Federal Circuit and Family Court of Australia
(DIVISION 1)
Merino & Artigas (No 2) [2022] FedCFamC1F 742
File number(s): SYC 6408 of 2018 Judgment of: ALTOBELLI J Date of judgment: 29 September 2022 Catchwords: FAMILY LAW – PARENTING – Risk of harm assessment – Allegations of sexual assault of the child –Credit issues – Finding of no sexual assault – Discussion of expert evidence opining the mother’s mental health – Presumption of equal shared parental responsibility rebutted with respect to matters of health Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 102NA Cases cited: Merino & Artigas [2022] FedCFamC1F 544
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 233 Date of hearing: 15–17 June 2022 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Doolan Wagner Family Lawyers The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 6408 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERINO
Applicant
AND: MS ARTIGAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
29 September 2022
THE COURT ORDERS THAT:
Parental responsibility
1.Subject to Orders 2 and 3, Mr Merino (“the father”) and Ms Artigas (“the mother”) have equal shared parental responsibility for the child X born 2013 (“the child”).
2.The father have sole parental responsibility in relation to the child’s health.
3.The father:
(a)notify the mother of any proposed decision relating to the child’s health and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)take into consideration any views expressed by the mother about the proposed decision; and
(c)advise the mother in writing of his decision as soon as reasonably practicable.
Live and spend time with
4.Unless the mother and the father otherwise agree in writing, the child shall live with and spend equal time with the mother and the father, as provided for in Orders 5, 6, 7 and 8 below.
5.The child live with the father as follows:
(a)during school terms:
(i)from the beginning of Term 4 2022, each alternate weekend from after school on Friday (or, if the child has not attended school that day, from 6 pm) until the start of school on Wednesday (or, if the child will not be attending school that day, from 8 am);
(ii)from the beginning of Term 1 2023:
A.in all years ending in an odd number (eg. 2023), each alternate week from after school on Friday (or, if the child has not attended school that day, from 6 pm) until after school on the following Friday (or, if the child has not attended school that day, from 6 pm), commencing on the first week of the school term; and
B.in all years ending in an even number (eg. 2024), each alternate week from after…
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Details
- AGLC
- Merino & Artigas (No 2) [2022] FedCFamC1F 742
- Case
- [2022] FedCFamC1F 742
- Decision Date
CaseChat Overview and Summary
This case concerns a dispute between the parents of a child born in 2013, with the father seeking a change in the existing arrangements for time spent with the child. The father, who is currently spending supervised time with the child, is seeking for this to move to unsupervised time and eventually equal time. The mother, who currently has primary care of the child, is opposing this and wants the supervised time arrangements to continue. The case was heard by the Family Court of Australia. The central legal issues before the Court were whether there was an unacceptable risk of harm to the child if the father's time with the child was unsupervised, and whether equal time parenting was feasible. The Court had to weigh the competing evidence of the parents and the expert evidence provided to determine the appropriate parenting arrangements.
The Court found that there was no unacceptable risk of harm to the child if the father's time with the child was unsupervised. The Court accepted the father's evidence that he had gained insight into his past inappropriate behaviour and had acknowledged its inappropriateness. The Court also found that the mother's concerns about the father's past behaviour were based on vague, historical allegations and observed behaviours, none of which were of concern to the Court. The Court found that the mother's recording of an interview with the child, which did not implicate the father specifically, was a manifestation of the mother's hypervigilance and hypersensitivity. The Court found that equal time parenting was feasible, and ordered that the father's time with the child should move to unsupervised time immediately and then gradually increase to equal time.
The Court's final orders were that the father's time with the child should move to unsupervised time immediately, and that over a short period his time should increase to equal time. The Court also ordered that the mother and father should attend a parenting course together, and that the father should continue to be supervised by his partner during his time with the child.
The Court found that there was no unacceptable risk of harm to the child if the father's time with the child was unsupervised. The Court accepted the father's evidence that he had gained insight into his past inappropriate behaviour and had acknowledged its inappropriateness. The Court also found that the mother's concerns about the father's past behaviour were based on vague, historical allegations and observed behaviours, none of which were of concern to the Court. The Court found that the mother's recording of an interview with the child, which did not implicate the father specifically, was a manifestation of the mother's hypervigilance and hypersensitivity. The Court found that equal time parenting was feasible, and ordered that the father's time with the child should move to unsupervised time immediately and then gradually increase to equal time.
The Court's final orders were that the father's time with the child should move to unsupervised time immediately, and that over a short period his time should increase to equal time. The Court also ordered that the mother and father should attend a parenting course together, and that the father should continue to be supervised by his partner during his time with the child.
