Bilyk & Bilyk (No 4)

Case [2024] FedCFamC1F 563

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bilyk & Bilyk (No 4) [2024] FedCFamC1F 563

File number(s): ADC 2479 of 2022
Judgment of: BERMAN J
Date of judgment: 26 August 2024
Catchwords:  FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where the children currently live with the respondent mother and spend supervised time with the applicant father – Consideration of risk – Where the respondent alleges that the applicant sexually abused the child – Where the evidence of sexual abuse is confined to the respondent’s allegations that the child made disclosures to her – Where there is no corroborating evidence – Where the Court finds the applicant does not present as a risk – Consideration of whether the respondent is a psychological risk of harm to the children – Where the child kept a journal – Consideration of the respondent’s involvement in the journal – Where the child brought journal notes to multiple interviews – Consideration of whether the respondent attempted to manipulate the investigations – Best interests – Where the ICL submits the children should have a relationship with the applicant –  Consideration of what time the children should spend with the applicant  – Where the single expert considers a gradual increase in time with the applicant should be adopted – Orders made for a graduated increase in time with the respondent.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Div 12A, ss 4AB, 60CA, 60B, 60CC, 61C, 61CA, 61D, 67ZT, 69ZV

Cases cited:

Andrew & Delaine [2009] FamCAFC 182

Baglio & Baglio [2013] FamCA 105

Briginshaw v Briginshaw [1938] HCA 34

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Harridge & Harridge [2010] FamCA 445

Isles & Nelissen (2022) FLC 94-092

M v M [1988] HCA 68

Maluka & Maluka [2012] 47 Fam LR 272

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

S v R (1999) FLC 92-834

S v S [1993] NZ FLR 657

Vasser v Taylor-Black (2007) FLC 93-329

VJ v CJ (1997) FLC 92-772

Division: Division 1 First Instance
Number of paragraphs: 311
Date of hearing: 17, 18, 19 & 21 June 2024
Place: Heard in Adelaide – delivered in Darwin
Counsel for the Applicant: Ms Betro
Solicitor for the Applicant: Denise M Rieniets & Associates Pty Ltd
Counsel for the Respondent: Ms Boyle
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:

BERMAN J

DATE OF ORDER:

26 AUGUST 2024

THE COURT ORDERS THAT:

1.X born in 2015 and Y born in 2018 (collectively “the children”) shall live with Ms Bilyk (“the respondent”).

2.The children spend time with Mr Bilyk (“the applicant”) as follows:

(a)Commencing 1 September 2024, each Sunday from…

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AGLC
Bilyk & Bilyk (No 4) [2024] FedCFamC1F 563
Case
[2024] FedCFamC1F 563
Decision Date

CaseChat Overview and Summary

The case of Bilyk & Bilyk (No 4) concerns a dispute between the parents regarding the care and custody of their two children, X and Y. The matter was heard in the Federal Circuit and Family Court of Australia (Division 1). The central issue before the court was determining the appropriate living arrangements and time-sharing schedule for the children, considering the allegations of family violence and sexual abuse made by the respondent against the applicant.

The court had to decide whether the applicant posed an unacceptable risk to the children, particularly in light of the respondent's allegations that he sexually abused X. The evidence provided by the respondent was primarily based on her observations and the child's disclosures, but there was no corroborating evidence. The court applied the principles from M v M and Vasser v Taylor-Black, focusing on the paramount consideration of the children's welfare. The court found that while the allegations of sexual abuse were serious, they did not meet the civil standard of proof. Furthermore, the court concluded that the applicant did not present as a risk to the children.

The court also considered whether the respondent was a psychological risk of harm to the children. This was influenced by the child's journal, which the respondent had been involved in, and the possibility that she had attempted to manipulate the investigations. The Independent Children's Lawyer submitted that the children should maintain a relationship with the applicant, and the expert recommended a gradual increase in time with him. The court determined that the current living arrangements were not supportive of the children's relationship with the applicant, and it was in their best interests to have a relationship with both parents.

