FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allan & Sacco (No 2) [2024] FedCFamC1F 15
File number(s): BRC 15354 of 2020 Judgment of: BAUMANN J Date of judgment: 30 January 2024 Catchwords: FAMILY LAW – PARENTING – Where the Court relies on its earlier finding that the father does not pose a risk of unacceptable harm of sexual abuse to the child – Where the mother continued to contend for an order that the child spend no time and have no communication with the father – Final orders made in the best interests of the child for the child to recommence spending time with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Cases cited: Allan & Sacco [2022] FedCFamC1F 120
Keane & Keane (2021) 62 Fam LR 190
Russell & Close [1993] FamCA 62
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 88 Date of hearing: 17–19 August and 31 August 2022 Place: Brisbane Counsel for the Applicant: Mr C Bolovan Solicitor for the Applicant: KA Criminal Law Pty Ltd Counsel for the Respondent: Mr J Bunning Solicitor for the Respondent: Page Provan Counsel for the Independent Children’s Lawyer: Mr A Hartnett Solicitor for the Independent Children’s Lawyer: Seth Solicitors 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:
30 JANUARY 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting orders are discharged.
Parental responsibility
2.That the parents shall have equal shared parental responsibility concerning the major long-term decisions of the child, X born 2014 (“the child”) including but not limited to the child’s:
(a)education (both current and future);
(b)religious and cultural upbringing;
(c)health (including major medical procedures); and
(d)living arrangements, in terms of any changes that would make it significantly more difficult for the child to spend time with the other parent.
3.That the parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility in relation to long term issues jointly, as follows:
(a)The parent proposing a decision shall inform the other parent in writing of their proposal (inclusive of the timeframe as to when such decision needs to be made);
(b)The responding parent shall reply within seven (7) working days of the written request indicating their consent or contest or counter-proposal (inclusive of their reasons);
(c)In the event the responding parent does not reply in writing in the requisite time, the parent seeking a decision shall proceed to make the decision in the best interests of the child;
(d)In the event the responding parent does reply in writing and does not agree with the proposal, the parents shall consult with each other and make a genuine effort to come to a joint decision or terms of agreement; and
(e)In the event the parents are unable to reach…
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- AGLC
- Allan & Sacco (No 2) [2024] FedCFamC1F 15
- Case
- [2024] FedCFamC1F 15
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the father posed a risk of unacceptable harm to the child, particularly in relation to sexual abuse, and whether it was in the child's best interests to have a meaningful relationship with both parents. The court considered the evidence and expert opinions, ultimately reaffirming its earlier finding that the father did not pose an unacceptable risk of harm to the child. The court also examined the mother's attempts to portray the father as a risk due to his persistence in seeking equal time with the child, but found these attempts unconvincing.
The court concluded that X would benefit from having a meaningful relationship with both her mother and father. It was satisfied that the father was not a risk of psychological harm to the child and that there was no evidence to support the mother's belief that the father was a risk of sexual abuse. The court also acknowledged the father's change of position regarding the time he sought with the child, influenced by the expert evidence and the mother's reaction in court.
The final orders made by the court included provisions for equal shared parental responsibility, specific guidelines for decision-making and consultation between the parents, living arrangements for the child with the mother, and detailed arrangements for the child to spend time with the father in a phased and supervised manner. The court also made orders for communication between the parents and the child, special days, and restraints to protect the child from exposure to family conflict and violence. The orders reflect the court's determination to ensure that the child's best interests are prioritised in her relationship with both parents.
Orders
Orders of the court
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:
30 JANUARY 2024
THE COURT ORDERS ON A FINAL BASIS:
1. That all previous parenting orders are discharged.
Parental responsibility
2. That the parents shall have equal shared parental responsibility concerning the major long-term decisions of the child, X born 2014 (“the child”) including but not limited to the child’s:
(a) education (both current and future);
(b) religious and cultural upbringing;
(c) health (including major medical procedures); and
(d) living arrangements, in terms of any changes that would make it significantly more difficult for the child to spend time with the other parent.
