Bustillo & Bustillo

[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 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bustillo & Bustillo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. 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

2. The parties commenced cohabitation in early 2006 and married in 2015.

3. Their two children were born in 2016 and 2019 and are now aged eight and five years respectively.

4. 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]

5. 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]

6. 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]

7. The mother commenced these proceedings in October 2022, to which the father responded in November 2022.

8. 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).

9. 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).

10. 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

11. It is clear the father was motivated to bring the fresh interim parenting application by the content of the single expert report, which he perceived to recommend the children’s cautious re-introduction to him. He deposed this in his affidavit:

    12. On 6 March 2026, a Family Report by [the single expert] was released by this Honourable Court.  I confirm that I have read and understood the Report, and in particular the recommendations made by [the single expert] in respect to the parenting arrangements for [the children].

    13.I now seek further interim Orders that allow the children to commence a stage re-introduction to spending time with me as per [the single expert’s] professional recommendations.

    …

    109.I have carefully read and understood the recommendations of [the single expert] and I am willing to undertake supervision of my time with the children so that they can be re-introduced to me and to help alleviate any stress or anxiety that [the mother] would have whilst the children are in my care. …

12. Aside from opposing the father’s application for the children to spend supervised time with him, the mother also sought leave to use the single expert report as evidence in parallel tort proceedings which she intends to institute in a State court seeking damages against the father for personal injury she allegedly sustained from the offence committed in 2022.

13. The registrar heard the dispute on 3 July 2024 and delivered judgment several weeks later on 23 July 2024. In summary, the registrar made orders providing for the children to spend time with the father, but for no more than two hours each month under professional supervision at a professional contact centre (Orders 1, 2 and 3). All outstanding interim applications, including the mother’s application for permission to use the single expert’s report as evidence in other proceedings, were dismissed (Order 5).

14. The mother filed her application to review the orders within a week on 31 July 2024.

15. The parties agree they have complied with the orders made by the registrar on 23 July 2024 by engaging with the contact centre, but the orders have not yet been implemented. Except for a chance meeting in a shopping centre in 2023,[12] the children last saw the father in 2022 and last communicated with him about a week afterwards,[13] which situation was perpetuated by the interim orders later made in November 2022 and February 2023. The single expert decided not to see the children in the father’s company.[14]

    [12] Father’s affidavit at [10]; Single Expert report at [458] and [561]

    [13] Mother’s affidavit at [87]; Father’s affidavit at [8] and [108]

    [14] Single Expert report at [560] and [564]

    Parenting proposals

16. The mother sought the discharge of the interim parenting orders made by the registrar, which would mean restoration of the interim orders last made in February 2023, and the grant of permission for her to use the single expert’s report outside these proceedings. Her proposal was as set out in both her Response filed on 29 May 2024 and her Application for Review filed on 31 July 2024.

17. The father sought retention of the orders made by the registrar.

    Evidence

18. The mother relied upon her affidavit filed on 29 May 2024.

19. The father relied upon his affidavit filed on 3 May 2024.

20. Both parties relied upon the single expert’s report dated 29 February 2024.

    Legal principles

21. 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).

22. 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).

23. 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.

24. 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.

25. 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. 

26. 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

27. 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)).

28. The mother deposed this in her affidavit:

    9.I am absolutely terrified of what [the father] might do to the children, or me, if orders are made which expose us to him whilst ever the risk posed by [the father], as assessed by [the single expert], is significant.

29. While the mother asserts her terror at the thought of what the father may do to the children, there is no objective evidence to reasonably bear out any implied risk of harm to the children. The single expert remarked nebulously about “risks to the children” in spending time with the father,[15] but the nature and virulence of such supposed risks remain quite unclear, aside from the detriment of them being exposed to “family violence”, in the widest sense that concept is defined (s 4AB), perpetrated by the father towards the mother.

    [15] Single Expert report at [772]

30. The mother’s fear about her own safety and emotional equilibrium is in a quite different category though. She alleges a long history of misconduct by the father, culminating in him implying that he might be willing to assault her during an argument around the time of their separation,[16] much of which evidence he denies. However, it is unnecessary to dwell on controversial evidence because more recent uncontroversial events tend to vindicate the mother’s fear.

