KILROY & LEED

[2018] FCCA 1117

FEDERAL CIRCUIT COURT OF AUSTRALIA

KILROY & LEED [2018] FCCA 1117

Catchwords:

FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CC

Applicant: MR KILROY

Respondent: MS LEED

File Number: PAC 2610 of 2015

Judgment of: Judge Newbrun

Hearing date: 28 February 2018

Date of Last Submission: 28 February 2018

Delivered at: Parramatta

Delivered on: 28 February 2018

REPRESENTATION

Solicitors for the Applicant: Ms Abercrombie of Coleman Greig Lawyers

Solicitors for the Respondent: Ms Hitchen of Bell Lawyers

ORDERS

1. Order 3 of Exhibit A in Order 1 of the Court’s Interim Orders of 29 January 2018 is suspended, pending further Order.

2. Pending further Order, up to and including 10 May 2018, the Court suspends Order 4 of Exhibit A in Order 1 of the Court’s Interim Order of 29 January 2018.

3. Pending further Order, up to and including 10 May 2018, the child shall spend time with the father over a fortnightly period in Week 1 on Saturday from 9:00 am to 5:00 pm, and on Week 2 from 4:00 pm to 7:00 pm on Tuesday and Thursday nights.

4. Changeovers relating to the above time to be spent by the child with the father will occur at the (omitted) Police Station.

5. The above time to be spent by the child with the father shall occur in the presence of the father’s sister and/or brother-in-law in their household, and his fiancée Ms E shall not be present.

6. The parties and child of the relationship shall attend a Child Inclusive Conference at 9 am on 30 April 2018.  The father shall ensure that his fiancée Ms E shall attend that Conference.  The mother shall ensure that the child’s half-sister [A] also attends the Child Inclusive Conference.  The Court also respectfully requests the family consultant to consider established relationships between the child and the parents, father’s fiancée and step-sibling, and also consider interviews touching upon the alleged disclosures made by the child, and alleged fears expressed by the child in relation to the father, as referred to in paragraph 62 to 70 of the mother’s Affidavit filed 6 February 2018.

IT IS NOTED that publication of this judgment under the pseudonym Kilroy & Leed is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2610 of 2015

MR KILROY

Applicant

And

MS LEED

Respondent

REASONS FOR JUDGMENT

1. In this matter, the father has filed an Application in a Case 16 February 2018, a supporting Affidavit filed the same date, together with his partner’s, Ms E’s, Affidavit filed 23 February last.  He seeks a Recovery Order or, in the alternative, Orders that the child, [X], born 2014, live with him and that the child spend time with the mother supervised at a contact centre.

2. By way of background, on 29 January 2018 the parties reached interim consent Orders relating to parenting providing that they had equal shared parental responsibility for the child, that [X] live with the mother commencing 29 January 2018, and that the child spend time with the father on a fortnightly basis, two nights in Week 1 and three nights in Week 2.  The father, through his Affidavit, complains that despite those consent Orders of 29 January 2018 the mother has retained the child in her primary care and has not permitted the father to spend time with the child.

3. Both his Affidavit and the mother’s Affidavit, filed 6 February 2018, raise an alleged incident that the mother contends occurred when the child [X] was in her care on about 29 January last.  Relevant events since 29 January 2018 are referred to in that Affidavit of the mother from paragraph 62 onwards, in particular up to and including paragraph 70.  Relevantly, the mother asserts and alleges, the father denies and his new partner Ms E denies, that the child had made certain disclosures to the mother on 29 January last and the following day.

4. On the first occasion, the mother alleges that the child disclosed to the mother, when the mother was running a bath for the child and her stepsister [A], that the child stated, “Oh, Ms E ([the father’s] current partner) had a candle but she smashed it with a knife”.  The mother asked the child what had happened.  Allegedly, the child told the mother:

   daddy and Ms E were having a fight and Ms E was crying and she smashed the candle with the knife and said to Daddy if you come near me I will cut you and daddy was yelling.

5. The mother said to the child, “where were you when this happened”.  The child stated, “I ran straight to my room and there are stars in my room”.  The mother asked the child, “was Ms E and Daddy laughing and smiling or yelling and crying?”  The child said, “daddy was yelling and Ms E was crying, Ms E had blood”.  Then when the child got out of the bath, the mother alleges – paragraph 64 of her Affidavit – that she noticed there was a large bruise on the side of her waist, and she asked the child how she got the bruise.  The child responded:

   daddy was hitting Ms E and she was crying so I smacked daddy on the butt and then daddy smacked me and made me fall down and I hurt myself.

6. The mother responded to the child, “oh no did Daddy say sorry and cuddle you?”  The child said, “nope he just kept fighting and fighting.”  The mother annexes, Annexure H, an alleged picture of the bruise to the child, page 59 of her Affidavit.  Paragraph 65, the mother alleges that next day she took the child to the family doctor, Dr M.  She alleges the doctor noted and recorded the bruise and asked the child about what had happened, and the child repeated the story that she had told the mother.

