Bilyk & Bilyk (No 2)
[2022] FedCFamC1F 1004
Federal Circuit and Family Court of Australia
(DIVISION 1)
Bilyk & Bilyk (No 2) [2022] FedCFamC1F 1004
File number(s): ADC 2479 of 2022 Judgment of: AUSTIN J Date of judgment: 14 November 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the father seeks review of an interim order made by a senior judicial registrar declaring the children shall have no interaction with him – Unacceptable risk – Where the mother alleges the father has sexually abused the elder child and poses a serious risk of harm to the children – Where the father denies any sexual impropriety as alleged by the mother – Where there is a material question about the extent to which the child’s disclosures to the mother have been inadvertently extracted by leading questions and veiled suggestions – Where at an interim stage it is impossible to make definitive findings about the serious allegations of child abuse – Where the law requires a cautious approach be adopted – Order of the senior judicial registrar discharged – Orders made – Children spend supervised time with the father each Sunday and communicate with him by telephone once per week. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B, 65AA, 65D, 65DAA, 69ZL, 69ZW Cases cited: B & B (1993) FLC 92-357
Banks & Banks (2015) FLC 93-637
Champness & Hanson (2009) FLC 93-407
Goode & Goode (2006) FLC 93-286
Moose v Moose (2008) FLC 93-375
N & S & Separate Representative (1996) FLC 92-655
Phillips & Hansford (2019) FLC 93-917
Slater v Light (2013) 48 Fam LR 573
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 14 November 2022 Place: Newcastle (via video link) Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Adelta Legal Counsel for the Respondent: Ms Pangallo Solicitor for the Respondent: CG Family Law Counsel for the Independent Children's Lawyer: Ms Praolini Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 2479 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BILYK
Applicant
AND: MS BILYK
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
14 NOVEMBER 2022
THE COURT ORDERS THAT:
1.Order 3 made by the senior judicial registrar on 23 September 2022 is set aside.
2.Subject to compliance with Order 3 hereof, the parties shall take all reasonable steps to ensure the children spend time with the father:
(a)under the supervision of the paternal grandmother;
(b)each Sunday from 9.00 am until 4.00 pm; and
(c)for which purpose the parties shall cause the children to be exchanged outside the City B Police Station, South Australia.
3.The father shall file and serve an undertaking signed by the paternal grandmother in the following terms:
I am willing and able to supervise the time spent by the children with the father under the orders of the Federal Circuit and Family Court of Australia (Division 1).
I fully understand the duties and responsibilities of a supervisor. I am prepared to and shall act accordingly.
I understand that any breach of my undertaking may be regarded as contempt of the Court, which could render me liable to prosecution and punishment.
4.The parties shall take all reasonable steps to ensure the children communicate privately by telephone with the father each Wednesday at 6.30 pm and for that purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure the children are available to receive the father’s calls on that number at that time.
5.Otherwise:
(a)the application for interim relief contained within the Initiating Application filed on 9 June 2022 is dismissed;
(b)the application for interim relief contained within the Response filed on 10 August 2022 is dismissed;
(c)the Application for Review filed on 7 October 2022 is dismissed;
(d)the application for interim orders contained within Exhibit F1 is dismissed;
(e)the application for interim orders within the Independent Children’s Lawyer’s Case Outline filed on 15 September 2022 is dismissed; and
(f)any and all other applications for interim procedural and substantive relief under Pt VII of the Family Law Act 1975 (Cth) are dismissed.
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) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
This is a review of orders made by a senior judicial registrar (“the registrar”) in respect of the parties’ children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 23 September 2022 (but amended under the slip rule on 12 October 2022).
The review hearing results in different orders from those made by the registrar for the following reasons, which are given in short form (s 69ZL).
Background
The children were born in 2015 and 2018 and are now aged seven and four years respectively.
The parties separated in December 2020. Since that time, the children have lived with the mother and have only spent time with the father under the mother’s supervision. The mother’s apprehension about the children’s safety when with the father arises from her belief that he sexually abused the elder child. The allegations were reported to and have been investigated by the police and the State child welfare agency, but were unsubstantiated and no charges have been brought against the father. The investigation is at an end.
The father commenced these proceedings in June 2022, following the mother refusing to allow the children to spend any more time with him after May 2022.
In September 2022, the registrar entertained and determined the parties’ respective applications for interim parenting orders. In summary, the registrar ordered that the children live with the mother (Order 2), but neither spend time nor communicate with the father (Order 3).
