Bilyk & Bilyk (No 3)
[2023] FedCFamC1F 975
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bilyk & Bilyk (No 3) [2023] FedCFamC1F 975
File number(s): ADC 2479 of 2022 Judgment of: KARI J Date of judgment: 30 November 2023 Catchwords: FAMILY LAW - CHILDREN – Interim hearing – Where the parents have two children aged 8 and 5 – Where the children live with the mother and spend supervised time with the father – Where the father seeks an increase in the supervised time he spends with the children – Where the mother makes allegations of sexual abuse of one of the children by the father – Where all allegations are denied by the father – Where the court is not in a position to assess all of the available evidence and make findings at an interlocutory stage - Where the circumstances which prevailed at the time of the orders for supervised time spending have not changed - No change to orders for time spending prior to final hearing Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07
Cases cited: Bilyk & Bilyk (No 2) [2022] FedCFamC1F 1004
Goode & Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 31 August 2023 Place: Adelaide 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: Mr Hemsley 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:
KARI J
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS THAT:
1.That by consent there be an immediate cessation of all counselling of the child X born 2015, within a framework of sexual abuse therapy allegedly inflicted by the Applicant father.
AND IT IS FURTHER ORDERED
2.That until further order, the parties are restrained and an injunction is granted restraining each of them from taking the child X to any counselling or therapy without an order of the court.
3.That the Application in a Proceeding filed 8 August 2023 be dismissed.
4.That the Response filed 25 August 2023 be 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 the pseudonym Bilyk & Bilyk has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These proceedings relate to the parenting arrangements for the parties’ two children, X who is eight years of age, and Y who is five years of age.
The parties are in dispute as to whether there should be any change to the present time spending arrangements between the father and the children pending a final hearing in these proceedings.
For the reasons that follow, the children are to continue spending time with the father as previously ordered in November 2022.
BACKGROUND
The background of the parties and their relationship is as follows:
(a)The father was born in 1981 and he is presently 41 years of age.
(b)The mother was born in 1987 and she is presently 36 years of age.
(c)The parties married in 2010 and separated on 7 December 2020.
(d)There are two children of the relationship:
(i)X born 2015; and
(ii)Y born 2018.
At the time that the parties separated, the children were aged five and two years old respectively.
It is the father’s case that:
(a)From the time of separation, and without any proper basis, the mother refused to allow him to spend any time with the children unsupervised. He was willing to accede to the mother’s directives around his time spending with the children, but that in about April 2021, he indicated to the mother that he wanted a “more permanent stable parenting arrangement”.[1] Thereafter he initiated mediation at C Organisation and then as suggested in that process family therapy.
(b)From about May 2022 the mother ceased facilitating his time with the children completely and on about 2 June 2022 the mother told him over the telephone that “it wasn’t in the kids’ best interests to have contact with you”.[2]
(c)He considers that it has been the mother’s intention since separation to exclude him from the children’s lives. He has this view because he received a text message from the mother shortly after separation on 15 December 2020 in response to his enquiry about what the mother would like for Christmas, when she responded “full custody”.[3]
[1] Father’s affidavit filed 9 June 2022, paragraph 34.
[2] Father’s affidavit filed 9 June 2022, paragraph 40.
[3] Father’s affidavit filed 9 June 2022, paragraph 26.
The mother’s position is that:
(a)From the time of separation she was unable to have an amicable relationship with the father as he would threaten to commence litigation “regardless of how much time I agreed to provide him at his request”.[4]
(b)The father had told her following separation that the children would reside with her and that she would have “the sole custody and responsibility for the children” and that he would “never change” that arrangement.[5]
(c)She supervised the father’s time spending in the post separation period as she held concerns for the safety of the children stemming from the fathers “mental health issues and the progressively emerging sexual abuse reports from [X] and her anxiety in seeing the father. In addition, in the lead up to our separation, the father made several remarks and gestures which suggested suicidal ideations and threats of harming us as a family.”[6]
(d)To that end the mother identified two incidents which concerned her which she reported to the police as follows:
(i)The father leaving a lawnmower tank of petrol wrapped in a canvas bag on the front doorstep for several days, only moving it after the mother raised it with him, and her later finding it in the shed with a box of matches inside the bag on top of the tank.
(ii)The father turning on the stove gas taps and leaving the barbeque gas tank on.
(e)In the post separation period the children would progressively refuse to spend time with the father, and certainly would not spend time with him without her present for comfort and reassurances, including hugs.
(f)Despite all of these matters, the mother facilitated time between the children and the father, initially after separation on each alternate day in the family home, which she says was disruptive to her and the children as the visits often lasted up to six hours. From about October 2021 the mother says that she tried to implement some boundaries, limiting the father’s visits to two occasions each week.
[4] Mother’s affidavit filed 10 August 2022, paragraph 3.7.
