Kavanagh & Lythow

[2021] FamCA 578

FAMILY COURT OF AUSTRALIA

Kavanagh & Lythow [2021] FamCA 578

File number(s):	BRC 7631 of 2016
Judgment of:	HOWARD J
Date of judgment:	5 May 2021
Catchwords:	FAMILY LAW – PARENTING – interim hearing – matter designated Magellan – where there are allegations of sexual abuse against the father – where the father has not spent time with the child since September 2020 – whether the father should spend supervised time with the child pending a final determination in this matter.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZL, 102NA
Number of paragraphs:	31
Date of last submission/s:	5 May 2021
Date of hearing:	5 May 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Page QC (appearing on a direct brief)
The Respondent attended as a self-represented litigant
Solicitor for the Independent Children's Lawyer:	Life Law Solutions

ORDERS

BRC 7631 of 2016

BETWEEN:

MS KAVANAGH

Applicant

AND:

MR LYTHOW

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	5 MAY 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

(1)That paragraphs 6 to 12 of the parenting orders dated 18 May 2018 for the child X born … 2013 (“the child”) be suspended.

Spend time with orders

(2)That the child spend time with the father supervised the B Services (C Town) children’s contact centre (“the contact centre”) as follows:

(a)That within seven (7) days the mother and the father register for intake with the contact centre;

(b)That in consultation with the contact centre, the mother and the father arrange for the child to spend time with the father:

(i)As soon as the contact centre can facilitate, initially on Thursday or Friday afterschool and thereafter, when a position is available, on the weekend; and

(ii)Such time is to be for a period of two (2) hours weekly if the contact centre can facilitate same, otherwise fortnightly as can be facilitated by the centre;

(3)That the mother and the father share equally in the costs of the contact centre.

Telephone communication

(4)That the Father communicate with the child by telephone each Tuesday and Friday between 5:30pm and 6:00pm by calling the child’s phone on … .

THE COURT FURTHER ORDERS:

(5)That pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975:

(a)the applicant mother not be permitted to personally cross-examine the respondent father; and .

(b)the respondent father not be permitted to personally cross-examine the applicant mother.

(6)That this matter be adjourned for a Case Management Hearing at 9:30am on 2 August 2021 in the Family Court of Australia at Brisbane.

(7)That these proceedings be set down for final hearing for not more than five (5) days commencing at 10.00am on 13 September 2021 in the Family Court of Australia at Brisbane.

(8)That in the event a party or a party’s lawyer has failed to comply with an obligation imposed by these Orders (or any part of these Orders) then at the final hearing on 13 September 2021 the Court shall consider:

(a)        making a costs order against a non-complying party; and/or

(b)        proceeding with matter as an undefended hearing.

(9)That the parties and their legal representatives personally attend Court on 13 September 2021.

(10)That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 16 August 2021.

(11)That each party file and serve on each other party no later than 4.00pm on 23 August 2021:

(a)        one (1) consolidated Affidavit of evidence in chief of that party;

(b)        one (1) Affidavit of each witness intended to be relied upon at the trial.

(12)That each party file and serve on each other party no later than 4.00pm on 6 September 2021, a Case Outline setting out:

(a)a precise minute of the final orders sought;

(b)a relevant chronology;

(c)a list of the issues which each party asserts that the Court needs to determine at the trial; and

(d)a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

(13)That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.

(14)That should either party wish to raise any objections to the evidence contained in the trial affidavit material – such party shall file and serve a “Notice of Objections to Evidence” (containing a list of objections) at least fourteen (14) days prior to the commencement of the final hearing of the matter.

(15)That in the event that a party wishes to cross examine the family report writer at the Final Hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4.00pm on 23 August 2021.

IT IS NOTED:

(A)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kavanagh & Lythow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

A.         These reasons were delivered ex tempore on 5 May 2021 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

HOWARD J:

1. The matter before the Court relates to one child, X who was born in 2013.  She is the child of the applicant mother, Ms Kavanagh and the respondent father, Mr Lythow.  The Independent Children's Lawyer (“ICL”) in the case is Ms Fairon. 

2. The matter is before me today for an interim determination. These reasons are given pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) – short form reasons on the making of an interim parenting order.

3. By its very nature, this is a circumscribed hearing.  The applicant mother is self-represented and Mr Page, QC appears on behalf of the father and the ICL, Ms Fairon appears also. 

4. In making any parenting order, the Court is required to have regard to Part VII of the Act, in particular section 60CC, where the Legislature has set out how it is that a Court is to determine what is in the best interests of a child. This is important because section 60CA of the Act requires that in the making of a parenting order, the Court shall regard the best interests of the child as the paramount consideration.

