ANGELIS & REGOLI

[2020] FCCA 3138

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANGELIS & REGOLI [2020] FCCA 3138

Catchwords:
FAMILY LAW – Application for care arrangements for child aged 5 – mother alleges father has abused the child – mother unilaterally relocated with the child upon separation – best interests of the child – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 67Z

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

N & S and the Separate Representative (1996) FLC 92-655

W & W (abuse allegations: unacceptable risk) [2005] FamCA 892

Applicant: MR ANGELIS

Respondent: MS REGOLI

File Number: ADC 5352 of 2019

Judgment of: Judge Brown

Hearing date: 4 November 2020

Date of Last Submission: 4 November 2020

Delivered at: Adelaide

Delivered on: 18 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Miller

Solicitors for the Applicant: Belperio Clark

Counsel for the Respondent: Mr Praolini

Solicitors for the Respondent: Adelaide Family Law

Counsel for the Independent Children's Lawyer: Mr Hemsley

Solicitors for the Independent Children's Lawyer: Legal Services Commission of South Australia

ORDERS

1. The child X born in 2015 (‘the child’) spend time with the father from 9.30am until 2.00pm each Sunday commencing 22 November 2020.

2. In order to give effect to order one hereof the child is to be exchanged between the parties at the Suburb B Children’s Contact Centre and subject to the supervision of its director or her nominee.

3. The mother is restrained and an injunction is hereby granted restraining her from moving the child’s place of residence from the Adelaide metropolitan area.

4. Further consideration of the matter is adjourned to 8 February 2021 at 9.30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5352 of 2019

MR ANGELIS

Applicant

And

MS REGOLI

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Angelis and Ms Regoli are the parents of X born in 2015.  They fundamentally disagree on arrangements for X’s care. 

2. Due to the intractability and complexity of their disagreement, it has been ordered that X be independently represented.  X’s representative is Ashley Kent, an experienced Adelaide family lawyer.

3. The dispute arises at an interim stage.  As yet there has not been time for a family report to be compiled.  In addition, the case is still some way away from being fixed for final hearing. 

4. However, a significant number of documents have been provided to the court by SAPOL and the Department for Child Protection (“DCP”) pursuant to the provisions of section 69ZW of the Family Law Act 1975.

5. The court has sought the production of those documents because each of the parties has asserted that the other poses a significant risk to X’s physical and psychological health and well-being.

6. Due to these protective concerns relating to X, DCP have been invited to intervene in the case.  This invitation has been declined.  However, DCP have indicated receiving a number of notifications relating to X’s safety between 2015 & 2018.

7. In a letter dated 21 May 2020 a supervisor in the City C Office of DCP wrote as follows:

   “The department can advise that at this point in time there is no current open case for X who is subject of these proceedings.  Departmental records indicate that investigations into concerns of the mother having mental health issues occurred in February and May 2015 and November 2018.  These concerns were not substantiated.  The reported concerns that were investigated were primarily related to Ms Regoli’s mental health, Ms Regoli exhibiting volatile behaviour, distorted perceptions of X and domestic violence.

   The department notes that no sexual abuse allegations have been investigated by the department.  Sexual abuse allegations reported in February 2020, which were alleged to have occurred in 2017 and 2018 were not reported to the department at this time or throughout the investigations conducted in 2015 and 2018.”

8. It is common ground between the parties that the father has recently completed a course of professionally supervised time, with X at the City C Children’s Contact Centre (“CCC”).  The last visit occurred on 30 August 2020.

9. At the time of these visits, the mother was living in Town D, whilst the father lived at Suburb E in suburban Adelaide, which was where the parties had lived during the relationship. 

10. The circumstances of Ms Regoli moving with X to Town D were controversial – it being the father’s position that she had gone there to make it difficult for him to maintain his relationship with X.

11. In June of 2020, the mother indicated to the father that she and X would be returning to live in Adelaide, when Ms Regoli’s lease on her rental property in Town D expired in October of 2020. 

12. In these circumstances, she indicated that X had been enrolled to commence her primary education at the F School from the commencement of Term 1 in 2021.

13. At this stage, the interim issue for the court is what should be the extent of time Mr Regoli spends with X and where she should be exchanged between the parties. 

14. The father seeks that he should spend time with her on each Friday and Sunday between the hours of 4.30pm and 7.00pm with X to be exchanged between the parties at the Suburb B CCC.

