AGUILERA & AGUILERA

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGUILERA & AGUILERA

[2019] FCCA 1355

Catchwords:
FAMILY LAW – Parenting – interim hearing – unilateral relocation from South Australia to Western Australia – allegations of family violence – allegations of sexual abuse against child.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

SS & AH [2010] FamCAFC 13

Marvel & Marvel [2010] FamCAFC 101

Eaby & Speelman [2015] FamCAFC 104

Deiter & Deiter [2011] FamCAFC 82

Morgan & Miles [2007] FamCA 1230

Applicant:

MR AGUILERA

Respondent:

MS AGUILERA

File Number:

ADC 958 of 2019

Judgment of:

Judge Kari

Hearing date:

13 May 2019

Date of Last Submission:

13 May 2019

Delivered at:

Adelaide

Delivered on:

22 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

CG Family Law

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Camatta Lempens

ORDERS

That the Wife return the children [X] born … 2015 and [Y] born … 2017 (‘the children’) to reside in the metropolitan area of Adelaide in the State of South Australia on or before 31 May 2019.
That following the return of the Wife to the State of South Australia, the Wife is restrained and an injunction is granted restraining her from removing the children from the metropolitan area of Adelaide in South Australia.
That the children live with the Wife.
That upon the children returning to reside in the metropolitan area of Adelaide, the children shall spend time with the Husband from 10am until 3pm each Saturday, under the supervision of either Mr B and Ms C and in the event that either proposed supervisor is unavailable such alternative supervisor as agreed between the parties in writing or as ordered by the Court.
That all handovers of the children occur at the Suburb D Police Station between the Wife and the supervisor, with the Husband to remain in his motor vehicle.
That the children’s time with the Husband pursuant to paragraph 4 herein shall not commence until the Husband has arranged for Mr B and/or Ms C and/or any other agreed supervisor to have filed an Affidavit with this Honourable Court confirming their willingness to supervise the children’s time with the Husband and that they have read and are willing to comply with the terms of the Legal Services Commission Brochure “Should I Supervise?”
By consent, the Husband is restrained and an injunction is granted restraining him from coming within 100m of the former matrimonial home.
That the parties are restrained and an injunction is granted restraining each of them from:
(a)Consuming alcohol to excess and/or consuming illicit substances twenty four (24) hours prior to and whilst they have care of the children.
(b)Abusing, harassing or denigrating the other party in the presence or hearing of the children or allowing any other person to so do.
(c)Discussing the proceedings with the children or allowing any other person to so do.
(d)Physically disciplining, abusing and/or verbally denigrating the children or allowing any other person to so do.
Pursuant to Section 68L of the Family Law Act1975 an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born … 2015 and [Y] born … 2017 and to facilitate such appointment the parties respective solicitors do forward all documents filed to date to Mr Graham Russell of the Legal Services Commission of South Australia on or before 24 May 2019.
Pursuant to section 69ZW of the Family Law Act1975 the Department for Child Protection shall provide the Court with the following documents or information:
(a)Copies of any notifications regarding abuse allegations arising relating to the children [X] born … 2015 and [Y] born … 2017;
(b)Any details of investigations into such abuse allegations;
(c)The outcome or findings of any such investigations; and
(d)Copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.
Pursuant to section 69ZW of the Family Law Act1975 the South Australian Police Department shall provide the Court with the following documents or information:
(a)Copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MR AGUILERA born … 1983 and MS AGUILERA born … 1983 or the children [X] born … 2015 and [Y] born … 2017; and
(b)The outcome or findings of any such investigations including antecedent reports for each of the parties.
That pursuant to Section 62G(2) of the Family Law Act 1975 THAT a report be prepared as to such matters that are relevant to these proceedings directed to the best interest of the children [X] born … 2015 and [Y] born … 2017 generally but in particular as to what time and under what conditions the children should spend with each of their parents with the report to include observation of interaction between the children and each of their parents as well as any relevant views expressed by the children, with a request that the report be available to court and the parties by 31 October 2019.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within fourteen (14) days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory legal aid authority; and
(d)A convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
The proceedings are adjourned to 27 November 2019 at 10am for Callover and possible Trial listing.
The parties are required to personally attend the Callover AND it is requested that Counsel properly instructed for Trial attend and in the event they are not available, the file Principle attend.
That no less than seven (7) days prior to the Callover date the parties shall provide to the Court:
(a)A brief summary of the issues in dispute, together with a Minute of Order sought; and
(b)Trial plan identifying the witnesses to be relied upon at Trial, an estimate length of Trial and any Subpoena which will be issued.

