Lewin & Selwyn (No 2)
[2023] FedCFamC1F 446
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lewin & Selwyn (No 2) [2023] FedCFamC1F 446
File number: ADC 1440 of 2020 Judgment of: KARI J Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – EX-TEMPORE REASONS – Final Parenting Orders – Where the father filed a Notice of Discontinuance – Where the s 62G Family Report was released during the course of the hearing and is to be supressed on the Court file Legislation: Family Law Act 1975 (Cth), s 60CC Cases Cited: Lewin & Selwyn [2022] FedCFamC1F 1021 Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 24 May 2023 Place: Adelaide Solicitor for the Applicant: Excused Counsel for the Respondent: Ms Ross Solicitor for the Respondent: Debra Spizzo and Associates Solicitor for the Independent Children's Lawyer: Ms Rieniets ORDERS
ADC 1440 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LEWIN
Applicant
AND: MS SELWYN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
KARI J
DATE OF ORDER:
24 MAY 2023
UPON NOTING THAT:
A.The father has filed a Notice of Discontinuance on 22 May 2023.
THE COURT ORDERS THAT:
1.That all previous orders herein be discharged.
2.That the child X (born 2011) shall live with the mother.
3.That the mother shall have sole parental responsibility for the said child.
4.That the father be restrained and an injunction be hereby granted restraining him from:
(a)Removing the child from the care of the mother or causing or allowing any other person to do so;
(b)Communicating with or contacting the child, either directly or indirectly including but not limited to through school lunch orders or any social media platforms; and
(c)Attending at or within 20 metres of any school (presently P School) in which the child may be enrolled or attend upon, or at any extracurricular activities that the child may attend from time to time;
(d)Contacting any school (presently P School) in which the child may be enrolled or attend upon either in person or through a third party including but not limited to accessing any school material including school Apps and newsletters.
5.That the s62G Family Report dated 10 May 2023 be suppressed on the Court file (including on the Commonwealth Courts Portal).
6.That the s62G Family Report dated 10 May 2023 shall not be released to the father (or any third party on his behalf) without leave of the Court.
7.That the Independent Children’s Lawyer explain these Orders to the child.
8.That the mother be permitted to provide a copy of these Orders and the reasons when published to the following:
(a)SAPOL;
(b)Any school in which the child may be enrolled or attend; and
(c)Any extracurricular activity organisation which the child may attend.
9.That the appointment of the Independent Children’s Lawyer be discharged.
10.That all extant applications herein be dismissed as finalised.
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 a pseudonym Lewin & Selwyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
KARI J
This matter comes before me today in relation to parenting proceedings concerning the parties' child, X, who is now 12 years of age. She was born in 2011.
The proceedings come before me today in circumstances where I am now asked to finalise the proceedings by both the mother and the Independent Children's Lawyer (‘ICL’).
For the reasons that follow, I am prepared to do so, and as the transcript will bear out, I have heard further submissions in relation to a draft Minute of Order that had been prepared and circulated by the ICL prior to today’s hearing, but has been the subject of significant amendment during the course of submissions.
The circumstances in which the proceedings are at the juncture that they are, where I am being invited to finalise the matter and, indeed, I intend to finalise the matter in the absence of the father, comes about in circumstances where two days ago, on 22 May 2023, the father, who was represented by solicitors, filed a Notice of Discontinuance. To his solicitor's credit, his solicitor attended the commencement of today's hearing, as a courtesy to the Court. He indicated to the Court that his client had determined it appropriate to discontinue the proceedings in circumstances where his health was compromised. No further detail was given by the father’s solicitor in that regard, and he was also careful not to put any further information before the Court about the father’s health. The father’s current circumstances are not clear to me, however, I suspect that both ICL and the mother, through her solicitors, have some further information about those matters, to which the Court is not privy.
In any event, the father’s solicitor, indicated that in filing the Notice of Discontinuance, the father had been given clear advice as to the consequences of filing that Notice of Discontinuance. When I indicated to the fathers solicitor that it was likely that I would proceed to finalise the proceedings today, the fathers solicitor was clear in his submissions to the Court that the father had been advised as to the consequences of the filing of his Notice of Discontinuance, which included that the Court may well finalise the matter in his absence.
Following those submissions the father’s solicitor excused himself and the hearing proceeded.
Significantly, the first thing that thereafter occurred was that the Court released a hardcopy to each the ICL and the mother's solicitors of the section 62G Family Report, dated 10 May 2023 prepared by the Court Child Expert. That is a report, the preparation of which had been ordered by me on 20 December 2022.
