Germain and Germain

Case [2017] FCCA 1980

FEDERAL CIRCUIT COURT OF AUSTRALIA

GERMAIN & GERMAIN [2017] FCCA 1980
Catchwords:
FAMILY LAW – Final hearing adjourned – matter not ready to proceed – interim parenting orders – significant allegations of family violence and sexual abuse – family report ordered – child has not had spend time with father since 2014 – ICL lends qualified support to supervised time at contact centre – independent experts lend qualified support – child’s rights as to parenting – mother advances Re Andrew submission – evidence falls short of supporting requisite belief –  supervised time at contact centre ordered as interim relief.

Legislation:

Evidence Act 1995 (Cth), s.140

Family Law Act 1975 (Cth), ss.4,4AB, 11F, 60B, 60CA, 60CC, 65D, 69ZT

Cases cited:

A v A [1998] FamCA 25

B and B (1988) FLC 91-957

Briginshaw v Briginshaw (1938) 60 CLR 336

Cowling & Cowling (1998) 22 Fam LR 776

Dunst & Dunst [2016] FamCAFC 15

Goode v Goode (2006) 36 Fam LR 442

Hepburn & Noble [2010] FamCAFC 111
In the Marriage of B (1993) 112 FLR 45
In the marriage of M and J Bieganski (1993) 16 Fam LR 353
In the marriage of N and S (1995) 19 Fam LR 837

Johnson and Page [2007] FamCA 1235

M v M (1988) 166 CLR 69
Marriage of Sedgley (1995) 19 Fam LR 363
Re Andrew (1996) 20 FamLR 538
Russell and Close (unrep’ 25 June, 1993)
Slater & Light [2013] FamCAFC 4
Applicant: MR GERMAIN
Respondent: MS GERMAIN
File Number: MLC 8441 of 2015
Judgment of: Judge A Kelly
Hearing date: 14 August 2017
Date of Last Submission: 16 August 2017
Delivered at: Melbourne
Delivered on: 18 August 2017

REPRESENTATION

Counsel for the Applicant: Ms Bonney
Solicitors for the Applicant: Victoria Legal Aid
Counsel for the Respondent: Mr Weerappah
Solicitors for the Respondent: Bayside Solicitors
Counsel for the Independent Children's Lawyer: Mr Eidelson
Solicitors for the Independent Children's Lawyer: Creative Family Law Solutions

THE COURT ORDERS THAT:

  1. Until the final hearing and determination of this proceeding or further order and subject to order 2 hereof, the child [X] born 2012 (the child), spend time with the Father for such face to face time as may be facilitated on a supervised basis by the (omitted) Contact Centre, as recommended by the Co-ordinator of the Contact Centre, commencing at such time as that Contact Centre may facilitate, as follows:

    (a)for 4 hours each alternate weekend;

    (b)changeover to take place at the (omitted) Contact Centre;

    (c)spend time to be on such days and times to coincide with the availability of the Contact Centre and if more than one alternative be available, as nominated by the Mother.

  2. The Father abstain from the consumption of alcohol and the use of illicit substances for at least 24 hours before, and during, any spend time with the child.

  3. The Mother and Father support the child’s participation in spend time pursuant to order 1 hereof and in any therapy that may be recommended by the (omitted) Contact…

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Germain and Germain [2017] FCCA 1980
Case
[2017] FCCA 1980
Decision Date

CaseChat Overview and Summary

In *Germain and Germain*, heard by Judge A Kelly, the proceedings concerned parenting orders for a child born in 2012. The dispute involved the father's time with the child, with the court considering various conditions and safeguards to ensure the child's well-being.

The court was required to determine the best interests of the child in the context of interim parenting arrangements. This involved assessing the nature and degree of any risk to the child, particularly in light of allegations of past abuse and domestic violence. The court also had to consider the relevance of convictions, breaches of domestic violence orders, and documented notifications to departmental authorities in its assessment of risk.

The court applied the principle that the decisive issue in all parenting matters is the best interests of the child, and all other issues are subservient. It adopted the concept of "unacceptable risk," which involves evaluating the nature and degree of risk and whether it is acceptable, with or without safeguards. The court noted that even if allegations of past abuse are not definitively proven to the Briginshaw standard, the circumstances surrounding those allegations can still be relied upon to determine if there is an unacceptable risk. The court may reach a conclusion of unacceptable risk from an accumulation of factors, even if not all factors are proven to the balance of probabilities. The court also acknowledged the relevance of documented records, such as notifications to departmental authorities, and that the truth or completeness of each notification need not be satisfied. The court further referenced the principle that a finding of sexual abuse would have a decisive impact on custody or access applications, as the established test is whether an order would expose the child to an unacceptable risk of abuse.

