Fannon & Kappel (No 2)
[2022] FedCFamC2F 1747
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fannon & Kappel (No 2) [2022] FedCFamC2F 1747
File number(s): BRC 1183 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 15 December 2022 Catchwords: FAMILY LAW – PARENTING – Application to review a Senior Judicial Registrar’s decision – risk issues alleged by mother – such risk issues arise on the mother’s evidence that if the child has more than one overnight stay with the father she will be exposed to an unacceptable risk of family violence – where the recommendations of the Family Report are that the father should spend five nights per fortnight with the child – where the mother challenges the process adopted by the Family Report Writer – where there are already protective injunctive orders with respect to the fathers time with the child to ameliorate the mothers concerns – where the court finds the risk of the child being exposed to family violence is low – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 60B, 60cc, 61c, 65D
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 14.05, 14.07
Family Law Regulations 1984, regulation 7
Cases cited: Dieter & Dieter [2007] FamCA 608;
Goode & Goode [2006] FamCA 1346;
M & M [1988] HCA 68;
Marvel & Marvel [2010] FamCAFC 101;
Mazorski v Albright [2007] FamCA 520;
McCall & Clark [2009] FamCAFC 92;
Salah & Salah [2016] FamCAFC 100;
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 94 Date of hearing: 9 November 2022 Place: Parramatta Solicitor for the Applicant: Applicant in Person Solicitor for the Respondent: Mr Gordon of Counsel ORDERS
BRC 1183 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FANNON
Applicant
AND: MR KAPPEL
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
15 DECEMBER 2022
THE COURT ORDERS, PENDING FURTHER ORDER:
1.That Orders 2(d) and 2(e) made on 31 August 2022 are discharged.
2.That the time X born in 2013 (“X”) spends with the father pursuant to Order 2(b) made on 31 August 2022 shall be extended during the 2022/2023 Queensland Christmas school holiday period from 10 am Saturday to 3pm Tuesday, with the father to be personally available to care for X during such periods of time.
3.That the time X spends with the father pursuant to Order 2(b) made on 31 August 2022 shall thereafter be extended during all Queensland school holiday periods from 10 am Friday to 3pm Tuesday, with the father to be personally available to care for X during such periods of time.
4.That within 28 days the mother is to file and serve any application for costs by way of a minute of order sought, together with written submissions of no more than 2 pages and no more than 3 annexures.
5.That the father is to file and serve within 14 days thereafter any response to such application by way of a minute of order sought, together with written submissions of no more than 2 pages and no more than 3 annexures.
6.That the mother has liberty to file further written submissions in reply of no more than 1 page within 7 days thereafter.
7.That unless either party formally objects by way of their minute of order, any application for costs will thereafter be determined in chambers.
8.That the Application for Review filed by the mother on 21 September 2022 is otherwise dismissed.
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 a pseudonym Fannon & Kappel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
introduction
These are parenting and property proceedings arising from the breakdown of the parties’ relationship in April 2021.
There is one child of the relationship; X born in 2013. (“X”). X is currently 9 years and 1 month old.
The father has two children from a prior relationship; B (12 years of age) and Ms C (19 years of age). B spends each alternate weekend and additional time throughout the school holidays with the father.
For determination is an Application for Review filed by the mother on 21 September 2022 (“the Review Application”). The mother seeks to review interim Orders made by a Senior Judicial Registrar on a defended basis on 31 August 2022 (“the August orders.”). The father also seeks to vary the August orders.
BRIEF BACKGROUND
Evidence as to the parties’ relationship is that contained in the Family Report. It is reported by the court child expert that the parties commenced a relationship in 2013. The mother appears to contend that the parties were in an ‘on and off’ relationship for 17 months spanning over an 8 year period between January 2013 and April 2021. The father asserts that the parties were in a de facto relationship for the entire 8 year period. I am unable to make a finding of fact on this issue having regard to the limitations of an interim hearing.
The parenting arrangements for X and the amount of time the father cared for X prior to April 2021 is a significant issue of dispute between the parties. It does not appear to be in dispute that the father was absent for periods of time subsequent to X’s birth until October/November 2020 due to his work commitments where he would “fly-in fly-out” to work to and from Country D, City E and Region F. The father asserts that pre April 2021 he cared for X for 3 - 5 nights at a time when the mother was travelling for work with the last occasion being in March 2021. The mother concedes that X has been in the care of the father for one night at a time, but stressed during the course of the interim hearing that she put protective measures in place to ensure X’s safety at these times.
Subsequent to the parties’ separation in April 2021 X lived with the mother and spent time with the father as agreed. The father asserts that prior to the father commencing proceedings X regularly spent Friday and Saturday nights with him together with almost every Wednesday afternoon and some Thursday afternoons. The father asserts that these arrangements were ad hoc and unreliable and it took some time post separation for the mother to agree to him having X overnight and unsupervised.
On 23 February 2022 the father filed an Initiating Application seeking orders on both an interim and final basis.
The matter came before a Judicial Registrar on 24 March 2022. Orders were made by consent and pending further order that broadly, X shall live with the mother and spend time with the father as follows:-
·During school terms on an alternate fortnightly basis so that in the first week X would spend time with the father from 3:00pm to 5:00pm on the Wednesday and Thursday and from 10:00am Saturday until 3:00pm Sunday. In the second week X would spend time with the father from 3:00 pm on Wednesday until 5:00 pm Thursday.
