Fiedler & Vitale
[2024] FedCFamC1F 525
•19 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fiedler & Vitale [2024] FedCFamC1F 525
File number(s): NCC 983 of 2018 Judgment of: SMITH J Date of judgment: 19 July 2024 Catchwords: FAMILY LAW - CHILDREN – Interim Orders – Where the matter is listed for final hearing – Where the trial did not conclude within allocated time and remains part heard – Where the court is yet to hear from the expert – Where the father made an oral interim application to take the subject child on a cruise –Where the principles governing interim applications apply – Where the court cannot make any findings of fact – Where family violence between the father and his current partner remains a significant issue at trial – Where the court must take a conservative approach – Oral application dismissed Legislation: Family Law Act 1975 (Cth) Pt VII, s 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 10, r 10.04
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 15–19 July 2024 Place: Newcastle Counsel for the Applicant: Ms Adams-Nash Solicitor for the Applicant: McNeilly Lawyers Counsel for the Respondent: Mr Graham Solicitor for the Respondent: Lindeman Lawyers Counsel for the Independent Children's Lawyer: Mr Gallimore Solicitor for the Independent Children's Lawyer: Stevens Family Law & Mediation ORDERS
NCC 983 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIEDLER
Applicant
AND: MS VITALE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
19 JULY 2024
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Interim Orders be made in accordance with the document attached hereto.
THE COURT FURTHER ORDERS THAT:
2.The matter be listed for part-heard Final Defended Hearing commencing at 9.30 am on Friday, 16 August 2024, noting that appearances are required in person at the Registry of the Federal Circuit and Family Court of Australia.
3.Liberty is granted to the Independent Children’s Lawyer to approach the Court in Chambers to have the matter relisted if any issues arise during the adjournment period.
4.By no later than 14 days from the date of these orders, the parties are to confer and provide a joint list of documents to be given to the Court Child Expert, Ms B.
5.Ms B’s evidence be taken by audio-visual means.
6.The Local Court file from Town C Local Court be urgently requested, in particular the DVEC audio-visual recording of Ms D’s complaint in relation to the events of mid‑2021 regarding Mr Fiedler.
7.Dismiss the father’s oral interim application for orders “that the child shall be permitted to accompany the father on a [holiday] from 30 July 2024 until 9 August 2024.”
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND NCC983/2018
FAMILY COURT OF AUSTRALIA
(DIVISION 1)BETWEEN:
Mr Fiedler (Applicant)
AND:
Ms Vitale (Respondent)
AND: INDEPENDENT CHILDRENS LAWYER
IT IS ORDERED BY CONSENT, ON AN INTERIM BASIS:
1.That all previous Orders be discharged
2.That the child X born in 2016 (‘the child’) live with the father.
3.That the child spend time with the mother as agreed between the parties and failing agreement as follows:
a.From 9am Saturday 27 July 2024 until 5:00pm Sunday 28 July 2024; and
b.From 9am Saturday 10 August 2024 until 5.00pm Sunday 11 August 2024.
4.That for the purposes of facilitating time, changeovers shall occur at the front door of Town C Police Station at the commencement and conclusion of time.
5.That the mother have telephone or video communication via Whatsapp each Thursday at 4:30pm for 30minutes with the mother to place the call to the father’s nominated device and the father to ensure the child is available to answer the call.
6.That each party be at liberty to attend all extra curricular or school events that parents would ordinarily attend.
7.That these orders be sufficient authority for each party to communicate with the child’s educational providers and obtain all information about the child including but not limited to newsletters, circulars, reports, school photos, behavioural management plans and the like
8.That these orders be sufficient authority for each party to communicate with the child’s medical providers and obtain all information regarding to his diagnosis, treatment and options.
9.That should the child be injured or ill and require emergency medical attention the parent with whom the child is spending time shall notify the other parent of the injury/illness, diagnosis and treatment within 2 hours.
10.That parties will communicate by text message only except in cases of emergency.
11.That each party be restrained by injunction pursuant to s68B for the safety of the child from:
a.Allowing or permitting the child to come into contact with Mr E
b.Allowing or permitting the child to be in the unsupervised company of Mr G,
c.Denigrating the other party, their family or friends in the presence of hearing of the child or permitting the child to remain in the presence or hearing of any third party doing so
d.Changing the child’s currently enrolled school without written consent of both parents
e.Both parents are restrained from physically disciplining or assaulting X (either by using their hand, another body part, or an object), or allowing anyone else to do so, and must immediately remove X from the presence of anyone physically disciplining X or attempting to do so.
f.Permitting X to be exposed to Family Violence or remaining in the presence of any person engaging in family violence, and shall immediately remove X from the presence of anyone engaging in family violence behaviour.
g.Using illicit substances in the presence of X or whilst they are responsible for his care, or within 12 hours prior to X spending time in their care.
h.Discussing these proceedings or any other litigation involving the parents in the presence or within the hearing of X.