[5] Mother’s affidavit filed 10 August 2022, paragraph 3.7.
[6] Mother’s affidavit filed 10 August 2022, paragraph 3.8.
The parties agree that the father’s time with the children was not facilitated from May 2022; with the mother noting that the father attended X’s sports day in mid-2022 and saw the children that day. The mother says that on this day the father repeatedly called out to X “you’re a good girl, I love you”, which she says X had told her was a secret phrase that she and the father use for not “telling anyone Dad’s and their secrets”, and which the mother considers to be the father’s attempt to “have her keep his secret for as long as possible”; the clear inference being grooming and/or sexual abuse of X on the father’s part.[7]
[7] Mother’s affidavit filed 10 August 2022, paragraphs 3.30 – 3.31.
As best as can be understood, the first occasion of concerns of a sexual abuse nature arose in around May 2021.
The father asserts that from early to mid-2021 the child X was calling him “bad daddy” and showing some distress about the parties no longer living together. These comments resulted in the father messaging the mother in early May 2021 after X had called him “bad daddy”. Then on 12 May 2021 as the parties were together walking the children home from school X again called him a “bad dad” and then said “I will stick a lollipop up your bottom”.[8] The father deposes that he was “concerned about this statement” and asked X if she had “heard that from someone at school”.[9] The father says that X did not respond to him and “scootered off”.[10] The father then raised X’s comments with the mother. He says that thereafter, the mother unilaterally spoke with X’s school teacher Ms D and following the same reported to the father by text on 22 May 2021 as follows:
The school followed up yesterday afternoon. Both they and the police have taken [X’s] comments very seriously. They have advised me to protect both [X] and yourself from potential allegations by advising me to supervise her like a hawk. I’ve elected to continue contact. Under police advice, contacts are to be supervised, in public places, no private or whispered conversation, no sitting on laps etc advised. We will still come tomorrow but [X] is to sit next to me, not on a lap, being very mindful of any possible misinterpretations of interactions with her.[11]
[8] Father’s affidavit filed 9 June 2022, paragraph 52.
[9] Father’s affidavit filed 9 June 2022, paragraph 52.
[10] Father’s affidavit filed 9 June 2022, paragraph 52.
[11] Annexure “MRB-6” to the father’s affidavit filed 9 June 2022, page 27.
The father asserts that the timing of these events coincided with when he and the mother were finalising their matrimonial property settlement.
The mother agrees that she stopped facilitating the children’s time with the father when she “became aware of sexual abuse perpetrated by the father against [X]”.[12]
[12] Mother’s affidavit filed 10 August 2022, paragraph 3.28.
In addition, the mother agrees:
(a)That she had heard X call the father “bad daddy” on occasions.
(b)That the incident that the father says occurred on the 12 May 2021 in fact occurred on 18 May 2021 and that the words used by X were “I will stick a lollipop up your bot bot” which the father laughed off.[13] The mother asserts that the father did not raise these comments with her, but that she overheard them and raised her concerns with him and that she would follow the comments up with X’s school teacher, criticising the father as he did not tell her that he wanted to attend with her for that purpose.
(c)The mother admits that she sent the text message to the father on 22 May 2021 in circumstances where “the comments made by [X] and her sexualised behaviour became more and more explicit and into role playing. She had also tried to get [Y] to “sniff” her vagina and would spread her legs apart and up in the air towards him”.[14]
[13] Mother’s affidavit filed 10 August 2022, paragraph 3.42.
[14] Mother’s affidavit filed 10 August 2022, paragraph 3.44.
Later in her affidavit filed 10 August 2022, the mother sets out her assertions as to that which occurred in her presence following X’s comments on 18 May 2021. To that end:
(a)The mother says that she spoke with X in the evening after hearing the comments that she made to the father on 18 May 2021. The mother says:
[X] and I discussed about private parts and the correct names for them as this was something that I had not done in the past. I told her that she can tell me anything. She then asked, "can adults tell on other adults?" I confirmed she could but [X] did not say anything and we then proceeded to good night kisses and hugs and I tucked her to sleep.[15]
[15] Mother’s affidavit filed 10 August 2022, paragraph 18.6.
(b)The mother says that after speaking with X’s school teacher :
…the children were to spend time with the father at home. Before the father arrived, [X] excitedly ran down to me when I was in the bathroom and asked “can I lick your fanny?”. She disclosed that she had asked the father whether she could lick his willy before. I was concerned and asked if anyone spoke to her that way or asked her that before and she said “I will not tell”.[16]
[16] Mother’s affidavit filed 10 August 2022, paragraph 18.8.
(c)The mother says that on 24 May 2021:
[X] suddenly approached me from behind, grabbed at my vagina through my leggings and poked her finger up my vagina. I immediately told her to stop. I said to her that that was my private place and we should be the only ones to touch our own private place. [X] then asked, “Does Dad have a private place?”.[17]
[17] Mother’s affidavit filed 10 August 2022, paragraph 18.10.
