Fletcher & Henderson (No 2)
[2023] FedCFamC1F 501
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fletcher & Henderson (No 2) [2023] FedCFamC1F 501
File number(s): BRC 3235 of 2022 Judgment of: BAUMANN J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Where the father’s interim application for the child to spend time with him was dismissed – Allegations of abuse – Where an expedited trial is due to commence in four months where the evidence can be tested – Court not persuaded it is in the child’s best interests for her to be introduced to the father now – Review Application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZW, 102NA Cases cited: Keane & Keane (2021) 62 Fam LR 190
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 20 March 2023 Place: Brisbane Solicitor for the Applicant: Hawkes Lawyers Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Damien Greer Lawyers Solicitor for the Independent Children's Lawyer: HM Lawyers ORDERS
BRC 3235 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FLETCHER
Applicant
AND: MS HENDERSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
31 MARCH 2023
UPON NOTING that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings on or after 11 September 2019 and that the parties have each been advised by the Court:
A.that pursuant to those requirements, neither party may cross-examine the other party personally;
B.that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
C.as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
D.that a copy of these Orders will be provided by the court to Legal Aid Queensland, which administers the said scheme.
THE COURT ORDERS:
1.That the Application for Review filed 16 February 2023 be dismissed.
2.That these proceedings be set down for Final Hearing before the Honourable Justice Hogan for not more than three (3) days commencing at 10.00am on 17 July 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
3.That the Directions Hearing listed before the Judicial Registrar on 3 April 2023 be vacated.
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 Fletcher & Henderson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The father, Mr Fletcher, and the mother, Ms Henderson, were in a short relationship which came to an end some months before the birth of their daughter X in 2021. In March 2022, the father commenced parenting proceedings seeking prescribed orders to spend time with the child. Since the commencement of proceedings, despite a number of Court events, it seems that no orders were made on the father’s Application for the child to spend time with him (or seemingly determined) until the Senior Judicial Registrar made an Order on 31 January 2023 that “all interim applications are otherwise dismissed.”
It is agreed that although I am hearing this matter by reason of a Review Application filed by the father on 16 February 2023, the Reasons delivered by the Senior Judicial Registrar are not relevant to my determination.
The effect of the Order was to reject the father’s interim Application for any time (even supervised time), adopting a cautious approach on a view taken that the child could be at an unacceptable risk of harm if the supervised time was ordered. The Review Application operates to require me to determine the matters de novo. The father seeks an order that the child spend time with him, supervised by B Contact Centre, Suburb C, paid by the father for three months, each alternate weekend for two hours and, thereafter, for two hours each weekend, again, supervised.
Mr Hawkes, for the father, made submissions on the father’s behalf. The interim orders sought by the father are opposed by the mother through her Counsel, Ms Dart, whilst the Independent Children’s Lawyer, Ms Mustafa, supported the father’s Application with additional orders that the father:
(a)enrol in a men’s behaviour change program;
(b)enrol in a Circle of Security program; and
(c)engage personal counselling with a specific focus on anger management via a mental health care plan.
During the course of the hearing before me on 20 March 2023, I informed the parties that whatever decision I made, it was my intention to expedite the final hearing of this matter. As a result, it will be part of the order that the matter will be listed for three days commencing 13 July 2023. The trial judge will be Justice Hogan.
Although retained Counsel for the mother indicated that she was not likely to be available that week, unfortunately, the trial dates available for an expedited hearing are limited and her personal availability could not be accommodated. I have considered the evidence of the parties, including the Magellan report dated 28 June 2022 and the earlier information from the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) dated 13 May 2022; the family report dated 15 September 2022 by Ms D and a subsequent risk assessment and psychological report of the father by Psychologist Mr E.
It is perhaps trite to repeat the remarks made at the hearing by me that, consistent with authority in these truncated proceedings, which is the nature of interim determinations, where, as here, evidence has not been tested by cross-examination. I must be aware of the guidance offered by the Full Court, including by way of example in SS & AH [2010] FamCAFC 13 at [88] and [100], that:
88.findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence..
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.
This determination on an interim basis identifies the clash between the two primary considerations:
(a)Firstly, to consider the benefits of the child of having a meaningful relationship with both of her parents (s 60CC(2)(a) of the Family Law Act 1975 (Cth) (“the Act”); and
(b)Secondly, the need to protect the child from physical or psychological harm (s 60CC(2)(b) of the Act) which consideration must be given greater weight.
THE RISK ISSUE
The mother asserts primarily the child has disclosed to her, and now others, that the father had “touched her over the top of her shirt and pants, put one of his hands down her pants and rubbed her and put one of his hands down his pants and play with himself.”
Further, it is alleged that the father had, on two occasions, pushed her into a hole that he had dug and then covered her with dirt up to her face. These allegations form the basis, primarily, of the child concern report recorded in early 2022 by the Department. Subsequently, further information from the Department dated mid-2022 expanded on this report, including the allegation the father had sexually abused the older sister of the subject child when the mother was pregnant with X. That child’s name is F.
The father strenuously denies the allegations; says they are implausible and that a close examination of the versions given by the mother and/or F to the police and the Department (noting she was six at the time of the alleged abuse in 2020) demonstrate glaring and troubling inconsistencies. The submissions of the father go as far as to contend the allegations have been manufactured by the mother who is, in effect, “alienating” X from the father. It is contended this is similar to what is the position between F and her biological father. Furthermore, Mr Hawkes for the father submits that the mother has set the father up in some way, to secure a protection order which is now in existence, and will do anything to prevent X beginning to form a relationship with the father.
