Ciardha & Ciardha
[2024] FedCFamC1F 279
•19 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ciardha & Ciardha [2024] FedCFamC1F 279
File number(s): MLC 7445 of 2022 Judgment of: SMITH J Date of judgment: 19 April 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – application by mother for review and subsequent application in a proceeding – mother seeking interim time with child – mother charged with multiple counts of sexual offending against stepchild – mother found not guilty on all counts – in circumstances where mother has not spent time with the child in almost three years – finding that expert opinion would greatly assist in the judicial decision of whether interim time should commence – expert opinion available in about 8 weeks - matter listed for continuation of the interim defended hearing on receipt of single expert report. Legislation: Evidence Act 1995 (Cth) Pt 4.1, ss 140, 141
Family Law Act1975 (Cth) Pt VII, ss 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DA, 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1, r 7.04
Evidence Act 2008 (Vic) Pt 4.1, s 141
Supreme Court (Criminal Procedure) Rules 2017 (Vic)
Division: Division 1 First Instance Date of hearing: 19 April 2024 Place: Newcastle Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 19 April 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Ms Mariole Solicitor for the Applicant: Coote Family Lawyers Counsel for the Respondent: Ms Ferrari Solicitor for the Respondent: M and K Lawyers Group Pty Ltd Counsel for the Independent Children's Lawyer: Ms Brennan Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 7445 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CIARDHA
Applicant
AND: MR CIARDHA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
19 APRIL 2024
THE COURT ORDERS THAT:
1.The matter be listed for continuation of this Interim Defended Hearing on Thursday, 25 July 2024 at 10.00am by Microsoft Teams for consideration of further orders.
Part 7 – Single Expert Report
2.Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Dr C (the “Single Expert”) is appointed as the Single Expert to enquire into and report upon issues relating to the welfare of X, born 2016 (the child).
3.The parties shall each pay one-half of the single expert’s fees and the funds to be paid out of the funds held on trust on behalf of the parties consequent of the sale of the former matrimonial home.
4.In the event that any of the parties of ICL request the attendance of the single expert at Court for the purposes of cross-examination, the parties shall be equally responsible for the single expert’s costs in respect of such attendance.
5.The single expert shall prepare a report (the single expert report) which addresses the following matters:
(a)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(b)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(c)whether the child has become aware of the allegations against the mother which resulted in her being charged with criminal offences relating to Mr B;
(d)the child’s understanding of why there has been no time with or communication with the mother for almost 3 years and the sources of any understanding;
(e)the impact upon the child and upon his relationship with the mother if the Court made orders as sought by the father;
(f)the impact upon the child and upon his relationship with the father if the Court made orders as sought by the mother;
(g)the appropriate way to re-introduce the child to the mother if the Court determines on an interim basis that supervised time between them is the appropriate course of action pending a final hearing;
(h)any other matters that the family report writer considers important to the welfare or best interests of the child;
(i)an assessment of the risk posed to the child by the mother, the father, Mr B, or any other person, depending on whether or not the allegations in relation which the mother was charged are determined by the court to amount to unacceptable risk or to be incorrect or false;
6.The parties and the child shall attend upon the single expert on 28 May 2024 for interviews at such times and locations and in such manner as is directed by the single expert.
7.It is anticipated that the single expert shall interview Mr B.
8.It is anticipated that the single expert shall interview the mother’s new partner, Mr D.
9.The single expert may, or may not, introduce the child to the mother, including for the proposes of an observation, depending on the single expert’s assessment of the appropriateness of that course of action, given the child has not seen the mother for almost 3 years.
10.The parties shall facilitate the preparation of the single expert report including attending on and arranging for the child to attend upon the single expert as directed by that person.
11.The single expert shall be permitted to speak to the child’s school, or counsellor or any treating medical practitioner, in the preparation of the single expert report.
12.The parties will provide to the single expert, copies of all documents contained in the list of documents to be identified by consent between the parties, or otherwise by Order of the Court.
13.Within seven days of the report being finalised, the Independent Children’s Lawyer shall cause a copy of the single expert report, annexed to an affidavit of the single expert, to be filed with the Court.
14.Unless a party objects in writing within 14 days of the date of releasing the single expert report, a copy of the single expert report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
15.Except with the Court’s permission, no person shall release the single expert report, or provide access to the single expert report to any other person other than those mentioned in these orders.
16.A copy of these orders are to be provided to the single expert.