On 7 October 2022, the father filed an Application for Review. But he sought the review of only Order 3, which declares the children shall have no interaction of any sort with him.
The review application entails a hearing de novo in respect of the singular issue identified by the father.
Proposals
The father belatedly sought the substitute orders set out in the document marked as Exhibit F1. His proposal is therefore this: the children should spend substantial amounts of time with him under the paternal grandmother’s supervision for the next three months, but unsupervised time thereafter amounting to “substantial and significant time” (s 65DAA(3)).
The father apparently abandoned his application for the order within his review application providing for he and the children to communicate regularly by telephone.
The Independent Children’s Lawyer (“the ICL”) sought Orders 2 and 3 contained within her Case Outline document filed on 15 September 2022. The ICL broadly supports the father’s proposal that the children should eventually spend unsupervised time with him, but contends for an even shorter period of supervision by the paternal grandmother of only the first four visits. However, the ICL contends the time spent by the children with the father should be confined to five hours on both Saturday and Sunday of each alternate weekend, together with a mid-week visit of about three hours after school in each alternate week.
The mother urges retention of the declaratory order made by the registrar, which was consistent with the order she proposed in her Response filed on 10 August 2022.
Evidence
The father relied upon:
(a)his affidavit filed on 9 June 2022;
(b)the affidavit of the paternal grandmother filed on 7 November 2022; and
(c)the affidavit of his solicitor filed on 14 September 2022.
The mother relied upon:
(a)her affidavit filed on 10 November 2022; and
(b)the affidavit of her solicitor filed on 14 September 2022.
The ICL relied upon her affidavit filed on 10 November 2022, to which she annexed a selection of documents produced to the Court by police pursuant to an earlier order made under s 69ZW of the Act.
Legal principles
Orders in respect of children are made under Pt VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)).
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Those principles to which I have just adverted apply just as much in interim contests as in final proceedings.
In Goode & Goode (2006) FLC 93-286 the Full Court said:
68.… [T]he 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. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Further, a paucity of uncontested evidence means that only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim proceedings should be confined to only those issues which, in the best interests of the child, require determination prior to proper determination at trial. Not every s 60CC factor need be discussed in that process (Banks & Banks (2015) FLC 93-637 at [47]–[50]). The individual factors within s 60CC of the Act need not be recited like a mantra in every case. Only those factors which are relevant need be addressed (Phillips & Hansford (2019) FLC 93-917 at [43]).
Best interests – primary considerations
Neither party took issue with the proposition that the children have and will derive benefit from the retention of their meaningful relationships with the other (s 60CC(2)(a)).
According to the manner in which the dispute was litigated, its determination turns exclusively upon the question of whether the children require protection from the harm to which the mother alleges they are exposed by subjection to sexual abuse by the father (s 60CC(2)(b)). If their need for protection against the risk of such harm is demonstrated, then that consideration takes precedence over the desirability of maintaining the children’s meaningful relationships with the father (s 60CC(2A)).
The mother’s current concern for the children’s safety is premised upon the behaviour of the elder child, which she has witnessed, and statements made by the elder child, which she has heard. It should be observed that the father could not possibly have sexually abused the elder child after separation in December 2020 because the mother has always since been present when the elder child was spending time with the father. No complaint was made by the mother to the police until mid-2021.
Some of the elder child’s behaviour, as described by the mother, is indeed sexualised, though there could plausibly be explanations for it aside from her sexual abuse by the father. So could there be other rational and benign explanations for the child’s intermittent enraged behaviour.
The elder child’s statements to the mother about the father on some occasions are certainly consistent with the inferences she has drawn of the child’s sexual abuse by him, but consistency is not necessarily the same thing as corroboration. There remains a material question about the extent to which the child’s disclosures to the mother have been inadvertently extracted from her by leading questions and veiled suggestion. That dynamic has been the subject of real concern by the investigating authorities.
The mother alleged the elder child has complained of her genitals stinging when she is placed in the bath. Inferentially, the mother considers that complaint corroborates her fears of the child’s sexual abuse, but the complaint could be innocently explained by medical conditions such as eczema or infection. There is no evidence the child has been medically examined for genital injury or other medical condition.
The elder child has been interviewed by child welfare agency officers twice, in August 2021 and again in August 2022. On neither occasion did the child make any disclosure to the officers about her sexual abuse by the father. In fact, during the first interview the elder child spoke positively of her interaction with the father. The mother presented to the officers as being resistant to acceptance of such feedback from them. By the time of the second interview, the elder child had not even seen the father for the preceding three months and was reluctant to engage in conversation with officers about him.