(d)The mother says that on 25 May 2021:
In the middle of the night, [X] woke up screaming and crying uncontrollably, “I don’t want to, I don’t want it. Put it back”.[18] The mother says that the next morning, [X] “appeared to be in a state and kept repeating “I just want it to stop.” “I don’t want the fingers deep”. “I don’t want the fingers tip”. She kept crying and repeating the phrases for several minutes in a semi-sleep state whilst I tried to calm her down by hugging her and telling her that she is safe.[19]
[18] Mother’s affidavit filed 10 August 2022, paragraph 18.11.
[19] Mother’s affidavit filed 10 August 2022, paragraph 18.12.
(e)The mother then says that two days later during a phone call with the father:
[X] was reluctant to speak with the father. She kept asking “do we have to?”. Whilst speaking with the father, she then became anxiously excited and started licking the phone sexually, going round in circles as though she was ‘rimming’ the father’s penis. I did not stop her behaviour as it was a call between her and the father. After the call ended, I asked [X] as to why she licked the phone, she responded, “to show Daddy I love him.”[20]
[20] Mother’s affidavit filed 10 August 2022, paragraph 18.13.
(f)The mother says that later the same day whilst bathing the children:
[X] made comments which were unprompted. She was talking to herself “my hole stings in the bath”, “it’s getting bigger and bigger. What’s it for? Don’t tell me it’s for when babies come out, I don’t believe that”. She then said to [Y], “look at my bot [Y], my bot has a hole in it”. I asked [X] if she wanted to talk about something but she said nothing and stopped her behaviour.[21]
(g)The mother says that between 30 May 2021 and 1 June 2021:
[X] started to be really anxious and started displaying anger when she came home from school. When I collected her from school on 1 June 2021, she anxiously asked if she was seeing the father that day. That afternoon, we cuddled […] in the lounge room facing the couch. [X] then started looking and pointing at the couch and said to me, “Mum do you remember when Dad lived here and I would get up early in the morning and you and [Y] would stay in bed? Well Dad would come down and… oh that’s all I want to say”. When I probed her further, she stopped talking. That night at bedtime, [X] complained of having tummy pains and said she felt nervous about seeing her father again.[22]
(h)The mother says that:
[X’s] disclosure that afternoon made me think back of the morning when the father would take her to the lounge to get ready and dressed whilst I would be in my bedroom either resting during the later stages of my pregnancy, or breastfeeding [Y] after his birth. [X] would often scream hysterically when the father took her to the lounge and she would often try to coax me out of bed instead.[23]
(i)The mother says that:
On 3 June 2021, [X] had cold sores on her face and appeared stressed and troubled. She told me that she “feels nervous about Dad visiting”. When we were at the playground with the father, [X] took a long piece of bark out of her shoe at the playground and gave it to the father and said “take this home and stick it up your bot bot”. Later when we returned home, [X] was playing quietly with the father on her playmat in the living room when she suddenly jumped up on the couch and exclaimed loudly, "I know! Don' t say anything. Don't say anything. Don't say anything even if it is about something else". I was in the kitchen and did not know what she and the father were talking about. When I asked her about it later that night, she refused to say anything and would change to a different topic of conversation.[24]
(j)The mother says that a week later, “on 10 June 2021, during a Skype call with the father, [X] suddenly said:
“I want to drink Dad” and proceeded to opening her mouth towards the screen and sexually licking the phone. After the call, I asked [X] as to why she was doing that to which she replied, “I just want to have fun with Dad”, “I don't know why, I don't want to talk about it”. I did not want to probe further and so I ran a bath for them. In the bath, [X] started laying on her back with her legs apart and in the air towards [Y] and encouraged [Y] to “come sniff my bot bot”. When I asked her what she was doing, she replied “Mystery Doctors”. I intervened, told her to stop being silly and to sit up properly which she complied.[25]
[21] Mother’s affidavit filed 10 August 2022, paragraph 18.14.
[22] Mother’s affidavit filed 10 August 2022, paragraph 18.15.
[23] Mother’s affidavit filed 10 August 2022, paragraph 18.16.
[24] Mother’s affidavit filed 10 August 2022, paragraph 18.17.
[25] Mother’s affidavit filed 10 August 2022, paragraph 18.18.
Thereafter, there is no dispute that the Department for Child Protection (“DCP”) became involved with the family. A safety plan was implemented by the DCP in mid-2021 which provided for the children to live with the mother and for there to be no contact with the father until further assessments took place.
X was interviewed by Child Protection Services in mid-2021. The mother had an interview a few days prior.