15. The mother proposes that any time the child spends with her father be subject to some form of professional supervision – either at a CCC or by an individual paid supervisor.  She would want any such visits to be limited to one per month at most.

16. In addition, it is no longer the mother’s position that X should attend F School, a school which was otherwise acceptable to the father, as it is relatively close to his home at Suburb E.

17. Initially, the mother declined to indicate at which school she had enrolled X.  Her rationale for doing so being that she was fearful of the father because she considered he was likely to stalk her.  In this context, she also declined to provide her current residential address.

18. I did not require Ms Regoli to provide her residential address.  However, I considered that I needed to know the school to which she proposed to send X in order to be able to adjudicate the controversy arising between her and Mr Regoli.  When pushed, she indicated that it was G School in Suburb H, which was attractive to her because it offered J School educational practices.

19. The independent children’s lawyer is to be regarded as a party in the proceedings of equal importance to the parents.  Mr Kent has briefed Mr Hemsley, a barrister to appear on his behalf at the recent interim hearing.

20. Pursuant to the provisions of section 68LA of the Family Law Act, Mr Kent and Mr Hemsley are required to examine all the evidence available to them and then advocate the outcome which they consider will best advance X’s interests.

21. It is Mr Hemsley’s assessment, based on the report provided by the City C CCC, that X has re-kindled an interrupted relationship with her father and is reasonably comfortable in his company.  In these circumstances, he promotes the child spending brief periods of unsupervised time with her father.

22. The time proposed is between 9.30am and 2.00pm on each Sunday.  Given the tensions between the parties, he would promote the child being exchanged between them at the Suburb B CCC.

Background

1. The father is forty-five years of age; the mother is forty-six.  They married in 2013 and separated in November 2016.  X has lived primarily, with her mother, since separation. 

2. It is the father’s case that he has found it extremely difficult to maintain a relationship with X because the mother has made unfounded allegations of misconduct against him and has moved, on several occasions, to thwart his relationship with her, including most recently to Town D but also to Town K.

3. Pursuant to section 67Z of the Family Law Act 1975, the parties are each required to file a formal notice, with their respective application to the court, in which they set out all allegations of child abuse and family violence, which potentially arise in respect of X.  

4. Mr Regoli’s Notice of Risk[1] reads as follows:

   “The mother continuously uproots the child’s life and changes residence across different states.  The mother has deprived the child of a stable living environment.

   The mother has unilaterally retained the child.  The child has not spent any time with her father since May 2019.”

   [1]  Filed on 9 December 2019

5. In her Notice of Risk[2] the mother alleged as follows:

   ·The father had sexually assaulted X on 5-6 separate occasions by inserting his finger in her vagina and bottom;

   ·In August 2018, the child had disclosed to the mother that the father had licked her vagina like an ice-cream;

   ·The father had physically assaulted the mother on numerous occasions;

   ·The father uses methamphetamines;

   ·The father suffers from mental health issues;

   ·The father lacked sufficient parenting skills to properly parent X.

   [2]  Filed on 10 May 2020

6. The father denies these allegations, which he would characterise as florid and unbelievable in nature.  It is his position that these allegations, of themselves, indicate that it is the mother who suffers from mental ill-health rather than him.

7. It is his position that her compromised psychiatric health represents a threat to X’s welfare because she has and will continue to subject the child to unwarranted medical examination or police inquiry because of her persistent allegations that he has subjected X to abuse, and will further be incapable of supporting the child to have a proper level of relationship with him. 

8. In support of his position, the father relies on voice recordings, which he has obtained, of conversations between X and her mother, in which he asserts clearly indicate that the mother has primed the child to make complaints of inappropriate behaviour against him. 

9. Accordingly, this is a case of extreme complexity.  On the one hand, the evidence indicates that X is a child of tender years, who has lived the majority of her life in the primary care of her mother and spent limited time, with her father. 

10. On the other hand, if the father’s allegations are substantiated, the mother’s conduct has the potential to be extremely psychologically detrimental for X, given its potential to extinguish the possibility of X having any meaningful level of relationship with her father.

The proceedings to date

1. The father commenced proceedings in late 2019 seeking orders in respect of both parenting and the settlement of property.  At this stage, he sought to spend time with X.

