CADRIEL & GABBEY

FEDERAL CIRCUIT COURT OF AUSTRALIA

CADRIEL & GABBEY

[2020] FCCA 1627

Catchwords:
FAMILY LAW – Parenting – interim hearing – two children aged 3 years and 10 months – where the mother seeks for the children to have no relationship with the father – where the mother alleges that the father poses a risk of physical, sexual and emotional abuse to the children – where the mother alleges that there is a risk of emotional harm to her if the father has a relationship with the children – where the father denies the mother’s allegations – orders made for the father to spend time with the children under the supervision of a professional supervisor.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B(2), 60CA, 60CC, 61DA, 61DA(3), 65DAA, 69ZW

Cases cited:

B and B (1993) FLC 92-357

Goode & Goode (2006) FLC 93-286

Deiter & Deiter [2011] FamCAFC 82

Marvel & Marvel(No.2) [2010] FamCAFC 101

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

W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

Applicant:

MR CADRIEL

Respondent:

MS GABBEY

File Number:

ADC 4072 of 2019

Judgment of:

Judge Kari

Hearing date:

26 May 2020

Date of Last Submission:

26 May 2020

Delivered at:

Adelaide

Delivered on:

19 June 2020

REPRESENTATION

Counsel for the Applicant:

Ms Ross

Solicitors for the Applicant:

Starke Lawyers

Counsel for the Respondent:

Ms Boyle

Solicitors for the Respondent:

C M Tucker

Solicitors for the Independent Children's Lawyer:

Ms Olsson of Silkwoods

ORDERS

That until further order the children X (born in 2016) and Y, otherwise known as Y (born in 2019) do live with the mother.
That the children shall spend time with the father each Saturday from 10am until 12 noon with such time to be supervised by either Ms A or Ms B with the costs of such supervision to be borne by the father.
That paragraphs 3-7 of the Orders made 18 November 2019 be discharged.
That the parties forthwith do all things necessary to enrol in and be accepted into the supervised time program at the C Children’s Contact Service.
The father spend time with the children on such occasion as the C Children’s Contact Service can accommodate the parties subject to the following:
(a)There be no more than one session per week which is not to exceed two (2) hours in duration;
(b)Each period is to be subject to the supervision of the Director of the Centre or his/her nominee;
(c)The visits are to be at the expense of the father;
(d)After six visits the father is to obtain a report from the Director of the Centre regarding the children’s reactions to the visits; and
(e)That the visits continue after the report has been obtained.
That the time specified in paragraph 2 herein be suspended during each week that the father spends time with the children at the C Children’s Contact Service pursuant to paragraph 4 herein, to the effect that the father is spending time with the children on one occasion only each week at either the C Children’s Contact Service or supervised by Ms A or Ms B.
That the proceedings be adjourned for mention only to 13 November 2020 at 10:30am.

IT IS NOTED that publication of this judgment under the pseudonym Cadriel & Gabbey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4072 of 2019

MR CADRIEL

Applicant

And

MS GABBEY

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the parties’ two children X born in 2016, who is almost 4 years of age, and a baby girl who is known by the name of Y who was born in 2019, who is not quite one year of age.
The proceedings were commenced by the father two months after Y’s birth in 2019.
Both of the children live with the mother and have no relationship whatsoever with the father. The father last saw the child X in about June 2019 when the mother was pregnant with Y, and aside from meeting Y briefly outside court after a hearing on 13 February 2020, the father has not otherwise spent any time with her since her birth.
The mother’s position is that she does not want the children to have any relationship father because she asserts that he presents a risk to the children for two reasons:
a)Firstly, a risk of physical, sexual and emotional abuse; and
b)Secondly, a risk stemming from the emotional harm that would be caused to the mother if the father was to have a relationship with the children.
The father’s position is that he wants to have a meaningful and ongoing relationship with both children. The father generally denies all of the allegations made against him by the mother and he asserts that he poses no risk to either the children or the mother. The father goes further and asserts that the mother’s allegations against him are concocted by her to try to prevent him from having a relationship with the children.