The investigation by the child welfare agency included interrogation of the elder child’s school principal and school counsellor, who reported she had made no disclosures at school and had not been seen to act in sexualised ways. In fact, the principal reported to the child welfare agency that the child said at school the mother tells her the father is a liar. The prospect of the mother influencing the elder child, even if only unintentionally, is evident.
The ICL submitted in her Case Outline filed on 15 September 2022 that she had spoken independently to the elder child’s class teacher and pastoral support worker, who confirmed the child has made no disclosure of sexual abuse at school and no sexualised behaviour has been exhibited by her. Although the ICL did not give evidence to that effect in her affidavit, no objection was taken by the mother to the ICL reporting the information in that informal way.
That overview demonstrates the vexed state of the untested evidence. Presently, it is impossible to make definitive findings, but the law requires that a cautious approach be adopted when serious allegations of child abuse cannot be finally resolved.
Whilst the father denies any sexual impropriety with the children, the evidence adduced by the mother is sufficient to evoke a sense of risk which should be heeded for the time being. Nevertheless, the mother’s proposal to alleviate the risk by eliminating the father from the children’s lives is disproportionately severe and a more moderate solution exists to avert the risk. The paternal grandmother can supervise the children while spending time with the father. She is willing to fulfil that role.
Orders to that effect will re-instate the arrangement which applied between December 2020 and May 2022, albeit that the supervision will be provided by the paternal grandmother rather than the mother. The mother must logically accept that reliable supervision will abate the risk of the children’s sexual abuse because she continued to voluntarily supervise their time with the father up until May 2022, even though she feared his sexual abuse of them from long before.
There is no reason to think the paternal grandmother would abdicate her duty to protect her grandchildren and intentionally expose them to the risk of sexual abuse by the father. There is no reason to doubt she would prioritise the children’s needs above the loyalty she may feel towards the father. While aligned family members generally do not make for ideal supervisors (B & B (1993) FLC 92-357 at 79,780–79,781), the evidence does not allow for any reasonable inference that the paternal grandmother takes an aligned position in the litigation. The mother did not submit otherwise.
The imposition of long-term or indefinite supervision of the time spent by children with a parent is generally undesirable (see Slater v Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose v Moose (2008) FLC 93-375 at [119]), but this interim order for supervision will not prevail for too long. The final trial can be expected in 2023.
The supervision of the children when with the father will serve several purposes: it will prevent disruption to the children’s filial relationship with the father; it will protect them from alleged abuse by him; it will protect the father from further allegations of such abuse; and it should allay the mother’s fears of the children’s abuse (see N & S & Separate Representative (1996) FLC 92-655 at 82,743).
Best interests – additional considerations
Neither the parties nor the ICL made any submission at all to engage s 60CC(3) of the Act.
Conclusion
Parenting orders are now being sought in respect of the children, which means the presumption of equal shared parental responsibility must ordinarily apply (s 61DA(1)), though the issue was not raised by the parties or the ICL.
The registrar did not make any order allocating parental responsibility. None was sought by the parties or the ICL. None was sought in this hearing either.
The application of s 61DA(3) of the Act is apposite. It would not be appropriate to apply the presumption of equal shared parental responsibility when there are undetermined allegations of abuse which, if eventually sustained, would mean the presumption does not apply (s 61DA(2)(a)). The parties will each retain parental responsibility for the children as is bestowed upon them by law (ss 61C and 61D).
The father does not contest the children’s residence with the mother at this interlocutory stage.
The children should spend time with the father, but subject to supervision provided by the paternal grandmother. To ensure her understanding of and commitment to the standard of supervision required, the orders will require the father to file her undertaking before the children begin spending time with him.
The frequency and duration of the children’s visits with the father, being each Sunday during the day, is enough for them to retain their meaningful connection with him but not too long to hinder proper supervision.
The father made no proposal for the changeover venue but, when asked, suggested it be the City B Police Station, which is presumably within relatively easy reach of both parties. The mother did not take issue with the father’s proposal, so her concurrence may be imputed.
Although the father did not ultimately pursue any order for telephone communication with the children, it is a form of interaction which will aid the maintenance of their relationships when they will only physically see him once each week. The orders will provide for their telephone communication once each week as well.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 16 December 2022