Subpoena
17.The ICL to subpoena the child's school and medical and allied health records, and the father to forthwith provide to the ICL all information necessary for the issue of comprehensive subpoena.
18.The father forthwith to supply to the ICL details of each educational institution and each medical practice or practitioner, or allied health practitioner or practice, which the child has attended since January 2021.
THE COURT NOTES THAT:
A.The parties agree that the child should commence counselling and will liaise with the ICL to arrange such counselling.
B.The parties financial issues remain outstanding.
C.The parties agree they will liaise to arrange a valuation of, or such processes as are necessary to agree a value for, the father's business.
D.The parties should each comply with their obligations as to full and frank disclosure prior to the next hearing.
E.Depending on the parties’ balance sheet the Court will consider allocation of a conciliation conference.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Ciardha & Ciardha has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short form oral reasons for decision pursuant to s 69ZL of the Family Law Act1975 (Cth) (“the Act”) in a review.
Given that I propose to list this matter for further interim hearing on 25 July 2024 at 10.00 am by Microsoft Teams for further consideration after receipt of the Family Report, which it is agreed should be obtained, in respect of which interviews are booked for five weeks’ time, which is to say 28 May, these will be reasonably concise reasons.
This matter concerns interim parenting orders following an Application for Review filed 15 August 2023, and a further Application in a Proceeding filed 1 September 2023 by the applicant mother, Ms Ciardha, born 1990.
The respondent father, Mr Ciardha, was born 1972. The subject child is X, born 2016 (“the child”).
The short facts are that the mother was charged with multiple counts of sexual offending against the father's child from another relationship, the mother’s stepchild, Mr B (born 2005), when Mr B was under 16. The child lives with the father and Mr B.
The mother has not spent time or communicated with the child since her arrest and remand in mid-2021, now almost three years ago. Whether or not that was an appropriate weighing of risks and set of orders is now moot. The task is to assess the child's best interests from here.
The mother's criminal trial was heard by a judge and jury in the County Court of Victoria in early 2024, and after a two week or more long trial, she was found not guilty on all counts.
The father's position in his current affidavit at paragraph 8 is that despite the findings:[1]
8. … I am convinced abuse occurred, that [Ms Ciardha] sexually assaulted [Mr B] on many occasions and in front of [X] on at least two occasions. I remain very concerned for [X’s] welfare and safety.
[1] Father’s affidavit filed 16 April 2024 at [8].
Mr B and X continue to live with the father. Mr B is said to have been devastated by the not guilty verdict. The father says that he is worried about Mr B, knowing that when X has occasionally brought up the mother to Mr B, that Mr B's response has not been good. It is difficult to know what has happened in those circumstances in terms of what has been communicated to Mr B.
The father's belief, and its strength, are not relevant to an assessment of the credibility of the complaint, although it is clearly highly relevant to his high psychological state and his parenting capacity. He is, in effect, running a modified form of the Re Andrew (1996) 132 FLR 118 case, that the mother spending time with the child will adversely affect his psychological capacity, although his treating psychologist report does not suggest he is not capable with dealing with this if handled in a “careful and controlled” manner.[2]
[2] Affidavit of Dr E filed 18 April 2024, Annexure DE-2 Confidential Psychological Report dated 18 April 2024 at p.4.
The father also says it will affect Mr B, who is living with him and X. However, Mr B is not a minor and his well-being, whilst relevant as a half-sibling and someone living with the child, is not my concern.
The mother maintains complete innocence. The criminal standard of beyond reasonable doubt applicable in the trial procedure was as set out in s 141 of the Evidence Act 2008 (Vic), which is in similar, if not identical, terms to the Evidence Act 1995 (Cth), although subject to the Supreme Court (Criminal Procedure) Rules 2017 (Vic).
The criminal standard is, of course, different from the civil standard applicable in this Court, seen under s 140 of the Evidence Act 1995 (Cth), including, of course, s 140(2), see for example the similar common law statements in Briginshaw v Briginshaw (1938) 60 CLR 336. Further, given the nature of the allegations, ie sexual abuse of a child, the unacceptable risk standard to will be applied in assessing the child's best interest in this court, see M v M (1988) 166 CLR 69, and the recent clarification of the uncertainty around that standard in Isles & Nelissen (2022) 65 Fam LR 288.