IT IS NOTED that publication of this judgment under the pseudonym Aguilera & Aguilera is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 958 of 2019

MR AGUILERA

Applicant

And

MS AGUILERA

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the parties two children [X], who is aged 3 years and 7 months, and [Y], who is aged 1 year and 8 months.
The matter comes before the court at a time which is relatively proximate to a series of events following the parties separation and which commenced in February 2019 which have culminated in:
a)The Father having his relationship with the children severed as and from 27 February 2019; and
b)The Mother relocating from Adelaide to Western Australia with the children at around that time.
There are numerous factual matters of significance about which the parties are in dispute. The most significant of these are:
a)Whether or not family violence was a feature of the household of this family;
b)Whether or not the children have been the victims of abuse; and
c)Whether or not the child [X] in particular, has been the victim of sexual abuse.
Significantly at this early juncture, the Husband asserts that unless an Order is made returning the children to the state of South Australia and for him to spend time with the children (in either an unsupervised or supervised regime), his relationship with the children would be irreparably damaged, given the distance between South Australia and Western Australia which would make it practicably impossible for him to maintain a meaningful relationship with the children.
The Wife’s position is that she fled South Australia as she was “afraid” that the Husband would “murder one or all of us now that he has lost control of us”,[1] (referring to herself and the children), and that the Court should not embark on any exercise other than information gathering by way of Orders made pursuant to section 69ZW of the Family Law Act 1975 (“the Act”) from the Department of Child Protection and the South Australian Police Department, and the preparation of a report pursuant to section 62G of the Act.
[1][1] Paragraph 32 of the Wife’s Affidavit sworn 9 May 2019, as annexed to the Affidavit of her solicitor filed 10 May 2019 (hereinafter referred to as the Wife’s Affidavit).
As a result of the very serious allegation of “murder” made by the Wife, this case necessarily involves the assessment of risk at a point in time where there is very little before the court by way of independent evidence, and the court is faced with very disparate versions of events from each of the parties.