3. That the parents shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility in relation to long term issues jointly, as follows:
(a) The parent proposing a decision shall inform the other parent in writing of their proposal (inclusive of the timeframe as to when such decision needs to be made);
(b) The responding parent shall reply within seven (7) working days of the written request indicating their consent or contest or counter-proposal (inclusive of their reasons);
(c) In the event the responding parent does not reply in writing in the requisite time, the parent seeking a decision shall proceed to make the decision in the best interests of the child;
(d) In the event the responding parent does reply in writing and does not agree with the proposal, the parents shall consult with each other and make a genuine effort to come to a joint decision or terms of agreement; and
(e) In the event the parents are unable to reach a mutual agreement, the parents shall attend upon a Family Dispute Resolution Practitioner or P Organisation (whichever service is expedient) in accordance with these Orders.
4. That the parents are not required to consult the other when making decisions while the child is in their care under this Order about issues that are not major long-term issues, namely:
(a) the mother shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with or spending time with her; and
(b) the father shall be responsible for the day-to-day care, welfare and development of the child at all times when the child is living with or spending time with him.
Living arrangements
5. That the child shall live with the mother.
6. That the child shall spend time with the father as agreed between the parents in writing and failing agreement as follows in the stages identified:
Reconnection – stage one (1)
(a) Within seven (7) days of the date of this Order, the parents shall jointly engage Ms Q to facilitate the child beginning contact with the father and his family, including R, Y and Z, in accordance with the recommendations of Ms Q and consistent with paragraph 169 of the family report;
(b) The costs of Ms Q for all sessions shall be shared equally by the parents;
(c) The sessions to be undertaken are to occur, unless otherwise agreed between the parents and Ms Q, over a period of no longer than eight (8) weeks;
(d) During the same period that these reconnection sessions are taking place, the parents shall engage, at their joint and equal expense, Dr S to maintain the necessary therapeutic support of X, and make the child available for such sessions.
Reconnection – stage two (2)
(e) After completion of stage one (1) above, but at least by 28 March 2024 (the last day of term one (1) Queensland school term) the child shall spend time with the father:
(i) for weekly periods of six (6) hours each Saturday, commencing Saturday 30 March 2024 between 10.00am and 4.00pm for two (2) visits; then
(ii) each alternate weekend commencing Saturday 13 April 2024 between 9.00am and 5.00pm on Saturday and the following Sunday of that weekend, for two (2) alternate weekends; then
(iii) each alternate weekend commencing Saturday 11 May 2024 between 9.00am Saturday and 5.00pm Sunday until the end of the Queensland school term two (2); then
(iv) during the end of term two (2) holidays (June) from:
A. 9.00am Saturday 22 June until 5.00pm Monday 24 June; and
B. 9.00am Wednesday 3 July to 9.00am Saturday 6 July.
(v) after the commencement of the Queensland school term three (3), each alternate weekend commencing Friday 19 July 2024 from after school Friday to before school Monday, extended to before school Tuesday if Monday is a public holiday, for the entire term three (3) period.
Spending time – stage three (3)
(f) From the commencement of Queensland school term four (4), the child shall spend time with the father each alternate weekend from after school Friday to before school Tuesday commencing Friday 4 October 2024.
