not long after the contact visits commenced Ms B complained that the child was being given gifts and lollies on every visit and says that within three visits her son's behaviour began to deteriorate: bed-wetting, screaming that they would take him away from her, clinging to her, urinating and defecating in the garden, trying to make his penis move when on the toilet, putting his finger in his bottom, asking her to clean his bottom from the inside, and licking people (November affidavit at [49]; questions of Dr Waters on this subject at T 510, 29./10/13). Ms B contacted Dr Waters at some stage in late March 2008 to inform him of this behaviour. In her most recent submissions Ms B points to an email annexed to her November affidavit in which Dr Edwards of the CPU referred to concerns Ms B had expressed about possible sexual abuse by the father on access visits (annexure I). 52. Ms B says that she initially considered that her son's deterioration might be due either to abuse during the supervised contact or to recurring memories but that she subsequently became convinced that abuse was continuing during the supervised contact visits and that the supervision at the contact centre was inadequate. She says that when in Europe her son disclosed to her that Mr B was touching him at the contact centre when the ladies were not watching (entry 7 October 2008, summary of statements by son annexed to November affidavit; some of which comprised Exhibit 35 at trial).

[42]

Dr Waters' report 55. On 3 April 2008, Dr Waters sent his report to the Family Court (November affidavit Annexure F - not exhibit at trial but extensive cross-examination on parts of report during trial). 56. The report was forwarded to the respective parties' legal representatives by the Family Court on 10 April 2008, at which time they were notified that the matter was listed for a direction hearing on 5 June 2008. However, in Ms B's case, that notification was apparently sent to Musgrave Peach, who by then had ceased to act for her, not her then solicitors (Clinch Neville Long Letherbarrow) who presumably had not yet filed a notice of change of solicitor. This meant that Ms B and her solicitors did not receive a copy of the report until later in April, following Mr B's solicitors' intimation that in light of the report there was no need for further supervision of contact between Mr B and his son. 57. In summary, in his report Dr Waters said that he found it difficult to conclude from the material provided by Ms B that Mr B had molested their child. He considered that, at its highest, one aspect of the initial (6 December 2007) observation might be consistent with the child witnessing masturbation but said that this was open to other interpretation. Dr Waters did not form the view that the father's current mental state represented any threat to his capacity to parent and considered it beneficial to the child if he could maintain satisfactory relationships with both parents. 58. Ms B's evidence at trial was that she had read Dr Waters' report only briefly before she left the country. In his report, Dr Waters recommended that the current contact visits be reduced to twice weekly visits. Dr Waters stated that this would achieve a better balance between sustaining the child's relationship with his father and keeping an appropriate routine. Ms B's evidence was that she did not recall reading, and did not believe she had read, this part of the report before she left the country (AB 5/1026-8). 59. Dr Waters' report did not contain any recommendation for unsupervised access at all. Nor, however, did Dr Waters support that there be no contact at all, which was clearly what Ms B wanted.

[43]

Decision to leave the country 60. Ms B was in communication with her new legal representatives (who she formally retained on 10 April 2008) by late March 2008 (November affidavit Annexure AE; ACB - not an exhibit at trial). Ms B says that Clayton Long, her new lawyer, advised her not to appeal and advised her that the judge would not reduce contact without reading Dr Waters' report. 61. On 31 March 2008, Ms B instructed her new lawyers to request a change to the contact visits and an order for no lollies to be given at those visits (November affidavit Annexure D - not an exhibit at trial). Those instructions led to her lawyers' letter of 10 April 2008, (sent at a time when they were obviously unaware of the contents of Dr Waters' report) to the independent children's lawyer seeking consent to a variation of the contact orders to two sessions per week. (That was the very recommendation Dr Waters had by then already made.) The letter also sought consent to an order preventing Mr B from providing the child with any gifts, lollies or chocolates during contact visits (AB 1/261). (Ms B's evidence in cross-examination at the trial was that she did not agree to twice weekly visits but that her lawyers had told her she would not be able to obtain a "no contact" order.) 62. The independent children's lawyer forwarded this letter to Dr Waters for consideration. The solicitors for Mr B objected to this being done without their consent. Mr Christaki then sought the retraction of the letter from Dr Waters (AB 5/1053). 63. Still prior to Ms B's receipt of Dr Waters' report, Mr B's lawyers (by letter dated 15 April 2008) wrote to Clinch Neville Long Letherbarrow forwarding a photocopy of the 10 April 2008 letter from the Family Court and suggesting, in light of the content of Dr Waters' report, that Ms B now concede that supervision of contact was no longer necessary nor was it in the child's best interest. A copy of that letter was apparently also forwarded to Mr Christaki (AB 5/881/882). 64. Ms B also referred in her evidence at the trial to a letter dated 17 April 2008 from Mr B's lawyers to Mr Christaki in which (as well as stating that Mr B would not take any financial responsibility for costs incurred in Dr Waters responding to the request from Ms B's lawyers - as to the impact of the contact visits on her son) Mr B's lawyers referred to the issue of the allegation of child sexual abuse as being "now, for all practical purposes "dead in the water'" (AB 1/374). This was apparently forwarded to Ms B's solicitors by letter of 18 April 2008 and seems to have been included with the material forwarded to her by her solicitors with their letter dated 24 April 2008 (AB 1/373).