2. The father amended his application in early February 2020, following his discovery of what he considered the incriminating voice messages between X and her mother on a discarded mobile device.  At this stage, he sought orders that the child should live with him.  He did not know where the mother and child were living.

3. The mother responded in mid-February of 2020 raising allegations of sexual abuse and systemic family violence.  This was the reason for the appointment of an independent children’s lawyer.  She opposed the father spending any time with X.

4. At this stage, it was her position that X had spent extremely limited periods of time with her father and largely subject to her supervision.  She deposed that she was then living in comfortable rental accommodation outside of Adelaide but was unwilling to provide the location due to her fear of the father.  She asserted that Mr Regoli had made a number of false allegations about her to DCP.

5. On 7 May 2020, DCP were invited to intervene in the proceedings given the competing allegations that X was being or had been subject to abuse.  This invitation was declined on 21 May 2020.

6. On 22 April 2020, Mr Regoli filed a lengthy affidavit to which was attached material produced by SAPOL and DCP.  This included DCP notes, between 2015 and 2020, in which the mother was described as paranoid, obsessive and strange, and displaying significant mental health issues.

7. On 19 May 2020, Mr Regoli filed an application the effect of which was to compel the mother to return X’s place of residence to the Suburb E area.  He deposed that he had previously believed that she was living in the Suburb L area but had reason to believe she was living in Town D.  This fact was later confirmed.

8. On 22 May 2020, Ms Regoli filed a lengthy affidavit in which she alleged X had made a disclosure of having been assaulted by her father to police who had spoken to her at her preschool.  She also provided a statutory declaration dated 13 July 2019, which she had provided to SAPOL outlining allegations of serious family violence against her by the father. 

9. She also provided evidence of what she characterised as a basic family violence order, in her favour, dated September of 2014, which prevented the father from assaulting, threatening, harassing or intimidating her.  Her statutory declaration had been provided in support of an application for sole occupation of the former family home in Suburb E.

10. It is the effect of the father’s evidence that the police took no action in respect of the mother’s allegations.  In mid-2019 he had been working interstate.  At this stage, X and the mother had been occupying the former family home at Suburb E. 

11. When he returned he discovered they had vacated the property but the mother did not inform him of where they had gone.  He discovered what he says was the incriminating recorded conversation between the mother and X, when he resumed living in the home.

12. On 11 May 2020, orders were made for the mother to undergo a forensic psychiatric assessment and for the parties to enrol at a CCC in suburban Adelaide, whilst also investigating the possibility of utilising some other professional supervisor, namely Mr M.

13. The matter returned to court on 23 June 2020, at which stage the mother’s psychiatric examination was not to hand and the parties themselves were unable to agree on utilising Mr M.  They did agree that Ms Regoli would return to Adelaide by 30 October and would be bound by an injunction requiring her to live within 30 kilometres of Suburb F.

14. This was the context in which the mother indicated that X was enrolled at F Primary.  In addition, it was ordered that Mr Regoli would begin to spend supervised time with X at a CCC.  Ultimately, due to where she was living and issues to do with the expense of travel, it was agreed that the CCC should be the one at City C.

15. On 7 August 2020, the parties were able to reach an agreement in respect of the division of marital property.  The major element of this agreement was that Mr Regoli would retain the Suburb E property and pay Ms Regoli $180,000.00.  A superannuation split was also made in the mother’s favour.  The division favoured the father due to the implications of an inheritance received by him post separation.

16. On 9 October 2020, the Independent Children’s Lawyer filed a report from the City C CCC.  Ms Regoli claimed that she had been harassed by the father outside the CCC.  The report also noted some friction between the mother and CCC staff.

17. Against this difficult background the first two scheduled visits did not occur at the mother’s request.  X was reported to interact with her father, at the first supervised visit, somewhat stiffly but allowed her father to pick her up and hug her at its conclusion.  The next session occurred in a similar manner until the father produced a troll doll with which X was familiar.  He also showed the child some photos of family members and gave her some gifts.

18. At the third session, X was described as initially hesitant but five minutes into the session was conversing as age expected, giggling and having conversations with Mr Angelis.  Father and child then played together and cuddled each other at the conclusion of the visit.  The fourth and fifth session also went well other than that X used her magic wand to turn her father into a frog.  Ms Regoli cancelled the final session because she had an unspecified prior commitment.