Spending time – school holidays
(g) The child shall spend time with the father during school holiday periods:
(i) for the period set out in Order 6(e)(iv) for the June 2024 school holidays;
(ii) for the September 2024 school holidays, from 9.00am Saturday 14 September 2024 to 12 noon Saturday 21 September 2024;
(iii) for the 2024 end of term four (4) school holidays (Christmas holidays), on a week about basis, with changeovers at 12 noon on a Saturday, with the child to spend time with the father commencing Saturday 21 December 2024 (including the 2024 Christmas Eve and Christmas Day period) but with the period ceasing for this year at 9.00am 26 December 2024 (Boxing Day) and the child’s holiday period with the father recommencing at 12 noon 4 January 2025;
(iv) thereafter for the Queensland gazetted school holiday periods commencing school year 2025, the child will spend time with the father:
A. in the second half in odd numbered years, with the child to return to the mother by 5.00pm on the Thursday before resumption of school and the alternate weekend school term periods beginning on the second weekend of the new school term; and
B. for the first half in even numbered years and the alternate weekend school term periods beginning on the first weekend of the new school term.
Telephone time
7. That the child shall communicate with the parents as follows:
(a) When the child is in the care of the mother, the child shall communicate by telephone with the father, unless otherwise agreed in writing, each Wednesday between 6.00pm and 6.30pm, initiated by the father to a number nominated by the mother;
(b) When the child is in the care father of the father for a period longer than one (1) night, then the child shall communicate by telephone with the mother during that period on one (1) occasion as agreed between 6.00pm and 6.30pm, initiated by the mother to a number nominated by the father;
(c) The parents shall facilitate the child initiating a call to the other parent whenever the child makes a reasonable request to do so; and
(d) All telephone calls shall be in private and unrecorded.
Changeover
8. That for the purposes of changeover that do not occur at school, they shall occur at a location agreed by the parents, failing which it will occur at McDonalds T Street, Suburb U.
Communication and exchange of information
9. That all communication between the parents shall be in writing via the “Talking Parents” application unless in the case of an emergency.
10. That for the purposes of Order 9, within three (3) days of the date of this Order, the parents shall:
(a) register with the Talking Parent’s application at their own costs;
(b) notify the other parent by text of their enrolment details for communication purposes; and
(c) communicate from that point onwards via the Talking Parent’s application unless in case of an emergency.
11. That in the case of an emergency, the resident parent shall notify the non-resident parent of the emergency in a text message and the location of the child (if the child is not at the resident parent’s home).
12. That both parents shall keep each other informed of their residential address and contact telephone number (mobile telephone) and shall advise the other parent within forty‑eight (48) hours of any change in the contact details.
Special days
13. That notwithstanding any other order herein, unless otherwise agreed between the parents and subject to Order 6, on special days the child shall spend time with the mother and father as follows:
(a) On Father’s Day with the father from 9.00am to 5.00pm each year; and
(b) On Mother’s Day with the mother from 9.00am to 5.00pm.
(c) On the child’s birthday:
(i) with the father in even numbered years from 9.00am to 6.00pm on a non-school day and if it is a school day, from the conclusion of school until 6.00pm;
(ii) with the mother in odd numbered years from 9.00am to 6.00pm on a non-school day and if it is a school day, from the conclusion of school until 6.00pm;
(iii) For Christmas, from Christmas 2025:
A. in even numbered years with the father from 12.00pm Christmas Eve until 12.00pm Christmas Day, and with the mother from 12.00pm Christmas Day until 12.00pm Boxing Day; and
B. in odd numbered years with the mother from 12.00pm Christmas Eve until l2.00pm Christmas Day, and with the father from 12.00pm Christmas Day until 12.00pm Boxing Day.
Specific issues
14. That pursuant to s 121 of the Family Law Act 1975 (Cth):
(a) the Independent Children’s Lawyer be granted leave to provide to Dr S and Ms Q a copy of the Reasons for Judgment delivered 30 January 2024;
(b) the mother be granted leave to provide to her counsellor or other healthcare professional providing her support a copy of the:
(i) Reasons for Judgment delivered 30 January 2024;
(ii) family report prepared by Ms Q dated 8 June 2022; and
(iii) report prepared by Dr S dated 14 April 2022.
(c) The father be granted leave to provide to any counsellor he attends for personal therapeutic support a copy of the:
(i) Reasons for Judgment delivered 30 January 2024;
(ii) family report prepared by Ms Q dated 8 June 2022; and
(iii) report prepared by Dr S dated 14 April 2022.
