Labriola & Porra - [2023] FedCFamC1F 1107

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Labriola & Porra [2023] FedCFamC1F 1107

File number(s): ASC 1 of 2020

Judgment of: BERMAN J

Date of judgment: 19 December 2023

Catchwords:
FAMILY LAW – CHILDREN – Interim – With whom a child lives with and spends time with – Allegations of risk – Where the applicant seeks orders to suspend the first respondent’s time with the child – Where the first respondent seeks orders for an increase in time – Assessment of unacceptable risk at an interim hearing – Where the single expert urges the Court to take a cautious approach – Where it is conceded by the parties that multiple handovers are not beneficial for the child – Consideration of block time spending – Orders.

FAMILY LAW – CHILDREN – Interim – With whom a child spends time with – Where the applicant alleges that the grandfather sexually interfered with the child – Where there is a current injunction restraining the grandfather from coming into contact with the child – Where the first respondent seeks to spend Christmas with the child and the grandfather – Consideration of variation of an injunction – Assessment of unacceptable risk at an interim hearing – Untested evidence – No order.

Legislation: Marvel & Marvel (2010) 240 FLR 367.

Cases cited: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC.

Division: Division 1 First Instance

Number of paragraphs: 108

Date of hearing: 14 December 2023

Place: Adelaide

Counsel for the Applicant: Ms O’Connor SC

Solicitor for the Applicant: SE Lawyers

Counsel for the First Respondent: Mr Hii

Solicitor for the First Respondent: Noble Law

Counsel for the Second Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Ms Visser

Solicitor for the Independent Children's Lawyer: Legal Aid Commission
ORDERS

ASC 1 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LABRIOLA

Applicant

AND:
MS PORRA

First Respondent

MR TURNER

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

19 DECEMBER 2023

UPON NOTING THAT:
(a)All applications for final orders are listed for trial to commence on 12 August 2024 in the City B Registry; and
(b)The matter is listed for trial directions on 5 February 2024.

THE COURT ORDERS THAT:
1.Order 5 of orders made 10 November 2021 is suspended.
2.The first respondent shall spend time with X born 2016 (“the child”) as follows:
(a)From the conclusion of school on Thursday (or 3.30 pm on a non-school day) to the commencement of school on the following Monday (or 8.30 am on a non‑school day) and each alternate week thereafter; and
(b)By FaceTime communication on two (2) occasions in the intervening week when the child is not spending time with the first respondent as may be agreed between the parties but in default of agreement, each Tuesday and Thursday from 6.00 pm to 6.30 pm.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Labriola & Porra

Details

AGLC: Labriola & Porra [2023] FedCFamC1F 1107
Case: [2023] FedCFamC1F 1107
Decision Date: 19 December 2023

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an interim application brought by Ms Labriola against Ms Porra and Mr Turner concerning the time the child, X, would spend with his mother, Ms Porra, and grandfather, Mr Turner. Ms Labriola sought to suspend Ms Porra's time with X and to prevent the child from spending time with Mr Turner, alleging that the grandfather had sexually interfered with the child. Ms Porra, on the other hand, sought an increase in the time she could spend with X, including spending Christmas with the child and the grandfather. The court was required to determine whether it was in the best interests of the child to suspend Ms Porra's time with him and to assess the risk of the child spending time with Mr Turner.

The court considered the evidence presented, including the expert's recommendation for a cautious approach and the parties' concession that multiple handovers were not beneficial for the child. The court assessed the risk of the child spending time with Mr Turner, taking into account the untested evidence and the current injunction restraining Mr Turner from coming into contact with the child. The court decided not to make any orders concerning the injunction or supervision of Ms Porra when she is in the presence of Mr Turner, as the allegations of sexual interference could not be determined at the interlocutory hearing. The court acknowledged the importance of the child having a relationship with his extended family but prioritised the need to protect the child from potential risk.

The court suspended the previous order and set out new arrangements for Ms Porra to spend time with X, including face-to-face contact and FaceTime communication. The court also noted that the parties had not requested any orders regarding the child's continued attendance on the therapist and listed the matter for final hearing in August 2024. The court ordered that order 5 of the orders made on 10 November 2021 be suspended and that Ms Porra shall spend time with X as per the specified schedule. The form of the order is subject to the entry in the Court’s records.

Orders

Orders of the court

ASC 1 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LABRIOLA

Applicant

AND:

MS PORRA

First Respondent

MR TURNER

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

19 DECEMBER 2023

UPON NOTING THAT:

(a) All applications for final orders are listed for trial to commence on 12 August 2024 in the City B Registry; and

(b) The matter is listed for trial directions on 5 February 2024.