19. In conclusion, the report supervisor observed the father and X to be attuned with one another and to have a clearly established and comfortable connection.  Of their involvement with the mother, the Service reported finding her unpredictable, questioning of service parameters, frequently challenging of staff and obstructive to the process.  She was further described as being openly disparaging of the father.

20. On 20 October 2020, the report of the forensic psychiatric examination of Ms Regoli was released.  It was prepared by Dr N, who provided the following diagnosis of the mother:

    “There is no clear evidence in my opinion of any particular mental illness diagnosis in Ms Regoli. It seems most likely to me that the behaviour that has caused some people to question her mental health is related simply to her rather emotional and somewhat volatile personality style although I doubt that there would be sufficient criteria for the formal diagnosis of any particular personality disorder.”

Legal principles applicable

1. These proceedings arise at an interim stage.  Interim hearing occur in a truncated form relying on the court’s examination of affidavits.  As such, controversies arising in the affidavit material cannot be resolved as the restricted nature of the hearing available precludes cross-examination and findings of credit. 

2. In addition, at this interim stage there is limited expert evidence as to the nature of the relationship X has with each of her parents, other than the impressions provided by the City C CCC.  As the case proceeds further, it is highly likely that an independent family report will be commissioned.

3. Although the nature of an interim hearing is different in its scope to that provided by a final hearing, the same legal principles apply. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see section 60CA].

4. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

5. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

6. There are two primary considerations, which are as follows:

   “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.”

7. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

8. The mother’s position is that there is evidence available to indicate X has been exposed to family violence in the past and has been subject to abuse from her father.  These are extremely serious allegations. They are strenuously denied by the father, who in turn asserts that X is at risk of losing a very significant relationship with him because of the mother’s antipathy for him and propensity to make outlandish claims of abuse.

9. These competing allegations cannot be resolved in the context of these truncated proceedings, which do not permit cross-examination of the parties concerned and the making of findings. 

10. In addition, given the nature of the allegations against Mr Regoli, the lack of corroborative evidence and the tender age of X, which precludes her from being exhaustively questioned, it may well be impossible to ever determine definitively whether she has or has not been subjected to sexual abuse.

1. Accordingly, the case centres on the assessment of risk.  In making this assessment of risk, the court is required to assess the degree of possibility that a harmful event will occur in future and what will be its level of severity, to any individual, particularly any child, who will be potentially affected by it.[3]

   [3]  See Deiter & Deiter [2011] FamCAFC 82

2. Essentially, the court is required to assess the risk arising for any child, on the material currently before it, and cannot defer that assessment, until a later stage, on account of deficiencies in the evidence available.

3. Rather, the court must, as best it can, assess the nature and quality of the risk arising and put in place a response, which it considers to be proportionate to the degree of risk so assessed. 

4. Given the limited nature of evidence available at the interim stage, which has not been tested through cross-examination, this is often an extremely difficult task.  However, it cannot be deferred.

5. Obviously, in carrying out such an assessment, the best interests of the child concerned remain paramount.  The court must look at the evidence and consider what is the likelihood of some deleterious outcome occurring – with or without precautions. 

6. For obvious reasons, highly conflicted parenting relationships provide fertile ground for allegations of abuse to arise, which cannot be easily neutralised by the parties concerned discussing them openly and candidly. 

7. There must always be a possibility that a parent, either acting in good faith or as a result of a misperception of information, erroneously believes that a child has been subject to abuse.  In addition, it is not unknown for a parent to deliberately fabricate allegations in order to gain an advantage in proceedings.  Ambiguous events can have an innocent explanation.[4]

   [4]  See N & S and the Separate Representative (1996) FLC 92-655

8. The court is required, in assessing risk, to subject the various allegations concerned to some level of scrutiny, bearing in mind the consequences of making a wrong assessment which may, on the one hand, compromise the child’s level of relationship, with her father, for a significant period of time or on the other hand, expose her to a risk of coming to harm, in either a physical or emotional sense.

9. The court should not countenance an outcome which presents an unacceptable level of risk that a child or children will come to harm.  In making this assessment, the court is not required to determine definitively whether a person actually harmed a child – this may be impossible, particularly if the abusive incident occurred in the absence of witnesses and the child concerned is of tender years and so unable to provide a clear narrative of what happened.

10. Nor should the court attempt to completely neutralise a nebulous degree of risk.  This may be unrealistic, particularly if its consequence is that a child is deprived of spending time and maintaining a proper degree of relationship with a person who is significant to him or her.  The test is a balancing one, which must be exercised carefully and judicially.