Background

The brief history of this family is as follows:
a)The parents are both in their mid-thirties;
b)The parents lived together for a period of approximately 10 years from … 2008 until January 2019;
c)The parents separated on or about 18 December 2018, however they lived separately and apart until the Husband moved out of the former matrimonial home at Suburb E on or about 3 January 2019.
While there are many matters in dispute between the parties it would appear that the parties agree that:
a)At the time that they physically separated, they were able to make arrangements for the children to live with the Wife and spend time with the Father (although the terms of those arrangements are the subject of dispute);
b)There was an incident on or about 18 February 2019 of a verbal nature between the parties, which escalated to a physical altercation between the Husband and the maternal grandfather and resulted in police attendance;
c)Following that incident, the Husband continued to spend time with the children on a further 4 occasions between 23 February 2019 and 27 February 2019, in the presence of the Wife;
d)On 3 March 2019, the Husband attended at the former matrimonial home (having failed to raise the Wife by telephone to confirm his time spending arrangements that day), and discovered that the home was vacant and that it was apparent to the Husband that the Wife had permanently left the home with the children;
e)The Father has not seen the children since 27 February 2019 and nor has he had any communication with the children, or indeed the Wife.
The parties are in significant dispute as to the reasons for their separation.
Of significance, the Husband asserts that:
a)A significant source of tension between the parties arose as a result of the Wife’s unnecessary and overly close relationship with both of her parents, which he characterised as involving constant and repeated telephone conversations each day between the Wife and her parents together with regular attendances by each of the maternal grandparents at the family home.
b)The Wife was unnecessarily over-protective regarding the Husband’s relationship with the children which resulted in him feeling marginalised with respect to their parenting, including but not limited to having his time with the children limited to two hour blocks, the Wife co-sleeping with the children while the Husband slept separately, the Wife having attended to all bathing, feeding and other tasks before he returned home from work each day giving him little opportunity to be involved and the Wife asking her parents for assistance on occasions when the Husband was available and willing to care for the children.
c)Inferences made by the Wife which gave him cause to understand that the Wife and her parents considered that he had sexually abused the child [X] in an incident in late 2017 when the Husband asserts that he was sitting with [X] in a small “clam pool” in his underwear on a hot summers day supervising [X] and the Wife came home and asked the Husband in a “concerned tone” “are you naked?”.[2]
d)An incident in January 2017 when the maternal grandmother was assisting to bathe [X], when [X] began to have a “meltdown” and was screaming out “shut shut”, and putting his towel around his genitals so that no-one could see, to which the maternal grandmother responded “Go away bad man, don’t touch [X], you can’t touch him”, while shooing an imaginary person away (not the Husband), and then commenting to the Wife “I think you’re right, I think something has happened to [X]”,[3] which then escalated to the Husband forming an understanding that the Wife and the maternal grandmother considered that the Husband had sexually abused [X].
e)An allegation made by the Wife and her parents that the Husband had exposed the child [X] to pornography.
f)An allegation that the Wife adopted toilet training techniques with [X] which he did not agree with, including allowing [X] to be without a nappy during the day and night, without teaching him to use a toilet, resulting in [X] continuously defecating and urinating around the home and in his bed.
[2] Paragraph 29 of the Husband’s Affidavit filed 13 March 2019.
[3] Paragraph 30 of the Husband’s Affidavit filed 13 March 2019.
The Husband asserts that the combination of these factors and the constant suspicion that he felt he was under regarding alleged sexual abuse of [X], placed such a strain on him and his relationship with the Wife that he ultimately determined to end the marriage.
The Wife acknowledges that the parties relationship was strained, however she asserts that:
a)She has always had a close relationship with her parents, that there was nothing unusual about that relationship, but that over the course of the marriage the Husband was critical of the Wife’s parents and that he made attempts to isolate the Wife from her parents and limit her contact with them.
b)The demise of the parties’ relationship was as a result of the Husband’s “controlling behaviour, his drinking and infidelity”.[4]
c)She limited the Husband’s relationship with the children as she was concerned for the children’s safety with him, and that the Husband worked long hours, and otherwise had extracurricular interests which meant that he was not available for the children in any event.[5]
d)While the parties disagreed about [X]’s toilet training, the main source of disagreement was that the Husband would force [X] to mop up his own wee while yelling at him to do so and that the Husband on one occasion “roughly” threw [X] onto his bed and put a nappy on him, all of which culminated in [X] fearing the Husband and the Wife abandoning any attempts to toilet train [X].
e)On the occasion when the Husband was in the clam pool with [X] (which the Mother asserts took place in early 2016), the Wife asserts that both the Husband and [X] were naked, [X] was sitting facing away from the Husband, and that “at this point I was worrying about [X] ad Mr Aguilera’s relationship and whether anything inappropriate had happened between them.”[6]
f)The incident involving the maternal grandmother accusing the Father of sexually abusing [X] in fact occurred on 9 February 2018, in circumstances where:
i)The Wife asserts that the incident was precipitated by an incident a week earlier when the Husband is alleged to have acted inappropriately in managing [X]’s behaviour, including the Husband asserting that [X]’s poor behaviour was as a result of [X] having autism in circumstances where no such diagnosis has been made;
ii)The incident in question arose in circumstances where the Husband had attempted to force [X] into a clean nappy making him distressed, the maternal grandmother then attempting to bathe [X], [X] becoming distressed and ultimately getting a towel and covering his genital area screaming “no daddy, no daddy” and “shut shut”, which resulted in the maternal grandmother advising the Wife that she accepted the Wife’s concerns that “something is definitely not right” and she considered that [X] was not autistic but that he was suffering from “trauma”.[7]
[4] Paragraph 4(d) of the Wife’s Affidavit.
[5] Paragraphs 10-13 of the Wife’s Affidavit.
[6] Paragraph 20 of the Wife’s Affidavit.
[7] Paragraph 21(a) and 21(b) of the Wife’s Affidavit.
The parties agree that:
a)The Husband was so concerned about the nature of the sexual abuse inferences being made by the Wife and the maternal grandmother, that he raised the issue with the Wife and suggested that they seek a professional assessment, but the Wife refused to take up that suggestion as she “did not want to put [X] through a traumatic situation of being probed and prodded at two years old by doctors and specialists”.[8]
b)The Wife has made no formal complaints to either the Department of Child Protection or SAPOL regarding either the allegations of family violence she has made, or the sexual abuse allegations relating to [X].
[8] Paragraph 23 of the Wife’s Affidavit.
The parties also agree that there was an altercation in the post separation period on 18 February 2019, and in relation to the same:
a)The parties appear to agree that they were in dispute that day regarding a request by the Wife that the Husband assist her in the arrangements to deliver an item she had sold on an online market-place;
b)The parties had an argument over those arrangements (with the Wife also asserting that the argument included the question of their financial arrangements and property settlement);
c)The argument culminated in the maternal grandfather becoming involved.
Thereafter the parties disagree about what transpired between the Husband and the maternal grandfather:
a)With the Husband asserting that the maternal grandfather came at him with a Stanley knife/ box-cutter while he was holding [Y], that the Maternal grandfather pushed the Husband against the fence holding the Husband’s throat with his left hand, the Wife witnessing the altercation and removing [Y] from the Husband’s arms, the child [X] witnessing the ensuing scuffle and the Husband telephoning the police;
b)Whereas the Wife asserts that she heard her father accuse the Husband of abusing her and the children, that the Husband, the Wife and the maternal grandfather argued about whether the maternal grandfather should be at the parties home, that she did not see a knife, that the Husband was the aggressor and made a threat to kill the maternal grandfather, that the maternal grandfather was injured (although the extent to which is not identified), that the children witnessed the altercation, that the Wife called the police, and that Husband was given a 24 hour trespass notice to leave the property.
While the parties are each on oath about this incident, it is of some import that the Wife (who filed a Notice of Address for Service on 18 April 2019, almost a month before the hearing), has not filed an affidavit from the maternal grandfather attesting to his version of what transpired that day. While the Wife asserts that she did not see a knife, the Husband’s allegations that the maternal grandfather assaulted him and threated him with a box-cutter/ Stanley knife are very significant and concerning allegations. Given the closeness that the Wife deposes to have with her father, it is somewhat surprising that the Wife has not filed an affidavit from her father, and it would be open to me to draw an inference that the evidence of the maternal grandfather would not have assisted the Wife.