[45]

Ms B's decision to leave the jurisdiction 69. In her evidence in chief at the trial, Ms B said that she could not remember the time that she actually decided to leave but said that it would have been the last week (AB 5/857), confirming that by 23 April 2008 (the day she received Dr Waters' report (AB 5/876.15)) she had decided to go (AB 5/876). By then, she had already arranged dental appointments and had put her finances in order (AB 5/1016.27). Though in cross-examination she could not remember whether she had carefully planned her departure, she told the jury in her evidence in chief (at AB 5/835) that: …I didn't just see the report and leave. I actually bought my ticket on that day and I had already taken myself and my son to dental checkups and I had got all my finances in order. (my emphasis) 70. She also said she had taken addresses of organisations, such as the day care centre, with her. 71. Ms B's evidence at trial was that she did not recall, and believes she had not read, Dr Waters' recommendation for reduced contact visits but she was very concerned; she did not think she had actually got to the end of the report (AB 5/1080); she had not read it in detail but did go through it (AB 5/836.4); she had seen errors of fact in the report (which she communicated on the day she left to her lawyers); the "biggest problem [she] had on the day" (AB 5/836.4) was that Dr Waters did not investigate her son; and that she knew Dr Waters was "quite dismissive of the sexual abuse" (AB 5/876). 72. In oral evidence given by Ms B by way of re-examination at the trial, referring to Dr Waters' recommendation for reduced contact sessions, Ms B said that she "wasn't expecting that" and it was "the least thing on [her] mind" (AB 5/1080). She emphasised that what she was concerned about was that there were errors of fact in the report and that Dr Waters had not interviewed or assessed her son. She repeated her evidence on this issue in her closing address to the jury (AB 5/1227) and said that the recommendation for reduced visits would not have made much of a difference because it was only a reduction to two weekly sessions. 73. When she left Australia, Ms B had not discussed the report with her lawyers (AB 5/876.46). By email (AB 1/380) apparently sent at 12.40am on 24 April 2008, Ms B informed Clinch Neville Long Letherbarrow that she had not yet finished reading Dr Waters' report but that "I have read enough to realise that he is a perfect example of the type of psychiatrist described in Wendy Lee Foote's thesis". (In that email, Ms B expressed the opinion that the judge, her former solicitors, her barrister, Dr Waters, the JIRT and the child protection officers were "not unbiased in their approach".)

[46]

