Allan & Sacco - [2022] FedCFamC1F 120

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allan & Sacco [2022] FedCFamC1F 120

File number(s): BRC 15354 of 2020

Judgment of: BAUMANN J

Date of judgment: 11 March 2022

Catchwords: FAMILY LAW – PARENTING – Discrete hearing as to risk – Where the Court finds the father does not pose an unacceptable risk of harm to the child by way of sexual abuse

Legislation: Family Law Act 1975 (Cth) ss s 69ZQ, 69ZR

Cases cited:
Blann & Kenny [2021] FamCAFC 161

Briginshaw v Briginshaw (1938) 60 CLR 336

Deiter & Deiter [2011] FamCAFC 82

M v M (1988) 166 CLR 69

Rodelgo & Blaine (2019) FLC 93-897

Stott & Holgar and Anor [2017] FamCAFC 152

Division: Division 1 First Instance

Number of paragraphs: 41

Date of last submission/s: 17 August 2021

Date of hearing: 24 May 2021

Place: Brisbane

Counsel for the Applicant: Mr Bolovan

Counsel for the Respondent: Mr Drysdale

Counsel for the Independent Children's Lawyer: Ms Wardle
ORDERS

BRC 15354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ALLAN

Applicant

AND:
MS SACCO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

11 MARCH 2022

THE COURT ORDERS:
1.That these proceedings be adjourned for Interim Hearing at 9.30am on 30 March 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
2.That each party shall have leave to file and serve one (1) affidavit by 4.00pm on 23 March 2022, setting out any further evidence of relevance since the proceedings were “re-opened” in a limited way in August 2021, with such affidavit to also contain a minute of interim orders they seek for the next six months.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), or to record a variation to the order pursuant to r 10.13 of the Rules.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allan & Sacco has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION

X (born in 2014 and now aged seven years) is the only child of a relationship between the father Mr Allan (“the father”) and the mother Ms Sacco (“the mother”) that commenced with cohabitation in 2008 and ended with final separation in 2015.
X was 12 months old at separation and earlier parenting proceedings commenced in the Federal Circuit Court of Australia (as it then was called) resulted ultimately in final consent Orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allan & Sacco

Details

AGLC: Allan & Sacco [2022] FedCFamC1F 120
Case: [2022] FedCFamC1F 120
Decision Date

CaseChat Overview and Summary

This case involved a discrete hearing under ss 69ZQ and 69ZR of the Family Law Act 1975 (Cth) to determine whether the father, Mr Allan, posed an unacceptable risk of harm to his child, X, by way of sexual abuse. The mother, Ms Sacco, alleged that the father had sexually abused X. The matter was listed for a discrete hearing on 24 May 2021, and the decision was reserved. A limited re-opening, on the Application of the mother, resulted in further evidence being admitted for consideration, but the decision was reserved since 17 August 2021. The court was required to carefully analyse and give real and substantial consideration to the facts of the case and decide whether or not, and why and why not, those facts could be said to raise an unacceptable risk of harm. The court found that the mother's evidence of a consistently "sore and red vagina" for over two years carried no weight, and the child's response to Police questioning was vague and lacking clarity or particulars as to time and place. The court also found that the lack of any hint of disclosure by the child to her primary carer (the mother) or to any other person since she has become more verbal developmentally over the last two to three years, makes no sense. The court was not persuaded, after giving careful consideration, that the father poses a risk at all (certainly not unacceptable) to X of sexual harm. In making this finding, the court formed the view that there is not likely to be a future incident of sexually motivated behaviour of the father.

The court ordered that these proceedings be adjourned for Interim Hearing at 9.30am on 30 March 2022. Each party shall have leave to file one affidavit by 23 March 2022 of any further evidence of relevance since the proceedings were "re-opened" in a limited way in August 2021, with such affidavit to also contain a minute of interim orders they seek for the next six months.

Orders