5. The parameters of today’s hearing changed during the course of the hearing, and I can summarise those parameters as follows.  On the one hand, the mother seeks that the father’s time with the child, X, be suspended pending the preparation of a family report.  On the other hand, the father seeks an order that the child be permitted to spend time with him, supervised at a contact centre pending the trial, which will take place commencing 13 September 2021. 

6. Ms Fairon, the ICL outlined her position early on today and, indeed, in her outline that was provided to the Court prior to today.  Namely – that the child should stay living with the mother and spend supervised time with the father at a contact centre.  Now, it is true that the father had initially sought different orders.  He had sought, as I understand it, to maintain the orders that had been made by Her Honour Judge Terry of the Federal Circuit Court of Australia in 2018 after the hearing of a trial in that Court which, I understand, ended up being, to a large extent, consent orders, but some aspects had to be argued and decided by the Judge.  But there are orders made in 2018 concerning this child.  The father wanted unsupervised time.  His alternative was time to be supervised by his own mother or another family friend.  But the father then, through his counsel, informed the Court that he would be willing to agree to the ICL’s proposal for this four month interim period for time to be supervised at a contact centre.  Sensible concessions were made by the father’s counsel as the day progressed. 

7. The parents in this case were only together for a couple of years.  They seem to have met in early 2012 and separated on a final basis in or around September 2014.  The mother lives in, or near the town of D Town.  The father lives in Brisbane.  He works at Suburb F as a professional.  I understand that he lives in Suburb G.  The child was spending every second weekend with the father in accordance with Her Honour Judge Terry’s orders until September 2020. 

8. There are allegations made against the father.  It is said that the child has made disclosures to various people in relation to some things that the child apparently says occurred when she was spending time with the father.  Today I have observed a section 93A interview between a Police Officer, Ms H, along with a representative of the Department of Child Safety whose first name was Ms L, and the child herself.  That interview is in evidence before the Court as exhibit 1.  The interview lasted for about 46 minutes.  Ms Fairon points out that there are certain specific allegations made which will be the subject of further review by the Court and findings as necessary at the trial which will commence in September, 2021. 

9. The Court has before it another exhibit which is exhibit 2, being a Tender Bundle.  The child, during the course of the section 93A interview, referred to putting her foot on her father’s penis while it was covered by some pyjamas and the child described it as squishy.  The child told the Police during that interview that at one stage, the father had said, “come and look at this” and the child said that the father showed her his penis.  This child did also say that at that stage the father was wearing his pyjamas.  In addition, the other allegation made by the child was that the father had on occasions touched the child’s vagina – which, as I understand the evidence, was within the context of the father lifting the child up.  

10. The child also mentioned on that occasion that the father had pulled her underpants either off or to one side.  It’s not clear from my recollection today of the 93A interview, although I don’t need to make a specific finding one way or another as to the precise allegation for the purposes of this hearing.  The point is the child has made these allegations to the Police.  The Police looked into the matter.  The Police decided they would not be taking the matter further.  The Police informed the mother of this fact in an email dated 22 October 2020.  That is contained at paragraph 15 of the exhibit 2 bundle.

11. It was said there was insufficient detail, particularisation, and context for the Police to establish a prima facie case without additional supporting evidence.  In addition to that evidence, I note that the Department of Child Safety, in a letter dated 24 November 2020 addressed to the father, came to the conclusion after their investigation that the outcome was, as they describe it in these types of letters and cases:

    Unsubstantiated – Child not in need of protection.

12. That particular letter is annexed to the father’s affidavit filed 4 December 2020.  The mother is self-represented, and I explained to her today that the purpose of today is not for the Court to make findings of fact in relation to the disclosures.  The purpose of today is not to make findings of fact in relation to the truthfulness or otherwise of the things that were said by the child to the Police.  The purpose of today is not to make findings in relation to the other matters and issues such as whether or not the child slept in a single bed with the father or in some other sleeping arrangement.  The purpose of today is not for the Court to make any findings of fact or credibility because the Court cannot do that at this interim stage.

13. The Court has not had the benefit of evidence in the witness box.  The Court has not had the benefit of cross-examination of witnesses.  All of that will occur very soon.  It will occur in September, only four months away.  The point at the moment is as follows:  The father hasn’t seen the child since September 2020.  The police have come to the conclusion that they are not pursuing the matter.  The Department of Child Safety have said that the complaint was unsubstantiated.  I am well aware of all of the content of the material that has been relied upon which, frankly, is quite extensive for an interim hearing.

14. The rules of this Court maintain that an interim hearing must be contained within a two hour limit.  Well, of course, I’ve given the parties a significant amount of latitude in that regard.  I am aware that it is said that the child spoke to other people in relation to what she says might or might not have occurred when she was in the care of her father.  Once again, this is not a day for this Court to specifically mention each instance, nor is it a day for this Court to specifically make a finding of fact about whether it was said or the truthfulness or otherwise of what was said. 