Reason(s) for leaving the country 74. As to the reason(s) that she took her child out of the country, Ms B told the jury: I just thought I can't stomach this anymore. I'm getting sick as well. I'm going to go to Europe. I know Europe well and I'm going to get a proper assessment and I will then try and get back safely…even today I cannot see that staying would have been a safer option with all the things that I have looked at. (AB 5/857) 75. She referred to the Hague Convention (on the abduction of children) and said (AB 5/884) that she had the idea that if she went overseas and her child was assessed, and there was indeed a risk to the child, then the child did not have to be returned. 76. She agreed that she did not think the Family Court was going to investigate properly and did not think it was going to find abuse "the way they were approaching the issue" (AB 5/1017). She agreed that she made a conscious decision when she left Australia (AB 5/1016.44), though she maintains that it was not a voluntary choice (because she had a duty to protect her son and had to choose between that and compliance with the parenting order). She said (at AB 5/1020.80): I needed to get out of the Australian system so that I could get a proper investigation. There is nowhere in Australia where I would be avoiding the Family Court orders to force me to use only Dr Waters. 77. By letter dated 24 April 2008 (AB 367), which Ms B does not suggest she did not receive before she left, Clinch Neville Long Letherbarrow responded to Ms B that they had only just received Dr Waters' report (and had advised Mr B's solicitors of this and could not provide a response at that time). It is apparent from this letter that Ms B's lawyers were under the impression that matters were still to be prepared for the purposes of the ongoing proceedings and were not aware of the impending departure of Ms B. The letter referred to the correspondence from the independent children's lawyers, which it was said seemed to indicate that, in Mr B's view, Dr Waters' report supported the conclusion that there was no risk to the child, but went on to say: "I do not want you to read anything into that observation until such time as we have had the opportunity to read the report ourselves". 78. Ms B, however, did not wait for advice as to the import of Dr Waters' conclusions (let alone did she wait to read the report fully). She formed the conclusion that it was likely that unsupervised access would be permitted. She told the jury that "whatever" Dr Waters wrote in that report would not help because he did not investigate her son and that this was the issue - she needed the abuse investigated (AB 5/1026.44). In her submissions on this appeal, Ms B continued to refer to Dr Waters' report as one that would or was likely to result in an order that the child live with the father. (There is no objective basis for such a conclusion in light of Dr Waters' recommendation for a reduction in contact visits to twice weekly.) 79. Ms B told the jury: I can't remember the exact point at which I thought, "That's it, I'm leaving," but I had thoroughly investigated, from my perspective, every possible avenue. I was speaking to experts and the lawyers. I thought that the lawyers were advising me on every possible avenue I could take with the courts and I just did not accept the situation. (AB 5/839.50) and: I thought … it's going to be better in Europe … get a proper assessment … where they accurately assess his risk, and then I will get protected by The Hague and then I can negotiate my return. (at (AB 5/884) (my emphasis) 80. Ms B referred to getting an assessment of her son and proper legal status "so I could then negotiate my way back to Australia" (AB 5/886). She told the jury that had the authorities gone in and investigated and done something; had they stopped her son having contact with Mr B and investigated the allegations, then she would not have had to leave (AB 5/856). She was adamant that the Family Court did not protect her son and had forced him into "excessive" contact. 81. She also said that her lawyers did not tell her that she could have sought an urgent hearing; rather they had said that she had to wait until 5 June (AB 5/850). (Presumably, that advice must have been before the report was received and before the lawyers had had an opportunity to advise Ms B as to the report - which they had asked for before she jumped to any conclusions about it.) 82. In cross-examination, Ms B agreed that she had chosen to leave because she was not happy with the way things were going in Australia (AB 5/898.49) and agreed that she did not accept the way that the Family Court proceedings appeared to be unfolding (AB 5/895.6). She maintains that those answers need to be put in the context of the other answers she had given (the substance of which I have sought to encapsulate above). 