·During school holiday periods each alternate weekend from 11 am Saturday until 3pm Sunday as well as:-
·In the first week of each two week school holiday period from 10:00 am on Wednesday until 5:00pm on Thursday; and in the second week from 11:00am on Saturday until 3:00pm on Sunday; and
·During the school holiday period commencing December 2022 from 10 am Wednesday until 5pm Thursday each alternate week.
Further extensive orders were made by consent including orders as to:-
·The arrangements for X spending time with each of the parties on special occasions including Father’s Day, Mother’s day and the children’s birthdays.
·The changeover arrangements for X between the respective households.
·The provision of information to the parties.
·The parties undertaking parenting courses; and
·The method of communication between the parties.
The father undertook to personally supervise X at all times when the paternal grandfather and/or her cousin Mr G are present and to not take X to the home of either of these persons. By consent Ms H was appointed as the single expert to prepare a family report and the matter was listed for interim hearing before a Senior Judicial Registrar on 31 August 2022.
The matter proceeded to an interim hearing on 31 August 2022. The single expert’s report had been released to the parties prior to this time. Interim orders were made on a defended basis by the Senior Judicial Registrar on this date discharging the orders made by consent on 24 March 2022 as to the time X spent with the father during the school term and school holiday periods only. In lieu thereof Orders were made that X spend time with the father as follows:-
·From 3:00pm on Wednesday until 9:00am on Thursday each week;
·Until 4 October 2022 each alternate weekend so as to coincide with the time spent by B with the father from 10 am Saturday to 3pm Sunday and thereafter each alternate weekend from 3:00 pm Friday to 3:00 pm Sunday.
·During the gazetted upcoming September/October school holidays should the father be available to personally care for X then the alternate weekend time would still commence at 10:00am on Saturday but extend to 3:00pm on Tuesday; and
·During the Christmas school holiday period should the father be available to personally care for X then the alternate weekend time would commence at 10:00am on Friday extending to 3:00pm on Tuesday.
A further order was made for the parties to enrol within 14 days the “J Program” and “K Program” programs and complete them within six months.
The orders as drafted with respect to school holiday periods apply to “the gazetted upcoming September/October school holidays” and “During the Christmas school holiday period.” Thus interim orders have not been made with respect to any of the short Queensland school holiday periods and this will need to be addressed. There may further be some misunderstanding as to these orders as currently drafted and accordingly the August orders with respect to X’s time with the father during school holiday periods will be discharged and new orders made with respect to same.
It is the father’s evidence that he spent time with X in accordance with the orders of 31 August 2022 until at least early September 2022.
On 21 September 2022 the mother filed an Application for Review of the time X spends with the father during school terms and during the school holidays pursuant to the orders made by the Senior Judicial Registrar on 31 August 2022. She sought that the time orders of 24 March 2022 “be reinstated.” The mother also filed an Application in a Proceeding to stay the orders of 31 August 2022 pending determination of the Application for Review.
Orders were made on 29 September 2022 staying the orders the subject of review until the mother’s application for review is heard.
ISSUES BEFORE THE COURT
Both parties sought, by way of their Outline of Case, to significantly broaden the issues for determination by the court on the hearing of the Review Application. The mother sought 11 pages of orders in a font that was so small it was difficult to read. The father sought by way of an Outline of Case filed after the parties’ affidavit material to effectively re-litigate all issues including the allocation of parental responsibility.
The parties were reminded of the purpose and limitations of the abridged process of an interim hearing. Leave was not granted to the mother to rely upon more than one affidavit. Neither party was granted leave to amend the relief sought by them by way of their Outlines of Case.
Thus the mother relied upon the Application for Review which seeks to review the following two Orders of the Senior Judicial Registrar made on 31 August 2022 (“the August 2022 orders”) only, namely:-
14) That the Orders 14 and 16 of the Order of Judicial Registrar [L] made on 24 March 2022 be discharged and in lieu thereof, Order 2 shall apply.
(a) That the child, [X] born [in] 2013, spend time with the Father as follows:
(i) Commencing 7 September 2022 and each week thereafter from after school Wednesday or 3pm to before school Thursday or 9am;
(ii)From date of this Order to 4 October 2022, each alternate weekend, so as to coincide with the time spent by the child [B] with the Father, from 10am Saturday to 3pm on Sunday;
(iii) From 4 October 2022, time pursuant to Order 2(b) herein shall commence from 3pm on Friday and conclude at 3pm on Sunday;
(b) During the gazetted upcoming September/October school holidays, and should the Father be personally available to care for the child, time pursuant to Order 2(b) herein shall commence at 10am on Saturday and conclude at 3pm on Tuesday; and
(c) During the Christmas school holiday period, and should the Father be personally available to care for the child, time pursuant to Order 2(c) herein shall commencing at 10am on Friday and conclude on at 3pm on Tuesday.
The mother seeks that in lieu of these orders the following orders made by consent by a Judicial registrar on 24 March 2022 (“the consent March orders”) be “reinstated”:-
14. [X] will spend time with the Father at all times as agreed during the school term, and failing agreement as follows
(a) In Week One:
i) from after school or 3pm until 5pm Wednesday;
ii) from after school or 3pm until 5pm on Thursday;
iii) from 10am Saturday until 3pm Sunday, commencing 26 March 2022;
(b) In Week Two, from after school or 3pm Wednesday until 5pm Thursday, commencing 30 March 2022.
