Konigsmann & Quintana (No 2)

Case [2024] FedCFamC1F 567

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Konigsmann & Quintana (No 2) [2024] FedCFamC1F 567

File number: BRC 14498 of 2020
Judgment of: CAREW J
Date of judgment: 30 August 2024
Catchwords: FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk of harm to the children – Where there are allegations that the father has sexually abused one of the children – Where the child purportedly made three “disclosures” – Where the father poses an unacceptable risk of emotional harm to the children, and sexual harm to the youngest child – Where, on that basis, the mother does not pose an unacceptable risk of emotional harm arising from fabricating allegations of sexual abuse – Where the risk of harm posed by the father is ameliorated by supervision – Where the mother will have sole parental decision making for major long-term issues – Where the children will live with the mother and spend six hours of supervised time with the father per month.   
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 62B, 64B, 65D, 65DA

United Nations Convention on the Rights of the Child   
Cases cited:

Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Eastley & Eastley (2022) FLC 94-094

Isles and Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs: 142
Date of hearing: 31 July – 2 August 2024
Place: Brisbane
Counsel for the Applicant:  Mr Schonell
Solicitor for the Applicant: Parry Coates Family Law
Counsel for the Respondent: Mr Bunning
Solicitor for the Respondent: Wallace Perkins Family Law
Counsel for the Independent Children’s Lawyer: Ms Murphy
Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors

ORDER

BRC 14498 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS KONIGSMANN

Applicant
AND:

MR QUINTANA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

30 AUGUST 2024

THE COURT ORDERS THAT:

1.All previous Orders are discharged, save for the final property Order dated 12 August 2021.

Parental Responsibility

2.The mother shall have sole decision making responsibility for the children, X born 2013 and Y born 2017 (“the children”), in relation to all major long-term issues (as defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)).

3.Prior to making a decision about a major long-term issue (other than in the case of emergency), the mother shall inform the father of the decision she proposes to make and consider any input from the father received within seven days thereafter and, upon making the decision, the mother shall inform the father of her decision and the reasons for it.

Living Arrangements

4.The children shall live with the mother.

5.The children shall spend time with the father at all such times as may be…

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AGLC
Konigsmann & Quintana (No 2) [2024] FedCFamC1F 567
Case
[2024] FedCFamC1F 567
Decision Date

CaseChat Overview and Summary

The matter before the court involved the parents of two children, X and Y, born in 2013 and 2017 respectively. The parents separated in May 2020 and had been engaged in ongoing parenting disputes. The primary concern was whether either parent posed an unacceptable risk of harm to the children, particularly regarding allegations that the father had sexually abused Y. The Independent Children's Lawyer recommended that the children live with the mother but spend unsupervised alternate weekends and holidays with the father after a reintroduction period.

The court was tasked with determining whether the father posed an unacceptable risk of harm to the children, specifically emotional harm to both children and sexual harm to Y. The court also needed to consider whether the mother's allegations of sexual abuse by the father were fabricated and whether the risk of harm could be mitigated through supervised contact. Additionally, the court had to decide on the living arrangements and decision-making responsibilities for major long-term issues.

The court found that the father posed an unacceptable risk of emotional harm to the children and sexual harm to Y. This conclusion was based on multiple factors, including Y's repeated statements about the father touching her private parts, X's evidence about being locked out of the bedroom by the father, and the child's presentation of sexualised behaviours. The court also noted the children's alignment with the mother and their resistance to spending time with the father. While the risk of harm could be ameliorated through supervised contact, the court found that the mother did not pose an unacceptable risk of harm by fabricating allegations. Consequently, the court awarded sole decision-making responsibility for major long-term issues to the mother and ordered that the children live with her, with supervised contact with the father.

The final orders included sole decision-making responsibility for major long-term issues to the mother, with the mother required to inform the father of any proposed decisions and consider his input. The children were to live with the mother but spend six hours of supervised time with the father each month. The mother was also required to facilitate telephone or video calls between the children and the father, and both parents were to share the costs of therapy and supervision. The mother was further restrained from questioning the children about the proceedings or recording their statements. The court also outlined measures to ensure the children's safety and well-being during overseas travel and communication between the parents.