Background

The history of relationship between the parents is somewhat unusual as they have effectively spent very little time living together.
The mother was born in 1978 and she is 41 years of age.
The father was born in 1980 and he is 40 years of age.
The mother has previously been married and she has two children from that relationship, a daughter by the name of D born in 2006 who is 14 years of age, and a son E who was born in 2012 who is 8 years of age. The mother asserts that those children have a close relationship with their father Mr F, that she and Mr F have an amicable relationship and that the children spend roughly equal time with each of them.
The parties met online on about 2015 on a dating website, at a time when the mother had separated from Mr F but they were still living under the same roof.
At the time that the parties met the mother was living in Adelaide and the father was living in Country G.
By July 2015, the mother travelled to Country G for a holiday to meet the father and she asserts that to culturally explain the fact that they would be socialising in public together, the parties became engaged within two days of her arrival.
The mother returned to Country G on in 2015 and the parties married in 2015.
The mother returned to Australia in 2015 by which stage she says she was pregnant with twins.
The mother asserts that within days of her arrival in Australia and in 2015, she suffered a miscarriage of one of the twins, but that X survived and was ultimately born in 2016.
The mother asserts that the parties kept in touch after her return to Australia but that she ceased communication with the father and blocked his number on her mobile telephone on 15 September 2016 because he was abusive towards her and it had become clear to her that he was making financial overtures and putting pressure on her with respect to financial arrangements and his visa to come to Australia.
The father, ultimately with the support of the mother, applied for and obtained a visa to travel to Australia and he arrived in the country and spent time with the mother and X between in 2018.
The father returned to Australia in 2018 and stayed in the country until 2018. During that time the father lived with the mother. Doing a reverse calculation it would appear that the child Y was conceived towards the end of this time.
The father returned to Australia in 2018 and the parties lived together until their separation when the father moved out of the home they were sharing for the final time on 3 April 2019.
After the father moved out of the home on 3 April 2019, it appears to be agreed that the mother facilitated time spending between the father and X. The father asserts that the arrangements were such that he spent time with X each Thursday and Saturday until those arrangements stopped by the mother on or about 7 June 2019.

Allegations made by the mother

The mother makes a series of allegations in her affidavit material about the father’s conduct towards her over the course of their relationship and in the post separation period. The allegations have been generally denied by the father.
The mother asserts that during 2018, when the father first travelled to Australia to meet X, the father behaved inappropriately towards her, including generalised allegations that he was aggressive, intimidating, abusive, that he stalked the mother and that he raped her on the first day that he was in the country. These allegations are denied by the father.
In addition, the mother alleges that she found the father “playing with X’s penis like it was natural after a bath” and that the father held a pot of boiling water over X’s head. These allegations are specifically denied by the father.
The mother alleges that the period of time when the parties lived together in 2018 was also punctuated by family violence with the father generally behaving inappropriately towards both her and the children. The father denies these allegations.
The mother alleges that the further period of cohabitation in 2018 until 3 April 2019 was also difficult. She asserts that father would go missing for “many days and nights”, that the father showed little interest in X, that X injured himself with a knife due to the father’s lack of attention, that the father was “sexually abusive” towards her, that the father failed to contribute to family expenses and that the father was generally “verbally abusive”. The father denies these allegations.
The mother alleges that on or about 28 February 2019, she ultimately “fled” the home “to escape Mr Cadriel’s violence”. The mother alleges that she made this decision as she did not trust the father and “the pattern of his conduct over time indicated he was not genuine in the marriage, he had been repetitively dishonest, I knew he used me to get a visa.” The mother alleges that on that day the father picked X up and “explosively screamed” at the mother that he was not a “liar”.
Across this same period prior to the parties final separation, the mother asserts that X’s behaviour became difficult, including gagging on food, food rejection, meltdowns, night terrors, head banging, bitting himself and tearing his hair out. X was ultimately diagnosed with autism on 24 April 2019; a few weeks after the parties physically separated for the final time.
After the father moved out of the home on 3 April 2019, and the father began spending regular time with X, the mother asserts that the father behaved in an aggressive and intimidating fashion and that the father was sexually harassing the mother.
On Mother’s Day 2019 (12 May 2019), the mother alleges that there was an incident where the father behaved in a “manic and sexually intimidating” way towards her. The mother says that she ended up speaking to the police about the father’s conduct that day, which included the father refusing to accept the bill at a restaurant, stalling the mother’s exit from the restaurant, the father “ranting” at the table while the mother was in tears, the father “skipping in the street singing” after the meal, the father “accosting” the mother whilst she was driving, and the father speaking in a “word salad”.
The father alleges that the mother’s day incident was not at all as the mother now asserts. Rather he says that he invited the mother for dinner at a restaurant and he paid for the meal, the mother volunteered to drive him, the mother was in a “happy mood” and that she was not in tears. The father asserts that the mother did not telephone the police.
The mother alleges that at a handover in the days immediately after this incident the father “forced himself on me” and that this “caused a traumatic flashback of an earlier rape”. The father denies this incident together with any allegations that he has ever raped the mother.
The mother alleges that there was a further incident on 7 June 2019 and that after this incident she ceased all time between the father and X. The mother asserts that on this occasion the father was “again intimidating when he refused to release X to me, or his nappy bag”. The mother asserts that thereafter the father “crowded me from behind, jammed my stomach into X’s car seat and spoke in a sexual manner into my right ear”.
The father denies these allegations and asserts that the mother behaved unusually that day by insisting that she buckle X into his car seat as against him doing so as he had always done.
The mother further alleges that on or about 23 July 2019 the father attended her home without her consent causing her to telephone the police. The mother says that the father left before the police arrived. The mother asserts that after this incident she met with a lawyer to make arrangements to obtain a private intervention order.
The father denies this incident entirely and says that he was home at the time, did not have a drivers licence and did not have access to a car to attend at the mother’s home. The father admits that he was contacted by the police in relation to this incident, but that nothing further has come of the matter.