The mother’s position is that she was given mixed information following these interviews, asserting that she was initially told after her interview that X’s behaviour was “highly concerning” but that 3 days after X’s interview was advised by the same workers that X’s behaviour was “completely normal” and that there was a “low risk of sexual abuse as [X] did not disclose or volunteer the information relating to the sexual abuse and assaults during her interview”.[26]
[26] Mother’s affidavit filed 10 August 2022, paragraph 3.49.
The mother says that X was referred for “psychological treatment” following these interviews and that she has engaged her with the same since. The mother asserts that these sessions have revealed that X is “experiencing trauma-like behaviour”, which is in line with when she had a medical condition in 2018.[27]
[27] Mother’s affidavit filed 10 August 2022, paragraph 3.50.
The father ostensibly denies all of the allegations made by the mother, in particular those made by her pertaining to any alleged sexual abuse by him of X.
THE LITIGATION
These proceedings were commenced by the father on 9 June 2022, within short compass of his time spending with the children being terminated by the mother. When he commenced these proceedings the father in principle sought:
(a)Final parenting orders for the parties to have equal shared parental responsibility for the children, for the children to live in a week about shared care arrangement between the parties, and for the children to spend special occasions with both parents.
(b)Interim parenting orders for the children to live with the mother and spend time with him during school terms each alternate weekend from 4.00 pm Friday until 9.00 am Monday, and each intervening week from Monday afternoon until Tuesday morning, together with one half of each school holiday period.
The proceedings first came before a registrar on 28 July 2022. At that time, the mother had not filed any material with the court. The court had however received information from the court’s co-located DCP worker and the co-located South Australia Police (“SAPOL”) officer indicating that there was an open investigation in relation to X concerning the father. As a result, the orders were made by the court providing for:
(a)The mother to file responding material by 10 August 2022;
(b)The appointment of an Independent Children’s Lawyer (“ICL”);
(c)The release of the information provided by each the co-located DCP worker and the SAPOL officer; and
(d)The proceedings to be adjourned to a directions hearing on 11 August 2022.
The response from the co-located DCP worker dated 27 July 2022 set out:
The department currently has an open case with the children following a notification being raised [in mid] 2022 relating to disclosures made by [X] in relation to sexual abuse by her father. This will be further outlined below. The department has received 5 notifications relating to the children dating back to [mid] 2021 and there has been 1 previous investigation in [mid] 2021.
[In mid] 2021, the department received a notification relating to allegations that [X] was using concerning sexual language, the father was favouring [X], the father was seeking to have overnight contact with [X] and [X] had regressed with her toileting. It was also reported that [X] drew a picture with the comment “I don’t like being licked” and another about being pushed but both were absent of context. It was further reported that [X] and [Y] were in the primary care of the mother and the mother was supervising the contact with the father.
[Around two months later], the department received a notification relating to concerns around [X’s] sexualised behaviours (reported previously) such as drawing a picture with sticks, [X] asking "pull down your pants... show me your willy... can I lick your fanny?" and licking the phone sexually. It was believed these were due to contact with the father, no disclosures had been made by [X]. It was further reported that the mother provided a diary with several incidences of [X’s] sexualised behaviour which was not deemed age appropriate. As a result of this notification, the department commenced an investigation into the concerns. [X] and the mother were both interviewed by CPS and [X] made no disclosures, and there was no evidence that would suggest [X] was at risk of sexual harm. It was reported that [X’s] presentation throughout the interview was non-committal and there was no difference when either the mother or father were discussed. CPS advised that some of [X’s] behaviours were within her developmental range. Due to the outcome of the CPS interview, SAPOL closed the matter. The department spoke individually to the mother, father, and the maternal grandparents. As a result of the investigation, the department did not substantiate ‘suspicious indicators consistent with sexual harm’ in relation to [X] and did not identify ‘likelihood of sexual harm’ in relation to [Y]. The department subsequently closed the case [later that month] given there were no disclosures made by [X] and there was no evidence to suggest that [X] was at risk of sexual harm.
[In late] 2021, the department received a notification relating to concerns that [X’s] sexualised behaviours had re-emerged. It was reported that [X] had been touching her mother's genitals and asking if it is ok for someone to touch you there. [X] also allegedly asked her mother about secret keeping and asked if she tells someone a secret can that someone get in trouble. The mother suspects the father is the person that [X] is telling secrets to. The father has moved out of the home and [X] is being supported by CAMHS.
[In mid] 2022, the department received a notification relating to concerns that [X] had allegedly been asking questions about sex and making vague statements about her father. It was reported that the mother was having conversations with [X] about sex education and showing her explicit pictures of hymens and penis'. It was further reported that [X] often engages in aggressive play and there had been past allegations of sexual abuse by her father which had not been substantiated. [X] currently was not wanting to see her father and [X] and her mother were engaged with CAMHS therapy for emotional regulation for [X] and for parenting support. It was further alleged that [X] had commented "I'm scared that dad will put his fingers inside me again."