THE COURT ORDERS THAT:

1. Order 5 of orders made 10 November 2021 is suspended.

2. The first respondent shall spend time with X born 2016 (“the child”) as follows:

(a) From the conclusion of school on Thursday (or 3.30 pm on a non-school day) to the commencement of school on the following Monday (or 8.30 am on a non‑school day) and each alternate week thereafter; and

(b) By FaceTime communication on two (2) occasions in the intervening week when the child is not spending time with the first respondent as may be agreed between the parties but in default of agreement, each Tuesday and Thursday from 6.00 pm to 6.30 pm.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court must also take into account the additional considerations as set out in s 60CC(3) of the Act.CONCLUSION The parties do not ask me to make any orders in respect of the child’s continued attendance on the therapist. As considered, it is a matter for the parties as to whether they are able to reach a consensus that there is benefit to the child by the continued therapeutic sessions. In circumstances where the parties have equal shared parental responsibility, I do not consider that it would be open to one party to require the child to undertake therapy if not supported by the other party. I have given careful consideration to the orders sought by the first respondent that the injunction restraining the child from coming into contact with the grandfather be discharged or in the alternative, that the child be supervised by the first respondent on any occasion that he is in the presence of the grandfather. I have listed the proceedings for final hearing to commence on 15 August 2024 in the City B Registry. The parties and the child continue to reside in City B. At present, there is no intention by either of the parties to seek that the child be relocated away from City B. The first respondent’s parents reside in New South Wales. Whilst the first respondent would want to attend at her parent’s home for Christmas with the child, the reality is that the potential for the involvement of the grandfather with the child would possibly only occur on a further two occasions before the anticipated trial. The concern of the applicant in respect of the allegations made by the child that the grandfather may have been sexually inappropriate with him are not matters that are able to be determined at the appropriate standard of proof on an interlocutory hearing. Whilst I accept that all reasonable investigations undertaken by police, that the child protection authority have not substantiated the allegations and that there are no further investigations pending, I am acutely aware of the need to protect the child from the attitude, conduct and emotional overlay of each of the parties but in this particular circumstance, the applicant. I must always consider the advantages and disadvantages to the child of the separate proposals of the parties. The focus is not upon the wants and needs of each of the parties but rather on what is in the best interests of the child. It is likely that until the applicant has had an opportunity to present her evidence that she says will substantiate the allegations concerning the grandfather, she will consider that the child would be at risk if he came into contact with him. I do not ignore the considerable benefit that would be enjoyed by a child of having a relationship and knowledge of each of the parties’ extended families. The applicant is proud of her Country G heritage and culture and she considers that it is important for the child to experience and understand his ethnic origins. A similar consideration arises in respect of the first respondent wanting the child to understand her extended family, their history and life stories.

Ratio Decidendi

Legal Principle Established

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File number(s):	ASC 1 of 2020
Judgment of:	BERMAN J
Date of judgment:	19 December 2023
Catchwords:	FAMILY LAW – CHILDREN – Interim – With whom a child lives with and spends time with – Allegations of risk – Where the applicant seeks orders to suspend the first respondent’s time with the child – Where the first respondent seeks orders for an increase in time – Assessment of unacceptable risk at an interim hearing – Where the single expert urges the Court to take a cautious approach – Where it is conceded by the parties that multiple handovers are not beneficial for the child – Consideration of block time spending – Orders. FAMILY LAW – CHILDREN – Interim – With whom a child spends time with – Where the applicant alleges that the grandfather sexually interfered with the child – Where there is a current injunction restraining the grandfather from coming into contact with the child – Where the first respondent seeks to spend Christmas with the child and the grandfather – Consideration of variation of an injunction – Assessment of unacceptable risk at an interim hearing – Untested evidence – No order.
Legislation:	Marvel & Marvel (2010) 240 FLR 367.
Cases cited:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC.
Division:	Division 1 First Instance
Number of paragraphs:	108
Date of hearing:	14 December 2023
Place:	Adelaide
Counsel for the Applicant:	Ms O’Connor SC
Solicitor for the Applicant:	SE Lawyers
Counsel for the First Respondent:	Mr Hii
Solicitor for the First Respondent:	Noble Law
Counsel for the Second Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Ms Visser
Solicitor for the Independent Children's Lawyer:	Legal Aid Commission

ASC 1 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS LABRIOLA Applicant
AND:	MS PORRA First Respondent MR TURNER Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	19 DECEMBER 2023