Based on the evidence and expert opinion, the court made orders for a graduated increase in the time the children would spend with the applicant, starting with supervised visits and gradually transitioning to unsupervised time as the children's comfort and the parents' ability to co-parent improved. The court also outlined specific arrangements for special occasions and communication between the parties and the children.

Orders

Orders of the court

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:

BERMAN J

DATE OF ORDER:

26 AUGUST 2024

THE COURT ORDERS THAT:

1. X born in 2015 and Y born in 2018 (collectively “the children”) shall live with Ms Bilyk (“the respondent”).

2. The children spend time with Mr Bilyk (“the applicant”) as follows:

(a) Commencing 1 September 2024, each Sunday from 9.00 am until 4.00 pm under the supervision of the paternal grandmother;

(b) As and from 29 September 2024, each Sunday from 9.00 am until 4.00 pm, unsupervised;

(c) As and from 7 December 2024, each Saturday and Sunday from 9.00 am until 4.00 pm;

(d) As and from 25 January 2025, each alternate weekend from 10.00 am on Saturday until 4.00 pm on Sunday;

(e) As and from 4 April 2025, from the conclusion of school on Friday (or 3.00 pm if a non-school day) to 4.00 pm on Sunday and each alternate weekend thereafter;

(f) As and from 5 June 2025, from the conclusion of school on Thursday (or 3.00 pm if a non-school day) to 5.00 pm on Sunday and each alternate weekend thereafter;

(g) As and from 23 July 2025, from the conclusion of school Thursday (or 3.00 pm if a non-school day) to the commencement of school on the following Tuesday (or 9.00 am if a non-school day) and each alternate weekend thereafter; and

(h) As and from the end of the third school term in 2025, for one half of each of the school holidays as may be agreed between the parties but in the absence of agreement then:

(i) for the first half of each school holiday period from the conclusion of school on the last day of term to 6.00 pm on the middle day of the school holidays in even numbered years and each alternate year thereafter; and

(ii) from 6.00 pm on the middle day of the school holidays to 6.00 pm on the Sunday before the commencement of the new school term in odd numbered years.

3. Notwithstanding any other order herein, the children shall spend time with the parties on special occasions as follows:

(a) For Christmas in 2024 and each alternate year thereafter:

(i) With the respondent from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day; and

(ii) With the applicant from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day.

(b) For Christmas in 2025 and each alternate year thereafter:

(i) With the applicant from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day; and

(ii) With the respondent from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day.

(c) For Easter in 2024 and each alternate year thereafter, with the applicant from the conclusion of school (or 4.00 pm if a non-school day) on Maundy Thursday until 4.00 pm on Easter Monday.

(d) For Easter in 2025 and each alternate year thereafter, with the respondent from the conclusion of school (or 4.00 pm if a non-school day on Maundy Thursday until 4.00 pm on Easter Monday.

(e) For Mother’s Day with the respondent from 4.00 pm on Mother’s Day Eve until 4.00 pm on Mother’s Day.

(f) For Father’s Day with the applicant from 4.00 pm on Father’s Day Eve until 4.00 pm on Father’s Day.

(g) For the children’s birthdays with the non-resident party as follows:

(i) If a school day, from the conclusion of school until 6.00 pm on the child’s birthday; and

(ii) If a non-school day, from 11.00 am until 3.00 pm on the child’s birthday.

(h) For the respondent’s birthday with the respondent as follows:

(i) If a school day, from the conclusion of school the day before (5 November) until 9.00 am the day after the respondent’s birthday; and

(ii) If a non-school day from 4.00 pm the day before (5 November) until 9.00 am the day after the respondent’s birthday.

(i) For the applicant’s birthday with the applicant as follows:

(i) If a school day, from the conclusion of school the day before (16 December) until 9.00 am the day after the applicant’s birthday (18 December); and

(ii) If a non-school day from 4.00 pm the day before (16 December) until 9.00 am the day after the applicant’s birthday.

