Fitzwater & Fitzwater

Case [2022] FedCFamC1F 645

Federal Circuit and Family Court of Australia

(DIVISION 1)

Fitzwater & Fitzwater [2022] FedCFamC1F 645

File number(s): MLC 11465 of 2016
Judgment of: WILLIAMS J
Date of judgment: 30 August 2022
Catchwords: FAMILY LAW – PARENTING – Where there are two children of the marriage aged ten and six – Where the mother seeks orders for sole parental responsibility, the children live with her and for the children to continue to spend supervised time with the father – Where the father and Independent Children’s Lawyer seek orders for equal shared parental responsibility, the children to live with the mother and spend significant and substantial time with the father – Unacceptable risk – Allegations by the mother that the father poses an unacceptable risk to the children – Where the mother, maternal aunt and maternal grandmother allege the daughter made disclosures between 2015 and 2016 to them that the father sexually abused her – Where the mother fervently believes the daughters allegations and has an inability to consider innocent or other alternatives which are contrary to her own view – The mother’s categorisation of the children’s alleged sexualised behaviours is demonstrative of her hypervigilance – Where the daughter has not made disclosures to the police, family consultant, child protection officers, treating doctors and psychologists and has otherwise made contradictory statements – Where the father denies the allegations – Where the daughter is very positive in comments about her father – Where the father has only spent supervised day time with the children since separation in November 2016 – Where the Independent Children’s Lawyer holds the view that the father does not pose an unacceptable risk – Finding that the father does not pose an unacceptable risk to the children – Orders made substantially in accordance with the proposals of the father and ICL.  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:

Blann & Kenny [2021] FamCA 322

Fitzwater & Fitzwater [2018] FamCA 1013

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance
Number of paragraphs: 336
Date of hearing: 12 July 2021, 31 January, 1–3 February, 28–31 March, 13 May 2022
Place: Melbourne
Counsel for the Applicant: Ms Harris
Solicitor for the Applicant: Pearsons Lawyers Pty Ltd
Counsel for the Respondent: Mr Whitchurch
Solicitor for the Respondent: Lampe Family Lawyers
Counsel for the Independent Children's Lawyer: Ms Treyvaud
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 11465 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS FITZWATER

Applicant
AND:

MR FITZWATER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

WILLIAMS J

DATE OF ORDER:

30 August 2022

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

2.The mother…

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AGLC
Fitzwater & Fitzwater [2022] FedCFamC1F 645
Case
[2022] FedCFamC1F 645
Decision Date

CaseChat Overview and Summary

In the matter of Fitzwater & Fitzwater, the primary issue before the court was the determination of the parenting arrangements for the two children of the parties, X and Y. The parents had separated, and the mother had raised allegations of sexual abuse by the father against X, as well as concerns about the father's parenting capacity and potential risk to the children. The court was required to consider these serious allegations while also balancing the need to protect the children from harm and ensuring their best interests were served. The court was also required to decide whether the father posed an unacceptable risk to the children and whether his time with them should be supervised.

The court found that there was insufficient evidence to support the mother's allegations of sexual abuse against the father. While the court acknowledged the seriousness of the allegations, it determined that there was no direct evidence from X or Y to support the claims. The court placed greater weight on the positive observations of the interactions between the children and their father, noting that the children's mood improved significantly when spending time with their father. The court also found that the father did not pose an unacceptable risk to the children and that his time with them should not be supervised. The court was satisfied that the father's proposals for spending time with the children were in their best interests and that the father's partner was a suitable supervisor.

The court ordered equal shared parental responsibility for the children, and that the father's time with the children should be substantially in accordance with his proposals, without supervision. The court further ordered that the father should have regular and meaningful contact with the children, including regular supervised visits and communication via telephone or FaceTime. The court also directed the parties to attend a parenting course and to cooperate with each other in making decisions about the children's welfare. The court's decision was based on a thorough consideration of the evidence and the best interests of the children, with a focus on promoting their ongoing relationship with both parents.