83. Professor Briggs gave evidence at the trial as to her communications with Ms B, including a telephone call in 2008 after Ms B had left the country and was in Frankfurt. Professor Briggs said that she had never advised Ms B to leave Australia because she knew what the consequences would be (AB 4/456). She had earlier referred in her evidence to the Hague convention (AB 4/451). Professor Briggs had given more detail about this conversation in her earlier evidence in the absence of the jury. There, Professor Briggs said that she recalled the very words she had said to Ms B when the latter told her that she had taken her son out of the country: "My God, don't you know about the Hague Convention". She said that she had warned Ms B, presciently as it turned out, that the federal police would find her, they would probably remove the child and: … from past experience of other cases, that the child would end up in an institution, and that she [Ms B] would be imprisoned, and that the child would go to the father 84. Professor Briggs said that she told Ms B that it was extremely damaging for children to be snatched from their mothers in that situation. According to Professor Briggs (and Ms B did not cross-examine to suggest this was not the case), Ms B's response was that the Family Court was determined to give the father "at least shared parenting, and probably would give him residence of the child" (AB 4/3 - 15 October 2013). There is no objectively reasonable basis for such a conclusion at the time Ms B left the country. Dr Waters' conditional report did not support that. 85. The Crown did not seek to elicit from Professor Briggs, in front of the jury, that she had advised Ms B to return, explaining that it considered it would be prejudicial to Ms B, and her Honour did not rely on this in her reasons on the unavailability of the defences. 86. In a statement sent to Professor Briggs in about 2009, an edited version of which was admitted as Exhibit P at the trial, Ms B set out her views of the legal process and summarised her reasons for leaving as follows: Brent Waters [sic] response to my son's deterioration - he said it was because 4 contact sessions per week were too many for a child of this age. He maintained that the above symptoms were a sign of fatigue and that the bed wetting was a sign of 'deep sleep'. He avoided comment on the sexualised behaviours. I asked him to help get the contact sessions reduced but he refused saying that the Court Orders were nothing to do with him. I sent repeated emails to my lawyers at the time detailing the behaviours I was observing and expressing extreme concern that my son was deteriorating. - my lawyers responded to my concerns and did what they could but they were unable to stop or reduce the visits - a Barrister told me (in writing) that it would cost me $14,000 to appeal the contact orders and that I would be very unlikely to succeed. He also mentioned that I should be cautious about criticising the Judge's decision as under the Magellan System I am stuck with the same Judge for the entire process. This is the Judge, if I return to Australia, who decides on my son's future. My decision to leave Australia I spent thirty thousand dollars on court proceedings, the only money I had outside of the account my husband blocked me from and in which most of my life's savings are still held. I was told that the Judge does not meet the victims of child abuse whose future he controls. He does not share my experiences of sitting up at 2am holding my three and a half year old son in my arms whilst he screams "They're going to take me away from Mummy, they're going to take me away from you. I don't want to go away from Mummy". It is a harrowing experience. I was told by a Barrister that I would lose my son if I did not comply with the contact orders. I could not stop my son's deterioration. No one, anywhere could help. The next Court date was more than a month away. This meant that before I could even start to raise the issue of my son's deterioration and my former husband's conduct during contact sessions, my son would have been subjected to a minimum of 17 more contact sessions, or rather 34 hours of intensive one on one contact with his father. This was the reason I left Sydney and took my son to safety. Up until this time I followed the proceedings requested of me. The decision to break all contact with my family and friends, leave my job and our home was not taken lightly. I also have been told that I will receive harsh penalties 'as punishment' for leaving, from the Family Law Court. However I am in my forties, my son is only four, his welfare and future are my priority, not mine. I also understand that the Family Law Court could take my son away from me and give [the father] full custody of [the child], again as 'punishment' for breaking court orders. What people do not understand is that I was losing my son anyway, as far as I can gather, [the father] was proactively attempting to 'create' in my son a repeat of his own abnormalities … I believe that had I not removed my son from Sydney, the eight hours per week of intensive, one on one, Court Ordered contact during which [the father] continued to threaten him, coupled with giving him gifts and lollies, may have been enough to prevent my son from ever revealing the full extent of what has happened to him. [November affidavit Annexure I - unedited version not tendered at trial but above passages were in the tendered version]