[Two months later], the department received a notification relating to reports that [a few days earlier] [X] disclosed that when she was in Kindy the father broke her hymen and there was blood on the couch. [X] disclosed that the father would put his fingers in her vagina. This would happen when the father would get [X] ready in the morning for kindergarten. It was further reported that [X] had knowledge regarding penis' needing to be erect before going into the vagina and there were other concerns regarding [X] needing to keep secrets from the mother. It was alleged that the father was seeking Family Law Court orders to have shared custody. As a result of this notification, the department has commenced an investigation into the concerns however, the investigation is in its infancy. Information within the notification reported that the mother was withholding the children from the father.
The co-located practitioner is happy to attend the hearing to provide an update should you feel this would be helpful. If so, please provide details of the next scheduled hearing.
When the mother filed her Response on 10 August 2022, in principle she sought parenting orders on both an interim and final basis that she have sole parental responsibility, with the children to live with her and spend no time with the father.
By the time of the hearing on 11 August 2022 the court had received another response from the co-located DCP worker which recorded:
Further to the departmental information provided to the Court on 26 July 2022 I can advise the department have interviewed both [X] and [Y] and met and spoken with both [Mr Bilyk] and [Ms Bilyk].
During the interviews the children appeared happy and healthy and engaged well with the departmental workers, departmental workers did not identify any safety concerns during their interviews with the children.
The department are in the process of ensuring that [Ms Bilyk] and the children are linked in with support services and the department will work towards closing their involvement with the family.
At the hearing on 11 August 2022, the following orders of significance were made by the registrar:
(a)Orders pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) directed to the DCP and SAPOL for the release of records; and
(b)A referral of the matter to the National Assessment Team for possible transfer of the matter from Division 2 of the Federal Circuit and Family Court of Australia for an urgent hearing before a judge in Division 1 of the Federal Circuit and Family Court of Australia.
On 17 August 2022 orders were made in chambers for the matter to be heard by a senior judicial registrar on 16 September 2022.
Argument proceeded before a senior judicial registrar on 16 September 2022 with judgment reserved until 23 September 2022, when the following orders were made:
2. The children shall live with the Respondent mother.
3.The Applicant father shall spend no time and will not communicate with the children.
4.The parties are restrained and injunctions are hereby granted restraining them from:
(a)Discussing any issues raised in these proceedings with or in the presence or hearing of the children or from allowing any other person to do so; and
(b)Abusing, criticising or denigrating the other parent in the presence or hearing of the children, or from allowing any other person to do so.
5.The Respondent mother be restrained and an injunction is hereby granted retraining the mother from questioning or initiating any discussions with [X] in relation to sexualised behaviour or allegations of sexual abuse.
6.That the Respondent mother continue to consult with and comply with all recommendations of her treating psychologist.
7.That the Applicant father continue to consult with and comply with all recommendations of his treating psychologist.
8.That the Respondent mother ensure [X’s] attendance at all appointments at CAMHS as directed by [X’s] CAMHS therapist.
9.That both parties enrol in and complete the ‘Kids are First’ and “Circle of Security” parenting programs and provide the other party and the Independent Children’s Lawyer with evidence of their completion”.
Orders were otherwise made for the preparation of a Family Assessment Report by a Court Child Expert and the proceedings were adjourned to a directions hearing before a registrar on 28 October 2022.
The father filed an Application for Review on 7 October 2022, which was listed for hearing before a Division 1 Judge on 14 November 2022.
At the hearing on 28 October 2022, the proceedings were referred to the pool of matters awaiting a trial date.
The Review hearing took place on 14 November 2022, with Austin J delivering ex tempore reasons which were later published. The orders made that day set aside the order of the senior judicial registrar which provided for no time spending between the children and the father and in their place orders were made as follows:
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 purposes 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 that the children are available to receive the father’s calls on that same number at that time.
It is important to record that the review hearing was conducted in accordance with Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) as an “original hearing”, and not simply as a review of the decision of the senior judicial registrar.
I have had regard to the reasons delivered by Austin J (Bilyk & Bilyk (No 2) [2022] FedCFamC1F 1004). I specifically note that His Honour considered:
33.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.
34.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.
…
37.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).
By orders made 25 November 2022, the parties agreed to substitute the appointment of a Court Child Expert to conduct the Family Assessment Report, with one privately arranged by them.