Significantly, the Wife deposes that as a result of this incident, she was given advice about “restraining” and “parenting” orders by the police officer in attendance. During submissions, the Wife’s Counsel was asked whether the Wife had sought the protection of an Intervention Order, and it was acknowledged that she had not, but that she had sought the protection of an Order in these proceedings pursuant to section 68B of the Act restraining the Husband from coming within 200 metres of the Wife, her residence or her place of work.
During the course of submissions, I asked Counsel for the Wife whether the Wife maintained the allegations of sexual abuse, and who those allegations related to and the exact nature of the allegations.
In response Counsel for the Wife directed me to the Wife’s Notice of Risk confirming that the allegations of sexual abuse are maintained in the answer given at item 2(c), and further submitted that the allegations arose specifically as a result of the incident when [X] and the Husband were bathing in the clam pool.

The legal principles

In parenting cases both at an interim or final hearing stage, the paramount consideration of the Court is the best interests of the subject children.[9]
[9] Section 60CA of the Act.
In order to determine what is in a child’s best interests, the Court is guided by those factors set out in section 60CC of the Act, as follows:
(2)     The primary considerations are:
(a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)     Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)     other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long‑term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)    to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)     each of the child’s parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)     the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility,[10] however:
a)The presumption is specifically rebutted and not to be applied in situations relating to abuse and/or family violence; and/or
b)At an interim stage of proceedings, the Court has the discretion not to apply the presumption if the Court “considers that it would not be appropriate in the circumstances for the presumption to be applied…”[11]
[10] Section 61DA.
[11] Section 61DA(3).
If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.[12]
[12] Section 65DAA.
Family Violence is defined in section 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)     an assault; or
(b)     a sexual assault or other sexually abusive behaviour; or
(c)     stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f)     intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
In Goode & Goode (2006) FLC 93-286 at 82, the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:
a.identifying the competing proposals of the parties;
b.identifying the issues in dispute in the interim hearing;
c.identifying any agreed or uncontested relevant facts;
d.considering the matters in s60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
e.deciding whether the presumption in s61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
f.if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g.if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;
h.if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable
i.if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s60CC;
j.if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s60CC; and
k.even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
While the Full Court identified in Goode & Goode (at paragraph 68)
“…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.”
This does not mean to say that the Court can not and should not at an interim stage of the proceedings make findings, but rather that caution should be taken when doing so.
The Full Court have considered the question of the making of findings at an interim stage of proceedings in a series of cases.
The decision of the Full Court in SS & AH [2010] FamCAFC 13, was cited with approval by the Full Court in Marvel & Marvel [2010] FamCAFC 101 (and in turn Marvel has been cited with approval by the Full Court in Eaby & Speelman [2015] FamCAFC 104). In Marvel at paragraph 120, the Full Court commented:
“As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…”
The Full Court went on to say (at 122-123):
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
[123] Later, at paragraph 100 their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
These comments from the Full Court should also be read in the context of the difficulty facing a decision maker at an interim stage where there are allegations of family violence requiring the assessment of risk. In Deiter & Deiter [2011] FamCAFC 82, The Full Court set out (at paragraph 61):
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
In addition in Deiter, the Full Court also discussed the use of corroborative evidence when weighed against the uncontested evidence of the parties.