At present, this court is not in a position to weigh the evidence in any meaningful way, but it is known that it does not reach the criminal standard. It may be that the evidence is sufficiently credible to give rise to a finding of likelihood on civil standard. It may be that it does not reach that level of comfortable satisfaction in terms of persuasion, but that it does create a circumstance where a court will find there is an unacceptable risk of the mother spending time with X.
Of course, it may be a case where the allegations were the consequences of Mr B fabricating for some reason, or having mental health or other issues, and it may indeed be that the mother has been entirely innocent and subject to a terrible, from an objective point of view, miscarriage of justice.
The trial transcript is available, but the court cannot in an interim application, given the court's workload and the rules of the court consider 10 days’ worth of transcript. Unfortunately, the judge's summing up, which may provide some guidance as to the strength of the case, as perceived by the independent judicial officer who saw all the evidence and oversaw the trial and summarised it for the jury, is not available. That is unfortunate.
The difficulty, then, is this is potentially a no time case by both parties. If the mother is an unacceptable risk as a sexual predator, there will inevitably be a no time order with regards to her. If the claims by Mr B were not correct, whether due to some psychological issue or due to malice, but are firmly believed by Mr B who lives with the child, and by the father, and if they have been conveyed, or might at some stage in the future be conveyed to X, then it may be argued by the mother that Mr B and/or the father, depending upon the extent to which the father has a fixed view, present an unacceptable risk of harm to X. This is because conveying to a child that they have been sexually abused when they have not can cause them the same psychological injury that sexual abuse causes in terms of psychological problems, particularly for such a young child.
I cannot know on the material before me, and even if on this interim hearing if I had read 10 days’ worth of the transcript, it would not be open to me to make a finding, although I might be better informed in terms of weighing the questions.
There is also extremely limited information before the court about X's progress, or indeed what X knows about the mother, or may have been told, or may have gleaned from Mr B or the father. The father says that he has told X the mother is on an extended three-year holiday. There is no other material about that. It is unfortunate that X’s school and medical records are not yet available, but I will order the Independent Children’s Lawyer (“ICL”) to arrange for them to be subpoenaed forthwith, so they are hopefully available to be given to Dr C who will undertake his expert assessment and be available to the Court.
The real argument today is whether the mother should commence professionally supervised time with X prior to preparation of a full Family Report by Dr C, who I am told is a very experienced clinical psychologist with many, many years of experience working in this particular jurisdiction, or whether that issue should await further consideration when a report is received, hopefully in about eight weeks’ time.
The mother presses, perhaps understandably after all this time, for supervised time to start now. The ICL opposes it because of the absence of any scaffolding for X, or assessment of the least harmful way in which this reintroduction should occur, if the Court thinks it should occur.
The father, in effect, supports the ICL’s position.
The ICL submitted, and I think it is a very sensible submission, that there is a real risk that X might be shocked by a sudden reintroduction to the mother, this person who apparently has been on holiday for three years, and that this may not only harm X psychologically, but might damage the chances for reintroduction altogether, and so put X in a position where he is unwilling to spend time with the mother because of the way in which it is handled.
Now, in those circumstances, I think both the risks to X of further psychological trauma from a poor reintroduction, and the risk that it may in fact cause further damage to the building of a relationship with the mother, are very significant. The mother acknowledged this issue and proposed at the heel of the hunt, a therapy-type program, but there is no evidence about that program and in the absence of evidence it cannot seriously be pressed today.
I note, that there has been a dispute about whether the child should have psychological treatment. I am not quite sure why that could be the case, given that it is almost impossible to believe that a child of eight thinks it is normal for the mother to go away for three years on holiday and not contact them and would, I think, conclude that that is abandonment, but nevertheless, I cannot talk about that.
But I am told that the parents now both support the child having his own psychologist, and so does the ICL, and that is going to be dealt with. I will make a note about that rather than an order, but I anticipate and expect to be told on the next occasion that has occurred.
I note, from a formal point of view, the Application for Review on which I have jurisdiction seeks review of the Orders made by a Senior Judicial Registrar on 25 July 2023 for an Interim Defended Hearing.
I note the applicant mother relied upon the following:
(1)Application for Review filed 15 July 2003;
(2)Magellan report dated 10 October 2022;
(3)Application in a Proceeding filed 1 September 2023;
(4)Affidavit of the mother filed 1 September 2023;
(5)Affidavit and annexed report of Dr F filed on 4 September 2023; and
(6)Further affidavit of the mother filed on 16 April 2024.