That Report was prepared by Psychologist Ms E and is dated 6 July 2023. Of significance in that report:
(a)The mother reports that X’s reports have “fill[ed] in the blanks” of experiences pre‑separation, including an incident where the mother reported finding the father in a “semi-exposed state” whilst assisting X in getting dressed.[28]
(b)Both parties’ results with respect to their description of the co-parenting relationship fell in the “problematic range, requiring significant change for the co-parenting relationship to function within normal limits.” [29]
(c)The report writer notes that when X attended with the mother she clearly stated that she does not want to spend time with her father, yet when she attended with her father she reported that she “sometimes gets worried about seeing him, sometimes does not like being there, and sometimes it is fun.”[30]
(d)There was no consideration from the mother for “any other possible explanation of [X’s] initial non-sexual behaviours… or for the possibility that [X’s] resultant reports have been inflamed through the process of therapy.”[31]
(e)At page 18 the report writer states:
It is understandable that [the parents] would feel frustrated by the resultant lack of clarity arising from these processes as to the allegations of abuse. Sadly, it is now unlikely that any such clarity can arise. [X’s] reporting has now been rehearsed within the framework of having been abused by her father for approximately two years. It is hard to see how anyone will be confident about what [X] might report in the future. The fundings made so far indicate no-one can kw what has or has not happened. [X’s] presentation is also now inconsistent and challenging to make sense of. This could be, as [the mother] considers, a result of trauma and resulting anxiety from not being heard as well as continued exposure to a perpetrator of abuse, but could also be due to [X] working incredibly hard to deliver to whoever she is in front of what she thinks they are wanting from her, or a stress response, or learnt behaviour, or something else altogether. The writer as no way of differentiating which is the case.
(f)Given the allegations, particularly with respect to the mother having “observed [the father] to expose himself in front of [X]”, unsupervised time with the father could not be recommended without testing of the evidence. [32]
(g)If the court finds there is not an unacceptable risk of the children spending time with the father, then the father’s time with the children should ultimately be increased gradually, supporting five nights per fortnight, for both the children and the mother to adjust “to a reality in which [the father] is considered safe”. The report writer gave an example of the way the mother could support X by “reassuring [X] in a matter of fact way that she is safe and of working with [X] to be responsible for and ‘the boss’ of her own feelings, rather than being defined by the allegations of abuse”. The report writer notes that “doing so would be reliant upon finding a way to ‘leave behind’ the allegations of abuse, which would be challenging for [the mother]”.[33]
(h)“If the court placed weight upon the mother’s reported history about the father’s interactions with [X], then the writer would hold concern about him having ongoing contact with either child in a regular, unsupervised manner.” The writer adds, if the court found there was a “benefit to contact occurring it would need to happen in a protective manner for the children… (e.g. once a month, brief, supervised).”[34]
(i)“If the court finds that sexual abuse of [X] has occurred, then the writer would support no contact [between the children and the father] at all.”[35]
[28] Family Assessment Report of Ms E dated 27 July 2022, p.13.
[29] Family Assessment Report of Ms E dated 27 July 2022, p. 14, 15.
[30] Family Assessment Report of Ms E dated 27 July 2022, p. 17.
[31] Family Assessment Report of Ms E dated 27 July 2022, p. 17.
[32] Family Assessment Report of Ms E dated 27 July 2022, p.18.
[33] Family Assessment Report of Ms E dated 27 July 2022, p.18, 19.
[34] Family Assessment Report of Ms E dated 27 July 2022, p.19.
[35] Family Assessment Report of Ms E dated 27 July 2022, p.19.
THE INTERIM APPLICATION FILED BY THE FATHER
The orders made on 14 November 2022 have prevailed until the present day. The proceedings have otherwise been in the trial pool awaiting allocation of final hearing dates. Unfortunately, with judicial resourcing being at a premium, matters can sit in the pool awaiting a trial listing for an extended period of time.
By his Application in a Proceeding filed 8 August 2023, the father asks the court to list the matter for trial directions as a “matter of urgency”. He otherwise asks the court to make the following parenting orders:
2. That paragraph 2 of the Order of the Honourable Justice Austin made on 14 November 2022 be discharged and in lieu thereof:
2.1 “That the Applicant father spend time with the children [X] born […] 2015 and [Y] born […] 2018 (“the children") under the supervision of any of the following supervisors:
2.1.1 The paternal grandmother, [Ms F];
2.1.2 family friend and former neighbour [Mr G];
2.1.3 work colleague [Ms H];
2.1.4 father's sister [Ms J];
for the period from 9.00am Saturday until 4.00pm Sunday in week 1 and each Monday from 2pm (or after school on a school day) until 7pm in week 2 provided that the children shall sleep overnight at the Applicant father's home and shall be supervised overnight by the paternal grandmother in the first instance or, if not available, one of the nominated supervisors.”
2.2 That if overnight supervision is not possible that on the intervening weekend the father spend time with the children from 9.00am until 5.00pm Saturday and from 9.00am until 4.00pm Sunday.”
3. That the Applicant father have Facetime and/or video call with the said children on a Wednesday night at 5.30pm for a minimum of 30 minutes unless terminated early by the children.
4. That there be an immediate cessation of all counselling of the child [X] within a framework of sexual abuse therapy allegedly inflicted by the Applicant father.