    [16] Mother’s affidavit at [33]

31. She alleges being traumatised by the offence committed by the father in 2022.[17] She received a victims compensation payment for the incident, which she used to instal a security system at her home, and she has utilised access to a counselling service.[18] She is fearful of any form of interaction with the father, even if only confined to exchanges of the children, and is concerned her mental health will deteriorate if compelled to do so.[19] Her subjective fears are corroborated to some degree by the professional opinion of a consultant psychiatrist.[20]

    [17] Mother’s affidavit at [55]

    [18] Mother’s affidavit at [81] and [84]

    [19] Mother’s affidavit at [121]

    [20] Mother’s affidavit at [122] and Annex MB8

32. There can be no doubt about the circumstances of the offence committed against her. The father pleaded guilty. When discussing the incident with the single expert, he admitted the mother asked him what he was doing when he unexpectedly entered the shower.[21] He also admitted he placed one hand around the mother’s neck.[22] He asserted he had “no idea” whether the mother was distressed,[23] but conceded she was cold, removed (by which he meant detached) and hyperventilating.[24]

    [21] Single Expert report at [352]

    [22] Single Expert report at [354]

    [23] Single Expert report at [357]

    [24] Single Expert report at [358]

33. Despite those admissions, the father lacked the perspicacity to understand the effects of his behaviour upon the mother and sought to minimise his criminality. He alleged to the single expert “it was all consensual” and he only pleaded guilty to the offence “out of convenience”.[25] The single expert perceived the father to be minimising the incident by his description of it.[26] As is trite to say, the father cannot be heard in this Court to resile from his admission of the elements of a criminal offence he formally conceded in another court. Despite his criminal conviction by admission and despite him having read the single expert’s opinion about his minimisation, the father still deposed the incident was consensual.[27]

    [25] Single Expert report at [352], [366] and [790]

    [26] Single Expert report at [789]

    [27] Father’s affidavit at [74]

34. The incident the following day is no less important. The father presented himself in the garage of the family home as being willing to commit self-harm, without any apparent concern about being seen by the children in that situation. In relation thereto, the single expert said this:

    791.10In my view, the father [obtaining an item capable of inflicting self-harm] - and ringing [B Service] on the morning after the alleged [offence] in the shower is consistent with him having crossed a further line […], than he had prior.  These […] gestures were in my view a coercive and manipulative act, making use of the mother’s fear of the father harming himself should she leave him (which she had expressed in couple therapy with [Ms C], four months prior), so as to try to maintain her connection and compliance.

35. The same opinion was expressed to the mother by one of her counsellors. The mother deposed this:

    83.When [the father] attempted to [self-harm], he made me feel that I was to blame for his actions, my counsellor has told me that this behaviour is manipulative and controlling, it is also a common trait for people who are family violence perpetrators or has a serious mental health illness.  He said that [the father] was unlikely to follow through with the [self-harm] however he performs the act to make me feel sorry for him and to stop me from leaving him.

36. The father’s stalking and intimidation of the mother did not cease upon their separation. He admitted he gained unauthorised access to her social media.[28] He admitted he hired a private investigator to follow her and that he sent photographs taken by the investigator of her and her new partner to the partner’s ex-wife in 2022.[29] He also breached the State family violence order by which he was bound by contacting the mother in 2022. The father admitted his behaviour towards the mother was emotionally and verbally abusive.[30]

    [28] Father’s affidavit at [60]

    [29] Single Expert report at [387], [388] and [782]; Father’s affidavit at [61]

    [30] Father’s affidavit at [50]–[53]

37. Such intimidatory behaviour is not out of character for the father. Years before, in 2006, a family violence order was imposed upon him for the protection of his former partner.[31] He described that former relationship as being “toxic”,[32] just as he described his relationship with the mother.[33] He allegedly committed an offence against the woman in the presence of her father.[34]

    [31] Single Expert report at [308]

    [32] Single Expert report at [309]

    [33] Father’s affidavit at [50]

    [34] Single Exprt report at [315], [316] and [435]

1. The single expert found it “understandable” that the mother had “deep misgivings” about the children spending time with the father.[35] The single expert said this relevantly to her physical and psychological safety:

   841.But, in my view, it is understandable that the mother remains wary and afraid of future paternal intrusive, coercive and retributive behaviour towards her, despite this pleasant paternal presentation in therapy and to myself and the court.  She has experienced before a disjunction between such presentations and the father’s concurrent intrusive, coercive and [abusive] behaviours towards her.

   842.In my view, the risk of future recurrent coercive/aggressive/retributive behaviour towards the mother, possibly involving the children, or of family violence dynamics in future paternal partner relationships is significant.

   [35] Single Expert report at [771]

2. While the single expert did recommend the children’s ultimate cautious re-introduction to the father,[36] he did not do so unconditionally. His recommendations were expressly premised upon findings being made about the risks of harm demonstrated by the evidence, which findings the single expert sensibly understood were the province of and reserved to the Court.

   [36] Single Expert report at [987] and [999]

3. The single expert acknowledged how any time the children spend with the father should be “limited or constrained” if there is a risk of them being thereby exposed to “family violence dynamics” or if the mother’s “wellbeing, security and agency” was liable to be undermined by the father’s behaviour.[37] The single expert seems to express his belief in the existence of at least the latter form of risk, in which event he said the management of the risk had to take priority over the ideal of promoting the children’s relationships with the father.[38] There is no doubt that is true because the Act stipulates how the benefit the children derive from relationships with the father must yield to their safety (s 60CC(2)(e)).