(c) The Father will ensure that he take [X] to her swimming lesson each Wednesday, during terms 1 and 4.
16. That [X] shall spend time with the Father during school holiday periods as agreed, and failing agreement as follows:
a) From 10am Wednesday until 5pm Thursday during the first week only of each school holiday period. For the sake of clarity, the dates are as follows:
i) From 10am Wednesday, 6 April until 5pm Thursday, 7 April 2022;
ii) From 10am Wednesday, 29 June until 5pm Thursday, 30 June 2022;
iii) From 10am Wednesday, 21 September until 5pm Thursday, 22 September 2022; and
iv) That for the school holiday period commencing December 2022, the child shall spend time with the Father from 10am Wednesday until 5pm Thursday each alternate week;
b) Each alternate weekend, from 11am Saturday until 3pm Sunday, with the time to continue in accordance with the fortnightly arrangement in Order 15(a) (ii).
The mother deposes that if the father will not comply with the order that X have her own bedroom she is agreeable as an alternative to collecting X at 8:15 pm of an evening and returning her to the father or to school the next morning. If the court deems that X’s overnight time with the father is to be increased from that of the August consent orders, then X should stay overnight for three nights per fortnight with the single Wednesday night overnight.
The father also seeks to vary the August 2022 orders with respect to the time that X spends with him during the school term and during the school holidays so that:-
6) From the date of the order to the commencement of term 1, 2023, that [X] spend time with the father as follows:
a) In week one:
i)From after school or 3.00pm Wednesday until 6.00pm Thursday; and
ii)From after school or 3.00pm Friday until 6.00pm Sunday, so as to coincide with the time spent by the child [B] with the father.
b) In week two, from after school or 3.00pm Wednesday until 6.00pm Thursday.
7) From the commencement of term 1, 2023 to the commencement of term 2, 2023, that [X] spend time with the father as agreed between the parents and failing agreement in each two-week period, as follows:
a) In week one:
i)From after school or 3.00pm Wednesday until 6.00pm Thursday; and
ii)From after school or 3.00pm Friday until before school Monday (or 6.00pm on any adjacent public holiday or pupil free day), so as to coincide with the time spent by the child [B] with the father.
b) In week two, from after school or 3.00pm Wednesday until 6.00pm Thursday.
11) That [X] spend time with the mother and father on special days as follows:
School holidays
a) During the Christmas school holiday period, time pursuant to order 6 herein shall cease and the father's time with [X] will commence at 10.00am on Friday and conclude at 3.00pm on Tuesday.
b) In the Queensland Gazetted school holiday periods from Easter 2023 to term 4, 2023, [X] spend equal time with the mother and father to be week about as follows:
i)The existing arrangement pursuant to order 8 above continue save for [X]'s time with the father to be extended such that [X] spend time with the father from 9.00am Monday (instead of Wednesday) until 9.00am the following Monday;
ii)[X] spend time with the mother at all other times during the school holiday periods.
In effect, on an interim basis the mother seeks that X spend time with the father for one overnight per fortnight and the father seeks that X spend five nights a fortnight with him.
The court was advised that by consent between the parties the changeover of X between the parties is to occur at the McDonald’s Restaurant in Town M, New South Wales. This agreement is the subject of Order 5 made on 29 September 2022. That order is not the subject of review and accordingly no further order needs to be made by me in this regard.
EVIDENCE
Both parties sought to rely upon lengthy material. The Mother’s Outline of Case Document was 22 pages in length in a font size that was difficult to read. Her affidavit was 76 pages in length. It referred to and relied upon annexures to prior affidavits that were not attached. She sought to rely upon a further two affidavits filed previously in the proceedings that totalled a further 164 pages in length together with a tender bundle that comprised documents that she had prepared herself and appeared to be a further summary of her evidence that should have formed part of her affidavit material. I did not allow the mother to rely on this material. The father’s affidavit was 94 pages in length. Both parties were required to limit their evidence before the court to a total of ten pages of the substantive affidavit and five annexures in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) ( “the Rules”).
The mother relied upon the following:-
·Application for Review filed 21 September 2022;
·Pages 1 – 11 of the Outline of Case document filed on 2 November 2022;
·Response filed 3 April 2022;
·Notice of Risk filed 3 April 2022;
·Parenting Questionnaire filed 3 April 2022; and
·Pages 3, 6, 7-8, paragraph 54 and pages 12- 17 of the mother’s affidavit filed 1 November 2022 together with annexures 3, 8, 9 10, 11 and 2 (page 25 only).
The father relied upon the following documents:-
·Amended Initiating Application filed 28 October 2022;
·Notice of Risk filed 23 February 2022;
·Parenting Questionnaire filed 23 February 2022;
·Paragraphs 1, 2, 8-12, 23-28 and 30 – 130 of the father’s affidavit filed 28 October 2022 together with -01, -02, -04, -07 and -11.
·The Family Report of Ms H filed on 29 August 2022, the agreed single expert in this matter. (“the Family Report”); and
·Pages 1- 7 of the Outline of Case filed 2 November 2022.