5. That the Respondent mother attend therapy with a psychologist to consider the possible reality that abuse of [X] by the father may not have occurred and to provide her with skills for reassuring [X] that she is safe, “the boss” of her own feelings and that spending time with her father is also safe.
By her Response filed 25 August 2023, the mother asked the court to make the following orders:
1.That pending Trial, paragraph 2 of the Order of the Honourable Justice Austin made on 14 November 2022 be discharged and varied such that the father spends no time with the children.
2.In the alternative to paragraph 1 herein, the father's time pursuant to paragraph 2 of the Orders of 14 November 2022 be reduced such that the father spends time with the children on one occasion in each month for a period of some 4 hours at times to be agreed between the parties in writing but in default of an agreement, on the first Sunday in each month from 10am to 2pm with such time supervised either by the paternal grandmother or an independent supervisor such as [Mr K] and [Mr L].
3.In the alternative to paragraph 2 herein, that the father's time with the children continue as per paragraph 2 of the Orders dated 14 November 2022 with all times to be supervised by the paternal grandmother but in the event that the paternal grandmother is unable to supervise time then such time be supervised by an independent supervisor such as [Mr K] or [Mr L].
4.That the Independent Children's Lawyer is to make enquiries with [Ms M] of CAMHS about [X’s] attendances up until 27 July 2023, and/or [X’s] attendances with [Ms N] at [C Organisation] up until March 2023, with respect to notes and any disclosures made by [X] at the therapy sessions as well as observations made of [X] throughout the period that [X] attended with them for counselling.
5.Such further or other orders as this Honourable Court deems fit.
The parties competing applications were listed for hearing before me on 31 August 2023.
In advance of the hearing each of the parents by their legal representatives filed a Case Outline, as did the ICL.
It is the father’s position that the release of the Family Report warrants the court reconsidering the orders made by Austin J on 14 November 2022.
The mother and the ICL assert that no additional matters have occurred since the hearing on 14 November 2022 to warrant any change to the parenting orders made that day.
The parties each otherwise depose to X being unsettled and displaying challenging behaviours.
The mother asserts that since resuming time spending with the father, X has continued to make disclosures of sexual abuse perpetrated by the father.
Additionally it is understood that X has continued to receive counselling through CAMHS until 27 July 2023, and has also received counselling through C Organisation.
Separately, I note that since the hearing of the present applications the matter has proceeded to a First Day Hearing and has been given a trial date of 17 June 2024.
WHAT PARENTING ORDERS SHOULD BE MADE PENDING TRIAL?
The Legal Framework
The court’s task whenever it is called upon to make a parenting order, is to make orders that are in a child’s best interests.
In determining what is in a child’s best interests, the court is assisted by s 60CC of the Act, which sets out the considerations (primary and additional) to which the court is to have regard.
Section 60CC(2) of the Act sets out the primary considerations to which the court is to give greater weight to, namely:-
(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.
The additional considerations set out in s 60CC(3) of the Act 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.
In addition, the Court is to have regard to the objects expressed in s 60B(1) of the Act as well as the underlying principles which underpin the parenting provisions of the legislation set out at s 60B(2) of the Act, which are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
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 s 60CC 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 s 61DA 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 s 60CC, 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 s 65DAA(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 s 60CC, 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 s 60CC;
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 s 60CC; 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.
Discussion
The father proposes that all of this time spending with the children be supervised. He however proposes:
(a)Firstly, to broaden those people who are to be utilised for supervision to include a family friend and former neighbour Mr G, a work colleague Ms H and the paternal aunt Ms J; and
(b)Secondly, to extend his time spending such that it occur each alternate weekend from 9.00 am Saturday until 4.00 pm Sunday, together with time each Monday from 2.00 pm until 7.00 pm OR alternatively if there is to be no overnight time, that time occur during the day on both Saturday and Sunday of each alternate weekend from 9.00 am until 5.00 pm Saturday and between 9.00 am and 4.00 pm Sunday.
Whilst the mother initially proposed that there be no time spending between the father and the children in her Response, at the hearing on 31 August 2023, her counsel indicated to the court that she did not seek to disrupt the parenting arrangements put in place by the orders of 14 November 2022; being the position promoted by the ICL.
Whilst I have had regard to the legislative pathway, the first question to be considered in all of the circumstances of these proceedings, is whether there has been a change of circumstances to warrant revisiting the orders made on 14 November 2022.
During the hearing, the father’s counsel meticulously took the court through the history of the matter; including the chronology of events, the allegations that were made and the information available from various records (some of which has been summarised earlier in these reasons, but otherwise as recorded in the reasons of 14 November 2022). During the hearing, it appeared that the father’s counsel was doing so in an attempt to invite the court to make findings on the basis of the allegations made by the mother being inherently implausible. The father’s counsel however fell short of asking the court to do so, acknowledging the limits placed upon the court at an interlocutory hearing.
