Nayar & Groth (No 3)
[2023] FedCFamC1F 564
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nayar & Groth (No 3) [2023] FedCFamC1F 564
File number(s): CAC 1702 of 2021 Judgment of: GILL J Date of judgment: 6 July 2023 Catchwords: FAMILY LAW – PARENTING – Interim orders – Assessment of the risk of sexual abuse by father – Issue of professional or non-professional supervision – Where the mother seeks to revert to professionally supervised time – Where there is expert evidence that earlier concerns of sexual grooming expressed by the same expert are not warranted – Where the evidence does not indicate a risk so great as to displace the non-professional supervision regime – Where modified non-professional supervision is in the best interests of the child to reduce the likelihood of further concerns being raised and to avoid re-litigation – Orders made that two supervisors to be generally present with one immediately present to counter the prospect of a gap in supervision – Orders made to restrain father by injunction from changing the child’s nappy or bathing the child. Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 6 July 2023 Place: Canberra Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Farrar Gesini & Dunn Counsel for the Respondent: Mr Coleman SC with Mr Stagg Solicitor for the Respondent: Parker Coles Curtis Solicitor for the Independent Children's Lawyer: Ms Mussato, Legal Aid ACT ORDERS
CAC 1702 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GROTH
Applicant
AND: MR NAYAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
GILL J
DATE OF ORDER:
6 JULY 2023
IT IS NOTED THAT:
1.These orders are made on an interim basis and without a final factual determination of the matters at issue between the parties including whether X is at risk from the father.
IT IS ORDERED THAT
2.Orders 2-7 and 14-16 of the orders of 22 December 2022 are discharged.
IT IS ORDERED, UNTIL FURTHER ORDER, THAT:
3.The mother shall have sole parental responsibility for the child X, born 2021 (“the child”).
4.The child shall spend supervised time with the father from 10:00am to 2:00pm each Tuesday, unless otherwise agreed between the parties in writing.
5.The supervision of time shall occur by having one of the approved supervisors identified at order 9 in the immediate presence of the child at all times during the visit.
6.To ensure that an approved supervisor is in the immediate presence of the child at all times during a visit, the father shall ensure that a second approved supervisor is present during the visit, such that if one approved supervisor is unable to be in the immediate presence of the child the other shall be.
7.The father is restrained by injunction from changing the child’s nappy, taking the child to the toilet and/or bathing the child when the child is in his care and if either of the above are to occur, the father must ensure these tasks are undertaken by the approved supervisor at the visit.
8.The father is hereby restrained by injunction from being alone with the child at any time.
9.The time the child spends with the father pursuant to order 4 herein shall be supervised by one of the following persons subject to order 10: -
(a)Ms B;
(b)Dr Q;
(c)Ms R;
(d)Mr K;
(e)Ms C;
(f)Ms F.
10.Prior to any person listed in order 9 supervising the child’s time with the father, that person must have signed a further written Undertaking (which is to be filed, and served upon each of the parties and the ICL and which is in addition to the undertaking identified in the orders of Judge Hughes of December 2022) in the following terms:-
(a)That the supervisor has read and understands these orders that are in place in relation to the father’s time with the child.
(b)That the supervisor is prepared to comply with the orders that are in place regarding the father’s time.
(c)That the supervisors are prepared to accept the responsibility in relation to changing nappies, toileting and bathing of the child as required.
11.Unless otherwise agreed in writing between the parties, all changeovers are to occur via the D Centre contact handover service.
12.The parties shall communicate in relation to matters concerning the child by utilising the Parenting App “Talking Parents”, NOTING THAT the mother may have one of her parents communicate on the App on her behalf, with that person identifying themselves in the communication.
13.After each visit the father has with the child he shall, no later than 6pm, provide on the Talking Parents App a brief account of the time the child spends with him including but not limited to the following:
(a)The food and drink the child has consumed during the visit;
(b)Who was present and who supervised the visit;
(c)Any nappy changes or bathing that occurred during the visit and who has undertaken these tasks;
(d)Whether the child had a nap;
(e)Whether the child has become distressed during the visit, why and how it was addressed;
(f)Whether there were any adverse incidents to the child at the visit including, but not limited to falls or bumps to her head.