The legal principles

In parenting cases both at an interim or final hearing stage, the paramount consideration of the Court is the best interests of the subject children.[1]
[1] Family Law Act 1975 (Cth) s 60CA.
In order to determine what is in a child’s best interests, the Court is guided by those factors set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’), as follows:
(2)    The primary considerations are:
(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.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)    Additional considerations 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.
The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility,[2] however:
a)The presumption is specifically rebutted and not to be applied in situations relating to abuse and/or family violence; and/or
b)At an interim stage of proceedings, the Court has the discretion not to apply the presumption if the Court “considers that it would not be appropriate in the circumstances for the presumption to be applied…”[3]
[2] Ibid s 61DA.
[3] Ibid s 61DA(3).
If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.[4]
[4] Ibid s 65DAA.
Family Violence is defined in section 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)    an assault; or
(b)    a sexual assault or other sexually abusive behaviour; or
(c)     stalking; or
(d)   repeated derogatory taunts; or
(e)     intentionally damaging or destroying property; or
(f)     intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

In Goode & Goode (2006) FLC 93-286 at paragraph 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 s60CC 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 s61DA 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 s60CC, 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 s65DAA(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 s60CC, 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 s60CC;
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 s60CC; 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 issues in this matter are numerous and they include considerations of allegations that fit within the broad definition of family violence. In addition, there is a completely fractured relationship between the parents, which coupled with the very young ages of the children, that the father has had no relationship with Y, and that he has not seen X for over a year now makes for a difficult mixture of circumstances for the court to consider.
The mother’s position that there should be no time spending between the children and the father is pressed with vigour at this interim stage.
Given the interim nature of these proceedings and the allegations that have been made, I do not consider that I am in a position to make any orders with respect to parental responsibility and I decline to do so.
The guiding principles which underpin the parenting provisions in the Act, are set out in 60B(2) which provides:
(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).
Accordingly, it would be a significant step for the court to make a determination, either at an interim or a final hearing to deny a child the right to have both of their parents in their life.
The mother’s position is that the circumstances confronting her family warrant such a significant step to be taken. In making this assertion, the mother’s position must be that there is an unacceptable risk to the children if they were to have a relationship with the father.
As a consequence of the mother’s position, the court is required at this very early stage to make some assessment of the allegations that have been made by the mother.

Are the children at risk?

