Flitter & Flitter

Case [2023] FedCFamC1F 426

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Flitter & Flitter [2023] FedCFamC1F 426

File number(s): BRC 3878 of 2019
Judgment of: HOWARD J
Date of judgment: 27 March 2023
Catchwords: FAMILY LAW – PARENTING – Failure by the applicant father to attend the final hearing – Where the mother, the paternal grandparents and the ICL have reached agreement for the form of orders for three children – Unacceptable risk of harm (including sexual abuse) in the event of unsupervised time with the father – Matter proceeded by way of undefended hearing – Order that the children spend no time with the father – Sole parental responsibility to the mother – Final orders made.
Legislation:

Australian Passports Act 2005 (Cth) s 11F

Evidence Act1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CC, 61DA

Criminal Code Act 1899 (Qld) ss 210, 339

Evidence Act1977 (Qld) ss 21AK, 93A
Cases cited:

A & Z (2006) FLC 93-257

Baghti & Baghti and Ors [2015] FamCAFC 71

Beckham v Desprez (2015) 55 Fam LR 310

Briginshaw v Briginshaw (1938) 60 CLR 336

Chang and Su (2002) FLC 93-117

Cox v Pedrana (2013) FLC 93-537

Cubbin v Cutler [2018] FamCAFC 84

Eagle & Scarlett (No 2) [2020] FamCAFC 291

Housing Commission of New South Wales v Tatmar Pastoral [1983] 3 NSWLR 378

Isles & Nelissen (2022) 65 Fam LR 288

Johanson & Johanson [2022] FedCFamC1A 74

Qantas Airways Limited v Gama (2008) 167 FCR 537

Zane & Allan (2008) FLC 93-378

Whisprun Pty Ltd v Dickson (2003) 200 ALR 447

Division: Division 1 First Instance
Number of paragraphs: 33
Date of hearing: 27 March 2023   
Place: Brisbane
Applicant: Litigant in person (no appearance)
Counsel for the First Respondent: Mr Taylor
Solicitor for the First Respondent: Dodd Bedford & Associates
Counsel for the Second Respondent: Mr Christie
Solicitor for the Second Respondent Ferrall & Co Lawyers
Counsel for the Third Respondent: Mr Cahill
Solicitor for the Third Respondent: Focus Family Law
Counsel for the Independent Children’s Lawyer: Ms Lyons
Solicitor for the Independent Children’s Lawyer: Parker Family Law

ORDERS

BRC 3878 of 2019

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

MR B FLITTER

Applicant
AND:

MS C FLITTER

First Respondent

MS D FLITTER

Second Respondent

MR E FLITTER

Third Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HOWARD J

DATE OF ORDER:

27 MARCH 2023

UPON THE WRITTEN UNDERTAKINGS FILED 27 MARCH 2023 by Ms D Flitter and Mr E Flitter that they will not bring the children into contact with the father, Mr B Flitter, and that they will ensure that the children are removed if the father is present at any location

THE COURT ORDERS ON A FINAL BASIS THAT:

1.All previous parenting orders be discharged.

Parental Responsibility

2.The mother have sole parental responsibility for all major long term issues affecting the children X born 2012, Y born 2014 and Z born 2016.

Live With / Spend Time With

3.The children live with the mother.

4.The children…

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Details
AGLC
Flitter & Flitter [2023] FedCFamC1F 426
Case
[2023] FedCFamC1F 426
Decision Date

CaseChat Overview and Summary

The case of Flitter & Flitter was heard in the Family Court of Australia, where the primary issue was the risk of sexual abuse by the father towards his children if he was granted custody or access. The mother and the Independent Children’s Lawyer contended that the court should not make a positive finding that sexual abuse had occurred, while the father, who did not appear or provide evidence, denied the allegations. The court had to balance the evidence presented, including discrepancies in the mother’s account and the child’s statements, with the High Court’s guidance on assessing the risk of future harm.

The central legal issue was whether, given the evidence, the court could find that the allegations of sexual abuse were sufficiently substantiated to warrant a positive finding, and if so, what weight should be given to the father’s absence and his unexamined denials. The court had to consider the child's inability to recall the incident and the High Court’s direction that unless impelled by the circumstances, the court should refrain from making such a finding. The Full Court’s guidance in Isles & Nelissen also played a role in framing the court’s approach to risk assessment.

The court decided that while it would not make a positive finding that sexual abuse had occurred, it was necessary to assess the risk of future abuse. The mother’s evidence, the child’s statements to the police, and the father’s unexamined denials were key factors in this assessment. The court concluded that there was an unacceptable risk of sexual abuse to all the children if they had unsupervised time with the father. The court found that the risk of harm to the children, including the eldest child X, was such that it could not be mitigated by the current arrangements.

Ultimately, the court ordered that the father should not have unsupervised access to the children, as the risk of sexual abuse was deemed unacceptable. This decision was based on the evidence provided, the High Court's guidance, and the Full Court's direction on assessing future risk in such cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The High Court went on to say that:“In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.” In the present case, the submission on behalf of the mother and the ICL is that the Court would not, in these particular circumstances, make a positive finding that the allegation of sexual abuse actually occurred. I note s 140 of the Evidence Act and the comments of Dixon CJ in Briginshaw. My attention has been drawn to the fact that there are some discrepancies between the mother’s account of what she saw and the transcript of the child’s interview with the police. I am particularly mindful of the fact that the High Court has said there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place. Of course, the Court goes on to say, unless it is impelled by the particular circumstances of the case to do so. I note, for instance, that the child X, could not recall the incident by the time of the video recording of the evidence under s 21AK of the Queensland Evidence Act. This is, of course, good news for the family; in particular, it is good news for the child. On balance, I think that the submissions made by Mr Taylor and by Ms Lyons are correct, and the Court, in this case, should refrain from making a positive finding that the sexual abuse actually occurred. Nonetheless, I note the evidence from the mother as to what she saw; I note what the child did say to the police at the s 93A interview; I note that very little or no weight can be given to the father's denials – these are factors and matters which I am required to take into account in assessing the nature of and the magnitude of the risk of sexual abuse in the future. This assessment of risk for the future is, of course, one of the fundamental matters to be determined or taken into account, as stated by the High Court at page 77 in M & M. I am also mindful of the decision of the Full Court in Isles & Nelissen and I note that the Full Court provided further explanation and guidance for trial judges by reference to what the High Court said in M v M. My view is that, noting the mother’s evidence, noting the transcript from the s 93A interview, noting that very little or no weight can be given to the denials from the father, noting that he has failed to show up to subject himself to cross-examination – in the particular circumstances of this case, my view is that there is a risk of sexual abuse of these children by the father and my view is that the risk is such that it is an unacceptable risk. In terms of examining the risk more closely, the incident from the beginning of 2019 of course related to the child X. The difficulty that the court has is, in the absence of the father and the inability to have his evidence and his denials tested in cross-examination – the Court has that evidence from the mother and the s 93A interview in relation to what it is said occurred involving the child X in circumstances where it is open to the court on that evidence, and I do so find, that X is at an unacceptable risk of harm of sexual abuse if she had unsupervised time with the father. My view is that the other two children are also at an unacceptable risk of sexual abuse. There are two aspects to that. One aspect of the possible harm is the harm to themselves.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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