Chimin and Fiato

[2018] FamCA 284

FAMILY COURT OF AUSTRALIA

CHIMIN & FIATO [2018] FamCA 284

FAMILY LAW – CHILDREN – INTERIM – assessment of risk where there are allegations of sexual abuse – orders made for supervised time

Family Law Act 1975, s.60CC

Banks & Banks [2015] FamCAFC 36

APPLICANT: Mr Chimin

RESPONDENT: Ms Fiato

FILE NUMBER: BRC 10018 of 2015

DATE DELIVERED: 3 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 3 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K Carmody

SOLICITOR FOR THE APPLICANT: Davey Law

COUNSEL FOR THE RESPONDENT: Mr J Ashcroft

SOLICITOR FOR THE RESPONDENT: Keyworth Harris & Lowe Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr N McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Faraday Law

Orders

1. That the child, B born … 2013 (“the child”) live with the Respondent mother.

2. That Order 2 of the Orders of the Federal Circuit Court of Australia dated 7 August 2017 be discharged.

3. That the child shall spend supervised time with the Applicant father at C Contact Centre in D Town (“the Centre”) at the first available opportunity and thereafter at such regular times as the Centre can accommodate, but preferably on not less than a fortnightly basis for a period of two (2) hours.

4. That the child shall spend supervised time with the father on her birthday for up to two (2) hours at the Centre if such time can be accommodated by the Centre.

5. That within fourteen (14) days of the date of these Orders each parent shall do all acts and things and sign all documents reasonably necessary to undertake whatever reasonable intake procedures are required of them and thereafter adhere to the rules of the Centre.

6. That the parents shall share equally the costs of the Centre.

7. That the Independent Children’s Lawyer be at liberty to issue a subpoena to the Centre seeking the production of documents prior to the next Court event.

Counselling for the child

1. That the parents shall arrange, as soon as practicable, for the child to receive counselling for any behavioural issues and the Independent Children’s Lawyer shall assist the parents to source a suitable practitioner, with the costs of such counsellor to be shared equally between the parents and such sessions between the counsellor and the child shall be reportable.

2. That pursuant to s.121 of the Family Law Act 1975, the Independent Children’s Lawyer be granted leave to provide a copy of the family report prepared by Ms E dated 12 December 2017 to such counsellor engaged.

Airport Watchlist

1. That each parent, MR CHIMIN born … 1985 and MS FIATO born … 1981, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child, B born … 2013 from the Commonwealth of Australia.

2. That the Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the child’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s name on the Watch List until further order of the Court, or authenticated written consent of both parent.

3. That on or before 21 August 2018 the parties exchange and have available to the Court on the next occasion a minute of the further interim order they are seeking.

4. That these proceedings be adjourned for Case Management Hearing at 9.30am on … August 2018 in the Family Court of Australia at Brisbane.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chimin & Fiato has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10018 of 2015

Mr Chimin

Applicant

And

Ms Fiato

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Background

1. The parents in this case come from quite diverse cultural and philosophical backgrounds.  They met when the mother was on holidays in Country F in Asia.  She supported the father coming to this country and making it his home, leaving his family from a rural area in Country F.  They married and started to build a life together in Australia.  The marriage took place in 2009.  Their child was not born until some three and a half years later.  B (the child), a little girl, born in 2013, and soon to turn five, is the only child of these parties.  There are competing arguments as to why the relationship broke down.

2. What is clear, however, is that with final separation occurring in October 2014, and whilst there were difficulties in their modest property pool division, without the benefit of any court orders, the mother, who is the primary carer of young the child, and the father were able to manage regular time - including unsupervised overnight time - until towards the end of 2016.  They did so - it seems to me, because they both accepted it was in her best interests that she have a relationship with both parents, notwithstanding the breakdown of their relationship.

3. From the period commencing about September 2016 until a disclosure was made, the mother says, under oath on 8 November 2016, tensions further increased between these parties.  On an interim basis, I do not propose to make any findings about that period save to observe that the mother had, as is clear from the medical records tendered today, been concerned about the child’s health. The medical notes of a consultation with Dr G on 31 May 2016, and subsequently on 21 October 2016 (being about a month after the last unsupervised visit with the father) reflect nothing more than a concerned mother getting appropriate medical attention for her daughter.

4. The mother in her Affidavit says that the child made some disclosures to her.  The particularisation of those disclosures, said to have been made on five different occasions, is somewhat vague in her current material.  I accept that it would be necessary, and will be, considering the extent of her good and quality legal representation, better articulated in any trial material.  It is important always to not only look at the words the child utters but to see the context for those words.  What questions preceded the disclosure?  What was the context of other things going on in the child’s life at that stage?