7. Paragraph 66 of the mother’s Affidavit:  the next night, the child was helping her mother cooking dinner.  They were talking about colours.  When they got to the colour red, the child allegedly said to the mother, “my daddy has a red truck, but he does not like to share his truck with Ms E”.  The mother responded, “that’s a bit silly what do you mean”.   The child said, “daddy was in the car and was driving and he and Ms E were fighting and he yelled at her to get out of the car and punched her in the butt”.

8. The mother said, “oh then what happened”.  The child allegedly said, “she got out of the car and went into the forest and that’s all”.  The child said that Ms E was crying, she did not have her old blue car.  Paragraph 68 of the mother’s Affidavit – relevantly to this short interim hearing, paragraph 68, the mother alleges that since the child has been in her care – the Court interpolates here it appears that that is relating to a period after 29 January 2018 – the mother has noticed that the child is very fearful of speaking with the father or speaking about him.  The mother alleges she has attempted to engage the child in telephone conversations with the father, and every time she has asked her she has responded, “no no no,” and run into another room or to her sister.

9. The mother alleges that the child has asked her multiple times why she was with her father for such a long period of time and asked why the mother went on a holiday and left her.  The mother explained to the child allegedly that she did not go on a holiday and that she was waiting for her.  The mother alleges the child continues to ask “if that means daddy lied to her or if I went on a holiday”.  Paragraph 70, the mother asserts that the child was aware that:

   we were shortly planning a quick trip to (location omitted) to see family and she continuously checks if she is coming on the trip with us or if she is “being left behind”.

10. The mother asserts the child has always been very independent, but she has seen that since her returning to the mother’s care she has become very dependent.  This is very different to her previous carefree attitude, according to the mother.  As I said previously in these brief Reasons, the father denies the alleged disclosures made by the child on 29 and 30 January last.  His denials with particularity are set out in his Affidavit filed 16 February last.  The father’s partner, Ms E, she has put on an Affidavit filed 23 February last, and she denies the alleged events relating to these alleged disclosures by the child.

11. As the Court stated in oral exchanges between the Court and the parties’ solicitors today, this is an interim hearing at which the Court is unable to test the veracity of competing factual allegations.  The Court cannot ignore these alleged disclosures made by the child simply because they have been denied by the father and the father’s partner.  In addition, not without relevance, are the allegations made by the mother that the child is presently fearful of speaking with or about the father, and that in recent times, at least since 29 January 2018, the child has made certain comments in relation to being absent from the mother’s care when spending time with the father.

12. The Court should state that an interim hearing is appointed for this matter on 10 May next.  Further, the Court, back on 29 January last, appointed an Independent Children’s Lawyer to represent the child.  At the proposed interim hearing on 10 May next, the Court will determine on an interim basis issues relating to the time to be spent by the child with the father and where the child should attend preschool.  Accordingly, the Court is faced today with a period from today until 10 May next when, according to the contentions and submissions made by the mother today and based upon her evidence presently before the Court, the child is placed at risk if spending unsupervised time with the father.  The mother contends that the primary risk to the child is spending unsupervised time with the father.

13. The father draws to the Court’s attention in the context of these competing applications – and when I say competing applications, the primary application of the father is set out in his Application in a Case.  The opposing application by the mother made today, with a view to minimising risk of the child spending unsupervised time with the father in the context of the alleged disclosures made by the child to the mother on 29 and 30 January 2018, together with what the mother alleges is the child recently expressing fears of speaking to and about the father – the mother proposes that in Week 1, between now and the interim hearing, the child spend time with the father on Saturday between 9:00 am and 5:00 pm, and in Week 2 spend, for three hours on two weeknights, time with the father.

14. Oddly, the mother, in this context of her current proposal presently before the Court, does not seek any protective Order relating to the child spending time with the father in the presence of his partner.  I say “oddly” because one of the significant themes in the alleged disclosure by the child to the mother has been family violence occurring in the presence of the child, such family violence occurring between, firstly, the father and his partner, Ms E, where it seems the father may well be the chief provocateur; and, secondly, excessive physical corporal punishment committed by the father towards the child, and in that context the Court refers to the allegations that the child was left with a bruise on her lower body following the child seeking to intervene in a dispute between the father and Ms E.

15. True it is that these disclosures were made by a very young child, aged almost four.  True it is that the father has gone on affidavit and sworn that he denies the substance of these disclosures made by the child.  True it is that his partner has gone on affidavit disputing and denying these allegations or disclosures made by the child.  The Court has to ask the question, what if these disclosures made by the child are true?  It seems to the Court that the Court, acting cautiously and conservatively, cannot ignore these disclosures made by the child.

16. The Court has considered the subpoenaed material brought to the attention of the Court by both parties today, but it does not change the concerns that the Court presently has, those concerns being that if the child was to continue to spend unsupervised time with the father, likely to be in the presence of the father’s fiancée, Ms E, there is a risk, not insignificant, that this child might be exposed to family violence occurring between the father and his fiancée.