In Deiter & Deiter [2011] FamCAFC 82 (“Deiter”), the Full Court set out (at paragraph 61):
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In that same decision, the Full Court discussed the use of corroborative evidence, weighed against the contested evidence of the parties to assist in that process.
I am also mindful of the decision of the Full Court in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235, where Justices Warnick, May and Boland said the following (at paragraph 96):
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
The Full Court went on in that decision (at paragraph 98) to consider the term “unacceptable risk” and the court’s need to “make some effort to quantify the relevant risk”. In doing so, the Full Court referred to the dissenting judgment of Fogarty J in N & S and the Separate Representative (1996) FLC 92-655 with approval as follows:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding wither an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
Given the early stage of these proceedings, I am also mindful of the comments made by the Full Court in Goode & Goode (at paragraph 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.[5]
[5] (2006) FLC 93-286.
I have also had reference to the comments of the Full Court in a series of more recent decisions,[6] and in particular in Marvel & Marvel(No.2) [2010] FamCAFC 101 (at paragraph 120), where the Full Court commented:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…
[6] SS & AH [2010] FamCAFC 13 which was cited with approval by the Full Court in Marvel & Marvel(No.2) [2010] FamCAFC 101, and in turn Marvel has been cited with approval by the Full Court in Eaby & Speelman [2015] FamCAFC 104.
The Full Court went on to say (at paragraphs 122-123):
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where this brings me in the present case is to the need to turn to consider the allegations that have been made alongside the corroborative evidence, which for present purposes includes a swathe of material that has been obtained from the South Australian Police Department (SAPOL) pursuant to s 69ZW of the Act, together with information provided to the court during the course of the hearing by the newly installed embedded SAPOL officer.
The father’s position is that the corroborative evidence casts serious doubt over the mother’s allegations. He also asserts that the timing and building nature of the allegations made by the mother must give the court some significant concern that the mother is attempting to bolster her position in these proceedings so as to ensure her desired outcome of the father being permanently removed from the lives of the children.
Before I turn to the details of the allegations made by the mother and the SAPOL evidence, I comment that aside from some specific incidents that are alleged to have occurred, the vast majority of the mother’s allegations are put in a generalised way without any particularity as to what exactly is alleged to have occurred or when it is said to have occurred. This makes it impossible for the court to be clear about exactly what the mother’s allegations are said to be and to consider whether or not the alleged conduct can and should be interpreted in the way that the mother asserts. Allegations put in this way tend to have the effect of undermining the allegation that has been made.
In addition, where the mother has made specific allegations by identifying a date, again the detail and particularity of the allegation is also lacking. For example, the mother simply asserting that the father “spoke in a word salad”, without understanding what words are alleged to have been said by him or the context of the discussion, does not assist the court in being able to understand what has occurred, and whether or not the father’s behaviour was unusual and concerning, which is the inflection that the mother’s interpretation of the event creates. Other examples of the mother’s allegations which comprise a statement and her conclusion without the detail of what is alleged to have occurred include:
a)“him raping be on the first day of moving events in a direction I did not consent to”;[7]
[7] Mother’s Affidavit filed 6 March 2020, paragraph 36.
b)“him being aggressive and intimidating”;[8]
[8] Ibid.
c)“him abusing me and talking me down in public”;[9]
d)“him stalking me through the streets when I tried to get away from him”;[10]
e)“Him breaking numerous of my household items including my vacuum cleaner and collectable vintage kitchen items and him abusing me when I was upset about it”;[11]
f)Priests witnessing “Mr Cadriel’s aggression”;[12]
g)That the father had been “repetitively dishonest”;[13]
h)The father “fake smiling at me throughout this period, in completely inappropriate contexts”;[14]
i)That the father’s behaviour was “still aggressive and intimidating. He blamed me for everything, repetitively demanded to touch me, rubbed against me in an intentional lingering sexual manner irrespective of me telling him not to do so”;[15]
j)The father using “every handover as an opportunity to sexually harass and intimidate me”;[16]
k)The father being “manic and sexually intimidating”;[17] and
l)The father speaking in a “sexual manner”.[18]
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid paragraph 40(f).
[13] Ibid paragraph 44(l).
[14] Ibid paragraph 44(m).
[15] Ibid paragraph 45(b).
[16] Ibid.
[17] Ibid paragraph 45(e).