11. In W & W (abuse allegations: unacceptable risk) the Full Court summarised a number of authorities dealing with abuse allegations  and provided guidelines to the assessment of unacceptable risk, which can be summarised as follows:

    ·The unacceptable risk test requires the court to give real and substantial consideration to the facts of the case concerned in determining whether there is or is not an unacceptable risk of harm befalling a child;

    ·In so doing, the sorts of questions, which the court should pose for itself, in respect of the allegations concerned, include the following:

    oWhat is the nature of the events alleged to have taken place?

    oWho has made the allegations?

    oTo whom have the allegations been made?

    oWhat level of detail do they involve?

    oOver what period of time are the events alleged to have occurred?

    oWhat are the effects exhibited by the child?

    oWhat is the basis of the allegations?

    oAre the allegations reasonably based?

    oAre the allegations genuinely believed by the person making them?

    oWhat expert evidence has been provided?

    oAre there satisfactory explanations for the allegations apart from abuse?

    oWhat are the likely future effects on the child concerned?

    ·The weight to be attached to the answers arising from these questions will vary from case to case.

12. The objects and principles which underline Part VII of the Act, which deal with the making of orders in respect of children, emphasise the fact that parents share duties and responsibilities for their children, who in turn have an entitlement to have their parents actively involved in caring for them, provided that such care is commensurate with their safety. 

13. As a consequence of these objectives, there is a presumption that parents should be conferred with equal shared parental responsibility for their children [section 61DA].

14. However, this presumption is rebutted if there are reasonable grounds for believing that a child has been subject to either abuse or family violence or it would not be reasonable for it to be applied at the interim stage. 

15. Given the polarised positions of the parties, which each involve allegations of parental misconduct, in my view, it would clearly be inappropriate for the presumption to be applied in this particular case.

16. Rather, against the background of conflicted evidence, the court must do its best to fashion the outcome, which it believes will best serve X’s best interests, until further evidence is to hand.

Discussion

1. On the basis of the City C CCC report it is apparent to me that X has a significant level of relationship with her father.  That is not to say the time went without incident.  However, the reports indicate that she warmed to her father as the time progressed notwithstanding the mother being apparently resistant to the process involved.

2. Having considered all of the material currently available to me, which I appreciate is untested and possibly incomplete, I do not consider that for X to spend time, with her father, in an unsupervised setting, would represent an unacceptable risk to her safety.  Apart from the mother’s allegations, there is no cogent evidence to support a finding that the child has been subject to abuse.

3. In my view, the risk of X losing a potentially extremely valuable relationship is a much more extreme risk in the present case.  This risk is heightened given the imprecise allegations made and the suggestion that X herself may have been subject to some form of emotional pressure.

4. One of the more significant risks to X’s long term emotional integrity is the deep mistrust and antipathy between her parents.  In the short to medium term this must mean that the child should be exchanged between her parents in a secure setting in which each will have immediate recourse to independent verification and support.

5. In addition, given the overall volatility of the situation, the time involved should be comparatively brief.  In these circumstances, I will follow the proposals advanced by the independent children’s lawyer so far as time is concerned.

6. The mother, with extreme reluctance, has divulged where she wishes X to go to school for the commencement of her primary education.  What is the attitude of Mr Regoli to this school is not entirely clear to me.  In due course, school is likely to provide an appropriate location for handover.

7. Ms Regoli needs to be aware that she cannot unilaterally change X’s place of residence.  An injunction will be made restraining her from moving the child’s place of residence from the Adelaide metropolitan area.

8. Regrettably, there remains many unresolved issues in the present case, which include the following:

   ·Arrangements for Christmas and special occasions;

   ·School arrangements;

   ·Handovers;

   ·Exchange of parenting information.

9. In these circumstances, although it is highly unsatisfactory as a consequence of the mother’s recalcitrance relating to the issue of X’s schooling, if the father does not agree to what the mother has arranged in this regard, it will be necessary for him to bring an application in which he sets out any orders which he seeks in respect of these outstanding issues.

10. His application will then be listed with the degree of urgency requested by him as assessed by the relevant registrar of the court.  Such a listing will also be influenced by the views of the independent children’s lawyer.  At this stage, it would appear more probable than not that the case has still some way to go.

11. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 18 November 2020