The father relied upon:
(1)Response to an Application in a Proceeding filed 15 September 2023;
(2)Father’s Affidavit filed 15 September 2023;
(3)Further Affidavit filed 16 April 2023;
(4)Notice of Child abuse, family violence or risk filed 5 August 2022; and
(5)Affidavit of his treating psychologist, Dr E, filed 18 April 2024.
There are a variety of documents which were also tendered, which do not assist me greatly at the moment.
As I have indicated, the serious allegations, though they have not been accepted at a criminal level, may be true on a civil standard or require action as unacceptable risk, but they also may be entirely false.
The father seems unlikely to accept that any time would be reasonable, given the course he has taken to date, but the balancing act the Court is required to take when there are serious allegations that may be true and may be false, will often lead to supervised time until a determination can be made in order to avoid the risks to the child of permanently and improperly losing their meaningful relationship with a parent.
In that context, I note that both parties and the ICL seek what are parenting orders as defined by Pt VII, Division 5 of the Act. I note s 64B and my power under s 65D. I note the paramount considerations under s 60CA and s 65AA.
I note, that first and foremost is the need to protect the child from physical or psychological harm. I am concerned about psychological harm now in terms of reintroduction, without some assistance from an expert as to how that should happen, assuming in this case it is accepted that it should happen, but I think we have to deal with the first step first. I note what was said in Banks & Banks [2015] FamCAFC 36 at paragraph 48 about the issues.
I note that I am not going to deal with parental responsibility today. I think it is premature.
I note Goode & Goode (2006) FLC 93-286 (“Goode & Goode”) at paragraphs 66 to 68, and at 81 to 82. I note what was said about risk in SS v AH [2010] FamCAFC 13 (“SS v AH”) at paragraph 88, and also at 100. I note what was said in Eaby v Speelman (2015) FLC 93-654 (“Eaby v Speelman”) at 18 referring to Goode & Goode at 68. In particular the fact that facts are in dispute, does not mean that the evidence on a topic must be disregarded and the case determined solely by reference to the agreed facts. Obviously, the facts are highly in dispute.
I note the risk assessment issues, and with SS v AH also Deiter & Deiter [2011] FamCAFC 82. I note M v M (1988) 166 CLR 69. I also note in due course we will be talking about how we balance the issue by perhaps having supervised time. I note what was said in B & B (1993) 16 Fam LR 353, and in Stott & Holgar [2017] FamCAFC 152 at 37.
In my view, this is a case where the court needs assistance as to how, if there is to be a reintroduction and supervised time, that is to occur, so it works best for X and minimises the risk of trauma. And also, so it minimises the risk that by being handled poorly, it defeats or takes away the possibility of the proper reintroduction and takes away or damages the possibility of X rebuilding a meaningful relationship with the mother, if that is the appropriate course of action to be taken on an interim basis. Before we get to the question of whether there should be supervised time, I am satisfied we need to know how that could happen.
Now, as I have said, in many cases, particularly first returns, that the court makes an order for supervised time without any input from an expert, but this is a very unusual set of circumstances because there has not been any time for three years.
In these circumstances, knowing the matter should be able to be dealt with in July, for today, there should not, in my view, be supervised time until we have more information and the assistance of an experienced expert to comment on that. I will emphasise that I am not actually disposing of the Application for Review or the other Application today; I cannot for procedural reasons in order to maintain jurisdiction. All I am doing is making what are sometimes referred to as "interim interim orders" to allow me to ultimately consider the issues the mother has raised.
I agree that Mr B should attend the interview, as the issue of whether he poses a risk to X if the allegations are false is clearly relevant given he lives with X. It will be for the expert, and I will specify in the orders, to determine whether an observation or introduction of the mother is appropriate at the interview. I suspect he may consider it is not, but ultimately, we would be relying upon his expertise.
I note that costs are not pressed. I note I will not set aside the Registrar's orders at the moment. I am going to deal with that all in due course, otherwise I will have nothing before me when we come back in a month or so.
As I have indicated, there is a whole series of other orders the mother seeks in terms of equal shared parental responsibility and other matters, and they are all matters which I will consider and perhaps deal with in due course on 25 July.
The matter will return before me and will continue, in effect, as an ongoing interim hearing. Unfortunately, that is the nature and complexity of the case that requires me to follow that course. Once I have dealt with the interim question the matter will return to Melbourne for case management to a Trial.
Those are my reasons for today.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 29 April 2024
0
7
5