FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gorley & Gorley [2023] FedCFamC1F 523
File number(s): SYC 8819 of 2022 Judgment of: MCGUIRE J Date of judgment: 29 June 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the mother to review a decision of a Senior Judicial Registrar in respect to interim parenting arrangements – Where the children live with the mother and spend no time with the father – Where current orders provide for the father to spend supervised time with the children - Where the mother alleges inappropriate sexual conduct by the father towards the children – Application dismissed – Hearing de novo Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA and 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 14.07
Cases cited: Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; FedCFamC1A 97
Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 70 Date of hearing: 7 June 2023 Place: Hobart Counsel for the Applicant: Ms Gillies Solicitor for the Applicant: Matthews Folbigg Counsel for the Respondent: Ms Clifford Solicitor for the Respondent: Barkus Doolan Winning Counsel for the Independent Children's Lawyer: Ms Campbell Solicitor for the Independent Children's Lawyer: Bowral Legal ORDERS
SYC 8819 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GORLEY
Applicant
AND: MR GORLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
29 June 2023
THE COURT ORDERS THAT:
1.The Application for Review filed on 21 April 2023 be dismissed.
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 Gorley & Gorley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATION
Before me is an Application for Review filed by the mother, Ms Gorley, in respect of a decision and orders made by a Senior Judicial Registrar on 31 March 2023 following a defended interim hearing which provided for the parties’ three children, X born 2015 (aged eight years), Y born 2019 (aged four years) and Z born 2022 (aged one year), to spend interim time with the father which is…
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- AGLC
- Gorley & Gorley [2023] FedCFamC1F 523
- Case
- [2023] FedCFamC1F 523
- Decision Date
CaseChat Overview and Summary
Gorley & Gorley involved a dispute between the parties regarding allegations of sexual abuse against the father by their children, X and Y. The case was heard in the Family Court of Australia, where the father sought supervised contact with the children, which had been previously ordered by the Senior Judicial Registrar. The mother opposed this, citing concerns over the safety of the children if they were to have contact with their father.
The court was required to determine whether the children should have supervised contact with their father, in light of the allegations of sexual abuse and the statutory obligations under the Family Law Act 1975 (Cth). The court had to balance the primary considerations of the benefit to the child of having a meaningful relationship with both parents against the need to protect the child from physical or psychological harm from abuse, with particular attention to the greater weight to be given to protective considerations.
The court found that while the allegations of sexual abuse were serious, there was insufficient evidence to make a definitive finding at this stage. The court accepted that the children had established and attached relationships with both parents and that they expressed a desire to maintain contact with their father. The court acknowledged the importance of the protective considerations but also recognised the benefit to the children of maintaining a relationship with both parents. As a result, the court ordered supervised contact between the children and their father, subject to the terms and conditions set by the court to ensure the safety and well-being of the children.
The court ordered that the children should have supervised contact with their father, in accordance with the terms and conditions specified in the judgment. This decision was made in the context of the evidence available at the time and the statutory obligations under the Family Law Act 1975 (Cth). The court emphasised the importance of protecting the children while also recognising the benefit to the children of maintaining a relationship with both parents.
The court was required to determine whether the children should have supervised contact with their father, in light of the allegations of sexual abuse and the statutory obligations under the Family Law Act 1975 (Cth). The court had to balance the primary considerations of the benefit to the child of having a meaningful relationship with both parents against the need to protect the child from physical or psychological harm from abuse, with particular attention to the greater weight to be given to protective considerations.
The court found that while the allegations of sexual abuse were serious, there was insufficient evidence to make a definitive finding at this stage. The court accepted that the children had established and attached relationships with both parents and that they expressed a desire to maintain contact with their father. The court acknowledged the importance of the protective considerations but also recognised the benefit to the children of maintaining a relationship with both parents. As a result, the court ordered supervised contact between the children and their father, subject to the terms and conditions set by the court to ensure the safety and well-being of the children.
The court ordered that the children should have supervised contact with their father, in accordance with the terms and conditions specified in the judgment. This decision was made in the context of the evidence available at the time and the statutory obligations under the Family Law Act 1975 (Cth). The court emphasised the importance of protecting the children while also recognising the benefit to the children of maintaining a relationship with both parents.