15. Rest assured that the Court is well aware of what is said has occurred, both in relation to what the child told the police, what the child told other people including, apparently, her teacher, but the Court is not in a position to weigh the evidence.  The Court is not in a position to make findings of credit.  The Court is not in a position to determine whether or not there is (what is referred to) as an “unacceptable risk” of harm to the child in the care of the father, but what we do know is that the father, during the course of today’s hearing, sensibly came to the conclusion that the best approach between now and the trial, which will take place shortly, is to submit that the time should be supervised at a contact centre.

16. The primary reason for that, as submitted by Mr Page QC, was because the father says he is concerned about any further allegations being made against him.  The mother’s primary position today has been and remains that the time between the father and the child should be suspended pending, at the very least, the receipt of the family report.  The family report, the Court is told by Ms Fairon, will be the subject of interviews by Ms J at the beginning of June with a report to be released about a month thereafter.  That would mean, at the very least, if the mother’s submission was accepted, that time between the child and the father could not even hope to begin until after the family report is received which is another two months down the track.  By then, it is only two months until the trial.

17. Mr Page QC makes the very reasonable submission that in order for the family report writer to properly assess the relationships between the child and her parents, this child needs to be seeing her father before the interviews.  She has not seen him since September 2020.  In these situations, at a final hearing, the Court will not only be required to make a determination as to whether or not some form of abuse occurred, the Court alternately may need to consider whether or not there’s an unacceptable risk of harm.  That is not for today.  That is for a final hearing.  What the Court needs to look at today are the allegations that have been made and the disclosures that have been made by the child. 

18. I have considered the allegations made, and I have considered the disclosures made by the child, and I need to consider whether or not orders can be put in place to ameliorate any risk of harm to the child. This is where section 60CC(2)(b) and section 60CC(2A) come into play. They are sections of the Act that were specifically referred to by the mother and quite rightly so. They form part of the primary considerations the Court must make. Those primary considerations being, firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents, and, secondly, the need to protect the child from physical or psychological harm or from being subject to or exposed to abuse, neglect, or family violence.

19. Allegations have been made against the father. The Court is aware of the scope of those allegations. The Court is aware of the disclosures that have been made, to whom they have been made, the dates they have been made. The Court is aware of the view formed by the Police. The Court is aware of the view formed by the Department of Child Safety. The Court has come to the conclusion that any risk to the child can be successfully ameliorated, that is, it can be successfully reduced and it can be successfully managed by there being put in place an order that the child’s time with the father is supervised at a contact centre, pending the final hearing of the matter. Of course, when I say “pending the final hearing” – it really means pending judgment being delivered after a final hearing. That is for the benefit of the mother who is self-represented today. In these situations, the Court is not, in my view, required, nor is the Court in a position, to go through and make findings under the various additional considerations noted in section 60CC(3) of the Act, nor is the Court required to consider other issues relating to, for instance, parental responsibility, section 61DA and section 65DAA.

20. I do note that the earlier final order of Her Honour Judge Terry, ascribed parental responsibility solely to the mother.  I do note that the child did, during the section 93A interview, indicate that she likes going to daddy’s place: 

    He helps me do things.  He helps me.  He helps me put my shoes on.  He does the laces up for me.

21. The child has undoubtedly made certain comments to the police.  Mr Page QC says that at the final hearing, this Court will need to determine whether there has been any form of abuse perpetrated by this father towards the child.  In addition, the question as framed by Mr Page QC, will be whether or not the mother has put certain things into the child’s head, and whether or not the child’s affections towards the father have been alienated by the actions of the mother.  These are all matters for the final hearing.  They are not matters for determination today.    

22. I raised with the parties the possibility of an order under section 102NA of the Act. The mother in this case is self-represented. She has not only young X to care for, but two younger children, Y and Z. The mother swears in her affidavit which was filed on 1 May 2021 at paragraph 10 of the affidavit:-

    During the relationship I was subjected to ongoing family violence that was mostly psychological violence characterised by coercive control with occasions of physical and sexual violence. The Father was intensely negative about just about everything and it was oppressive to be around. The Father denies all this and he calls it a ''false allegation. "I say this is the reason I left the relationship and I have deposed to this in detail in several of my early affidavits, including the one accompanying my Initiating Affidavit. If it was a good relationship and did not involve ongoing abuse in front of X and being constantly run down by the Father I would have stayed in the relationship.