The Family Report
A full Family Report dated 29 August 2022 has been prepared by Ms H, psychologist (“the single expert”) for the purposes of the interim hearing. The single expert was appointed by consent of the parties for the purposes of assisting the court to determine the interim parenting arrangements that are in X’s best interests. For the preparation of this report the single expert conducted an interview with the father for approximately two hours and two interviews with the mother for a total of approximately three hours. She interviewed X and observed her with both of the parties. The single expert had read material filed by each of the parties together with X’s school reports from 2019 to Semester 1 2022, together with X’s Personalised Learning Plan dated 17 May 2021.
During the course of the interim hearing the mother submitted that I should place no weight on the family report until there is an opportunity for the report writer to be cross examined. She stated that she has “concerns as to the process that was employed, the content and the recommendations.” In her affidavit the mother makes extensive complaints as to the process that was adopted by the single expert in preparing her report including the single expert not reading all material that she wished her to read. She holds concerns as to cognitive bias, and her “seemingly dismissing/minimising evidence of domestic violence towards X and I by Mr Kappel.”[1] She further deposes that the report does not reflect what X relayed to the mother in the car on the ride home after X’s interview and states: “I did not ask X about her experience but also did not discourage X from verbally unpacking the somewhat stressful day, and simply listened to her. The report fails to mention the observed discomfort (psychological responses) of X on that day.”[2] The mother does not particularise what it was that X allegedly said to the single expert and what was reported incorrectly. I am unaware as to what psychological responses the mother is alleging she observed in X on the day of her interview with the single expert.
[1] Affidavit of Ms Fannon filed 1 November 2022 (“the Mother’s Affidavit”).
[2] Ibid, paragraph 77.
The father does not take issue with the report and relies upon its recommendations to support the relief he seeks.
The single expert is a psychologist and is a Family Consultant pursuant to Regulation 7 of the Family Law Regulations 1984. She has a Masters of Science (Psychology), a Grad. Dip. of Social Science (Psych) and a Bachelor of Social Science (Psych). She has been employed as a psychologist in the private sphere since 2017 and was a family consultant for at the Family Court of Australia, Brisbane Registry from 2009-2013. She has had extensive experience in this field since 1999 and has undertaken significant training in domestic violence and trauma informed practices. I am satisfied that she has the appropriate expertise and experience.
Whilst the evidence of the single expert is untested, I am satisfied that it is appropriate to place weight on her recommendations based on her direct observations of X and each of the parties. In circumstances where the mother does not provide any evidence as to what she asserts X told her was reported incorrectly by the single expert, I am satisfied that it is appropriate to place weight on X’s reported views as to her relationship with each of the parties as an independent source of these views. The family report is credible single expert opinion evidence that attracts weight, albeit untested.
The recommendations of the report writer as are relevant to the current issues before the court on an interim basis is that broadly:-
·The parties have equal shared parental responsibility for X.
·X live with the mother.
·That during school terms X spend graduating time with the father to eventually become each week from 3:00pm Wednesday to 6:00pm Thursday together with each alternate week from 3:00pm Friday to before school on Monday. Thus X would spend 5 nights a fortnight with the father.
·That until Easter 2023 X spend time with the father during school holiday periods in accordance with the same regime as during the school term. As and from Easter 2023 X spend half of each school holiday period on a week about basis with each of the parties.
·That if indicated, the parties give future consideration to varying X’s split week during school terms with the father to one five-night block each fortnight if it appears that arrangement would suit X better.
·That the father attend an anger management program or at least six individual counselling sessions.
THE LAW
Pursuant to rule 14.05 of the Rules a party may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision. The Review Application was filed within such timeframe.
Rule 14.07 of the Rules states that the hearing of an Application for Review of a Registrar’s decision is an “original hearing”; that is, the Court will hear the whole matter afresh rather than determining whether the original decision was in error. The Court may receive further evidence in addition to the evidence before the Registrar: rule 14.07 (2).
The Full Court in Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346. It also affirmed that the procedure for making interim orders would continue to be a truncated process in which the court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.
Pursuant to s 65D (1) of the Family Law Act 1995 (Cth) (“the Act”), subject to certain sections, a court may make such parenting order as it thinks proper. In deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations as set out in s 60CC(2) are:
·the benefit to the child of having a meaningful relationship with both of the child's parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the court is to give greater weight to the need to protect the child from harm or being subjected to, or exposed to, abuse, neglect or family violence.
Despite the court’s limited ability to make findings in respect of controversial facts in interim proceedings, the court is not relieved of the responsibility to determine risk. The Full Court in SS & AH [2010] FamCAFC 13 said:
[100] … 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.
The assessment of risk thus requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event: Dieter & Dieter [2007] FamCA 608. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable: M & M (1988) FLC 91-979; [1988] HCA 68. The assessment of unacceptable risk is thus a predictive exercise, postulated from known facts and present circumstances, bearing in mind of course the inherent limitations of an abridged hearing.
The Court must also consider the Full Court’s statement in Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101 namely, that where risk is alleged in interim proceedings, a conservative approach is warranted.
I am only required to address the relevant considerations as presented by the parties through the evidence and presentation of their case.
SECTION 60CC CONSIDERATIONS
Turning now to the primary considerations.