I pause to record that when the orders for the preparation of the Family Report were made, they were made in circumstances of a contested interim hearing, and I delivered a lengthy judgment in relation to that aspect of the proceedings on 20 December 2022 (Lewin & Selwyn [2022] FedCFamC1F 1021).
In all of the circumstances, I propose to give short form reasons in relation to the Final Orders that I am now invited to make. I do so because my reasons of 20 December 2022 are lengthy and they are detailed. In particular, they detail the history and the background of the matter, and the litigation. They also detail the very serious disclosures of sexual abuse that have been made by X, and they detail a range of other matters which ultimately led to the orders that were made on 20 December 2022 for the preparation of the Family Report, but that the preparation of such Report not include observed interactions between X and her father.
I also propose to give short form reasons in circumstances where I have the benefit of the detailed Family Report. I make it clear from the outset of these reasons that the Family Report makes for deeply troubling and concerning reading.
It is also important for me to highlight some matters about the release of the Family Report. The report is dated 10 May 2023, but it has not been released to the parties prior to today. That is because I determined prior to today's hearing in chambers that I was not prepared to release the Report in the usual course by the court providing a copy of the Report to the parties' legal representatives. I came to that view because of my concerns about the contents of the Report.
It was my considered view that I would release the Report at today's hearing, in circumstances where I intended to have a discussion with the legal representatives as to my concerns about the contents of the Report and, in particular, I had intended to direct some comments to the fathers solicitor about the care in which the release of the Report to his client would need to be given.
Having released the Report during the course of today's hearing to the mother and the ICL, the matter was stood down to enable both parties to read the Report, and for the mother's solicitors to take some further instructions about the orders to be made today.
As I indicated at the commencement of these reasons, I was informed, by the fathers solicitor during the earlier part of today's hearing, that the ICL had prepared and circulated a draft Minute of Order prior to today's hearing. The father’s solicitor indicated to me that a copy of the proposed Order had been provided to the father and explained to him.
By that draft order, the ICL had crafted certain injunctions that now appear in the final order at paragraphs 4(a), 4(b) and 4(c), subject to amendments made during the course of the hearing.
The fathers solicitor indicated to the Court that not only did the father have those injunctions explained to him and understand them, but of some significance to me, the father’s solicitor indicated that his instructions were that the father did not consent, but he equally did not oppose those injunctions being made; that submission put in the context of the father’s solicitor making it clear to the Court that his client understood the consequences of filing his Notice of Discontinuance.
Returning to the contents of the Family Report. This matter has a very complex and difficult history. The proceedings were commenced by the father when he filed his Initiating Application on 14 April 2020. That application was filed in circumstances where the father had not seen or spent time with the child for a period of nearing two years at that juncture. The father's time, as I set out in my earlier reasons, was terminated by the mother in circumstances where the child had made very significant disclosures of sexual abuse. In addition, X had exhibited very troubling sexualised behaviour, which formed the basis of mandatory reports by her school. The Family Report deals with those matters.
In addition and against that backdrop, certain additional matters of concern have come to the fore in the Family Report.
Dealing firstly with the concerns in relation to the father, it is clear from the Report that the Court Child Expert was very concerned about the father's presentation. She was concerned about his physical presentation, which she described as having a “malodorous scent which smelt like urine and did not dissipate throughout the duration of the interview”.[1]
[1] Family Report dated 10 May 2023, at paragraph 17.
Significantly, from my perspective, it also appears that the Court Child Expert was very troubled by the father's presentation and his inability to regulate his behaviour during the assessment process. The Court Child Expert described the father during the course of his interview as presenting in a significantly dysregulated manner, including his neck being reddened, visibly shaking and raising his voice above speaking volume. The concerns of the Court Child Expert were so great that she suspended the interview process to give the father the opportunity to regulate his behaviour, rather than it escalating further.
In the context of her assessment, the Court Child Expert also had concerns about matters pertaining to family violence in all its forms, as perpetrated or allegedly perpetrated by the father. Additionally, the Court Child Expert was significantly concerned about issues pertaining to the apparent neglect of X in the father's care.
I do not propose to say much more about those matters at this juncture, other than to record all of those matters as troubling.
It is however of particular concern that the father was unable to regulate himself during the assessment which, is a formal court process. Additionally, it is of concern that during that process, the Court Child Expert was fearful for her own safety, so much so that she thought it fit to suspend the interview.
It is also of concern to me that the father made certain admissions during his appointments with the Court Child Expert; one admission pertaining to family violence and an admission that he had acted physically and threateningly towards the mother at a handover, in X's presence.
All of these matters are discussed at length in the Report, and it is these matters which highlight very significant risk factors that are present and impact X, her safety and her wellbeing, in every sense.