Orders

Orders of the court

1. All previous Orders are discharged, save for the final property Order dated 12 August 2021.

Parental Responsibility

2. The mother shall have sole decision making responsibility for the children, X born 2013 and Y born 2017 (“the children”), in relation to all major long-term issues (as defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)).

3. Prior to making a decision about a major long-term issue (other than in the case of emergency), the mother shall inform the father of the decision she proposes to make and consider any input from the father received within seven days thereafter and, upon making the decision, the mother shall inform the father of her decision and the reasons for it.

Living Arrangements

4. The children shall live with the mother.

5. The children shall spend time with the father at all such times as may be agreed between the parents in writing and failing agreement as follows:

(a) Supervised at C Family Services (or another contact service or supervisor as agreed between the parents) for up to six hours each month or a lesser time should the contact supervisor not be able to facilitate six hours;

(b) The supervised time is to occur on the last Saturday of each calendar month, unless the children have a special occasion or extra-curricular activity and then the supervised time shall occur on the following Saturday;

(c) The mother shall ensure the children’s attendance upon the contact service or supervisor at all times and dates arranged;

(d) The supervised time shall occur off site on all occasions that the contact service or supervisor can facilitate it;

(e) The mother and father shall respond to C Family Services’ (or another contact service or supervisor as has been agreed between the parents) proposed schedule of supervised time, within 72 hours of receiving the email with the proposed times;

(f) Should either parent not respond within 72 hours of the supervisor’s email, the other parent’s selected times shall be booked;

(g) The mother and the father shall each meet one half of the costs of the supervised time;

(h) Any cancellations or changes to the supervised time shall be advised to the contact service or supervisor not less than seven days prior to the arranged supervision unless the cancellation is due to illness in which case, the parent cancelling the time will provide a medical certificate to the contact service or supervisor, and in the event the mother cancels the supervised time then make up time shall occur at such other time as agreed and failing agreement on the next Saturday;

(i) In addition to the time already provided for herein, the father shall spend time with the children on Father’s Day supervised by C Family Services (or another contact service or supervisor as agreed between the parents) for a period of six hours if C Family Services (or another contact service or supervisor as agreed between the parents) are able to facilitate the supervision on this day.

Telephone/video calls

6. The mother shall facilitate any request by the children to telephone or video call the father at all reasonable times that they choose, and the mother shall do all things required to facilitate such calls as and when requested by the children including but not limited to ensuring that they have access to a functioning and charged mobile phone/computer/iPad and the mother shall afford the children privacy during the calls.

7. The father shall be at liberty to telephone or video call the children each alternate Wednesday at 7.00 pm and the mother shall do all things required to facilitate such calls including but not limited to ensuring that the children have access to a functioning and charged mobile phone/computer/iPad and the mother shall afford the children privacy during the calls.

8. The father shall be at liberty to send cards and gifts to the children on the following occasions:

(a) Their respective birthdays;

(b) Easter; and

(c) Christmas.

9. For the purpose of paragraph 8 of this Order, the mother shall provide the father with an address for him to send the cards and gifts within 14 days of the date of this Order.

Injunctions

10. The mother is restrained by injunction from questioning the children about the issues raised in these proceedings or recording any statements made by the children about the issues raised in these proceedings.

Therapy

11. The mother shall ensure that the children attend upon the family report writer, Ms D (or such other person as recommended by the Independent Children’s Lawyer), as soon as possible after the making of this Order, so that the Order can be explained to the children and for this purpose the mother is to ensure that Ms D or such other person retained, is provided with a copy of the Reasons for Judgment dated 30 August 2024.

12. The mother and the father shall each pay one half of the costs associated with the Order being explained to the children.