15. That within fourteen (14) days of the date of this Order, the father and the mother shall enrol in a Post Separation Parenting Program.
16. That upon completion of Post Separation Parenting Program, each parent shall inform the other in writing attaching their respective exit letters or certificates.
17. That the father shall use his best endeavours to divert all communication with respect to why the child did not see him and his family, to Dr S should Dr S be engaged as the child’s therapeutic practitioner.
Restraints
18. That during the time the child is with either parent, the parent shall:
(a) respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c) not denigrate the other parent in the presence/hearing of the child and use their best endeavours to ensure that others do not denigrate the other parent in the hearing/presence of the child;
(d) not attempt to discuss any issues in dispute between the parents with the child, or within hearing distance of the child, nor allow a third party to do so; and
(e) not expose the child to family violence or adult conflict.
Schooling authorities
19. That both parents shall be at liberty to attend parent teacher interviews and all other activities which parents would ordinarily attend at the school.
20. That this Order operates as an authority for any professional care provider of the child (whether a school, doctor, hospital or otherwise) to release any information concerning the care, welfare and development of the child to both parents.
21. That should either parent seek any documentation in relation to the child (including but not limited to school notices, school reports, and school photograph order forms), that parent shall be responsible for the costs associated with production of such documentation.
Other orders
22. That the Independent Children’s Lawyer be discharged after the expiration of the Appeal period, or if an Appeal is filed, the conclusion and determination of any Appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I will now undertake, as required, an examination of the evidence and make further findings within the matrix of the relevant s 60CC(2) and s 60CC(3) considerations.PRIMARY CONSIDERATIONS I find that X will benefit from having a meaningful relationship with both her mother and father – consistent with the evidence of both Dr S and Ms Q. I am aware that s 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subject to, or exposed to abuse, neglect or family violence – must be given weight in the consideration set out in s 60CC(2)(a). Whilst the mother maintains her belief that X was not only sexually abused by the father, but that he continues to be a risk to her of sexual abuse, I continue to disagree. I appreciate the mother wished to “appeal” my finding of no unacceptable risk, but could not legally do so. It was my hope that more time and the further evidence from a full trial (as she felt she needed) might have caused the mother to intellectually challenge her belief. That has not occurred. To the extent that Ms Q, for reasons unclear, gave the child a further opportunity to confirm that the father had been inappropriate with her, X’s answers to Ms Q did not support abuse occurring. Frankly, there is nothing more the Court can say on that issue – save to repeat its earlier finding that the father is not an unacceptable risk. The mother’s attempts to paint the father now as a risk of harming X (or the mother), by what she feels are his consistent attempts to intimidate her or coerce her into agreeing to a re‑introduction of time and then regular unsupervised overnight time – which the mother has no current capacity to support – have also failed to persuade me. I accept that for most of the period post separation (and even when the Orders in September 2018 provided for significant time of five nights a fortnight began operating in September 2019), the father was pressing for equal time – and I find the more he pressed, the more the mother’s anxiousness and rejection of such a proposal, created further tensions. The mother saw the father’s actions as intimidation; the father saw his actions as his right to offer the child equal time which he genuinely feels is in her best interests. I am not satisfied on the evidence that the father is a risk to the child of psychological harm. I draw some comfort in noting that although the father had initially sought a change of residence and a moratorium, he did not press for either by final submissions. I give the father some credit for changing his position – after hearing the evidence of Dr S and Ms Q – and perhaps witnessing the mother’s emotional reaction in Court also had an effect. To the extent the father believes/feels the mother has a mental health issue (the mother says he believes she is crazy), I can understand why he sees that as an answer to the mother’s entrenched opposition to the child having a relationship with him. The expert evidence, including from Dr V, does not support such a finding. I do not make such a finding.