Meaningful Relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them: Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520. The Full Court in McCall & Clark (2009) FLC 93-405, 83,476 at [118]-[119]; [2009] FamCAFC 92 adopted what is described as the “prospective approach” with respect to considerations pursuant to s 60CC(2)(a) so that the court:
[118] …should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
Risk of Harm
The Mother’s Case
The mother deposes to a long history of domestic violence perpetrated against her and X by the father. The mother’s evidence is that some mandatory reporting from authorities to Child Safety has been made regarding X in the father’s care. In her affidavit the mother alleges that the father has perpetrated family violence both against herself and against X. Such family violence included an incident in September 2019 where the father kicked X with force causing her to cry and from November 2020 – March 2021 the father would “often” grab X and the mother around the tops of their arms causing significant swelling and bruising. There is no context provided by the mother as to this allegation.
The mother further alleges that the father perpetrated a sexual assault upon her when she was seven months pregnant with X. This allegation is made as a bald assertion without any specific evidence being provided as to the alleged incident.
In her Notice of Risk the mother asserts that in December 2016 the father was driving erratically on the motorway and assaulted the mother in the car causing her bruising. The mother does not provide any particulars by way of affidavit evidence relied upon in the proper manner for the interim hearing. This is not in any way a determination of the allegations made by the mother. It is however a weighing up of the risks that may flow from the specific allegations made by the mother as to the harm that she alleges will arise by X spending more than one night a fortnight in the father’s care.
The mother makes further allegations of the paternal grandfather sexually abusing the father’s older daughter Ms C when she was 7 years of age.
The mother’s position is that the Orders made on 31 August 2022 do not acknowledge the domestic violence inflicted upon her and X by the father.
The mother submitted during the course of the interim hearing that the March consent orders had already represented a substantial increase in the overnight time the father has previously chosen to spend with X and X is still adjusting to these new arrangements. The August orders significantly increased X’s time with the father from 1 night per week to 4 nights per fortnight. The mother submitted that she did not react immediately to her concerns as to this increase in time, but X reacted with distress and anxiety behaviours at the prospect of spending more time with the father.
The mother further submitted that the doubling of X’s time with the father including 4 consecutive nights during holiday periods in circumstances where the father refuses to undertake an anger management course following an incident of family violence in 2019 places X at an increased risk of harm in light of the allegations of family violence raised by the mother in her material including a sexual assault upon the mother. When asked by me specifically what the risk is to X in spending increased overnight time with the father the mother submitted that extending the time X spends with the father will significantly increase the risk that the father will “lose it” with X: “A single night means that within 24 hours I get to see my daughter, I get to see that she is okay.”
The mother further submitted that the father has breached a number of the protective provisions of the March orders putting X at risk – including who she can be left with unsupervised, seeking medical care for X and X having her own bedroom. These were protective provisions contained within the orders and the mother needs to be able to monitor how X is doing by her only having single overnight stays.
The mother deposes that the father is not complying with the current interim orders, more specifically that:-
·He is to seek appropriate medical assistance for X and contact the mother immediately and advise of any medical emergency, illness or accident. On 11 September 2022 X returned home from the father’s care complaining of a sore stomach and with a temperature of 38.2 degrees. The mother took her to the doctors and she was prescribed antibiotics. The mother asserts that the father did not advise her that X was unwell.
·She further alleges that the father is denigrating and/or undermining the mother by telling X that she should tell the mother that the mother does not control her, she makes her own decisions.
·X is to have her own room. The mother deposes that X has told her that the father is continuing to share the bed with her.
·The mother further submitted the paternal grandfather allegedly sexually abused the father’s oldest daughter when she was seven years old. The mother asserts that the father is not complying with this injunction.
·Not complying with the order that he is to be personally available to care for X during the school holiday period.
Despite the mother not asserting that X is at risk of sexual abuse by the father whilst in the father’s care, she deposes at length to an incident on 23 October 2022 whereby X woke up at her father’s home with a sore vagina and blood in her underpants. The father sent the mother a photo of the blood. The mother deposes that: “X said her dad said she had to shower before she was allowed to call me; this seemed unusual as there was only a small amount of blood and X routinely showers at night.”[3] The mother told the father to take X to the medical centre. She deposes that the father was angry and yelling when she arrived at the medical centre and so she walked outside and after not being able to get hold of a police officer, dialled 000: “to alert them in case of the situation of Mr Kappel yelling at the medical centre escalated and/or if the doctor deemed something untoward had happened to X there would be record of the day.”[4] She deposes that she later told a police officer that she was not making allegations with regards to X’s symptoms and would await to see what the doctor determined. The final results of the further testing of X’s urine sample is not deposed to by the mother. She does depose that she “supposed the irritation may have been from the washing technique and I have since packed clean underpants for X each overnight stay, and ask that the soiled underpants are returned to be washed by me.”[5]
[3] Mother’s Affidavit paragraph 54.
[4] Ibid, paragraph 56.
[5] Ibid, paragraph 60.
The mother deposes that since the August consent orders were made X has been exhibiting distress by crying and stating that she does not want to go to her father’s home any more nights; she goes there enough and does not feel comfortable there.