13. The children shall attend upon a psychologist/counsellor selected by the mother and the following shall apply:

(a) The children’s first appointment shall occur within 60 days of the date of this Order (subject to the availability of the psychologist/counsellor);

(b) The mother shall follow all reasonable recommendations by the psychologist/counsellor as to the frequency of the appointments for the children;

(c) The therapy appointments shall continue until the psychologist/counsellor recommends otherwise;

(d) On the first day of every second month, commencing on the first day of the month following the date of this Order, the mother shall provide the father with a written update including the appointment dates the children have attended, and any issues raised by the psychologist/counsellor; and

(e) The mother and the father shall each pay one half of the cost of the children’s therapy appointments.

14. Either parent is at liberty to provide any psychologist/counsellor for the children with a copy of this Order, the Reasons for Judgment and the Family Report of Ms D dated 18 February 2024.

Medical Issues

15. The mother shall keep the father informed of the names and addresses of all regular treating medical or other allied health practitioners who treat the children and notify him within 72 hours of any change to the practitioner that they have been attending upon.

16. The mother shall, as soon as reasonably practicable or within 48 hours of any significant medical condition or hospitalisation suffered by the children, advise the father by text message or WhatsApp message of the incident, save in the event of an emergency, when notice will be given by the mother to the father as soon as possible or within two hours by text message.

Miscellaneous Issues

17. Each parent shall keep the other parent informed at all times of their mobile telephone number and email address and advise the other parent in writing within 48 hours of any change.

18. The parents shall:

(a) Not criticise or denigrate the other parent or the other parent’s family, friends, or partner in the presence of or within the hearing of the children, and shall use their best endeavours to ensure that the children are not exposed to a third party doing so;

(b) Encourage and not undermine the children’s relationship with the other parent, their family, friends, or partner;

(c) Not question the children about the other parent, their family, friends, or partner or their private affairs; and

(d) Not expose the children directly or indirectly to parental conflict.

19. The parents shall communicate about non-emergency matters concerning the children in WhatsApp and in the event of an emergency, by text message.

Authorities

20. This Order authorises the mother and the father to obtain from the children’s schools: copies of school reports; school photographs; and any other documents regarding the academic progress or achievements of the children, at the cost of the requesting parent.

21. This Order authorises each parent to obtain from the children’s medical practitioner, health carer, allied health professional, or hospital any information or report regarding the children’s health, that is lawfully able to be provided, at the cost of the requesting parent.

Overseas Travel

22. The mother is at liberty to travel overseas with the children for a maximum period of six weeks per year and during this time, the children’s supervised time with the father is suspended.

23. During the period of any overseas travel, the mother shall ensure that the children telephone/facetime/videocall their father no less than once per week. Should the father miss the call, he is at liberty to return the call to the children.