Discussion

As a result of the allegations made by the Wife regarding family violence and alleged sexual abuse of the child [X] the primary considerations in section 60CC(2) of the Act come to the fore.
In order to make an assessment of risk regard must be had to the allegations made by the wife in light of the legal principles identified above.
During the course of submissions for the Husband, Mr Anderson of Counsel used rather emotive terms to describe the nature of the allegations made by the Wife, including the words “fantastic”, “unbelievable” and “bizarre”. Mr Anderson also criticised the Wife’s allegations as lacking specificity.
In his submissions in reply, the Wife’s Counsel Mr McGinn submitted that the Court should not be drawn into an assessment of the Wife’s allegations as suggested by the Husband’s counsel but rather the Court should not dismiss that in all of the circumstances alleged by the Wife, the Court is entitled to make a finding that it is “legitimate” for the Wife to hold the fears that she does, namely that the Husband will murder the Wife or the children.
Regardless of the spirited manner in which submissions were put by the Husband’s Counsel, the underlying submission being put was that the Wife’s assertions that she is fearful that the Husband will murder her and/or the children and that this is the basis of her relocating with the children to Western Australia, are incongruous with the nature of the allegations that she has made, when those allegations are carefully examined.
As mentioned earlier the Wife sets out in her affidavit that her reasons for separation were as a result of the Husband’s “controlling behaviour, his drinking and infidelity”.
While it is accepted that allegations of control fit within the definition of family violence in the Act, given the importance that the Wife now seeks to give the allegations of family violence, abuse of the children and sexual abuse of [X], it is somewhat surprising that the Wife did not point to those factors whatsoever as reasons for the parties separation.
Turning to those allegations which are said to ground the Wife’s position that the Husband presents an unacceptable risk to the children, and accepting that these are interim proceedings and the authorities referred to previously speak to the exercise of caution in considering the contested issues between the parties, as set out earlier the allegations which will require consideration at this interim stage are as follows:
a)Whether or not family violence was a feature of the household of this family;
b)Whether or not the children have been the victims of abuse; and
c)Whether or not the child [X] in particular, has been the victim of sexual abuse.
It is these allegations which the Wife asserts ground her fears that she left South Australia in fear of her life and the lives of the children, and which form the basis of her position that the Husband should not spend any time with the children at this stage.
Dealing firstly with the question of family violence in the household:
a)The Wife’s allegations with respect to family violence are set out in her affidavit at paragraph 35 and in annexure “A1”.
b)Those allegations include allegations that:
i)The Husband used derogatory taunts towards the Wife on several occasions;
ii)On one occasion the Husband during the course of an argument “punched a huge hole in the door almost going all the way through”;
iii)The Husband hit and pushed the Wife;
iv)The Husband prevented the Wife from making or keeping connections with her family and friends;
v)The Husband forced the Wife to have sexual intercourse;
vi)The Husband was controlling and denied the Wife financial autonomy;
vii)In 2014, the Husband said to the Wife after a housewarming party at the Suburb E property attended by the parties’ friends and family, “yep, you got what you wanted... you fucking little princess” “fucking princess-fucking talk talk talk to ya mum entire time” “look at ya fucking stupid crazy bitch.” The Husband then followed the Wife to the bedroom and pushed her through the bedroom door, causing her to fall onto the floor on her knees,
viii)After an argument between the parties on 9 February 2017, the Husband followed the Wife to the bedroom and pushed her onto the bed. The Wife called her mother and while the Wife was on the telephone, the Husband yelled to the Wife “I will kill that bitch if she comes over.”
ix)During an incident on 14 August 2017, the Husband questioned the Wife as to whether she and [X] had eaten McDonald’s. When the Wife denied eating McDonald’s, the Husband emptied the contents of the bin on the floor of the family room, removed the McDonald’s wrappers and threw them at the Wife’s face, and said “lying dumb fucking slut”. The Wife stood up and the Husband pushed her back down onto the couch and pointed in her face and said “you lie and you feed our son junk” and “you need to take a parenting course, you’re just useless and worthless;”
x)During an incident on Wednesday, 2 May 2018, the Husband grabbed the Wife by the hair from the top of her head and pulled her up off the couch to the ground, and that thereafter while she was lying in the foetal position on the floor the Husband grabbed the Wife’s leg and turned the Wife onto her back and dragged her and that the child [X] entered the room and saw these events and started screaming “stop stop”, which resulted in the Husband saying to the Wife “everyone is going to see you for who you truly are a dumb fucking cunt”;
xi)During an incident on Friday, 5 October 2018, that together with verbal abuse, the Husband pushed the Wife’s back and shoved her through an open door causing her to trip and stumble with [Y] in her arms. The Mother put [Y] down and the Husband pushed the Wife up to the wall with his hand on her chest and said “don’t ever fucking question my parenting again”, in the presence of both children;
xii)On Friday 28 December 2018, the Husband grabbed the Wife’s arm and pulled her to the ground, and while holding her hard said words close to her face “I owe you fucking nothing, you nasty cunt”;
xiii)During the course of an argument on 29 December 2018 when on the Wife’s evidence both of the parties appeared to have been goading each other, the Husband is alleged to have said to the Wife “I wish I could kill you! My life would be better off without you in it”;
xiv)On 3 January 2019 when advising the Wife that he was leaving the home the Husband said the words in the presence of the children “Yep I am out of here, I can’t bear to be around you one more minute. I will kill you. I want you dead”.
c)Clearly, all of the allegations of the Wife fit within the definition of family violence contained in section 4AB of the Act.
d)While the Husband is not on oath with respect to the allegations made by the Wife in her affidavit (given the Wife’s affidavit was filed on the court portal after hours on the Friday before the Monday hearing), Counsel for the Husband indicated that he had taken instructions from the Husband and that the Husband generally denied the allegations that had been made.
e)Counsel for the Husband also submitted that there is some significance to the fact that the Husband is not the subject of an Intervention Order or any report to the Police, that the Husband has never been interviewed by the Police or the Department of Child Protection, that the Husband has not been charged nor is he facing any charges, and nor has he ever been arrested.
f)While understandable that these submissions were put, it equally must be acknowledged that the absence of any intervention by the Police or the Department of Child Protection does not necessarily mean that there has not been family violence within the household. As the Full Court identified in Eaby & Speelman (at paragraph 21):
“Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”
g)What is of more significance is that in the post separation period, and given the alleged fears of “murder” that the Wife asserts she holds and the comments the Wife attributes to the Husband on 3 January 2019, it is somewhat perplexing that:
i)The Wife has not sought the protection of an Intervention Order following physical separation;
ii)Following physical separation, the Wife would approach the Husband to handle matters relating to the delivery of items on an online marketplace;
iii)The Wife would willingly come into contact with the Husband between the date of physical separation and 27 February 2019 to facilitate his time with the children.
h)Having said all of that however, these are matters about which findings are not able to be made at this interim juncture.
i)If the allegations are ultimately borne out, then the Wife’s fears may well be understandable, and there would be merit in restricting the Husband’s time with the children and placing certain conditions around any time spending arrangements to ensure that the children were protected from any exposure to family violence.
j)If however, the allegations are not ultimately made out, then acting on them at this juncture to support a severing of the Husband’s relationship with the children, I accept would result in irreparably damaging the relationship between the children and the Husband.