The Father’s Case
The father denies the mother’s allegations as to the perpetration of family violence upon the mother or X. He further denies sexually assaulting the mother. The father deposes that on 10 September 2022 he received a telephone call from Queensland police asking that he attend Brisbane City police to take part in a police interview. He attended the police station on 11 September 2022. On this day he responded to the domestic violence allegations made by the mother and no further action has been taken by the police.
The father conceded to the court child expert that an incident alleged by the mother in 2018 when the parties were separated for a period of time occurred. The father went to collect X from childcare as he was expecting to have her overnight but the mother also went to collect X. Upon the mother placing X into her car he “regrettably” got into the back seat of the mother’s car and refused to get out. The mother drove to the police station with him and X in the backseat. The father told the single expert that he learned: “that was not the way” and “it was the most humbling experience of my life.”[6]
[6] Family Report of Ms H dated 29 August 2022 paragraph 27 (“Family Report”)
The father denies the mother’s assertions that he has not been complying with the provisions of the interim orders. He denies that he has failed to provide X with adequate medical attention.
The father denies co sleeping with X subsequent to the hearing on 29 September 2022. He deposes that on one occasion prior to this on 10 September 2022 he was woken by X at approximately 4 am and took her back to bed to comfort her and fell asleep. The father asserts that the mother often co-sleeps with X.
The father deposes on 10 September 2022 X did complain of a sore ear and stomach at approximately 11:30 am that day so he administered a dose of children’s Neurofen. X’s health and mood improved and they went to the local playground with her elder brother B. Upon receiving communication from the mother an hour after she returned to the mother’s home that X had a sore stomach and her ear hurt and that at 10:00 pm she had a temperature of 38.2 degrees, he thought that the effect of the pain medication had worn off. X was taken by the mother to the doctor the next day where she received a script of antibiotics which he administered when X was with him. He regrets forgetting to message the mother to tell her he had administered Neurofen.
The father deposes that on the weekend of 23 October 2022 he slept on the couch as B and X were in his care for the weekend. X woke in the morning and told him she wanted to call her mum as: “I’ve got blood in my knickers.” He tried calling the mother at 9:33 am but she did not answer. The father asked X if she wanted to have a shower and put on some clean underwear and she said yes. Upon speaking to the mother she insisted that he take X immediately to the doctor despite him wanting to drop his son B back home first. He requested that the mother not wait in the surgery as B does not feel comfortable with the mother but she insisted on coming into the waiting room. He denies shouting and states he was never asked to leave the waiting room. The doctor advised the father that she did not believe it was an infection but possibly from minor trauma, itching or scratching and would “write up” the details for the mother and himself. As at the date of filing of his affidavit the father has not received any correspondence from the doctor’s surgery. On 25 October 2022 the father called the doctor surgery to obtain the results of X’s tests but the test results had not yet been received. On this date his solicitor filed a subpoena addressed to the medical practice. On 26 October 2022 the mother filed an application in a proceeding seeking to cease any overnight time between X and the father.
The father denies that he does not facilitate phone calls between X and the mother.
The father denies that he has not been personally available to care for X during school holiday periods and deposes that during the time X spent with him in the September school holidays he was on annual leave in compliance with the consent orders made in August. During the September school holidays the father took X to a shopping centre with his mother and her cousin, Mr G. He was present at all times during the outing.
The father denies denigrating or discussing adult issues with X. He denies that X has said to him that she does not enjoy spending additional time with him. He denies that X has told him that she wants to go home to her mother’s. The father asserts that the mother has denigrated him to 3rd parties in the presence of X and engaged in adult discussions with X regarding the family report interviews.
The father asserts that, contrary to the mother’s allegations X has indicated her desire to spend additional time with the father.
The father deposes as to alleged incident that occurred at contact changeover on 10 September 2022 where he alleges that upon the mother seeing the father talking to her next door neighbour she began yelling at him from inside the front door and saying to him things including:
[Mr Kappel] will be going to jail soon. There is a criminal investigation being raised against you….. The reason [X] couldn’t stay at [Mr Kappel]’s parents is because her grandfather is a paedophile….. I hope they do to you in jail what you did to me. You’re going to jail, I’ve got all the medical records.”
The father deposes that this was said within hearing of both B and X.
It was submitted on behalf of the father that:-
·There is no particulars as to why risk issues for X in the father’s care would crystallise after one night in circumstances where X is currently spending three nights a fortnight with the father.
·The mother appears to rely upon allegations of risk grounded by historical allegations of domestic violence. The father denies any incidents of family violence. There has never been an Apprehended Domestic Violence Order between the parties, nor has the father ever been charged with any criminal offence. The mother made allegations to Police only recently as to historical allegations of family violence and as such the bona fides of such a complaint would cause the court some concern. The family report writer’s recommendations were made in the knowledge of the allegations as to domestic violence. X says she has a good relationship with both parents and loves both parents.
·The mother makes concerning allegations against the father which have a sexual connotation most notably with respect to X waking in the father’s care with blood in her underpants. This is part of a consistent theme in the mother’s material whereby she makes allegations against various persons in the father’s family including the father’s elder daughter.
·The mother’s assertion that she did not react immediately with respect to her alleged concerns is entirely inconsistent with her forwarding correspondence to the father’s solicitors on 1 September – being the first business day after the interim hearing - informing them that she intended to file an application for review. This correspondence was thus sent prior to the mother’s evidence as to X’s purported reaction to spending more time with the father. It is the father’s submission that clearly immediately the mother was not going to support the orders and to submit otherwise is disingenuous.