12.The parents agree the Child will not be introduced to any new partners/relationship of the parents until such time as that relationship has been constant for a period of six months.
13.Each party will ensure the child attends upon all recommended therapies until discharged by the service provider.
14.Each party shall keep the other party informed of their current residential address.
15.[Omitted].
16.[Omitted].
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fiedler & Vitale has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”), in an interim application made orally today for parenting orders.
The context, in short, is that the proceedings regarding the subject child X, born in 2016 (“the child”), commenced before me on Monday of this week and, as at 10 minutes to 4.00 pm on Friday, we are part heard with a final hearing requiring one further day to be finished. We are still to hear from the expert. The matter will be finished in about four weeks on 16 August 2024 when the expert is called and submissions are made.
Between now and then the father and his partner were planning to take the child on a holiday from 30 July 2024 until 9 August 2024.
I have heard a lot of evidence, but the principles that apply are those that apply in respect of an interim application. In very short terms, I cannot, nor would I consider myself in a position to, at the moment, make any finding of fact.
However, amongst the significant factual issues in the proceedings are whether the father poses an unacceptable risk to the child by reason of his propensity for family violence, and whether or not the father’s current partner of about six years since 2018, Ms D, is the subject of family violence by the father and, in particular, whether that is the case when they are on holidays, noting that they do not normally reside together.
Both the father and Ms D vehemently deny any family violence, and I cannot make any findings on that at the moment. As I have said, the principles that apply are those that determine interim applications.
The principles as articulated by the Full Court in Marvel & Marvel (2010) 43 Fam LR 348, particularly at [120], note that:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing…
This is what we are dealing with now, this question of an interim order.
Now, as the Full Court clarified in Eaby & Speelman (2015) FLC 93-654, particularly from [18], referencing Goode & Goode (2006) FLC 93-286 at [68], and considering the difficult position here that evidence has been led but no finding can be made, the Full Court pointed out the fact that:
18. … However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
So quite simply, although I can make no finding about whether or not there has been family violence between the father and Ms D, I must consider the evidence on that topic, and I must consider the evidence while taking a conservative approach in my view.
As was said in SS & AH [2010] FamCAFC 13, in particular at [88] and, more importantly, at [100]:
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.
And the Full Court followed on in Deiter & Deiter [2011] FamCAFC 82, in particular at [61]:
61. The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
Now, of course, if it was merely an assertion by the mother and there was nothing else, that might be one thing, but I have evidence that there is no doubt Ms D made a complaint to police about an event in mid-2021. Ms D's complaint was recorded on a DVEC. We do not have that DVEC. However, she agreed that the substance of what is contained in a police report, which is before me, appears to have come from the DVEC. Before me she effectively repudiates what she told police on the day. Ms D said she was upset, as I understand it, and perhaps exaggerated. The father was charged. He was not convicted. Of course, he was not convicted because Ms D attended the local court and repudiated her statement to police. An AVO was issued.
As I have said, both the father and Ms D have given sworn evidence denying the substance of her complaint to police. However, later in 2021, Ms D went to her GP and also talked about physical restraint by the father. She, again, denied in evidence before me that such physical restraint occurred, but it is not clear why her GP would have made such a record or where the information came from, that information being apparently consistent with Ms D to police, if, indeed, Ms D did not tell the GP, or why Ms D would also lie to the GP that much later if it was all false or exaggerated.
I note, there is also contemporaneous documentary evidence of another serious event of family violence when the father and Ms D were on holidays in Region F in early 2020, when Ms D called the police, and there are also texts about that. She made serious allegations about the father then, which she also repudiated before me. There are also a series of more recent social media videos where Ms D refers to the father as a narcissistic abuser, who she says she was trying to leave in order to “break the cycle”. Now, she has sought to explain those in certain ways which paint the father as a good man and her as being in the wrong.
I cannot make any finding, but on an interim basis where I am bound to take a conservative approach, I must consider that there is evidence before me upon which it would be open to make a finding that the father and Ms D are involved in a relationship in which there is serious ongoing family violence, and that the context of a holiday where they are travelling with child might be a circumstance in which conflict between them could arise where they would be sharing a room. They cannot each go to their own house, noting that they do not live together, and that raises a genuine risk. I understand that it will cause difficulties for them, the father and Ms D, and there is no doubt the child knows this is coming, and he will be extraordinarily disappointed.
However, given that I have evidence before me which could lead to a finding of serious family violence, particularly in a context where they are close together and cannot get away from each other, and given that I must weigh the evidence, and given that the principles all require me to take a conservative approach until I have actually had a chance to hear what the expert says, hear final submissions, re-read the material and make a finding, it seems to me that the authorities require me, in effect, in the proper application of the discretion I have, nevertheless to refuse the oral application. I understand there will be a lot of disappointment, but I think the authorities bind me.
I otherwise make, by consent, Orders 1 to 14 of the consent orders that are before me to hold the position until the Trial can conclude.
Those are my short reasons.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 13 August 2024
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