Orders

Orders of the court

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Background

Background to the litigation

I have determined:(a)there should be an order for equal shared parental responsibility;(b)the father does not pose an unacceptable risk to the children; and(c)the father’s time with the children should not be supervised and should be substantially in accordance with the father’s proposals. Background The father is aged 42 and the mother is aged 41. They met in late 1999 and commenced cohabitation in 2000/2001, prior to marrying in 2010. Their first child, X was born in 2012. In mid-2015, the mother alleges X, at age 3, disclosed to her “daddy touched my privates”. The mother says she confronted the father about X’s comments, however the father denies that he was confronted about the allegation. Between August and October 2015 the child complained her vagina was sore and irritated and the mother obtained medical attention. In 2016, the parties’ second child, Y was born. In June 2016, the mother asserts X disclosed to her that “daddy touched my privates”. In September 2016, the mother alleges she observed the child in front of the mirror with her underpants down touching herself. In November 2016, the maternal grandmother told the mother the child said “nanny, daddy touched my privates”. A few days later, according to the mother, the child disclosed to her “daddy touched my privates” and the next day the child complained that her father again touched her privates and demonstrated how he had done so. During the next few days the mother attended a psychologist with the child, had a conversation with her sister and requested the father to leave the home and go to their investment property. On 18 November 2016, the parties separated with the mother remaining in the former family home with X and Y. Since that time, the father’s time with the children has been supervised, and since 28 May 2020, by his partner. The proposals of the parties The mother’s proposal The mother proposes:(a)she have sole parental responsibility for the children;(b)the children live with her;(c)the father spend time with the children as follows:(i)each Thursday from 4.30 pm to 6.30 pm;(ii)each alternate weekend on Saturday from 10.00 am to 6.00 pm and Sunday from 10.00 am to 4.00 pm;(iii)special occasions;(iv)such time to be supervised by the maternal grandmother or father’s partner or any other suitable person agreed in writing conditional upon a signed undertaking;(d)the father communicate with the children by way of telephone/FaceTime as agreed between the parties in writing and failing agreement each Sunday of the weekend the children do not spend time with the father between 5.00 pm and 5.30 pm;(e)the father be entitled to receive a copy of the children’s school reports and school photographs of the children directly from the children’s school at his own expense;(f)in the event that the mother proposes to take the children on a holiday (“holiday period”), she provide no less than two weeks’ notice in writing to the father and the father’s supervised time shall be suspended for the duration of the holiday period;(g)changeovers shall take place at a location not more than 10 km from the mother’s residence with the supervisor implementing changeover.Documents relied upon by the mother

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was common ground the children had prior to separation and subsequently have and benefit from a meaningful relationship with their father, albeit his time with the children since separation has been supervised. The family consultant observed the positive relationship between the children and their father. Additional Considerations The primary focus of this case has been the need to protect the children from harm arising from asserted sexual abuse, family violence and sub optimal parenting capacity on the part of the father. However, I am also required to consider other relevant statutory considerations in reaching my decision about what parenting orders are in the children’s best interests. I will now address the additional considerations.Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views The second family report was conducted some years ago in March 2020. X reported that time with her father and his partner was good and explained that she did not want to sleepover at her father’s house because she did does not have permission, and was unable to do so until she was a teenager. X was emotional during the interview, however, regained her composure when advised by the family consultant that her father would be meeting her in the playroom. According to the family consultant, she became enthused and excited about the prospect of seeing her father and reported how upsetting it was for her that she had not seen him in a long time. Apart from X’s statement, there is no direct evidence about her wishes other than the observations of her interaction with her father. The observation session between X and her father was unfailingly positive, with the family consultant noting (at [105] of the second report) that when the father entered the room, “the formerly quiet children became energised, calling to him and each leaping into his arms smiling and chatting” and “their mood lifted considerably”. I place greater weight on the observations of interactions between the children and their father than X’s statements, as it is obvious her statements are not independent of her mother’s views. The family consultant attempted to interview Y, but he failed to engage with her and in response to a request for interview there “was a resounding ‘…no’ and he then refused to speak.” The family consultant recorded that his words were contrasted with his observed behaviour with the father, which raise questions about the nature of Y’s preparation for the interview and his refusal to speak to the family consultant. I place greater weight on the observations of interaction between the children and their father than X’s statements, or Y’s refusal to engage with the family consultant. It is obvious X’s statements are not independent of her mother’s views.The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)