[18] Ibid paragraph 45(f).
Turning however to the SAPOL records and particular events which are alleged to have occurred and the timing of the mother’s contact with SAPOL.
There is a “Detailed Occurrence Report” dated 20 May 2019[19]. The timing of that report coincides with the Mother’s Day incident (given Mother’s Day was on 12 May 2019), and the handover of X immediately following that visit during which the mother alleges amongst other things that the father “forced himself” on her, causing a traumatic flashback to an “earlier rape”.
[19] Affidavit of the Father’s solicitor filed 25 May 2020, Annexure “DAS-2.”
Under the heading “Intervention Order Status” the record states “There are no Intervention Orders and no grounds to apply for one”.
Under the heading “Preliminary Risk Assessment” the following is recorded:
MR F was allocated this FSM referral on the 21^st May 2019. The referee is [name omitted] a social worker from the Suburb H Hospital. [name omitted] assessed the victim as high risk on 20^th May, the victim returned a score of 42.
[name omitted] expressed concerns that the victim has recently separated from the father of her most recent child who is highly manipulative, controlling and irrational.
MR F spoke to the victim by phone on the 21^st May 2019. The victim had two children to a previous partner when she met the suspect online, he lived in Country G. The victim chatted to the suspect for one year before marrying him in Country G. When she married the suspect, his family began to pester her for money and to pay the $8000 it would cost for the suspect’s spousal visa. After the wedding, the victim returned to Australia pregnant and alone. Almost three years later the suspect moved to Australia to be with the victim and to meet his son. Since then, the two have separated due to his family and what the victim describes as “nonsense talk”. The victim is annoyed by the suspect, his lack of motivation towards work, his family pestering her for money and his limited help with their child X. The victim and suspect argue but at no point has he ever been violent/threatening or intimidating.
The suspect does not contribute to the cost of raising X, despite now working at an On the Run. Victim referred to the Child Support Agency. The victim’s main issue with the suspect is his lack of understanding and him not accepting that their relationship is over. (Continues to ask her out on dates). The victim also explained that his family believes all Australian’s are rich which is why they expect her to pay for everything.
The victim does not allow the suspect in her house, the suspect has not ever entered without permission. The victim seems to be in control of the situation but needs further help financially and with her children. The victim is engaging with social workers.
It appears that the victim is very stressed as she is pregnant with three children, two of whom have high needs (autism).
The victim is not in fear of the suspect, but very annoyed by him.
The victim is not recommended for the FSM and has been reassessed as standard risk.
What can be said about this record is that at the time the mother was spoken to by SAPOL, it does not appear that she was making any allegations of rape, sexual abuse and/or harassment or physical abuse. Rather, the record suggests that the mother was “annoyed” with the father’s inability to accept that the relationship was over. Moreover the record indicates that the mother was not at that point identifying that she was in fear of her safety.
In addition, the record would appear to give some corroboration to the father’s assertion that he had asked the mother out for dinner, as the request to go on “dates” is something that the mother complained about.
There is a further “Detailed Occurrence Report” dated 23 July 2019[20]. This is a record made on the day that the mother alleges that the father attended at her home without her consent, leaving before police arrived. In the narrative of the report following is recorded:
MS GABBEY called Police she saw a male in her front yard of her property. The male left on their own, prior to Police arrival, with no interaction between MS GABBEY and male. MS GABBEY believes male was her husband, to whom she is separated to, MR CADRIEL.
[20] Affidavit of the Father’s solicitor filed 25 May 2020, Annexure “DAS-1.”
Under the section entitled “Action Scene” the following is recorded:
Police attended and spoke with MS GABBEY who was upset re unknown male in her front yard. She is of the belief it was her husband, MR CADRIEL, however nothing to suggest this. Lengthy discussion held with MS GABBEY who stated she was having ongoing issues with MR CADRIEL as he still wants to be married and have a family with her however she does not want this to happen. MS GABBEY initially receptive to advice.
MR CADRIEL spoken with via mobile who denied being at the premises. MR CADRIEL was also receptive to advice however stated his main concern was seeing his child who he has not seen since June and MS GABBEY was refusing to return his phone calls.
Both parties were informed of their rights and options re family court orders and relationship advice however both were quick to pass the blame onto the other.
Suggest ND CFVIS contact MS GABBEY and provide reassurance re matters/relationship and options available to her. She was clearly stressed and expecting to give birth to their second child in 2019.