With that in mind, and with the benefit of reflection, what is now apparent, is that the father was essentially asking the court to revisit the orders made on 14 November 2022 and for the court to supplant a fresh exercise of discretion as to the appropriate parenting arrangements for these children, with regard to the evidence previously available to the court, coupled with evidence now contained in Ms E’s expert report.
While I accept that the report of Ms E is a new piece of evidence that was not available when the matter was heard by Austin J, I cannot help but note that Ms E did not recommend there being anything other than supervised time spending between the children and the father prior to any final hearing in the matter when the evidence is able to be tested.[36]
[36] Family Assessment Report of Ms E dated 27 July 2022, p. 18.
I am also concerned, and it seems so are the parties from the submissions made during the hearing, that Ms E is of the view that it is unlikely that there will ever be “clarity” about X’s past allegations of abuse given they have been “rehearsed within the framework of having been abused by her father for approximately two years”, and that it is “hard to see how anyone will be confident about what [X] might report in the future”.[37]
[37] Family Assessment Report of Ms E dated 27 July 2022, p. 18.
That being said, as the Full Court warns in Hall & Hall (1979) FLC 90-713 (at 78,819), the expert opinion of Ms E is but one piece of evidence that is to be assessed in the overall final hearing of the matter. Moreover, the court is not bound to adopt the evidence of the expert.
The reality however is that despite the report of Ms E now being available, the circumstances which prevailed when Austin J heard the matter in November 2022 have not changed. There remains a significant dispute between the parties as to allegations of abuse alleged to have been perpetrated by the father towards X. Those allegations are no better able to be disregarded, or given some different treatment at this hearing than they were at the hearing in November 2022. Ms E’s expert opinion does not assist the court with respect to the assessment of those allegations; that shall ultimately be the focus of the trial.
Whilst the father may be unhappy with the delay in the matter progressing to a final hearing, the reality is that until there is a final hearing, the court is not in a position to assess all of the available evidence and make findings. Until then, I consider that I am in the same position as that confronted by Austin J in November 2022 where his Honour reached the conclusion, with which I agree, that it is appropriate to tread carefully at this interlocutory stage.
I, accordingly, do not consider that there is any proper foundation to extend the time spending arrangements beyond those that were considered appropriate in November 2022. To do so, would be to supplant my views as to the appropriate level of time spending over those ordered in November 2022; which were not the subject of appeal.
The topic of whether there is to be an expansion of supervisors is however a different question, that requires separate consideration, albeit one raised in the context of seeking to expand the father’s time spending with the children. In that context the father proposed additional supervisors in order to “allow greater possibility of spending more time with the children… pending trial”.[38]
[38] Father’s affidavit filed 3 August 2023, paragraph 18.
The father does not otherwise suggest that the paternal grandmother is unable to continue to supervise his time with the children. To the contrary the father says “my mother can continue to be a supervisor and remains subject to her Undertaking filed on 16 November 2022.”[39]
[39] Father’s affidavit filed 3 August 2023, paragraph 23.
In circumstances where the paternal grandmother remains willing and able to provide ongoing supervision for the children, and where this arrangement is one that the children are familiar with, I do not consider that there is any need for there to be a variation in the supervisors pending the final hearing.
I further consider that this is appropriate in circumstances where the mother is oppositional to any change to these arrangements. While I accept that the mother’s opposition is no bar to me making an order for there to be additional supervisors, I do consider that the mother’s contentment at having the paternal grandmother continue to supervise time is a relevant consideration. This is because the mother’s comfort will likely result in her being less anxious about the time spending that is occurring and avoiding any inadvertent or avoidable expression of that anxiety being picked up by these children.
The parties otherwise agree to the orders sought by the father in paragraph 4 of his application, which would see X ceasing any counselling “within a framework of sexual abuse therapy allegedly inflicted by the applicant father”.
Whilst there was agreement about this course of action between the parents and the ICL, the topic did give me cause for concern at the prospect of X attending upon a further therapist, and the purposes of the same, even if it be by agreement between the parties, particularly given the number of professionals with which she has already engaged.
During the hearing it appeared that the parties agreed that X should receive some psychological support, but they did not agree on the identity of that person. As a result the father’s position ultimately changed to seeking orders that the mother be restrained from taking X to any further psychologist without an order of the court.
This is a position with which I agree, for all of the reasons that I have identified. I additionally agree in circumstances where until it is clear to the court as to the purpose of any ongoing support, and who is proposed to undertake the same, it is impossible for the court to be able to make any orders in that regard.
I otherwise consider that the orders for any counselling that the mother is to have/participate in to be premature, and one likely best ordered if necessary at a final hearing. This is because it is not clear, in the absence of assessing the evidence and making findings, what purpose, if any, such counselling may serve.
For all of these reasons, I now make those orders that appear at the commencement of these reasons.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 30 November 2023
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