5. There is very little of that context provided in the mother’s current Affidavit.  However, the Court would not be critical of any parent who hears something which concerns them about abuse, be it sexual or physical, being hyper-vigilant and seeking to have the matter further investigated.  The mother did so.  No disclosures were made in a police interview.  I have not seen that interview, which I presume was either taped or recorded in some way.  The mother sought some form of medical support to possibly exclude sexual abuse, rather than to necessarily find that it occurred, but in any event the medical reports did not do either.

6. The sad reality is that because of these disclosures that the mother swears to have been made to her, and her concerns about the child being at risk, the father’s time with the child came to an end.  There were no orders that could be enforced and the father brought an application for specific orders in June 2017 in the Federal Circuit Court of Australia.  After the mother, before Judge Howard on 7 August 2017, raised very serious areas of risk in her Affidavit filed on 4 August 2017, his Honour made orders which transferred the matter to this Court, quite properly, in the likelihood that it would be a Magellan case.  His Honour ordered on an interim basis, that an Independent Children’s Lawyer be appointed, ordered that the child live with the mother, and at order 2 made an order that the child spend no time with the father.

7. I did not have the benefit of any reasons given by his Honour for making an order, which on its face, suggests a determination was made of then competing interests between the parties, namely the father seeking time and the mother seeking no time.  I could only assume that the order was made because his Honour, on an interim basis, took the view that it was contrary to the best interests of the child to spend time with the father, as opposed to making a no time order.  However in the absence of reasons, I am unable to make any further comment.

8. I do not however regard myself today, as, in a sense, being bound by an order made by Judge Howard that no time take place because I am not absolutely certain that the father had the opportunity to respond at that stage to the allegations made just a few days before the hearing before Judge Howard.  I note also that at that stage the Applicant was attending as a self-represented litigant.  The matter then came to the Family Court of Australia where, with the benefit of the Independent Children’s Lawyer appointed by Judge Howard which is a most appropriate order, and in accordance with the procedures for Magellan cases, a family report was ordered.

9. Essentially, since August 2017 until Registrar Brooks six months later on 27 February 2018 ordered the matter be listed for an interim hearing, there was no determination of whether or not it was in the best interests of the child to spend time, even supervised, with the father.  I am happy that the matter has been able to be dealt with by me so quickly after Registrar Brooks determined its necessity, which I agree with.  Mr McGregor, Counsel for the Independent Children’s Lawyer, correctly identified that on an interim basis the Court is not able to make, or should be reluctant to make, findings about disputed facts.

10. There are some disputed facts in this case - the most obvious and most compelling being, not whether the father sexually abused the child, but whether in fact the child having time with the father in an unsupervised environment is likely to expose the child to an unacceptable risk.  I shape the question in that way, consistent with the observations of the Full Court in Banks & Banks [2015] FamCAFC 36 - a decision of Thackray, Murphy and Kent JJ - which identify that on any interim hearing, the Court should focus on the major issue or issues, rather than to be expected to consider all the factors which one might consider at a full trial, including all the relevant section 60CC(2) and (3) considerations.

11. The Independent Children’s Lawyer and the father say that supervised time should commence immediately.  The Independent Children’s Lawyer proposes it take place at C Contact Centre, a Commonwealth funded, I understand, Children’s Contact Centre in the D Town area that offers a community service to families like this.  D Town would be a suitable geographical location for the mother and the child.  It would involve the father in some travel, but he is prepared to make that journey to see his daughter.  There is nothing put before me in relation to C Contact Centre that would suggest they are not capable of providing appropriate supervision for any interaction between the father and the child.

12. Mr Ashcroft, on behalf of the mother, confirmed that the mother is prepared to contribute equally to the cost of the supervision.  The father adopts such an approach, as well.  Now, the question then becomes is there an unacceptable risk?  Even on the cautious approach the Court must take on an interim basis with the allegations yet to be tested and properly considered, if the child is having time in a supervised environment with the father, in my view, I am not satisfied that there is an unacceptable risk.

13. The mother’s concerns are based primarily, it seems, on the disclosures and the increasingly difficult and challenging behaviour of the child, for which therapeutic support has been sought, but has recently changed.  On her material the mother’s opposition to time occurring at all are raised within the context of a concern that the father both supports; will “groom” or will otherwise facilitate and encourage the child to be the subject of a cultural practice in some overseas nations practicing female genitalia circumcision or mutilation.  The father says in his evidence that he does not support such procedure for his daughter.

