Gaddi & Levett (No 2)
[2023] FedCFamC1F 417
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gaddi & Levett (No 2) [2023] FedCFamC1F 417
File number(s): BRC 8895 of 2022 Judgment of: BAUMANN J Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – PARENTING – INTERIM – Where the mother again seeks the child’s time with the father be suspended – Further allegations made against the father – time to recommence as previously ordered Legislation: Family Law Act 1975 (Cth) Cases cited: M v M (1988) 166 CLR 69 Division: Division 1 First Instance Number of paragraphs: 56 Date of last submission/s: 6 April 2023 Date of hearing: 6 April 2023 Place: Brisbane Solicitor for the Applicant: Hall & Co Solicitors Solicitor for the Respondent: RHR Legal Independent Children’s Lawyer: Ms V Khushal, Bridges Family Law Specialists ORDERS
BRC 8895 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GADDI
Applicant
AND: MS LEVETT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
6 April 2023
THE COURT ORDERS:
1.That the child, X born 2012 (“the child”) resume (on 8 April 2023) spending weekend time with the father in accordance with the Orders dated 18 January 2023.
2.That the child be restrained from undertaking any therapy without the approval of the Independent Children’s Lawyer or with the father’s consent.
3.That the Independent Children’s Lawyer issue a subpoena to P Psychology.
4.That the Independent Children’s Lawyer have leave to issue any further subpoena she deems relevant.
5.That these proceedings be re-listed for Case Management Hearing, for the making of trial directions, seven (7) days after the family report is available, with the Independent Children’s Lawyer to advise the chambers of the Honourable Justice Baumann in writing once the family report has been filed with the Court.
6.That these proceedings be set down for Final Hearing for not more than four (4) days commencing at 10.00am on 11 July 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
7.That the Independent Children’s Lawyer be at liberty to apply.
8.That the parties’ costs of today be reserved.
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 Gaddi & Levett 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:
On 18 January 2023, the Court delivered Reasons orally for Orders that were made on that day in respect of the parties’ only child, X, who was born 2012 who turned 11 years of age recently.
The Orders provided for X to spend time with the father in the presence of the paternal grandmother, and after some specific periods over January and February, from 11 March 2023 time was to occur with the father each alternate weekend on Saturday from 10.00am until 7.00pm or on Sunday from 9.00am to 6.00pm.
For the Reasons delivered on 18 January 2023, the Court, taking a protective and cautious approach, did not order overnight time. The history of the matter, as those Reasons reflect, was that the child was having substantial and significant time with the father until mid-2022, and then for reasons which are yet to be fully examined, there was no time between the child and the father for over seven months.
That earlier interruption of the Orders as they then were, or arrangements for parenting, is the context of this matter, the context being that this child, in the mother’s household, may well have formed the view that she had no obligation to see her father because the mother was not making it happen.
The mother, of course, says that it did not happen for reasons which at trial she will fully explain, and at all times, she was child-focused and had the child’s best interests in mind.
They are clearly matters, I indicated earlier with the legal representatives today, for a trial, which I have now been able to list, by rearranging other cases, to commence before the Court for no longer than four days commencing on 11 July 2023, before me.
Further context in this matter was, as a result of Orders made, a family report privately funded by the parties was to be prepared. The interviews were to take place on 6 March 2023. However, the interviews did not take place because prior to those interviews, the mother filed an Application in a Proceeding on 3 March 2023 in which, amongst other orders, she sought that interviews not be conducted until a police investigation had been undertaken and completed.
The result was that the anticipated interview date before Ms D as a private, independent court child expert, was lost. The father complains, and the mother no doubt rejects (and I make no finding today), that this is tantamount to the mother seeking to delay the process. I am not saying I agree with the father, but I am thankful that Ms Khushal, the Independent Children’s Lawyer in this matter, has caused new interviews to be obtained in May 2023 which should, if parties attend as they are required, enable a report to be available hopefully at least by early to mid-June so that the parties can prepare their trial material for their trial.
