Bustillo & Bustillo

Case [2024] FedCFamC1F 556

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bustillo & Bustillo [2024] FedCFamC1F 556

File number: NCC 3019 of 2022
Judgment of: AUSTIN J
Date of judgment: 21 August 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the mother reviews interim parenting orders made by a Senior Judicial Registrar (“the registrar”), which provide for the children to spend supervised time with the father – Where the children have not spent time with the father for almost two years – Where the mother alleges a long history of misconduct by the father  – Where the father committed an offence against the mother – Where the mother’s parenting capacity could be deleteriously affected if the children are ordered to spend time with the father on an interim basis  – Where there has been no change in circumstances which would justify revision of the previous interim orders – Ordered interim parenting orders made by the registrar discharged – Where the mother seeks the grant of permission to use the single expert’s report in tort proceedings she intends to bring against the father – Where until the mother files the tort proceeding an order is unnecessary and she may renew her application   
Legislation: Family Law Act 1975 (Cth) Pts VII, XIVB, ss 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 64B, 65AA, 65D, 65DAAA, 114Q, 114S
Cases cited:

A & A (1998) 22 Fam LR 756; [1998] FamCA 25

Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36

Fowler & Northwood (2022) FLC 94-114; [2022] FedCFamC1A 173

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Hepburn & Noble (2010) FLC 93-348; [2010] FamCAFC 111

Littlefield & Pemble (2023) FLC 94-165

Marriage of Sedgley (1995) 19 Fam LR 363; [1995] FamCA 154

Re Andrew (1996) 20 Fam LR 538; [1996] FamCA 43
Division: Division 1 First Instance
Number of paragraphs: 49
Date of hearing: 21 August 2024
Place: Newcastle
Counsel for the Applicant: Mr Gallimore
Solicitor for the Applicant: Joplin Lawyers
Counsel for the Respondent: Mr Guyder
Solicitor for the Respondent: Evans & Wislang Solicitors & Conveyancers

ORDERS

NCC 3019 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS BUSTILLO

Applicant
AND:

MR BUSTILLO

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

21 AUGUST 2024

THE COURT ORDERS THAT:

1.Orders 1, 2, 3, 4 and 5 made by the senior judicial registrar on 23 July 2024 are discharged.

2.Otherwise:

(a)the application for interim parenting orders within the Amended Initiating Application filed on 14 March 2024 is dismissed;

(b)the application for interim parenting orders within the Amended Response filed on 18 March 2024 is dismissed.

(c)the Application in a Proceeding filed on 6 June 2024 is dismissed;

(d)the Response to an Application in a Proceeding filed on 29 May 2024 is dismissed; and

(e)the Application for Review filed on 31 July 2024 is dismissed.

3.The applicant mother’s application against the…

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Bustillo & Bustillo [2024] FedCFamC1F 556
Case
[2024] FedCFamC1F 556
Decision Date

CaseChat Overview and Summary

The case of Bustillo & Bustillo involved a review application brought by the mother, Ms Bustillo, to revise interim parenting orders made by a Senior Judicial Registrar. The primary issue was whether the children, aged eight and five, should be allowed supervised time with their father, Mr Bustillo, after nearly two years of no contact. The mother argued that the father's past misconduct, including a 2022 assault on her and subsequent breaches of a family violence order, warranted continued restrictions on his contact with the children. The court had to determine if there had been a significant change in circumstances justifying the revision of the previous interim orders. Additionally, the mother sought permission to use the single expert’s report in tort proceedings she intended to bring against the father.

The court examined the statutory provisions under the Family Law Act 1975, focusing on the paramount consideration of the children's best interests. The court noted that interim parenting orders should only address issues necessary to protect the children's welfare until a full trial can be conducted. In this case, the court found that there had been no substantial change in circumstances since the last interim orders were made in February 2023, and thus, the existing orders should remain in place. The court also ruled that there was no immediate need for the mother to use the single expert’s report in tort proceedings, and she could renew her application once the tort proceedings were filed.

The court discharged the interim parenting orders made by the registrar and dismissed the mother’s applications for further interim parenting orders and her request for costs. The court emphasised that the mother could revisit her application to use the single expert’s report once the tort proceedings were initiated. The decision underscored the importance of interim orders being temporary and subject to change based on evolving circumstances and the children's best interests.