14. Mr Ashcroft points to the fact that it appears older members of the father’s family who have always lived, it seems, in Country F, may have been the subject to that procedure.  There is a suggestion that they were not particularly keen to have it done to them either, but that was a cultural practice there.  The father says that he could have been mistaken as being dismissive of the practice, by use of the words similar to, “it’s just a cut”.  If he said those words that would be inappropriate because it is much more than “just a cut”.  However, he explains and he gives evidence that he has never supported the practice on his daughter in this country.  As a further reflection of that he agrees to the child not being removed from the country, and to the imposition on an interim basis of an Airport Watchlist which I will order.  Only at a trial will it be possible to determine whether the mother’s understandable concerns about the practice of female genitalia mutilation or circumcision, has provided a context for her concerns otherwise expressed by her.  It is not possible on the material before me to understand whether the mother’s basis for her belief that the father could and has committed sexual abuse upon the child, has a reasonable foundation or was based on something else.

15. It seems to me that in every case of alleged child abuse there are at least two factors that a person accusing another party of such heinous acts must have concluded in their own mind:  firstly, that the disclosures, because generally there is no other evidence other than that, at best, are true, and importantly and secondly, that the person with whom they shared their life – the person with whom they chose to have this child, is capable of such acts against an innocent, young child.

16. In those circumstances, it is hardly surprising, in the experience of this Court, that when such an allegation is made, on disclosures said to have been made to one party, that the person against whom the allegation is made is almost sickened by the suggestion, and vigorously denies it.  Of course that in itself does not mean it did not happen but the test today is not whether sexual abuse occurred, but whether or not this child will be at risk of any harm or abuse in a supervised environment.

17. I choose not to say more about some of the submissions of Ms Carmody in respect of the evidence, because they are matters for another day.  However, I could not discount, on the evidence put before me today, that part of the child’s behaviour is attributable to the lack of time with a caring and loving father, that she clearly had and which the mother raised no objections to, between separation in October 2014 and a period of some two years thereafter, until it stopped.

18. Sadly, there is no evidence that any person entrusted with the psychological therapy of this child, has considered any other possible cause for the child’s challenging and, perhaps quite upsetting behaviour that she demonstrates, other than it was caused by the father sexually abusing the child.  Such a closed mind runs the risk of proper therapeutic benefit for this child not being given to her.  In my view, it is possible that returning to a supervised environment between the child and the father could cause the child, not so much a re-triggering of trauma, but an adjustment, not having seen her father for so long.

19. It would be, in my view therefore, of benefit for the child, her current therapy having ceased, to retain a totally neutral child therapist to which both parents have an opportunity to make an input, and with the Independent Children’s Lawyer having the benefit of providing a copy of the report of Ms E as some context for that person to help the child.  It would also seem to me possibly beneficial for any therapist to have an understanding ultimately, of the interaction at the contact centre which I propose to order and the benefit of some understanding how the child presents in a social context in her kindy.

20. What is this all about?  It is about making orders in the best of this child and I am absolutely satisfied on this evidence, at this stage it is in the best interests of the child that time resume in a supervised environment.  I am further satisfied it is in the child’s best interests that the frequency of time should be fortnightly.  I see no basis why it would be in this child’s best interests to limit the time to once every eight weeks.  To the extent that Ms E proposed that, in her recommendations, in my view, that recommendation at paragraph 134, was within a context that:

    If the Court determines [Mr Chimin] poses a risk to [the child], it is my recommendation for [the child] to spend supervised time with her father, periodically, probably every eight weeks.

21. That seemed to me to be something akin to identification contact and not shaped for a child of this age to develop the child’s relationship with the father.  I have not set out a finding in respect of all the relevant s.60CC(2) and (3) considerations other than, it is, in my view, on the evidence before the Court at this stage, it is of benefit to the child to have a meaningful relationship with the father, as long as it is safe.  I think supervision will make it safe at this time.

22. The child’s time will no doubt create further data available to the Court at a later stage.  I am not prepared to list the matter for trial yet until I have seen how this works.  Sometimes when a parent, often but not always the mother, is confronted with these upsetting disclosures, the best remedy for them is to see a child happily and fully enjoying the time with the other parent.  One of the disadvantages of supervised time is a parent never observes it.  They can only see it from the notes.

23. If the mother is of the view that this child was sexually abused, and she has an unwavering view about that, and if ultimately the Court was to find that view is not reasonable then clearly, other considerations have to be considered, because it is generally accepted that it is in the best interests of children that they have a meaningful relationship with both their mother and father, provided it is safe.  I am prepared to see how the mother’s view about all these matters changes, if at all, over the next three or four months.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 April 2018.

Associate: 

Date:  1 May 2018