All of these matters additionally raise significant concerns in relation to the mother's safety. Of some significance is that, at paragraph 76 of the Report, the Court Child Expert made the following comments:
76. Both parties made allegations of the other in perpetrating patterns of coercive control during the relationship and post separation. The severity of some of the alleged violence indicates that there are increased risks of serious harm or lethality in this matter (for example threats of suicide, allegation of sexual assault, an alleged incident of violence while the mother was pregnant, and alleged unpredictable use of violence at handovers).
(Emphasis added)
I pause to record that those allegations are all allegations made in relation to the father in these proceedings, not the mother. The Court Child Expert went on to comment in the following terms at paragraph 80:
80. This matter is assessed as high risk for family violence. The alleged tension and conflict experience nominated by [X], the mother, the maternal grandmother and noted within collateral information gathered by police and professional services, supports this assessment. There are concerns that if the court outcome is perceived as unfavourable by the father, this may only serve to increase the potency risk.
(Emphasis added)
I highlight those matters because they are amongst the most serious opinions and conclusions that an expert could come to in the context of parenting litigation in this Court. That the Court Child Expert had serious concerns of “serious harm” and “lethality”, as I said at the outset, is deeply troubling.
Another matter which is deeply troubling, and which comes out through the Report process, is that the child, X, has begun to act in a self-preservation and self-protective fashion. She is disguising herself at school, so that the father is unable to recognise her if he happens to see her.
All of these matters combined, on the face of the Report suggest to me that there are very significant risk factors presented by the father in relation to X. They are not only risk factors that relate to family violence, sexual abuse or the risk of sexual abuse, and neglect, but they are also factors that go significantly to the mother's ability to continue to provide a safe environment for X, but also X's sense of self and her own psychological wellbeing.
From my perspective, all of these risk factors point unquestionably to the conclusion not only that I should finalise the proceedings today, but additionally, that the orders that I have been invited to make are, indeed, in X's best interests.
The Report touches on a range of matters set out in s 60CC of the Family Law Act 1975 (Cth), but first and foremost, however, are the primary considerations and the need to protect X from harm. I am satisfied that this is a case where X needs to be protected in every sense of the word.
While I am unable to make conclusions about certain conduct, the admissions that the father has made and which are detailed in the Report lead me to the conclusion that he presents an unacceptable risk of harm in the future.
For all of those reasons, I am prepared to make the Orders, as I have been invited to make by the mother and the ICL. Those Orders provide for X live with the mother, that she have sole parental responsibility for X, and that certain injunctions be made to protect X's safety.
I, additionally, have heard an oral application made at the mother's end, and supported by the ICL, in relation to the suppression of the Family Report on the Court file. Additionally, admittedly at my suggestion, as a different option to that promoted by the mother, that the Family Report not be released to the father without leave of the Court.
My view about those Orders is that they are not parenting orders. The effect of that is that the father must bring a standalone application, if he chooses to do so in the future, to have access to the Family Report.
I make it clear at this juncture that I have not formed a view as to whether the father should, or should not receive the Family Report, if he chooses to further litigate these proceedings. Clearly, procedural fairness would make it appropriate that he have a copy of the Family Report. My concerns, however, and those of the mother's, are to regulate the manner in which the Family Report is released to the father if, indeed, that eventuality arises, given the concerning nature of the contents of the Family Report and the Court Child Expert’s opinion, particularly that raised at paragraph 80, where she opines that the potency of risk is increased if the Court outcome is perceived as unfavourable by the father. Indeed, the report, in and of itself, is unfavourable to the father and forms the basis for the orders that I have been invited to make today.
So for all of those reasons, I consider it is appropriate for me to make orders, firstly, suppressing the Family Report on the Court file, but also that the father require leave of the Court to obtain a copy of the Family Report.
I have also been invited to make an order that the ICL explain these orders to X, so that she can be given some security that not only have the proceedings been brought to a conclusion, but that certain injunctions have been made.
I am equally aware, however, that while the mother has the benefit of an Intervention Order naming her as the protected person, and the father as the defendant, the mother is deeply troubled that the child is not named or protected by that Intervention Order.
It may be that the mother chooses to deal with that aspect of the Intervention Order separately. That is a matter that the mother is entitled to pursue. Having said that, given the nature of the orders made by the Court today, and in particular the injunctions, and also because the mother has indicated that she is likely to pursue a variation to the Intervention Order so that X is included as a protected person, I have made a further Order at the mother’s request that the mother be permitted to provide a copy of today's Order and a copy of these Reasons to SAPOL, any school that the child is enrolled at or attends, and any extra-curricular activity organisation which X attends.
NOTE: These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 2 June 2023
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