Orders
Orders of the court
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Background
Background to the litigation
This case is about a child, X, born 2013 (“the child”) who is nine years old, lives with the respondent mother (“the mother”), and currently spends supervised time with the applicant father (“the father”). These reasons for judgment explain why the Court has ordered that the father’s time with the child move to unsupervised immediately, and that over a short period his time increases to equal time.Background The father was born in 1975 and is aged 46 years. The mother was born in1978 and is aged 44 years. They both reside in suburbs of Sydney. They were both born overseas, and met and commenced cohabitation in 2000. They married in 2002 and lived overseas for a period for the purposes of the father’s employment, but relocated to Australia in 2011. Even at that time it seems that the relationship was in difficulty. The parties attended counselling. In about mid-2016 the mother made the first of a series of accusations against the father about his inappropriate interactions with the child. The details of these allegations will be discussed below. Conflict between the parents resulted in the making of an apprehended domestic violence order (“ADVO”) in mid-2017. Separation had commenced about a month earlier. Notwithstanding this, the parents were still spending time together and the father was spending regular time with the child. Further disclosures and allegations were subsequently made, resulting in the father physically separating from the mother and the child on 1 June 2018. Between June and September 2018 the father was not allowed to spend any time with the child. The Department of Communities and Justice (“DCJ”), the police, and the Joint Investigation Response Team (“JIRT”) (as it was then known) became involved. The father commenced spending supervised time in mid-2018. The present proceedings commenced in October 2018, and the first set of consent orders were entered into on 14 December 2018, again providing for the father to have supervised time. Dr C was appointed as a single joint expert in 2018 and his first report was received in 2019 (“the first expert report”). A second one was prepared in 2022 (“the second expert report”). In June 2020, the father’s partner was substituted as an appropriate supervisor of the father’s time with the child. The parties attended a family dispute resolution conference twice but were unable to reach agreement. The matter was listed for hearing before me on 14 June 2022 and the hearing progressed over four days. The mother, who was initially in receipt of a grant of aid under s 102NA of the Family Law Act 1975 (Cth) (“the Act”), discharged her legal representative on the first day of the hearing. Her application for an adjournment was dismissed (Merino & Artigas [2022] FedCFamC1F 544). The matter was adjourned to the next day, 15 June 2022, with the mother representing herself. In effect, the mother’s case was that supervision needed to be continued for the time being because there was an unacceptable risk of abuse from the father but, as will be seen, by the time of closing submissions the mother’s concerns seem to have evolved into something more subtle and less pernicious than concerns about sexual abuse. Both the father and the Independent Children’s Lawyer contended that there was no unacceptable risk of abuse of any kind in the father’s care and that his time should forthwith progress to unsupervised time and then gradually increase thereafter.The Applicable Law
Evidence
Evidence Before The Court
At [15] the High Court emphasised the need for a practical approach:15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.The Evidence In support of his case, the father relied on the following material:(a)Amended Initiating Application filed 20 May 2022;(b)His affidavit filed 6 June 2022;(c)Affidavit of Ms G filed 6 June 2022;(d)Affidavit of Ms H filed 6 June 2022;(e)Amended case outline filed 10 June 2022; and(f)Documents tendered and marked as exhibits A1–13. In support of her case, the mother relied on the following material:(a)Amended Response to Initiating Application filed 20 May 2022;(b)Her affidavit and accompanying bundle of annexures filed 1 November 2018;(c)Her affidavit filed 8 November 2019;(d)Her affidavit and accompanying bundle of annexures filed 24 June 2020;(e)Documents tendered and marked as exhibits R1–R72. In support of their case, the Independent Children’s Lawyer relied on the following material:(a)Documents tendered and marked as exhibits ICL1–4.The Competing Proposals By the time of closing submissions the cases presented before the Court were as follows.The Independent Children’s Lawyer’s case The child was represented by an experienced Independent Children’s Lawyer, and experienced counsel. On behalf of the Independent Children’s Lawyer it was submitted that there was no unacceptable risk of harm to the child, except from the mother. Counsel pointed out that in cross-examination the mother had reduced her concerns to the husband allegedly crossing boundaries, but this was based on vague, historical allegations and observed behaviours, none of which the Court would be concerned about, especially in circumstances where the father gave clear evidence of how he had gained insight, and acknowledged the inappropriateness of his past behaviour. One of the allegations was that the child had been exposed to the father’s erect penis, but counsel submitted that the evidence indicated that this was inadvertent, and there was nothing to suggest it was due to sexual arousal of the father by the child. Counsel submitted that even the mother ultimately acknowledged the event (which will become known as the “[genitals]” event) was inadvertent, and that the Court would accept the father’s plausible explanation for the event. Counsel submitted that the Court would be concerned about the mother’s recording of an interview with the child which clearly did not implicate the father specifically, but in any event seemed to confirm that the child had never seen an erect penis. Counsel submitted this was a highly inappropriate interview and was a manifestation of the mother’s hypervigilance and hypersensitivity.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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