I make it clear now that this matter will proceed to trial. If the parties have less time to prepare their trial material because they have not read the family report until the cusp of the trial, then so be it. That is because the forensic matters raised in this matter are serious and the conflict that has occurred and the disruption to the child’s relationship with the father since mid-2022 are serious forensic issues that need to be properly examined in the usual way and findings made.
As I said, the mother’s Application in a Proceeding filed 3 March 2023 sought that the time the child would spend with the father be suspended “until such time as police have completed an investigation into disclosures made by the child, [X]…”
As an ancillary order, the mother sought that the family report be delayed. The mother’s affidavit filed 3 March 2023 reveals that despite Orders of 18 January 2023, while X did spend time with the father on 19 and 22 January 2023, the mother says that physical contact did not occur on the following dates for the following reasons:
(a)29 January 2023 – because the supervisor, the paternal grandmother, was unwell;
(b)5 February 2023 – the child was ill; and
(c)12 February 2023 – the mother was ill. I note at least this is around the time of the disclosures first made by the child on 11 February 2023.
It is relevant, however, to note that the child did spend time with the father despite those disclosures that the mother was concerned about, on 19 February 2023. As I explained to the parties today, and sought to explore in the interchange with Ms Booth, the solicitor for the mother, and before he left, Mr Thomas for the father, and the Independent Children’s Lawyer, there is no evidence before me that the visit on 19 February 2023 went other than smoothly.
Certainly, by 26 February 2023, which was the next scheduled visit, the child did not spend further time with the father and has not since that date. At paragraph 8 of her earlier affidavit, the mother says that on 12 February 2023 the child made further disclosures that the father “had sexually assaulted her”, but the mother did not at that time in that affidavit set out the disclosures in detail “due to the open, ongoing police investigation”.
As a result, when the mother’s Application in a Proceeding seeking to suspend time was before me on 23 March 2023, I expressed my concern that the mother had not given full and complete details of the alleged disclosures. She was ordered to do so, and the mother did so on 30 March 2023, but also gave further evidence as to the disclosures made to her on 12 February 2023 but also now says at some time in 2020 or early 2021 (namely over two years ago, maybe three years ago), the father laid on top of the child and at least “put his fingers in her vagina”.
The difficulty with the evidence the mother has given to date, is she gives me no evidence on what the child actually said; the context for it being said; and the discussion that might have occurred prior to and since. She merely gives a descriptor, in an adult way, of what the effect was of the child’s disclosure.
The second allegation, said to have been made now on 12 February 2023, arises from an inquiry apparently the mother made – in what context it is unclear – as to why the child had not raised the matter earlier with her. The mother says that the child gave her the impression in a sense that she did not know what the father did was sexual abuse or wrong at the time.
In February 2023, the police, as a result of the mother’s obvious concern, understandably, interviewed the child. The mother says that the child was distressed on this occasion and did (she believes) make the disclosures that the child had made to her because the child felt uncomfortable talking about her private parts or such sensitive issues to male police officers.
I have not yet seen – and no one seems to have seen – the section 93A interview undertaken. It will become apparent about how the interview was conducted. There will also no doubt, at the trial, be records under subpoena from the police about their assessment of the child on the occasion.
What is clear, however, is that the mother now says in February 2023, the child alleged a further abuse and further touching, and that two days later, the child had an “emotional meltdown” and expressed to the mother that she did not wish to see the father the next day.
The mother would say that she acted totally protectively when the child expressed what she did by not facilitating the visit (ordered by the Court) that day. I acknowledge that promptly, the mother then brought her Application in a Proceeding to the Court to get support by Court order, which is the matter I have been dealt with today, to suspend any further time between the child and the father.