(j) At such other times as may be agreed between the parties.

4. Handovers that do not otherwise occur at the children’s school shall take place as may be agreed between the parties but in the absence of agreement, initially outside the City B Police Station but as and from 1 July 2025, at the parent’s place of residence with the parent who is to spend time with the children to collect the children from the other parent’s residence.

5. The parties do communicate by way of a parenting app unless otherwise agreed between the parties in writing and only by telephone in the event of an emergency.

6. The parties be at liberty to communicate with the children by telephone and/or FaceTime when the children are not otherwise in their separate care and the party with the care will use their best endeavours to facilitate such communication taking place.

7. The parties notify each other of any change to their contact details including residential address, telephone number or email address seven (7) days prior to such change.

8. The parties are given leave to provide a copy of this order to any school or extra‑curricular organisation at which the children may attend and the parties provide their express and irrevocable authority for each party to be listed as an emergency contact and to liaise with and obtain any information including copies of all school reports, notices and photographs (at that party’s sole expense).

9. Both parties be at liberty to attend at all school functions, sporting activities, extra‑curricular activities and other activities and events to which parents are normally invited to participate and to attend provided that the parties are restrained and an injunction is granted restraining them from coming within the close proximity of the other party and from attempting to communicate unless invited to do so.

10. The parties are restrained and an injunction is granted restraining each of them from taking X to any counselling or undertaking any therapeutic process without the agreement of each of them.

11. Each party shall be entitled to communicate with and obtain any information concerning the children’s physical, mental health and welfare from any medical practitioner, medical specialist, psychologist, counsellor, social worker or other person providing treatment to the children.

12. In the event of a medical emergency resulting in a hospital admission or serious illness relating to the children, the party in whose care the children are in at the time of the emergency shall inform the other party as soon as possible but no later than two (2) hours of the emergency including the details and particulars of the hospital to which the child has been admitted and to allow the other party to spend time with the child whilst he or she is being treated and whilst he or she recovering.

13. In the event either party seeks to travel outside of the State of South Australia with the children for a period not exceeding two (2) weeks, the travelling party shall provide fourteen (14) days written notice to the other party with a proposed itinerary of such travel including addresses and telephone contact details and a mobile telephone number upon which the children can be contacted.

14. Both parents be restrained and an injunction granted restraining each of them from discussing or showing any documents relating to the within proceedings to either of the said children.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The parties are unable to agree or reach a consensus of any common ground and there is little likelihood that even consequent upon the conclusion of the litigation they will be able to effectively reconcile their differences despite that they present as high functioning.BACKGROUND The parties commenced cohabitation and were married in 2010 with a final separation occurring on 7 December 2020. X was born in 2015 and is 8 years of age. Y was born in 2018 and is 6 years of age. Following the birth of X, the respondent did not return to paid employment however, in 2017 she commenced study whereas the applicant, in addition to his employment as a public servant with a government department, also commenced study. Whilst the parties are not agreed as to the care arrangements for the children during the relationship, even though after the birth of Y the applicant reduced his hours of employment from full-time to part-time work, it is likely that the primary care of the children was undertaken by the respondent. The applicant’s interest in another field of employment prompted him in 2019 to take a separation package from the government department. It is common ground that financial pressures resulted in the respondent returning to the government department in his former role in 2022. An important aspect of the respondent’s case is her purported observation that during her pregnancy and then the subsequent period of breastfeeding of Y, the applicant changed his normal practice and began to rise early in order to assist with X in terms of her breakfast and her preparation for the day. Whilst not agreed, the respondent recollects that X did not relate well to the applicant and such was her distress that the respondent would have to attend to X’s needs. The parties are diametrically opposed in their recollection of the children’s care arrangements. The respondent contends that the applicant did little to assist the children and that in respect of X and certainly Y, his relationship did not properly form but rather was still emerging. The respondent pointedly states that the applicant did not have a relationship with the children and moreover, did not express any interest in wishing to do so. To the extent that the respondent’s concerns were able to be quantified, she says that the applicant could only cope with the children up to a maximum of two hours. It is apparent from the respondent’s trial affidavit that she became vigilant of the applicant’s engagement with X during the early morning preparations. The respondent alleges that often X would scream and when she went to investigate, she would often see X distressed, upset and sometimes naked. Without there being any detail or particularity, the respondent says that she often observed X lying on the lounge with her pants down and the applicant crouched over her but upon realising that the respondent was present, he would attempt to distract her attention or behave in a manner that led her to believe he was hiding something.