Dealing with the question of whether the children have been the victims of abuse:
a)The Wife’s allegations are set out in her affidavit at paragraph 38 and in annexure “A2”.
b)Those allegations include allegations that:
i)The Husband would call the children “little shits”, and would otherwise swear at them and in front of them;
ii)The Husband would become mad at the children for disrupting what he was doing;
iii)The Husband would become angry and rough with the children if they would not do what he wanted them to do or expected of them;
iv)The Husband showed little empathy and was unable to comfort the children;
v)On one occasion the Husband burnt the child [X] with a lighter and that the Wife did not accept the Husband’s explanation that the burn had accidentally been caused when the Husband was lighting mosquito coils and [X] unexpectedly jumped off the cubby house (noting that the Wife asserts the Husband gave varying explanations for this incident at the time);
vi)On one occasion when the Husband was struggling to get [X] in his pram through a doorway the Husband had failed to notice that [X]’s leg had become twisted and was stuck between the doorway and the pram and the Husband rammed the pram back and forth trying to get through the doorway before the Wife intervened;
vii)During an incident on 24 June 2017, the Husband had been waving a stick and had hit [X] in the head despite the Wife’s protestations that he should put the stick down;
viii)During an incident in February 2016, the Husband took [X] roughly from the Wife and held him up to the light in the bathroom with his arms pinned down and that despite [X]’s screams and the Wife’s protestations the Husband would not give [X] to the Wife and held her back with one arm.
c)Again, while the Husband is not on oath with respect to these allegations, Counsel for the Husband had taken instructions that the Husband generally denied the allegations that had been made and gave an explanation in relation to the lighter incident consistent with it having been an accident that occurred when [X] unexpectedly jumped out of his cubby house.
d)Again, all of these allegations are not ones that are capable of determination at this stage, and if ultimately made out, then again there would be concerns about the Husband and whether he poses a risk to the children.
e)However as with the allegations of family violence, if the allegations are not ultimately made out, and/or there was ultimately a finding that the Husband did not present an unacceptable risk to the children, then irreparable damage would be occasioned to the relationship between the Husband and the children if the Wife’s position was supported.
Turning finally to the allegation that the child [X] has been the victim of sexual abuse:
a)As referred to earlier, during the hearing the Wife’s Counsel was pressed as to the basis of the allegations of sexual abuse.
b)The Wife’s Counsel confirmed that the allegations related only to the incident involving [X] and the Husband in the clam swimming pool.
c)Indeed, the Wife in her affidavit specifically eschewed concerns that the Husband had raised about behaviours that [X] had earlier exhibited of rubbing his nappy on his penis. The Wife’s response on that topic was:
“I felt that at two he was too young to be pleasuring himself, rather that it was self-soothing behaviour. Mr Aguilera was the one then then asked me “what if it’s something more?” and I said “then that would be abnormal.”
d)Given the serious nature of the allegation of sexual abuse which forms part of the basis of the Wife’s assertion that the Husband present’s an unacceptable risk to the children, I set out hereunder those paragraphs of the parties’ respective affidavits that deal with the allegation. In doing so, it must be noted that the Husband raised the incident in his affidavit. The Wife’s affidavit was drafted in the form of a responsive affidavit (whereby she paragraph by paragraph responded to matters raised in the Husband’s affidavit), and accordingly she responded specifically to the allegation that the Husband had raised. The evidence of the parties on such a significant topic is surprisingly scant.
e)The Husband’s affidavit read as follows (at paragraph 29):
“I recall on one occasion in approximately November or December 2017, it was a hot summery day and I was sitting in a small “clam pool” with [X] who was playing in the pool. The wife came out and saw me in the pool and said to me in a concerned tone “are you naked?”. I said that I was not naked but that I still had my underwear on. She then commented that she thought it was odd behaviour for me to want to sit in a small pool with my son. I recall this conversation distinctly and I questioned what was going through her mind.”
f)The Wife’s response to this paragraph read as follows (at paragraph 20):
“In response to paragraph 29 I say that this was in early 2016. I went inside to get a glass of water and when I came back Mr Aguilera was sitting in the small pool with [X]. They both appeared to be naked. [X] was sitting facing away from Mr Aguilera. At this point I was worried about [X] and Mr Aguilera’s relationship and whether anything inappropriate had happened between them. Mr Aguilera became angry and yelled at me saying that I was “fucked in the head” or words to that effect. I was scared and picked up [X] who had started crying and took him inside.”
g)Counsel for the Husband submitted that the Wife asserting that she was concerned at that point as to “whether anything inappropriate had happened between them” was unusual when considering the context of this incident and in particular that there were no other allegations of inappropriate sexual behaviour deposed to by the Wife before this incident, and that it appeared to be a significant leap for the Wife to make this assumption based on what she deposes to having seen. That is a submission that has some force.