17. In the view of the Court, the asserted risk of the child spending unsupervised time with the father, particularly in accordance with the existing consent interim parenting Orders of 29 January 2018, is that the child – there is a significant risk, it seems to the Court – that the child might be exposed to the risk of family violence.  The mother proposes to minimise the risk of the child being exposed to family violence in the father’s care.  She proposes, in a fortnightly period, in Week 1, the child spend time with the father Saturday 9:00 am to 5:00pm, and, in Week 2, 4:00 pm to 7:00 pm two weeknights.

18. In that context, without admissions and in the alternative, the father submits that he would prefer Tuesday and Thursday nights, but the Court emphasises that his primary application is that the child now live with him and spend supervised time with the mother.  In that latter context, the Court should state that, on the material presently before the Court, it would not be in the best interests of the child for the child to be taken out of the mother’s primary care, a primary care that the father agreed upon back on 29 January 2018, and thereafter spend supervised time with the child.  There is a significant risk, if such Orders were made in favour of the father, that the child’s meaningful relationship with the mother would be detrimentally affected.

19. On the other hand, if the Court makes Orders in terms of the mother’s proposal today for this daytime time to be spent by the child with the father, in the view of the Court such Orders would minimise the risk of the child being exposed to family violence spending that time with the father, and particularly the risk of the child being exposed to family violence spending that time with the father.  If such time was spent by the father in the presence of his sister or brother-in-law and not in the presence of Ms E, again that asserted risk by the mother of the child being exposed to family violence in the father’s care would be appropriately minimised.

20. The Court proposes to make those Orders sought by the mother.  The Court understands the father will be bitterly disappointed by these proposed interim Orders.  All the Court can say is to repeat that the Court cannot ignore allegations, disclosures made by a child, together with these allegations made by the mother, that the child has expressed fearfulness of the father in certain contexts.  The Court cannot ignore those disclosures and evidence simply because those allegations are denied, and denied with some particularity, including through the evidence of Ms E.

21. The Court can only say by way of solace to the father in this context is that these Orders are only interim Orders pending the interim hearing on 10 May next, about an eight week period.  The Court is of the view that should the Court make those proposed Orders by the mother for the father to spend daytime time with the child, the Court is comfortably satisfied that the child’s meaningful relationship with the father will not be detrimentally affected, bearing in mind those Orders will only remain in place, or will be made, pending further Order and leading up to the interim hearing on 10 May 2018.

22. The Court has had regard to the objects expressed in section 60B of the Family Law Act (“the Act”) in Part VII of the Act. The Court has had regard to the most relevant considerations under section 60CC of the Act on this short interim hearing, in particular the primary considerations being the meaningful relationship and need to protect primary consideration. The Court should state that it gives significant weight, in particular, to the need to protect primary consideration in making Orders in terms of the mother’s proposals. Accordingly, it will be in the best interests of the child, pending further Order, and up to and including 10 May 2018, that:

    (1)Order 3 of Exhibit A in Order 1 of the Court’s Interim Orders of 29 January 2018 is suspended, pending further order.

    (2) Pending further order, up to and including 10 May 2018, the Court suspends Order 4 of Exhibit A in Order 1 of the Court’s Interim Order of 29 January 2018.

    (3) Pending further Order, up to and including 10 May 2018, the child shall spend time with the father over a fortnightly period in Week 1 on Saturday from 9:00 am to 5:00 pm, and on Week 2 from 4:00 pm to 7:00 pm on Tuesday and Thursday nights.

    (4) Changeovers relating to the above time to be spent by the child with the father will occur at the (omitted) Police Station.

    (5)The above time to be spent by the child with the father shall occur in the presence of the father’s sister and/or brother-in-law in their household, and his fiancée Ms E shall not be present.

    (6)The parties and child of the relationship shall attend a Child Inclusive Conference at 9 am on 30 April 2018. The father shall ensure that his fiancée Ms E shall attend that Conference. The mother shall ensure that the child’s half-sister [A] also attends the Child Inclusive Conference. The Court also respectfully requests the family consultant to consider established relationships between the child and the parents, father’s fiancée and step-sibling, and also consider interviews touching upon the alleged disclosures made by the child, and alleged fears expressed by the child in relation to the father, as referred to in paragraph 62 to 70 of the mother’s Affidavit filed 6 February 2018.

23. An Application has just been made orally by the father’s solicitor for telephone time with the child.  I understand why that application is made by reason of the reduced time to be spent by the child with the father compared with the orders of 29 January last, but the problem is that the child has made disclosures allegedly to the mother, as contained in the mother’s Affidavit filed 6 February last, that she is fearful of speaking to the father.  The Court cannot resolve that issue today.  That matter can hopefully be ventilated at the Child Inclusive Conference and thereafter, so the Court declines to make such an Order.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 7 May 2018