What we now know is that in March 2023, there was a second interview between the child and female police officers then engaged. Again, the Court does not have a copy of the section 93A interview or any notes from the police as to their perception of the matter. Relevantly in my view, and although it seems that the mother did give the father details of the psychologist she selected before consultation with the father, the father gave instructions to his Counsel that he spoke to the psychologist. The child began some form of private engagement with the psychologist in March 2023, a few weeks ago. The mother suggests the intention of such engagement was therapeutic.
I have no evidence from that psychologist about how many visits have occurred and the context for those visits. I have no evidence to know whether the child, for example, began counselling/therapeutic intervention on the basis that she had a belief that she had been sexually abused by the father. Such information could have been provided by the mother, but it has not been done.
However, in March 2023, the mother now says that further disclosures were made, some of a much more serious nature including, by inference of the remarks the child is said to have made to the mother again without particular detail or evidence, that the father, for his own sexual gratification, ejaculated beside the child.
The child says she told the mother that she did not tell the police about those occasions. No explanation as to why this child, having been given two opportunities, it seems, to tell the police about the father’s conduct, chose not to tell the police if that is what has occurred, but told the mother in March 2023.
Furthermore, for reasons which I have explored with Ms Booth, the solicitor for the mother, I found it concerning that the mother would introduce into this case the comments contained at paragraphs 27 to 36 of her most recent affidavit. It seems to relate to another child and a sibling of that child, both who are the biological children of her partner, but a part of her household. Exploring, as I had to, with Ms Booth, it seems that the allegation is that an older brother has sexually abused the younger sister whilst in the home of the mother and her partner.
I cannot see why this is relevant to this case unless it can be established or it is suggested that X had herself been the subject of some abuse by the older brother and/or that she had witnessed and/or be exposed to discussions between siblings in the home or by adults. It is unclear. However, as I indicated to Ms Booth, and although Ms Booth says the mother wished to tell the Court everything, the relevance of that is not made out on the evidence so far to effect X. That is a concern, but no doubt might be dealt with in the trial material or dealt with during the family report.
The father says in his evidence, now that he knows more of the particulars of alleged sexual abuse, that he continues to seek a return to and resumption of the time ordered on 18 January 2023. I note that after the initial visits, it was to “step up” from 11 March 2023. Of course, that has not occurred. In both his affidavit of 23 March 2023 and his affidavit of 3 April 2023, he denies absolutely all of the allegations.
He further says that the police have spoken to him about an alleged incident concerning L, a child to whom I referred to in my earlier Reasons of 18 January 2023, about some further sexual abuse by him of that child at O School, and including that he had placed three holes in the building, this having occurred some time between July 2021 and October 2021.
He says that he gave a police interview on this matter in early 2023. He says he has a copy of that interview. He should provide a copy of that interview to the mother, plainly because it is part of the mother’s case that the father is at unacceptable risk of sexual abuse to X because he sexually abused L.
The father says in his affidavit of 27 March 2023 that the police confirmed to him in writing that there were no charges in respect of L to be laid against him, and police, he says, made some comment about the extensive investigations by them as a result of her disclosures.
The question is, what should the Court do now? Ms Booth, understandably, and on instructions, continues to assert that the Court should take a cautious approach. In particular, as I understand it, similar to the submissions made by Counsel for the mother on the last occasion, that should include at least accepting that the allegations could be true. That is the case notwithstanding the timing, the lack of particularity, the uncertainties and the denial of the father which should not be ignored.
The Court has turned its mind and has invited Ms Booth to do so as she did, about whether the current supervisory conditions imposed by the Court on 18 January 2023 are still applicable in respect of the new allegations. The Independent Children’s Lawyer says they are. Perhaps not surprisingly, the father says they are. I note that the father is not suggesting that those supervisory conditions be relaxed before the trial.
In the circumstances, in respect of the allegations of sexual abuse yet to be tested and further examined by the Court, I am satisfied that the conditions imposed on 18 January 2023 by the Court are still sufficient to ameliorate the potential risk to the child X in the father’s care.