   [37] Single Expert report at [761], [981] and [982]

   [38] Single Expert report at [946] and [982]

4. Although the evidence is so far untested, it is sufficiently probative at this stage to demonstrate two forms of salient risk: first, by spending time with the father, even if only under supervision, the children are at risk of being exposed to the “family violence dynamics” which exist between the father and the mother (s 60CC(2)(a)(i)); and secondly, any orders which would require, or even permit, the mother’s proximity to the father while they exchange the children at a professional contact centre are liable to expose her to the same “family violence dynamics” (s 60CC(2)(a)(ii) and s 60CG(1)(b)). Fashioning orders to keep the parties well apart when they exchange the children at a contact centre could not entirely eradicate the mother’s vexation.

5. The evidence currently suggests the mother could well be deeply emotionally disturbed by orders requiring the children to spend time with the father. That inference arises from the combination of the mother’s evidence and the corroborative opinion evidence given by the single expert. The inference is not foreclosed by the mother having been able to cope with a solitary chance meeting with the father at the shopping centre in 2023 or by her telling the single expert she would comply with any Court decision.[39] The mother’s capacity to provide for the children’s needs is liable to degrade if she is required to ensure they regularly spend supervised time with him against her earnest wishes (s 60CC(2)(d)), which would be disadvantageous for them.

   [39] Single Expert report at [759]

6. It has long been recognised that, even if a non-residential parent does not pose an unacceptable risk of harm to the children, the genuine fears of the residential parent about the existence of such risk may so impinge upon that parent’s capacity and cause such disturbance in the residential household that interaction between the children and the non-residential parent should be curtailed in any event. The need to accommodate the children’s best interests overrides any sense of injustice between the parties (Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544–546; A & A (1998) 22 Fam LR 756 at 768–769; Hepburn & Noble (2010) FLC 93-348 at [43] and [49]–[64]).

7. While it is far from ideal to temporarily perpetuate the father’s elimination from the children’s lives, two other considerations soften that detriment to the children. First, the single expert said the children have adapted well to their separation from the father.[40] Secondly, there is no guarantee orders will eventually be made after a final trial to restore the children’s interaction with the father. It would likely be upsetting to the children if they are re-introduced to the father on an interim basis, only for the father to again be eliminated from their lives. It would be less disturbing for them to be deprived of interaction with the father in the interim with the prospect that their relationships with him will later be restored on a permanent basis. There is nothing to suggest the mother is or has been damaging the children’s relationships with the father, either deliberately or inadvertently.

   [40] Single Expert report at [760]–[761]

8. Finally, but no less importantly, the father could not point to any change of circumstances which would justify revision of the interim orders last made in February 2023. The only development contended by the father was the release of the single expert’s report, which should not usually be viewed as a change in circumstance to justify another interim hearing when the expert opinion evidence is likely to be controversial but is still untested (Fowler & Northwood (2022) FLC 94-114 at [10] and [32]–[47]).

9. Neither s 65D(2) nor s 65DAAA of the Act purports to place restrictions upon when interim parenting orders may be varied, but litigation should not be conducted by serial interlocutory skirmishes in the hope or expectation that, by process of attrition, one party might eventually submit to the will of the other. Interim hearings should only be conducted as and when necessary to make orders placing the family into a satisfactory holding pattern until the parenting arrangements which will govern their lives can be properly determined at final trial. In Fowler & Northwood, both parties wanted the interim orders varied and so both contended for changes in circumstances to justify another interim hearing, but here the mother asserted there were no changes in circumstances at all and the father could point to nothing but the untested single expert report.

   Parenting orders

10. For the time being, until the controversial evidence can be thoroughly tested at trial, the children should not spend any time with the father. The interim parenting orders made by the registrar in July 2024 will be discharged and those previously made in February 2023 then restored to operation.

    Release of the Single Expert report

11. The mother sought release from her “implied undertaking” that she will not use the single expert’s report outside the confines of these proceedings (Hearne v Street (2008) 235 CLR 125 at [96]–[97]), though it remains unclear whether any such order would be made pursuant to the power which is now found in Pt XIVB of the Act (s 114Q(2)(b)) or pursuant to the Court’s implied power to control its own process. That issue has been discussed, but not seemingly settled by the Full Court (Littlefield & Pemble (2023) FLC 94-165 at [26]–[37]). It might even be the case that no order at all is necessary because the mother could have such freedom by operation of law (ss 114Q(1)(a), 114S(1) and 114S(2)(b)).

12. The mother wants to use the single expert’s report as evidence in the tort proceeding she intends to bring against the father, but which she has not yet instituted. As the father correctly points out, it is unnecessary to make any order in the mother’s favour unless and until she actually files the tort proceeding against him. If and when that occurs, she may renew her application.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate

Dated:       22 August 2024