Ms Dart for the mother challenged, as would be expected, the father’s assertion that there is a negligible likelihood that, at a hearing, a finding of unacceptable risk will, as contended for by the mother, be made by a Court. She points, in her reply, to the evidence in the assessment by the Department in the response they made to the s 69ZW Order and, in respect of F, the report from her treating Psychologist dated 17 August 2022. Furthermore, she relies upon the assessment of the Department contained in their letter to the mother of late 2022 substantiating a belief that the father was responsible for causing emotional harm to F “as a result of sexual, physical and emotional abuse”.
Ms Dart concedes that X was not able to be precise as to time and place of the alleged abuse upon her, but contends this is not unusual in such young children and, whilst as here the police have decided, on current evidence available, that a prosecution against the father should not be commenced, the mother says she firmly believes the father has sexually abused both X and F and, further, the father has physically and emotionally abused the child.
In short, whilst not seeking to suggest (as the father does) the allegations against the father should essentially all be summarily dismissed, the Independent Children’s Lawyer submits that any potential risk to X would be ameliorated by the protections afforded by the contact centre supervisors.
OTHER ISSUES
The father clearly is angry and frustrated by the inability to get any orders from the Court to start spending time with his daughter. He acknowledged, sadly, from his perspective, that he currently has no relationship with X and is desperate to begin that journey. The fact that there could be an earlier trial did not persuade him, understandably, not to pursue his Application for Review. The mother was primarily relying on the existence, she contends, of the father being an unacceptable risk to the child. Ms Dart did not suggest contact centre supervision would not ameliorate that risk. Rather, she submitted that, with the trial now only weeks away, the Court should take a cautious approach until the Court can properly assess the risks.
Furthermore, she says that:
(a)to start time now, only potentially to cease it if the Court accepted the mother’s position at the final hearing that the child spend no time with the father, is to expose the child to both damaging and unnecessary confusion and possible psychological harm;
(b)arising from the beliefs of F (who, like X, has been diagnosed Autism), the child X could, if required to spend time with the father, trigger an emotional response in the older sibling that could adversely affect the long term sibship relationship; and
(c)the mother holds, she says, a genuine number of beliefs about the father that, as the continuing primary carer, would make it impossible for her to possibly facilitate or encourage X having a relationship with her father, which is a further untested but relevant consideration (see decisions like Keane & Keane (2021) 62 Fam LR 190).
EXPERT EVIDENCE
Although of course, the Court is not obliged to accept every opinion of a child expert who prepares a family report, I have read and considered the report and recommendations of Ms D, who opined at paragraphs 107 and 108 as follows:
107.In terms of parenting arrangements. If the Court determines that the mother’s claims of family violence, harsh and unusual parenting by the father and sexual abuse by [Mr Fletcher] against the child are vexatious, it is recommended that in this scenario, the Court should consider a plan for introducing time for the father and [X], noting the child’s young age and lack of established relationship or attachment to date, this is likely to require a gradual approach and the supervision and scaffolding of a contact centre to begin with, but it would be a relationship and formation of attachment that is important to begin to build.
108.If the Court determines that the father has perpetrated family violence as alleged by the mother, and the child [F] has been exposed to the physical, sexual and emotional harm detailed in her filed affidavit material and as repeated at interview, time arrangements between [X] and father are not recommended to progress without significant personal transformation by the father. In this instance, the writer would recommend a full sexual risk assessment to ascertain any future risk of sexual harm by [Mr Fletcher] towards [X], as well as a consideration of any need for the father’s engagement in personal counselling to address anger and any personality vulnerabilities such as attendance at a men’s choosing change programme.
Relying on that and other opinions, Ms D recommended at paragraph 1(d) that X spend supervised time with the father, with the father to complete the men’s behaviour program, Circle of Security program, and engage in personal counselling with a review in six or nine months’ time by her. The Court Child Expert recommended the father engage in a full sexual risk assessment. That was undertaken by the father at his cost, as I understand it, with Mr E, who described his report, incorrectly it seems to me, as “an independent presentencing psychological examination”.
Mr E did not opine any major psychological concerns about the father, nor that his results from a Sex Offender Risk Appraisal Guide (SORAG), which were not in keeping “with other sex offender cohorts”. I assume this means that there was nothing in his examination or the completion of the SORAG that indicated the father was a sexual offender or predator. I must say I found much of the report of Mr E confusing and formulaic, but with cross-examination, it might yield a more helpful opinion.
CONCLUSION
I am not persuaded that it is in the best interests of X, with a trial only months away, when so many of the competing allegations set out above will be able to be tested, to begin introducing her to the father now. I understand this will be distressing to the father. It is one of the reasons why the Court has expedited the trial, so that the forensic issues can be determined. However, such a journey between the father and the child should not be some sort of “test case”, but interim orders should ideally be the first step in the ultimate goal likely to be achieved for a child to bond and develop a relationship with her biological father. I have no doubt that the father is genuine in his desire to build a relationship. Once all the evidence is tested and the findings made as required, and if it is in the best interests of the child to do so, a foundation for a long-term relationship between X and her father can hopefully be established.
Whether the mother can support such an establishment and whether such develop of a father/daughter connection poses any risk to F, and also the sibship relationship, are important considerations and very much triable issues best assessed after the evidence is tested. In the circumstances, it is my decision to dismiss the Application for Review. I am thankful that this urgent case, once transferred to Division 1 less than 12 months ago, can be listed for the trial before Justice Hogan in July 2023. Directions for the trial will issue from the chambers of Justice Hogan in due course. The existence of a family violence order enlivens the ban against cross-examination by an unrepresented party pursuant to s 102NA of the Act. I make the usual notations about the impact of s 102NA in my orders pronounced today and invite the solicitors on the record for both the mother and the father to keep their client informed of their rights to make an application to Legal Aid Queensland for funding under the cross-examination scheme if they so wish.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 27 June 2023
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