However, the other area of risk which the Court is now being asked to consider, on what I regard as less than sufficient evidence put by the mother, but merely, it seems, on the basis that the Court should accept there is only one basis for the child’s reaction, is that this child is having emotional meltdowns and is increasingly distressed by the thought of spending time with the father.
Whilst the Court is unable to understand all the context for what the child might be exhibiting, the Court could not ignore that there is a prospect – I make no finding that this has occurred – that the issue of sexual abuse in the household of the mother, be it in relation to X or the younger sibling of the child J, has now caused a heightened awareness, vigilance, and/or distress within that household of inappropriate sexual behaviours, such that this child is overly discussing such matters with the mother and other members of the household.
This could, without balance, create a sense of fear of being in the father’s care. I do not know. The difficulty is that the two visits that did take place under the Orders made 18 January 2023 appear to have progressed without major incident. By that, I mean there is no evidence from the mother that the child refused to get out of the car and see the father. There is no evidence from the mother that the child returned from the time with the father and expressed disquiet about how the visit went, and of course, and perhaps, the mother will say this would be understandable.
The father raises no issues at all about the way the child, after a gap of some months, reconnected with him during those visits. I cannot ignore the fact that this conflict in this family has now been ongoing from a relatively stable situation in mid-2022 for approaching nine months. I cannot ignore the fact that it not only involves this family and this child but the family of the mother’s current partner and children of that relationship with their biological mother.
There are some complexities in the matrix of these bonded and welded families which will need to be explored at trial. It could well be the case, but may not be the case, that X feels that she must support the mother’s position particularly if the mother is – and the mother says she is not – revealing signs of distress, maybe disappointment or frustration with the fact that Orders are made by the Court which are not consistent with her wish as agitated, but more importantly, consistent with what the mother says will be a real concern about the welfare of the child in the father’s care.
In the absence of other evidence at this stage, I am satisfied that it is in the best interests of the child, a position I note is supported by the Independent Children’s Lawyer, that the time that the child spends with the father recommence immediately. It should recommence this Saturday and Sunday in accordance with my Orders. Changeovers shall be as previously ordered.
Another issue that arose during the course of today’s hearing is that the child has been undertaking therapeutic counselling. There is a real risk in cases like this, even if they are for the best of reasons, that the therapy, if it is established and commenced on a certain factual matrix, can occasionally – I am not saying it has in this case – but can actually lead to an evidence gathering exercise and/or reinforce through the nature of therapy allegations which are not yet determined.
I have raised with the parties my concern about the therapy and the way that it has commenced. On the current evidence before me, which does not include any evidence from the therapist, I make an order restraining this child from undertaking any therapy without the approval of the Independent Children’s Lawyer or with the consent of the father.
It is to be hoped that the family report writer, who is not a determiner of fact, but a person with the social skills and training not only to interview the child, but to observe the child with other members of the family including the father and the mother, will publish a report that might be of some assistance in understanding some of the dynamics in this matter. It should not be lost on these parents that the most serious consequence and context for a child’s behaviour is often the behaviour exhibited and demonstrated to a child by either and/or both parents.
This is a very difficult situation for this family. That is why the matter has been expedited by me to a final hearing. At trial, the Court will be asked and evidence tested as to whether, as the mother asserts, it seems, that the father is an unacceptable risk of sexual abuse to this child. That means that she has, of course, in making that assertion and seeking that finding, an evidentiary onus to establish not only could the events have occurred as the child says, but that the father is the type of person who would engage in such conduct with a little girl of this age, so as to create unacceptable risk.
If the Court makes such a finding, of course, the consequences for the ongoing time between the child and the father becomes very narrow and the options less than they currently might appear to be. I remind the parties of what the High Court of Australia said in M v M (1988) 166 CLR 69 about the Court’s obligations in a civil jurisdiction not to make findings about whether abuse did or did not occur, but to keep within the statutory framework of assessing unacceptable risk.