The record goes on to record an entry made by a Police Officer on the following day:
In 2019 I spoke with the victim at length over the phone, she is going through the process of a private application for an Intervention Order. I have spoken with the victim other times re psychological abuse, nil offences ever disclosed to police.
Victim is due to have c section in one week, is not prepared for the baby and is highly stressed. Victim has three other children, two are high needs (autistic). Victim will have no support when returning home with her newborn. Will not accept any help from the suspect. I contacted the Suburb H Hospital today to flag the victim’s situation, they were already aware and have allocated the victim a social worker [name omitted]. I emailed my concerns to [name omitted] on today’s date and also advised FHS. The victim has been referred to the ‘mother care’ program and a FHS ‘welfare’ program for extra support.
I am concerned for the victim as she was once so tired that she overmedicated her child who ended up in a coma and hospitalised. The victim admits that she cannot cope/think straight when she is sleep deprived. Victim is engaging with a lawyer to assist in the process of a private application for an IO, is completely aware of support agencies.
There is a further entry which records:
Spoke with victim who would like an Intervention Order, lengthy chat had. Victim advised that there is insufficient grounds for an IO but she is able to make a private application through the courts. Victim is due to have a C section in one week, has an autistic 2 year old child and two other school aged kids. Victim has very little support and is unsure how she will cope when baby is born. 2 older kids are staying with their Dad for two weeks but otherwise, victim is alone. Does not want the suspect involved in the birth. Nil offences have actually been committed. Victim feels “badgered” as the suspect won’t accept their relationship is over, she feels that she is the victim of psychological abuse. Victim finds it difficult to understand that she does not have grounds for a Police Intervention Order. Victim has been made aware of all agencies who can offer her support, she is currently engaging a lawyer. Will try and get the victim engaging with the Home Visiting Nurse program ran by FHS.
The record neither proves nor disproves the mother’s allegation that the father attended her home without invitation that day. The record however is of assistance for the following reasons:
a)It would appear that despite the allegation by the mother that the father attended that day without the mother’s permission there is no allegation in the record whatsoever that the mother alleged that the father behaved inappropriately.
b)In addition the record is of assistance as it records that the mother was advised that on the basis of the information she had given police officers to that point, there was no basis for an intervention order as no offences were alleged to have been committed.
c)The record is concerning as a result of the information contained about the mother being stressed and not coping and the mother having “overmedicated” a child.
The next record of contact between the mother and SAPOL appears to be on 8 October 2019.[21] The significance of this date is that firstly, it was after the mother asserts that she met with her lawyer to obtain advice about obtaining a private intervention order, and secondly, it is a little over a fortnight after the father initiated proceedings in this court. This record contains the following:
Victim called to discuss providing a statement re this matter to support her private Application for IO, explained to victim that nil offences and that a statement will not be necessary. Victim explained that the suspect is trying to get access of their 2 children through the Family Courts and that he is applying for a property settlement even though he has not contributed to anything financially during the relationship.
I have had many conversations with the victim re her concerns, victim would often describe the suspect as “annoying”, at no time has the victim disclosed any offences. The victim would often call for a chat to discuss her matter, there were nil grounds to make a Police Application for an IO or anything that would require any follow ups with the suspect.
When I spoke with the victim today, she said, “do you remember when I told you how he forced himself on me in 2018”. I told the victim that at no time did she disclose a rape, she went on to say, “I thought I told you about it”. Advice given re the process of reporting offending, victim asked if this statement would assist her in the Family Court. I explained that Police do not give advice re Family Court matters.
[21] This can be understood from a running chronology of Police reports, one sheet of which was provided at “DAS-1” to the second Affidavit filed by the Father’s solicitor on 25 May 2020.
This record is of concern, as it would appear to indicate that the mother was attempting to gather evidence to secure a private intervention order and to assist her in the family law proceedings. In particular the record appears to indicate that:
a)The mother was engaged in a discussion about her not having previously disclosed any offences having ever been committed by the father; and
b)The mother was engaged in a discussion about not ever having reported a rape by the father.
The record also contradicts the mother’s assertion in her affidavit material that she was not served with the proceedings instituted by the father until 7 November 2019. It is clear from the record that on 8 October 2019 the mother was well aware that there were proceedings before the court with respect to both parenting and financial matters.
During the hearing, the court was assisted by further information provided by the embedded SAPOL officer who has recently been appointed to provide assistance to this court and the Family Court of Australia in cases that it hears.