h)The allegation made by the Wife is lacking in detail, and in particular:
i)The Wife does not attest to having seen anything in appropriate, simply that the child was sitting naked in the pool with the Husband who also appeared naked;
ii)The Wife does not attest to the child appearing distressed or unsettled in any way when she came back from fetching a glass of water;
iii)There is no explanation from the Wife as to the amount of time that she was gone, but I can infer that if she went into the house to get a glass of water, that she was not gone for long (an inference which I do not consider to be unreasonable when considered in conjunction with the parties’ mutual evidence that the Wife rarely left the children alone with the Husband and that she did not consider the children to be safe in his care).
i)Moreover, I find it difficult to accept that if the Wife genuinely believed that [X] was the victim of sexual abuse that she did nothing then, or in the post separation period to report and/or have her concerns investigated.
j)I note that there is reference in the parties’ affidavits to the incident involving the maternal grandmother bathing [X] and [X] becoming distressed and covering himself with the towel, and in that regard:
i)I note from the submissions of the Wife’s Counsel this incident is not said to form part of the Wife’s allegations of sexual abuse.
ii)I also note that the Wife alleges that this incident occurred in February 2018, some two years after she alleged to have witnessed the incident in the clam pool, and she does not depose to any other sexualised behaviour or concerning incidents between those two dates giving rise to her concerns, or those of her mother that day, that [X] had been the victim of sexual abuse.
k)For all of these reasons, and even if I took the Wife’s allegations at their highest, I have some significant reservations accepting that the child [X] was sexually abused by the Husband, and I do not accept that the Husband presents an unacceptable risk of sexual abuse to either of the children.
Turning to the relevant additional considerations set out in 60CC(3) of the Act:
a)These children are very young and at a vulnerable stage in their development, as such they are too young to either express their own views and/or have their views given significant weight.
b)It appears undisputed that the Wife has been the children’s primary carer to date, and that the Husband’s role has been limited.
c)It is also agreed between the parties that the children have had a very close relationship with each of the maternal grandparents, and that relationship has also been severed by the Wife’s relocation to Western Australia.
d)The Wife would assert that during the relationship, the Husband has failed to take the opportunity to spend time with the children and have a meaningful relationship with them; whereas the Husband denies this.
e)What is also agreed between the parties, is that following physical separation, until the Wife’s relocation, the Husband was actively pursuing a relationship with the children, and he was spending regular time with them, albeit supervised by the Wife, following the altercation with the Wife’s father.
f)Undeniably, the children have experienced a significant upheaval and change over the last 5 months; their parents have separated, their father has moved out of the matrimonial home; on the Wife’s case they have witnessed heated verbal arguments between the parties together with the altercation between the Husband and the maternal grandfather, and finally they have had their world completely turned upside down by the relocation to Western Australia.
g)I am conscious that the Wife’s application seeks an order that the Wife be permitted to relocate the children to any State or Territory within the Commonwealth of Australia. I can only opine as to why the orders sought by the Wife are crafted in this fashion? Given the Husband had already deposed to his fear that the Wife might have fled to Western Australia, and the concession by the Wife’s Counsel at the commencement of his submissions that the Wife had indeed relocated to Western Australia, it is quite possible that the Wife contemplates moving to somewhere other than Western Australia, thus causing further upheaval to the children.
h)Counsel for the Husband submitted that there was a practical difficulty and expense associated with the Husband maintaining a relationship with the children if they were to remain in Western Australia, and while I was not provided with the details of the costs of travel, I am satisfied that the same would come with significant expense given there would be the costs of flights and accommodation if the Husband was to travel to Western Australia, or vice versa.
i)Counsel for the Wife submitted that the Husband has many shortcomings in his ability to meet the needs of the children, pointing among other things to the dispute between the parties regarding toilet training.
j)Again the ability of each of the parties to meet the children’s needs is a topic about which the parties are in dispute, and on the Wife’s version there would be concerns about the Husband’s behaviour (including the allegations of family violence and abuse of the children and the emotional unavailability of the Husband).
k)Equally on the Husband’s version there would be concerns about the Wife’s behaviour (including her failure to act protectively in investigating the allegations of “abnormal behaviour” and/or sexual abuse, and/or to promote the children’s relationship with the Husband).
l)Accordingly, given the contested evidence of the parties, I do not consider that I am in a position to do anything other than take into account that each of the parties raise concerns about the other parents’ ability to meet the needs of the children.