Sadly, however, in this case, it is clear that the father now takes the view that at least from mid‑2022 and since that time, the mother’s conduct demonstrates a clear inability of the mother to support the child’s relationship with him and in so doing, including, as I understand, a case he will seek to persuade the Court to accept, of facilitating, encouraging, coaching or influencing the child to make, he says, completely and absolutely unfounded, untrue allegations against him. On this basis, he asserts that this child is at a serious risk of unacceptable emotional abuse at a critical stage of her development, in the mother’s care.
The mother of course, understandably, and as strenuously as the father argues that the allegations against him are untrue, says those findings will not be open to the Court. However, as I explained to Ms Booth today in no form of threat, but to be absolutely transparent to the parties that such a finding, if made by a court, could have serious consequences about the future living arrangements for the child.
Much as the mother bears the evidentiary onus to establish the father is an unacceptable risk, the father bears the evidentiary onus to establish that the mother is an unacceptable risk. I again make the observation that on a holistic view of the evidence in this case, events that occurred from about mid-2022 have caused not only Orders, but arrangements that were in place for this child between these two parents (who have both much to offer this child in terms of their life experience and parental attitude), to place the Court in a position where it is being asked almost to select one parent over the other.
If this Court feels that ongoing conflict between these parties will continue, it may well be in the child’s best interests that the child lives with one parent and spends very limited time at all with the other parent. That such an option might be a contemplation the Court sadly may have to consider, was not an option that would have been considered and was not considered by the parents when the earlier parenting arrangements, which had been of longstanding nature, effectively were put in place and were operating until mid-2022.
It is again a reminder of how quickly conflict between parents which children are subject to, through no wish of their own and through no design of theirs, as mere passengers in the journey of life, can be put in a position where those options might need to be contemplated. Hopefully the family report might assist the parties.
I propose to list this matter before me for a Case Management Hearing within seven days of the family report being available. I direct the Independent Children’s Lawyer to inform my Associate when the report has been filed.
We have a short and important timeframe in which to deal with this case. Any interruptions to the flow of this matter either through non-compliance with the Order or other events or other evidence including that from the police that are sufficient for this Court to revisit the Orders being made today can be brought to the Court’s attention through the liberty to apply provision I now prescribe as available to the Independent Children’s Lawyer.
The effect of that is that these parties should not file an Application in a Proceeding between now and the trial, but rather if they say there are circumstances that require the Court to intervene, I have given some particulars as to the sorts of circumstances that might warrant such an approach, then they are required, effectively, to convince the Independent Children’s Lawyer that further judicial time from me is required in this matter in priority to all the other matters that I have in my list, and considering the matter has been expedited for a trial with priority to many other matters that have been in the Court longer than this matter, in July 2023.
Just so I am clear, this direction about liberty to apply does not and cannot as a matter of law, in my view, unless I am prepared to restrain the parents from filing an Application in a Proceeding which I have considered but choose not to do so, restrain them from filing an Application in a Proceeding as the mother did in this case.
However, for any Application in a Proceeding to have any prospect of success, the person filing it would need to demonstrate a material and substantial change of circumstances on the evidence since now. With a trial pending, it will be a matter for the Court to decide whether any application is listed.
I reserve the costs of this application today in my Order, costs being a matter that may have to be considered ultimately in this matter. I give warning to the parties that any further Application in a Proceeding between now and the trial which is pressed, if not successful, may well be a circumstance in view of the warning I have given that the Court could seriously consider whether the general rule under Section 117 of the Family Law Act 1975 (Cth) should apply in this matter.
In essence, I want the parties, in X’s best interests, to do their best to comply with the current Order. I do not want parties filing Contravention Applications and the like which could only delay the trial. The parties must seriously consider how they lead evidence in their trial affidavits, the evidence they rely upon in view of the findings they seek, but they are best able to do that, it seems to me, after they have had the benefit of the family report as well. So that is why I am not going to make directions today to file material.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 25 May 2023
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