IT IS FURTHER ORDERED THAT:
14.The proceedings are adjourned for further directions at 10am on 17 August 2023.
15.The parents and the ICL are at liberty to seek an urgent relisting of the matter.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Gill J
In the context of yesterday’s adjournment of the final hearing in relation to the parenting arrangements for X, each parent and the Independent Children’s Lawyer (“the ICL”) seeks a variation of the interim arrangements pending that delayed final consideration. Those current arrangements are the product of contested proceedings before Judge Hughes in December 2022 where orders were made that transitioned from professionally supervised time to time supervised by associates and relatives of the father, each of those persons being approved by Judge Hughes. Those orders provided for an increase over a period of time in the time that X and the father would spend together to six-hour blocks.
The issue of professional or non-professional supervision was re-agitated before me in April 2023 and orders were made confirming those of Judge Hughes.
Now application is made by the mother to revert to professional supervision. The father and the ICL who take a common position resist such and seek to maintain the associate family supervision, albeit reduced to four hours per week and supplemented by various protective mechanisms.
In determining this issue I adopt and repeat the factual matters, law and considerations contained in the judgment from April. This judgment builds upon that in determining X’s best interest in the interim, recognising that the circumstances now said to justify a change centre on an assertion of sexual risk that finds its peak expression in an interim report and response to questions prepared by a Child at Risk Health Unit (“CARHU”) doctor following attendance upon X in June 2023.
That report responded to a referral from the Australian Federal Police. It is uncontroversial that there is an extant investigation regarding the father and the issue of sexual abuse of X. It is the fact of that extant investigation that was central to the decision to vacate the trial.
In considering the mother’s assertions as to risk and the father’s countering of such, and the father’s assertions as to the benefits of X’s time and the mother’s countering of that, as I now have the trial material I have much more fulsome evidence than I did at April 2023, including from the supervisors. That does not alter the position that in this interim determination, whilst I must have regard to the evidence and the risks I am not in a position to resolve contested factual issues.
Giving careful consideration to the CARHU material and the affidavit of the maternal grandmother regarding that attendance, it may be seen that according to the CARHU doctor, although she had concerns regarding the possible grooming of X, that was a matter that she would remove from her report. It may be accepted that the doctor now considers such a concern is not warranted such as to retain it in a report.
At least on an interim basis that leaves little room to consider a potentially heightened sexual abuse graver than the previous asserted prior to the April 2022 judgment. Acknowledging and applying the statutory emphasis on protection from risk of abuse in determining best interests the evidence is not at present suggestive of a risk that amplifies that considered on the last occasion. The matters raised do not at present suggest a risk so great as to replace the non‑professional supervision regime. But for one aspect that general regime remains appropriate given the nature of the risks at play in the proceedings generally and despite the mother’s concerns about them. It might also be considered that to displace the non-professional regime imposes change upon X and risks degradation of her time and relationship with the father but also carries a risk identified by the single expert as one being difficult to recover from. See for example paragraph 140 of the single expert second report.
Considering these aspects of the case, being those emphasised by the parties in regard to the application, in the context of the previous judgment I do not consider the change proposed by the mother to professionally supervised time to be in X’s best interest. In general terms X’s best interests are promoted by orders in terms of those proposed by the ICL with some modification, including modification to require two supervisors to be present to ensure that there is no gap in supervision. As I understand the evidence there is a prospect of a gap in supervision, for example, if Ms B is supervising should she need to go to the toilet. Such a gap is a recipe for uncertainty and suspicion as to the protection of X that is counter her best interests as it raises a greater prospect of firstly further concerns being raised, and secondly re‑litigation of this issue. An available and appropriate counter to the potential gap is to require that two supervisors be generally present such that one is always immediately present.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 18 July 2023
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