Miscellaneous

24. Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The Independent Children’s Lawyer (“ICL”) recommends that the children live with the mother and spend unsupervised alternate weekends and half school holidays with the father after a prolonged reintroduction period. The order proposed by the ICL is set out in exhibit 13. Notwithstanding the recommendations made by the ICL, it was conceded that it would be open on the evidence to find that the father poses an unacceptable risk of sexual harm to the child, Y. BACKGROUND Before turning to consider the issues, it will be helpful to set out some background to the matter. The mother and father commenced a relationship in or about 2012 and separated in May 2020. They were not married. There are two children of the relationship, namely X born 2013 and Y born 2017. Both children attend a private school where they are progressing very well. The mother was born in 1976 and is 48 years of age. She is employed as a manager with E Company working full-time hours over four days. She was born in Country F and became an Australian citizen in 2017. The mother lives in a three-bedroom townhouse in Suburb G. The mother has re-partnered with Mr H. Mr H was born in 1971 and is employed as a finance professional. The mother and Mr H commenced a relationship in early 2022. While they do not cohabit on a full-time basis, Mr H spends between two to four nights per week at the mother’s residence. Mr H has three children from a previous relationship, namely adult twins aged 23 years and a child aged 17 years. The father was born in 1977 and is aged 47 years. He is employed in the trade sector. He was born in Country J before later becoming an Australian citizen. The father lives in a three‑bedroom apartment in Brisbane. The father has re-partnered with Ms K. Ms K was born in 1971 and is employed as a ‘co‑ordinator’ (whatever they may be) with a history of employment in two sectors. The father and Ms K commenced a relationship in or about early 2024. They do not cohabit. Ms K was employed by the father in early 2023. Following the parent’s separation, the father commenced property proceedings by an Initiating Application in the Federal Circuit Court (as it was then called) on 19 October 2020. Parenting proceedings were commenced on 10 August 2021 by way of a Further Amended Initiating Application of the father. Final orders were made by consent finalising both proceedings on 12 August 2021. The final parenting order provided for the parents to have equal shared parental responsibility and for the children to live with the mother and spend each alternate weekend and holiday time with the father. This arrangement continued until January 2023 when the mother withheld the children following a third alleged ‘disclosure’ by Y of sexual abuse by the father. The mother recommenced parenting proceedings on 9 February 2023 in the Federal Circuit and Family Court of Australia (Division 2). On 2 March 2023, the matter was referred to the National Assessment Team for transfer to this Court. Unfortunately, the transfer did not occur until an order was made on 15 May 2024 amending the order made on 2 March 2023 to include a transfer order. All orders made between 2 March 2023 and 15 May 2024 purportedly by this Court were made without jurisdiction. Unfortunately, this is a not an infrequent consequence of 2021 amendments to the Family Law Act 1975 (Cth) (“the Act”) which makes the original jurisdiction of this Court dependent upon transfer from a lower court. Trial directions were made on 24 May 2024 when the matter was listed for trial commencing on 31 July 2024.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I find that the father poses an unacceptable risk of emotional harm to the children and of sexual harm to the child, Y, based on the following evidence:(a)Y has made repeated statements to numerous persons that the father has touched her private parts and it hurt or hurts, with the first statement having been made in 2021;(b)X’s evidence that the father told him in 2021 to leave the bedroom and that the father was sleeping with the child and in 2023 that the father locked him out of the bedroom while the father and Y are in their alone;(c)If abuse has occurred, it has occurred while X was in the house;(d)X has expressed concern and worry about his little sister and in more recent times has expressed suicidal ideation;(e)Y had blood on her underwear in 2021 which was determined at the time to be related to constipation;(f)After the child’s “disclosures” in January 2023, the child behaved in an unusual way with the father the next day, refusing to look at him, clinging to the mother, refusing to be photographed with him, and rejecting any contact with him;(g)The child had a “small healing abrasion superiorly to clitoris” and “scratch abrasion on external genitalia, non-specific for sexual abuse” on examination in January 2023;(h)The child rejected alternative reasons for her sore genitals and in January 2023 said the father had touched her private parts “again”;(i)The child has repeatedly stated that she is telling the truth;(j)The child has presented with sexualised behaviours including masturbation (which by itself may be completely developmentally normal) and a statement about sucking her brother’s penis;(k)The child’s matter of fact “disclosures” which may seem incongruent with disclosing sexual abuse may be explained by the child having been repeatedly questioned (at least leading up to and from the time of the 2023 “disclosures”), or having a neuro developmental disorder;(l)If the child’s statements are in fact disclosures of sexual abuse, it will be damaging for the child to not be believed;(m)Child Safety concluded that Y had been sexually abused and that the father posed a risk of harm such that if he were to have unsupervised time with her there would likely be further assessment;(n)The father was unable to offer any innocent explanation which might explain the child’s repeated “disclosures” and X’s evidence about being locked out of the bedroom; and(o)The children have been exposed to their parents’ conflict and are aligned with the mother and while they enjoy the time spent with the father they are resistant to spending time with him. CAN THE PARENTS MAKE PARENTING DECISIONS ABOUT MAJOR LONG‑TERM ISSUES JOINTLY? As noted earlier in these Reasons, major long-term issues are defined in s 4 of the Act and mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent.

Ratio Decidendi

Legal Principle Established

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