·The father denies that he has contravened the orders.
·The criticism of the court child expert is a convenient submission in circumstances of the court child expert’s recommendations. It appears that the mother takes issue with anyone who does not do what the mother says or wants. There is no reason that the recommendations of the report ought not be adopted.
·The mother is controlling of X and the time she spends with the father and is involving X in the proceedings.
·There are no risk issues that would justify the court only ordering that X spend time with the father one -two nights per week.
·The Senior Judicial Registrar stated in her judgement at paragraph 63 that Christmas holiday time between X and the father should be five nights in the September school holidays and then six nights in the Christmas holidays but this was not translated into orders that were made and thus the father is seeking such orders during the holidays.
The Additional Considerations: section 60CC (3)
I will now refer briefly to the section 60CC (3) considerations as are relevant to this matter today.
The parties are at significant issue as to X’s relationship with the father and her reaction to the increased time she is to spend with the father. The mother deposes that upon being told on 3 September 2022 by the mother that she was to be spending more time at the father’s home, X was crying and adamant that she would not go. The father deposes that X has sought additional time with the father subsequent to the August orders.
The single expert reports that X indicated that X reported to her that:-
·She feels happy when she is with each parent.
·She feels sad when leaving both the mother to see the father and when leaving the father to see the mother.
·She becomes scared when both of her parents are angry.
·She is afraid of the dark and when her parents fight when the father drops her off and both parties record each other with their phones. This makes her feel worried.
·She wishes that she and her parents could be a happy family.
·She understands “they fight about me, who got to see me and who didn’t.”
·She doesn’t want to spend too much time with either parent as the other parent will get sad. She rated her feelings equally with each parent. If she had more overnight time with the father that would be “good and bad [because] I don’t want to make mummy sad but it would be fun to have extra time with daddy.”
·In terms of what each parent could do better, X stated for them to “stop fighting with daddy….don’t fight with mummy”.
·The father smacked her on one occasion. When asked to provide further details as to this incident X stated: “no because I don’t remember it but mum said it happened.”
·Upon direct questioning X denied that anyone had ever touched her body without her permission or in a way that made her uncomfortable.
·She confirmed she has a good relationship with both parents.
The single expert observed X with both of the parties. The single expert records that X was relaxed, clam and engaged during her time with the mother. Her mood was upbeat and there “was good holding quality between them and they interacted with apparent ease.”
Upon observing X with the father the single expert reported that she observed that X was happy to greet the father, cheerfully announcing “dada” and “she quickly came towards him.” X is reported as smiling, giggly and playful during her interactions with the father - at one point singing “with gusto.” Her mood was upbeat and she unreservedly interacted with the father. The single expert reports that the father demonstrated reflective capacity and set boundaries gently.
The single expert opined based on her observations between X and the parties and her interview with her that:-
·X feel safe and comfortable with each parent. She recalls no abuse by either parent and feels equally scared when either parent is angry with her.
·She wants her parents to stop fighting and get along.
·While X shared that she probably has “enough” time with the father this view was because she does not want to spend more time with the father if that upsets the mother. X understandably worries about the mother’s feelings the most because she has primarily lived with her.
DISCUSSION AND DETERMINATION
Parental responsibility
In this matter no orders are sought as to parental responsibility. No submissions were made as to this issue. I am satisfied that it is in the best interests of the X that I make no order as to parental responsibility at this stage of the proceedings. Accordingly, each of the parents will continue to have parental responsibility for each of the children: see s 61C of the Act.
As no order has been made as to parental responsibility I am to make such orders in my discretion that are in X’s best interests.
Time with Orders
I agree with submissions made on behalf of the father that the mother’s material contains an underlying current that X is at possible risk of sexual abuse or harm by the father. The mother did not raise this as an allegation in her submissions and one is left wondering then as to the relevance of such material in her affidavit as:
[X] said her dad said she had to shower before she was allowed to call me; this seemed unusual as there was only a small amount of blood and [X] routinely showers only at night.[7]
And
[X] told the doctor that [Mr Kappel] played games with her on the bed and then put music on and she fell asleep with her dad in the same bed as her on Saturday night. [X] told the doctor that her Dad tells her that he sleeps on the couch but [X] said she is not sure as he falls asleep with her dad in the bed and sometimes he is there in the morning.[8]
[7] Mother’s Affidavit, paragraph 54.
[8] Mother’s Affidavit, paragraph 57.
The mother further alleges that the father is sleeping with X in the same bed of a night time. The father denies that this is a regular occurrence and provides evidence as to the circumstances surrounding this occurring on one occasion. I am satisfied based on the vague tenor of the mother’s evidence and in circumstances where the mother herself seeks that X spend unsupervised overnight time with the father that there is little possibility that X is at risk of sexual harm by the father. I am satisfied that the current interim injunctive orders as to X’s sleeping arrangements sufficiently protect X from any possible risk.