The information received by the embedded officer is of assistance as it post-dates the information that was put before the court by the father.
Significantly, those records indicate that on 9 October 2019 (the day after the record just discussed), the following is recorded:
Victim and suspect (MR CADRIEL) married in Country G in 2015, suspect has been living in Australian since 2018 on spouse visa. The victim ended the relationship in March 2019 and from this time the victim and suspect have been residing at different address's. Victim and suspect have two young children - X (2016) and newborn Y (2019). Victim is full time carer for both children.
In 2018 (specific date unknown) the victim states that she picked up the suspect from the airport and drove him to her address. Victim had agreed for suspect to stay at her address so that the suspect could meet/spend some time with their child - X. Upon arrival at the victims address the suspect has placed his bags in the victims bedroom - suspect has then asked victim to come into the bedroom so that he could show her something he had bought for her.
The victim sat on the side of the bed. The suspect has then started trying to kiss the victim, has pushed the victim backwards onto the bed and pulled her skirt up. The suspect has then forced his penis into the victim's vagina and started thrusting numerous times. The victim has tried to push the suspect off of her - placing her hands on his chest and pushing him away - however the victim states the suspect was too strong. The suspect has continued until he ejaculated inside the victim and then got off of her.
MR CADRIEL was arrested and charged with 1x count of Rape. Prosecution has determined that there is no reasonable prospect of conviction, due to a lack of supporting/admissible evidence.
This record would appear to indicate that the mother made an allegation that day, that the father had raped her in 2018. When considered in conjunction with the earlier records it would appear that this is the first time that this allegation had been made by the mother to SAPOL.
The record also indicates that there are no pending charges as a result of these allegations.
The record does however for the first time allow the court to understand the exact nature of the allegations of rape that the mother makes against the father, because the detail of the allegation is not otherwise contained in the mother’s affidavit material beyond a mere allegation that the mother was raped.
Again the timing of the mother making this report does arouse some suspicion when read together with the record dated 8 October 2019.
The court was provided with a further record dated 21 May 2020. This date is significant as it is the 5 days prior to the present hearing of this matter.
The record dated 21 May 2020 sets out the following:
Narrative:
MS GABBEY, the Reporting Person, alleges between 06/04 – 26/04/2018, the suspect MR CADRIEL (her ex partner) was at her home address in Suburb J with her and her children. She alleges that the suspect has bathed their son X and she was elsewhere in the house. She alleges that after the bath the suspect has taken X into the lounge room of the house in a towel. She alleges that she has entered the lounge room and the suspect has his hand on her sons penis and was playing with it, She yelled at the accused to stop, he has argued with her stating that he wasn't doing anything wrong but stopped touching X.
Outcome:
MR CADRIEL has been interviewed by police in relation to the matter, he denied the allegations.
The victim was about 18 months old at the time of the offence and not suitable for a CPS interview. There is no forensic evidence or witnesses. There are no other lines of enquiry.
RP states she didn’t make any notes, didn’t call anyone or text anyone about anything to do with the way the suspect touched the victim. The first person the RP told was a member of police in 2019 when she was reporting other matters.
Reporting person contacted and explained that there was insufficient evidence to proceed with any criminal charges.
From this record it would appear that the mother for the first time reported to the police the allegation raised in her affidavit material about the father having inappropriately touched X in April 2018.
Curiously, the report does not record another aspect of the allegation set out in the mother’s affidavit material, namely that the father held a pot of boiling water over the child’s head at or around this same period of time.
The timing of this allegation to SAPOL, together with the records of 8 and 9 October 2019, when read with the earlier police records and the matters the mother put before the court by the time she filed her affidavit material on 6 March 2020[22] causes some significant concerns, and must on balance arouse suspicions about the veracity of the allegations being made by the mother.
[22] Noting that orders were made on 13 February 2020 to uplift two affidavits that had been filed by the mother on 11 and 12 February 2020 which did not comply with Practice Direction No 2 of 2017 of the Federal Circuit Court of Australia.
It is also of some concern that aside from the information provided by the embedded SAPOL officer, all of the SAPOL records that I have been referred to have been put before the court by the father. Additionally, the mother has not chosen to put any SAPOL records before the court which corroborate her allegations. While I accept that the absence of corroborative records do not prove or disprove allegations of family violence (given the same often go unreported), that there are records which appear to cast a shadow over the mother’s allegations, I would have to infer that in the absence of the mother putting further records before the court, there is nothing in the records that have been produced that support the mother’s allegations.