23. Once again, these, of course, are allegations made by the mother. I note they are denied by the father. In section 102NA of the Family Law Act 1975, the Parliament not too long ago enacted a provision which is entitled, “Mandatory protections for parties in certain cases.” It comes within Division 4 of Part XI of the Act. Division 4 is headed, “Cross‑examination of parties where allegations of family violence”, and it essentially prohibits cross-examination in certain circumstances. To my mind, the provisions of the Act are enlivened. There is here a party who intends to cross-examine another party, that is, the mother who is self-represented, wants to cross-examine the father. That is to say, she will have to do it, in terms of her own case to put her side – her case to the father.

1. There is an allegation of family violence between the mother and the father. In this regard, I note section 102NA, subsection (1)(b). In addition, I note subsection (c). Now, whilst it is the case that there is apparently no current operative protection order, indeed, I am told there was a protection order application at one stage – which it is said was withdrawn – but I do not think that is an agreed fact. I do understand that there is no current protection order. Indeed, it may be the case there never was protection order. But, to my mind, it is quite clear that the Legislature did not require that there be in place a protection order. The Court today has had regard to an extensive amount of material.

2. I have listened to the mother make her submissions. I am well aware of the issues and the allegations made concerning, amongst other things, allegations by the mother against the father in respect of family violence. It seems to me that in the circumstances of this case, noting the gravity of the matters alleged against the father, noting the allegations made by the mother against the father in respect of family violence – it seems to me on weighing the various considerations in the balance, the better approach is for the Court to exercise its discretion under section 102NA(c)(iv) and apply the provisions of subsection (2) of section 102NA. This will require any cross-examination of the parties be conducted by a legal practitioner acting on behalf of the examining party.

3. I am also mindful of the fact that section 102NA(3), subsection (a), says that the Court may make an order under subsection (1)(c)(iv) on its own initiative. I have, of course, given the parties an opportunity to be heard. I note that Mr Page QC for the father, opposed the making of an order, and Ms Fairon also did not think that such an order was necessary. I take a different view. The mother certainly supported the making of an order. My assessment of the situation is that the legislation was put in place precisely to cover situations such as the present. The other issue that remained for determination related to the telephone. I think the submission made by the ICL is the correct submission.

4. It would be a better situation between now and the trial, if there were less occasions for conflict between the parents.  I am aware that there was previously an order made by Her Honour Judge Terry, which was not disturbed, I am told, by His Honour Judge Jarrett, in relation to telephone time.  I am told that the order permitted telephone time to take place each day.  The mother puts forward an argument that the calls have been somewhat disruptive to the running of the family unit, comprising herself, the child and the two younger siblings.  I do not need to make a finding about any of those issues in particular, except to say this:  it is very apparent to the Court that there is a significant conflict between this mother and this father.

5. It therefore seems to me for the short timeframe leading up to the final hearing, that it would be in the best interests of X to restrict telephone time to twice a week.  In relation to the time at the contact centre, there are two contact centres which are possibilities:  one is at K Town and one is at B Services in C Town.  The mother lives in D Town.  Looking at it from the point of view of the child and her best interests – it seems to me that the less travelling that the child has to do would be more in line with her best interests.  So the primary submission made by the ICL in that regard, is preferable – that it should be at the B Services contact centre in C Town. 

6. The mother says she has already registered there.  The father says he will do so forthwith.  It is understood by the ICL that they would be two-hour slots of time that the father can spend supervised at the B Services at C Town.  It seems that there may be a bit of a wait if the family was to wait until weekend times became available, so I do think it is a good idea to start with a Thursday or a Friday after school, depending upon availability of the contact centre.  And then when a weekend time becomes available, move to a weekend when that is available.  The orders should reflect that.  If there is any costs involved – well, I am not sure what they are – but I would propose that the order be as suggested by the ICL, for the parties to share the costs of the contact centre. 

7. It is understood by the ICL that because of the call upon the contact centre services, it would only be possible for there to be some time every second week.  That will be a matter for the contact centre.  It seems to me that if the father, for instance, could attend, that is, if the contact centre was available each week at C Town, then I do not see any reason why the child could not spend time with the father each week, but it will depend upon the availability of the contact centre.  And I am going to keep it at C Town, because it seems to me in the best interests of the child not to have to travel an hour each way, or thereabouts, to a contact centre.

8. Largely, the orders will be in terms of those sought by the ICL, except, I am going to add in there that if this contact centre can facilitate time each week, then the extra two hours of time with the father I think would be in the best interests of the child.  It seems to me that the correct way to approach it is for there to be an order suspending the earlier final orders of Her Honour Judge Terry and put in place the interim orders that I have outlined.  I note the family report will be ready in July. It will probably be a good idea for a further case management hearing or trial management hearing (in terms of a mention I really mean) for the making of any further directions as necessary before the final hearing of this matter.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.

Associate:

Dated:       5 August 2021