Conclusion

As I indicated to Counsel during the hearing, I do not consider that I am in a position to apply the presumption of equal shared parental responsibility. While I note the allegations of family violence, I indicated to Counsel that given the interim nature of the proceedings and the issues about which the parties do not agree, I do not consider that it would be appropriate in the circumstances to apply the presumption.
While the allegations of family violence and abuse of the children made by the Wife are serious and significant, I cannot ignore that those allegations are denied by the Husband and that these are topics that should be the subject of oral evidence in due course.
In Morgan & Miles,[13] Justice Boland sitting as a single Judge on appeal held (at 88):
“It appears to me that the very difficult issues in cases involving a relocation, … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis…”
[13] [2007] FamCA 1230.
Her Honour’s comments have currency for this family.
The difficulty that I have with the Wife’s position is that she does not support there being any relationship between the children and the Husband, and she has placed a significant distance between the Husband and the children to ensure that there is no relationship pending trial when all of the evidence can be tested.
While I do not discount the serious nature of the allegations made by the Wife, I do consider that there are appropriate protective measure that can be put in place to ensure the safety of the children and the Wife at this interim stage, while equally maintaining the children’s relationship with the Husband.
I am conscious that through her Counsel at the hearing, the Wife indicated that she had made leave arrangements with her employer. I do not know the terms of those arrangements.
Having said that, the Husband’s position is that the Wife and the children should return to the former matrimonial home and that he will pay the outgoings for the property.
I also note that the Husband proffered two alternative time spending regimes; his preference being that his time be unsupervised, but that in the event that the court considered supervision appropriate, then he put forward mutual friends of the parties, namely Mr B and Ms C.
In reply, the Wife’s Counsel did not make any submissions about the supervisors that had been proposed by the Husband.
For all of those reasons I make the Orders that appear at the commencement of these reasons.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Kari

Date: 22 May 2019

[2019] FCCA 1355

22 May 2019

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Injunction

Procedural Fairness

Jurisdiction

Remedies

Standing

Appeal