Evidence

Evidence Before The Court

The position of the ICL at the conclusion of the proceedings is that the evidence supports a finding that the applicant does not present as an unacceptable risk to the children and that the applicant ought not to be prevented from having a relationship with the children. THE TREATMENT OF THE EVIDENCE At the commencement of trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”). The respondent’s contention is that the applicant has perpetrated family violence and has sexually assaulted X and presents as a manifest risk of continuing to do so if the children spend time with the applicant unsupervised. The allegations of the respondent, whilst general in nature, nonetheless, are comprised of certain specific events that underpin her application that the children spend no time with the applicant. In particular, the respondent places significant emphasis on her observations of X and highlights distressing behaviour involving nightmares, bedwetting and the child’s presentation as having a focus on genitals. Specifically, the observations of the respondent in 2020 as to blood stains on the lounge and a rug combined with X’s allegation allegedly recorded by the respondent in 2022 that the applicant had “broken her hymen on one morning before kindergarten” is a significant and pivotal allegation. In M v M [1988] HCA 68 (“M v M”) the High Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error. In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honours quoted at [51] with approval, the following passages from M v M (supra) at pages 77,080-82:-19.…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue. 20.But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; McKee v. McKee(1951) AC 352, at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J v Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463; 69 ALR 647.21.Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. 22.In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362. There Dixon J said:“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

Decision

Reasons for decision

I propose to make no order as to parental responsibility.CONCLUSION The evidence does not support a finding that either of the parties present as an unacceptable risk. The orders sought by the respondent provide no alternative other than that the children live with her and spend no time with the applicant. Whilst it is somewhat unhelpful, the respondent proposes that the Court is able to make such further and other orders as it deems just and equitable. Whilst I do not consider that it was the intention of the respondent to exercise some open-ended ability to make any order, my discretion must be exercised within the parameters of the evidence. The applicant seeks that the children live with the parties in a week about arrangement. There is no evidence which would support such an outcome. The opinion of Ms E that the relationship between the children and the applicant should be taken cautiously is without contest. When considering the presentation of the parties, and the evidence of Ms E in particular having regard to the outcome of the application of the standardised tests, the basis for a cautious approach is established. X at present is ambivalent to the time that she spends with the applicant. When in the care of the respondent, X expresses a preference not to see the applicant which is to be contrasted with her presentation when she is in his care. The children are placed in the invidious position of remaining in the respondent’s household which is not supportive of the children’s relationship with the applicant. X has also been the subject of intensive assessment, interview and investigation. A secondary consideration is that whilst there is some support for the applicant’s assertion that he would be able to resume a civil relationship with the respondent, I am satisfied that the respondent is either unable, or at least for the foreseeable, future unlikely to reconcile her relationship with the applicant. The children are conscious of the conflict and were able to express their concerns to Ms E. X may well be at risk of anxiety and depression if the focus is not upon her but rather upon the parties. The likelihood of the parties being able to communicate and reach consensus is remote at this stage. There is no evidence that would support a finding that the children and each of them could transition from the current interim arrangements to an outcome representative of shared care. I propose to put in place orders that will continue the applicant’s time with the children to be extended but initially supervised by the maternal grandmother with a view to there being a gradual increase in time resulting in an order that eventually encompasses the children spending time with the applicant for five nights a fortnight and half school holidays. There is no magic as to whether a certain number of days is or is not in the best interest of a child. It is not arbitrary but must be based upon the exercise of discretion taking into account the evidence.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.