Orders

Orders of the court

NCC 3019 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BUSTILLO

Applicant

AND:

MR BUSTILLO

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

21 AUGUST 2024

THE COURT ORDERS THAT:

1. Orders 1, 2, 3, 4 and 5 made by the senior judicial registrar on 23 July 2024 are discharged.

2. Otherwise:

(a) the application for interim parenting orders within the Amended Initiating Application filed on 14 March 2024 is dismissed;

(b) the application for interim parenting orders within the Amended Response filed on 18 March 2024 is dismissed.

(c) the Application in a Proceeding filed on 6 June 2024 is dismissed;

(d) the Response to an Application in a Proceeding filed on 29 May 2024 is dismissed; and

(e) the Application for Review filed on 31 July 2024 is dismissed.

3. The applicant mother’s application against the respondent father for her costs of and incidental to the review application is dismissed.

NOTATION

A. The applicant mother does not require the publication of reasons for Order 3 hereof.

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

These reasons explain the disposition of an application made by the mother to review interim parenting orders made by a senior judicial registrar (“the registrar”) on 23 July 2024.Background The parties commenced cohabitation in early 2006 and married in 2015. Their two children were born in 2016 and 2019 and are now aged eight and five years respectively. By mid-2022, the mother formed an intention to separate,[1] though the parties remained living in the same home. About a week later, the father committed an offence against the mother while she was showering. She reported the assault to police.[2] The next day, the mother found the father in the garage speaking on the telephone to a B Service counsellor with an item that could inflict self-harm.[3] The father later admitted being found in that predicament.[4] He was conveyed by ambulance to a mental health unit for assessment, but was released soon after.[5] He vacated the family home not long afterwards.[1] Father’s affidavit at [41][2] Mother’s affidavit at [55][3] Mother’s affidavit at [59][4] Single Expert report at [408] and [416][5] Father’s affidavit at [43] The father was subsequently charged with numerous offences in relation to the incident in the shower in 2022. Much later, in 2023, he pleaded guilty to committing an offence against the mother,[6] for which he was sentenced to a community correction order and fined,[7] and the other charges were then withdrawn and dismissed. [6] Father’s affidavit at [75]–[76][7] Father’s affidavit at [77]; Mother’s affidavit at [99] The father submitted to a State family violence order being made against him for the mother’s protection for a period of two years,[8] but he was also convicted and sentenced for having breached the order in 2022 before it was made final,[9] for which he spent some weeks in custody with bail refused.[10][8] Father’s affidavit at [76], [78] and Annexure F; Mother’s affidavit at [100][9] Father’s affidavit at [79]–[81][10] Mother’s affidavit at [76] The mother commenced these proceedings in October 2022, to which the father responded in November 2022. The first set of interim parenting orders was made by the registrar between the parties, with their consent, in November 2022. The orders provided for the children to live with the mother (Order 1.1) and for them to neither spend time nor communicate with the father (Order 1.2). Those orders were only intended to govern parenting arrangements until the parties’ competing interim parenting applications could be heard in February 2023 (Order 4). In February 2023, following an interim hearing, the second set of interim parenting orders was made. The orders provided for the children to live with the mother (Order 2) and for her to have sole parental responsibility for them (Order 1), but it was ordered that the children neither spend time nor communicate with the father (Orders 3 and 4). Thereafter, a single expert psychiatrist was appointed by procedural orders made in February 2023 and May 2023. The single expert’s report was released to the parties in March 2024. Shortly afterwards, at a court event in April 2024, the father foreshadowed making another application for interim parenting orders, in anticipation of which the dispute was listed for hearing before the registrar in July 2024.[11] The father subsequently filed his interim application, to which the mother responded. [11] Orders 3 and 6 made on 3/4/24

Evidence

Evidence Before The Court

The father sought retention of the orders made by the registrar.Evidence The mother relied upon her affidavit filed on 29 May 2024. The father relied upon his affidavit filed on 3 May 2024. Both parties relied upon the single expert’s report dated 29 February 2024.Legal principles Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) (“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(1), within the context of the objects of the legislation (s 60B). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC). Parental responsibility for children is vested in their parents (s 61C(1)), whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). Since legislative amendments took effect on 6 May 2024, parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time. This is a review hearing, which entails the de novo hearing of the parties’ interim dispute. The principles to which I have just adverted apply equally to interim parenting orders. Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):…the 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. In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.Children’s best interests The only factors usefully addressed by the parties under s 60CC of the Act were the need to ensure the safety of the children and the mother (s 60CC(2)(a)), the absence of any change in circumstance to warrant revision of the interim orders last made in February 2023 (s 60CC(2)(f)), and the benefit the children would derive from the restoration of their loving relationships with the father (s 60CC(2)(e)).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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