Orders
Orders of the court
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Background
Background to the litigation
The Court has the transcripts of police interviews with Y and X. They are of little assistance given the factual dispute being allegations by the mother of sexual abuse and assertions of innocent plausible explanation by the father. Indeed, X does disclose being "poked" by his father, but specifically denies being poked in his private parts.RELEVANT BACKGROUND The parties were married in 2012. The mother deposes to observing changes in X's behaviour from as early as 2018. The mother deposes to observing issues with Y's irritated vulva from mid-2020 and she consulted a doctor the following month. In 2020 X told the maternal grandmother that he did not like it when his dad "pokes me". Y exhibited an irritated vulva throughout 2021 and 2022. In mid-2022, Y made a disclosure to the maternal grandmother which the grandmother interpreted as possible sexual abuse. Three days later, the mother consulted the police and child protection authorities The parties separated on 14 August 2022. The children remained living with the mother since separation and have not had contact with the father. On December 2022, the father commenced proceedings in these Courts. On 31 March 2023, after a defended interim hearing, the Senior Judicial Registrar ordered supervised time for the children with the father for "not less than two hours per week". The Senior Judicial Registrar also ordered a Single Expert Report. It is anticipated interviews for the report will take place in November 2023. Pending the hearing of the Review Application before me, the children have not spent time with the father pursuant to the Senior Judicial Registrar's orders.RELEVANT LAW The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that the hearing of an Application for Review should proceed by way of a hearing de novo before a judge of this Court. The orders that I am asked to make are interim parenting orders and I am mandated, therefore, pursuant to section 60CA of the Family Law Act 1975 (Cth) ("the Act") to have the best interests of X, Y and Z as my paramount consideration. In determining those best interests I am to reference the proposals of the parties and the ICL, together with the probative evidence before me to the numerous considerations set out in section 60CC(2) and (3) of the Act against the background of the Objects and Principles of the legislation provided at section 60B. Not unusually in matters such as this, the two primary considerations at section 60CC(2), often referred to as the 'twin pillars', are emphasised in their balance for the Court's consideration as to the best interests of the children. To this end, those subsections provide:(2) The primary considerations are:(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Significantly, later amendments to the Act at section 60CC(2A) provide: (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Whilst accepting the statutory edict at section 60CC(2A) of the Act to place "greater weight" on the protective issues for the children, the exercise remains one of balance with the consideration at subsection (2)(a) of the benefit for the children in having and maintaining a relationship with each of the parents. As the Full Court noted in Napier & Hepburn[13]: 84.There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper. [13] Napier & Hepburn (2006) FLC 93-303 at [84].FINDINGS AND CONCLUSIONS: I accept that the children's disclosures were made during the course of the parties' marriage and seemed to be the catalyst for their separation, which in turn negates any overt allegation of ulterior motive in the mother such that might not be uncommon in parenting disputes before these Courts. I accept on the evidence that the father had an active role in the care of the children and that the children had established and attached relationships with both of their parents prior to separation. It is an agreed fact that the children have now not seen their father since August 2022, being a period of some 10 months. The evidence, such as it is, causes me to find that the children are essentially desirous of a relationship with their father and that they miss him in their lives. Unsurprisingly, at this interim stage of proceedings and without the full forensic preparation and then testing of the evidence, I am unable to make any positive findings that the children have been sexually abused by the father. I accept that, prima facie, the statements made by Y and X could reasonably be interpreted by the maternal grandmother and the mother as disclosures of inappropriate sexual conduct or touching by the father. I do, however, equally accept the father's proposition that there is (yet untested) plausible alternative innocent explanation for the children statements. There is empirical evidence to support the father's contention not least being the historical genital irritation suffered by Y, where the mother concedes that both parents were active in attending to that condition, including the application of creams. Similarly, X's statements of "poking", including to the area of the anus, are quite capable of alternative plausible and innocent explanation and where indeed X specifically denies any "poking" by the father of his genital area. Whilst I generally accept the submission of Counsel for the mother that the Court should take a "cautious or conservative" approach at an interim hearing with emphasis on the protection of children, it remains that the Court is obliged to balance the considerations at section 60CC(2)(3) of the Act on the evidence before it, and ultimately make a determination on the basis of the evidence.
Ratio Decidendi
Legal Principle Established
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