The court made interim orders for the child to spend supervised time with the father, subject to specific conditions including the father abstaining from alcohol and illicit substances, communication through a designated app, participation in a parenting program, and supervised drug testing. The parties were also ordered to support the child's participation in therapy and to refrain from negative comments about the other parent. The proceeding was re-fixed for a final hearing.

Orders

Orders of the court

1.

Until the final hearing and determination of this proceeding or further order and subject to order 2 hereof, the child [X] born 2012 (the child), spend time with the Father for such face to face time as may be facilitated on a supervised basis by the (omitted) Contact Centre, as recommended by the Co-ordinator of the Contact Centre, commencing at such time as that Contact Centre may facilitate, as follows:

(a) for 4 hours each alternate weekend;

(b) changeover to take place at the (omitted) Contact Centre;

(c) spend time to be on such days and times to coincide with the availability of the Contact Centre and if more than one alternative be available, as nominated by the Mother.

2.

The Father abstain from the consumption of alcohol and the use of illicit substances for at least 24 hours before, and during, any spend time with the child.

3.

The Mother and Father support the child’s participation in spend time pursuant to order 1 hereof and in any therapy that may be recommended by the (omitted) Contact Centre, that they comply with any reasonable request of the therapist and equally share the costs of the child’s attendance at such therapy.

4.

For the purposes of orders 1 and 3 hereof, the parties will communicate all information though the App MyMob.

5.

The Mother and Father engage in a Parenting Program and as soon as possible provide a certificate of completion to the Independent Children’s Lawyer and the other party’s solicitor.

6.

The Mother and Father continue to attend their treating health professionals and comply with their ongoing directions.

7.

The Mother and Father will not expose the child to any negative comments regarding the other parent or any member of their family.

8.

The Father undertake supervised drug screen testing (the testing):

(a) the testing occur at a pathology centre or other place approved by the Independent Children’s Lawyer; and

(b) the testing occur randomly and within 24 hours of the Independent Children’s Lawyer making a written request for the testing to occur.

9.

The results of any such testing pursuant to order 8 hereof be forwarded, as soon as possible, to each of the Independent Children’s Lawyer and the Mother’s solicitors.

10.

Certify for advocacy, including for solicitor appearing as counsel.

AND THE COURT NOTES THAT the proceeding has been re-fixed for final hearing at 10:00am on 30 April 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Slater & Light [2013] FamCAFC 4, May, Strickland & Forrest JJ endorsed the following statement by the Hon John Fogarty who, writing extra-judicially, said:1The decisive issue is and always remains the best interests of that child. All other issues are subservient.2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.6The onus of proof in reaching that conclusion is the ordinary civil standard.7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. (emphasis added)As that Full Court observed, those observations were later endorsed by another Full Court in Johnson and Page [2007] FamCA 1235. Applied to the present case, a single and historical notification of domestic violence may, viewed in isolation, be insufficient to support a conclusion of a real or immediate risk of physical or psychological harm to a child. By contrast, a documentary record that discloses a repeated or systemic pattern of such behaviour might do so more persuasively. Several observations may be made. First, the allegations of sexual abuse concern, for the most part, the mother. As concerns the child, the mother’s allegations centre upon the manner in which the father had bathed the child. Secondly, no occasion arises for the Court to make a positive finding of abuse. Thirdly, convictions in relation to sexual offending or offending of a kind relevant to the primary considerations are also relevant to interim parenting orders. Here there are no such convictions. Fourthly, both the making – and the breach – of domestic violence orders, are relevant considerations in the determination of what parenting orders, including interim orders, are in the best interests of children. Fifthly, so too, are documented records in the nature of notifications to, and investigations by, departmental authorities. Sixthly, one need not be satisfied of the truth or completeness of each notification made to a departmental authority. Seventhly, the Court may reach a conclusion of unacceptable risk from an accumulation of factors and the combined weight that they provide. As to supervision, Mr W drew attention to a decision of the Full Court of the Family Court in In the Marriage of B (1993) 112 FLR 45, 61-62 (Fogarty, Baker and Purvis JJ). The ratio of that appeal was that a finding as to the truth of an allegation of sexual abuse would invariably have a decisive impact respecting an application for custody or access because the established test was whether the making of an order would expose the child to an unacceptable risk of abuse. By extension, the Full Court held that if supervised access posed an unacceptable risk, it should not be granted. This must be accepted.

Ratio Decidendi

Legal Principle Established

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