[47]

Events following Ms B's departure 87. Mr B became aware that his wife had taken their son out of the jurisdiction when there was no attendance by Ms B at a scheduled contact visit on 26 April 2008. When an application was made to the Family Court on 7 May 2008, Mr B was informed that authorities had discovered that Ms B had taken the child out of the country. An order was made on that day transferring custody of the child to Mr B. Orders were also made by the Family Court referring the matter to the Australian Federal Police for the recovery of the child. Ms B complains that there was an irregularity on that occasion in that there was no affidavit in support of the application on 7 May 2008 and that the judicial registrar did not give reasons for the decision. She has since unsuccessfully sought to challenge that decision. 88. In around June 2008, Ms B contacted her husband twice from an unidentified location overseas. She was cross-examined at the trial as to those communications, in which she offered to bring the child back if Mr B agreed to have no further contact with him (AB 5/995). The first was a single page letter in late June 2008 (Exhibit L; AB 1/139). In her reasons on sentence, her Honour referred to this letter (at [49]). 89. In that letter, Ms B wrote that the contact that the Court had ordered had caused her child to relive the sexual experiences and trauma that he had endured from Mr B "prior to" 6 December 2007; that the child began wetting the bed and had increasingly exhibited sexual behaviours and had nightmares; that as the Family Court process did not protect their child and in fact caused the child significantly more emotional trauma, she had chosen to seek help from a journalist to release the father's details publicly unless by 20 June 2008 he gave a signed document to her lawyer about a number of matters including as to giving her sole custody of the child and agreeing to have no ongoing contact with them. 90. The letter set out what her "story" would include, the first item being Dr Waters' review of Mr B's psychiatric history over many years and medications for mental illness. In cross-examination, Ms B said that she was just pretending to make a threat (AB 5/995.32); that it was "a completely empty threat to try and get him to stop targeting" his son (AB 5/995.38); and accepted it was a false statement (AB 5/956.18). She denied any intention to go to a journalist, saying that she was not speaking to a journalist (AB 5/995). When Ms B later communicated with Professor Briggs in 2009 she sent her a letter asking that it be delivered to a journalist, though Professor Briggs could give no evidence as to the contents of the letter as she had not opened it. 91. That letter was followed by an email on 25 June 2008 (Exhibit M), again setting a deadline by which if she had not received a response she would "take the matter public" (AB 1/242). Ms B said in cross-examination that this was to see if the lawyers had received the communication. Ms B again said that she wanted to stop her husband "targeting" their son. At this stage, however, her son was with her in Europe and Mr B was in Australia and did not know where they were, so it is not clear to what "targeting" Ms B was referring (AB 5/997). 92. Ms B accepted that the correspondence included a statement by her that details would be made public to people at Mr B's work, neighbours, schools and local newspapers (AB 5/996.18; 997).

[49]

2010 onwards 94. In September 2010, the child was located in Amsterdam. Ms B was arrested on 6 September 2010 and was taken into custody in Amsterdam. She remained in custody there, after a brief time on bail, from 18 November 2010 to 2 December 2010. The child was initially placed in a child crisis care centre. Contact visits took place with the father and he was subsequently placed in the father's care in December 2010 and returned to Australia with the father in January 2011. In March 2011, Ms B was transferred into the custody of the Australian Federal Police in Amsterdam. She returned to Sydney on 11 March 2011. She remained in custody here, bail refused, until 26 May 2011 when conditional bail was granted. Ms B was released from custody on 10 June 2011, having spent a total of eight months and 21 days in custody taking into account the time in prison both here and in Amsterdam. 95. Following Ms B's release from custody she applied in June 2011 for her son to live with her and her brother and for unlimited contact. That application was heard and dismissed in November 2011 when sole parental custody was granted to Mr B by the Family Court. 96. Contact visits between mother and son were subsequently terminated by Family Court order in 2013, following evidence suggesting that Ms B had been coaching her son to say that he wanted to be with her (an allegation that Ms B denies - she explains her conduct as encouraging him to speak to his school teachers). At the time of the appeal, Ms B was only permitted to have electronic communication and telephone/Skype conversations with her son (in his father's presence) when her son requested (AB 5/618). An appeal from those orders is pending. 97. Since June 2011, according to schedules handed up by Ms B, she has commenced or been a party to numerous court proceedings in the Family Court and elsewhere. It is not necessary to list the various proceedings. I note that, apart from applications in relation to the custody of her son and arrangements for contact with him, as well as the filing by Ms B in March 2012 of a Notice of Abuse, culminating in an order for the grant of sole parental responsibility to Mr B in November 2012 (which is the subject of a pending appeal), Ms B has brought proceedings both in the Family Court and the Supreme Court in relation to the publication of a book in relation to the search for her child, has been the subject of bankruptcy proceedings in the Federal Court (relating to unsatisfied costs orders in respect of the book proceedings), and has been made the subject of a vexatious litigant order in the Supreme Court. (Pausing there, I note that the making of a sequestration order does not automatically stay a criminal proceeding, unlike the position with civil actions.) 98. In summary, not including the criminal proceedings the subject of this appeal, Ms B has calculated that there have been 37 court applications and eight appeals from 2011 to 2014 with three more appeals filed but withdrawn.