Taking into account all of these matters, and returning to the test enunciated by the Full Court in Deiter, it is difficult at this stage to form a conclusion that the harmful events alleged by the mother have actually occurred or that they are likely to have occurred.
Equally however, I do not consider that despite my suspicions I can entirely dismiss the possibility that some of the matters the mother alleges may well be made out by her in due course.
The difficulty for the court at this stage however is that if the court was to take the path advanced by the mother and her allegations are not ultimately borne out, and particularly given the delays to trial in this court, irreparable harm would be done to the ability of the children to form an attachment with the father enabling them to develop a meaningful relationship with him.
Turning to the second limb of the test enunciated in Deiter, namely the severity of the impact of the alleged harmful events, it is clear to me that the mother believes certain events have occurred. It was urged upon me that the court should consider the impact upon the mother if orders were made facilitating the child spending time with the father.
I accept that “it is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As a primary caregiver, the anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”[23]
[23] B and B (1993) FLC 92-357 at 79,780.
The mother has provided the court with a report from her treating Psychiatrist Dr K from the Suburb H Hospital Obstetric Psychiatry Clinic dated 14 May 2020[24]. In that report, Dr K comments:
a)That she has consulted the mother on 6 occasions following the birth of Y commencing 16 September 2019.
b)That the mother suffers from “Post Traumatic Stress Disorder. This has resulted in significant anxiety and depressed mood. I believe that the current court proceedings and the prospect of her ex-partner having access to the children X and Y are having a considerable detrimental impact on Ms Gabbey’s mental health and her ability to function on a daily basis.”
c)That the mother is “able to care for her children adequately and that she is trying to shield the children from any concerns or anxiety about her current mental health issues, and current events in her life.”
d)That the mother has been prescribed antidepressant medication and that in addition she has had some psychotherapy sessions to lessen the “intensity” of the mother’s anxiety.
e)That “if the intense stress currently experienced by Ms Gabbey is lessened she will be able to address her condition in psychotherapy with a psychologist experienced in PTSD. She may require antidepressant medication for several months. I would expect complete or near complete resolution of symptoms with this approach. Ms Gabbey has no previous history of requiring psychiatric treatment.”
[24] Mother’s Affidavit filed 21 May 2020, Annexure “A.”
Rather than raising insurmountable concerns about the mother’s ability to manage the father’s time spending with the children, the report of Ms K provides some significant comfort to the court in the sense that:
a)It is clear from the report that the mother has discussed at some length with Ms K her anxieties about the current family law litigation and that she has been actively seeking support from Ms K in coping with the impacts of the current litigation.
b)It is also clear that the mother is actively engaging with her Psychiatrist so as to optimise the management of her anxiety and PTSD.
c)The mother appears to be conscious of the need to shield the children from her own anxieties and mental health issues.
d)The mother’s current health difficulties appear to be situational rather than as a result of any long standing or underlying mental health condition.
e)Ms K is of the view that the mother’s condition will improve and indeed likely fully resolve.
Importantly against that backdrop, Ms K does not express any view that the mother would not cope if the father were to spend time with the children.
For all of these reasons, I have formed the view that when carefully considering all of the information before the court at this stage, I do not consider that there is a basis to deny the children the right to have a meaningful relationship with both of their parents; in this instance specifically the father.
It is my view at this stage that the father does not present an unacceptable risk of harm and nor is there an unacceptable risk of harm in terms of the mother managing the father being permitted to see the children. I do however consider that while the children should be given the opportunity to form a relationship with the father, this will need to be done in a measured way when bearing in mind the very young ages of the children and the fact that the father has had a very limited involvement with them.
I note that the Independent Children’s Lawyer and the father promoted a supervised time spending regime between the father and the children. This is an arrangement that I consider will for now will facilitate the children forming a connection with the father in a setting which will also give the mother some comfort.
I am mindful that there are significant waiting times before a supervised contact centre is likely to be available for this family (estimated to be approximately 13 weeks). It is for this reason that the father has promoted the use of a professional supervisor.
I am also mindful of the significant costs associated with the use of an independent supervisor, and I consider that such a service should only be utilised for such period of time as is necessary until a contact service is available.
For all of these reasons, I propose to make orders that provide for the father to spend supervised time with the children as provided for in those orders appearing at the commencement of these reasons.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate:

Date: 19 June 2020

[2020] FCCA 1627

19 June 2020

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Family Law

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