The mother alleges that X is at risk of exposure to sexual abuse perpetrated by the paternal grandfather and “untoward” behaviour by her cousin Mr G.[9] There is an injunctive order in place by consent restraining X from being left unsupervised in the presence of the paternal grandfather or her cousin Mr G. The mother’s complaint in this regard is that on one occasion X reported to her that the father was working on his laptop whilst the maternal grandparents were visiting and that on another occasion X was making rude gestures with his fingers to three younger children. X subsequently told the mother that her cousin Mr G had shown her this gesture. The mother’s allegation that the father has not been complying with such restraints is denied by the father. The father asserts that he has personally supervised X at all times whilst in his care. X is reported as stating to the single expert that no one had ever touched her body without her permission or in a way that made her feel uncomfortable.
[9] Mother’s Affidavit, paragraph 8.
It is difficult to see on the mother’s own evidence taken at its highest that the father has not been complying with the current interim orders with respect to the paternal grandfather and paternal cousin. I am satisfied that any risks to X arising from her coming into contact with the paternal grandfather and cousin is sufficiently ameliorated by the current interim injunctive orders.
I am satisfied that based on the mother’s own evidence that there is little risk that X is at risk in the father’s care as a result of lack of medical attention as required. The father appears to have engaged with medical practitioners as and when required.
There is significant dispute between the parties as to the mother’s allegations that the father has perpetrated domestic violence upon the mother and X. The father concedes that he did act inappropriately by getting into the back of the mother’s car and refusing to get out when there was a dispute as to whether it was X’s time with him. X is reported as clearly stating to the single expert that she feels safe and comfortable with both of her parents apart from when they are angry and “she recalls no abuse by either parent.”[10] The mother herself is recorded as saying to the single expert that: “Do I think [Mr Kappel] would ever intentionally try to harm her, no, I don’t think so. Do I think he always makes the best decisions? No.” She felt he needs to be more careful.”[11] Whilst the mother makes complaint as to the methodology adopted and reporting of the single expert, she did not submit that this was not said by her to the single expert and I thus place significant weight on it.
[10] Family Report, paragraph 123.
[11] Family Report, paragraph 64.
I am satisfied that X is at low risk of harm by the father arising from his perpetration of family violence.
The mother concedes that overnight time with the father is in her best interests but submits that risks arise to X being in the father’s care for more than one night overnight. I am unable to accept that there is reasonable basis to form the view that any risk of harm that may arise in the father’s care somehow appears after more than one night in the father’s care. I am unable to ascertain how it is that these alleged risks in any event only occur of a night time.
Whilst the parties are at issue concerning X’s relationship with the father, I have the benefit of an independent report prepared by a well-qualified expert. The single expert is clear in her observation of X’s positive and relaxed interactions with the father.
Weighing the competing considerations and balancing the alleged risk issues raised by the mother I am satisfied that any risk to X in the father’s care is low, noting there is already in place injunctive protective orders that sufficiently ameliorate the risks alleged by the mother and should provide her with some comfort. Thus I am required to make orders cognisant of the benefit to X of having a meaningful relationship with both the mother and the father.
Whilst untested, I place weight on the single expert’s opinion contained within the Family Report that:-
..while the parenting arrangement is currently working and appropriate, I am concerned that if [X] continues to spend only one night each week with the father, her relationship with him will not advance to the same degree as her relationship with the mother, or the degree the father would now like it to (regardless of his history of involvement) and further, the father will continue to feel disenfranchised, controlled and unable to participate more meaningfully as [X]'s parent rather than a mere “babysitter.”[12]
[12] Family Report, paragraph 124.
The single expert further opines that X has now developmentally reached an age where she could probably tolerate several nights away from any historical carer “provided she feels safe, supported and comfortable in both environments and provided she has access to the mother at times of need.”[13] I place weight on the single expert’s opinion in this regard. The current orders of 24 March 2022 provide that each of the parties is to facilitate X communicating with the other party when requested by X.
[13] Family Report, paragraph 129.
Having regard to the single expert’s observations and recommendations I am satisfied that there should be an increase in the time that X spends with the father from that agreed to by way of the August consent orders. As this is an interim hearing I should adopt a cautious approach. Whether the five nights a fortnight that the single expert recommends X spend with the father is in X’s best interests can be tested at a final hearing. I am therefore satisfied that X’s time with the father should increase on a graduating basis pending the final hearing so that it moves to four nights a fortnight during the school term and during all school holiday periods. This allows X the opportunity to develop and maintain a meaningful relationship with both of her parents which is in her best interests.
So as to provide the mother with some comfort and X the opportunity to transition to the new arrangement, X’s time with the father over the upcoming Christmas holiday period will be extended to three overnights and move to four overnights as at the end of the 2023 term one school holiday period.
The current order for the time that X will spend with the father will be varied to clearly include all Queensland school holiday periods. The mother’s application to review the orders of the Senior Judicial Registrar will otherwise be dismissed.
The single expert clearly opines that X is conflicted and feeling responsible for her parent’s emotions and wellbeing. If this is correct, such a situation is clearly not in X’s best interests. X appears to have a strong and loving relationship with both her parents. It will assist X in feeling comfortable and relaxed in spending time away from the mother if the mother proactively encourages and supports such time as she is required to do so pursuant to the Act. The mother’s ability to appropriately and proactively support X’s relationship with the father will be an issue for determination at the final hearing of this matter.
I make orders accordingly.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 15 December 2022
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