Nyitrai & Lange (No 3)
[2024] FedCFamC1F 42
•7 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nyitrai & Lange (No 3) [2024] FedCFamC1F 42
File number: BRC 4482 of 2020 Judgment of: CAMPTON J Date of judgment: 7 February 2024 Catchwords: FAMILY LAW – PARENTING – Application for Review of Senior Judicial Registrar’s decision – Where the mother seeks to suspend or vary an injunctive order restraining her from permitting the children to come into contact with her partner – Where the Independent Children’s Lawyer (“ICL”) supports the mother’s application subject to condition – Where both the mother and the ICL do not satisfy the evidentiary onus – Where the mother does not demonstrate a sufficient change in circumstances – Orders proposed by mother and proposed by the ICL not currently, on the evidence, in the best interests of the children – Application for Review dismissed. Legislation: Family Law Act 1975 (Cth) s 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 2 February 2024 Place: Sydney Counsel for the Applicant: Dr Lake of counsel Solicitor for the Applicant: Transitional Legal Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Queensland Legal Practice ORDERS
BRC 4482 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NYITRAI
Applicant
AND: MR LANGE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
7 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application for Review filed 24 November 2023 is dismissed.
2.The listing of the matter for a procedural hearing before a judicial registrar on 29 February 2024 be vacated.
3.The matter be listed for case management before Justice Carew on 8 March 2024.
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 the pseudonyms Nyitrai & Lange has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
These reasons determine an Application for Review filed on 24 November 2023 by Ms Nyitrai (“the mother”) of an order made by a Senior Judicial Registrar on 21 November 2023 dismissing her application to suspend injunctive orders made in June and September 2021 restraining her from permitting the children X born 2013 who is currently 10 years of age, and Y born 2017 who is 6 years of age (collectively, “the children”) to come into contact with her partner, Mr B.
For the reasons that follow, the Application for Review is dismissed.
BACKGROUND
The mother and Mr Lange (“the father”) commenced cohabitation in 2005 and separated on 24 January 2019.
On 12 May 2020 final consent orders were made for the parents to have equal shared parental responsibility and for the children to live with each parent for alternate weeks during the school term (Order 23), and for half of the school holidays (Order 24).
The father filed an Application for Final Orders on 14 May 2021 in what was then the Federal Circuit Court of Australia seeking to discharge the 12 May 2020 orders, for the children live with him, to spend time with the mother as agreed and that the mother be restrained from allowing Mr B from having contact with the children “by any means”. The father alleged that the children had been exposed to an unacceptable risk of abuse or harm by the mother and Mr B. In her Response to an Application for Final Orders filed 31 May 2021, the mother sought:
(a)On a final basis, for the children to live her and spend time with the father as agreed;
(b)On an interim basis, for the orders of 12 May 2020 to remain in effect; and
(c)On a without admissions basis, for her to ensure that the children do not come into the presence of Mr B at any time.
On 1 June 2021, a judge of the Federal Circuit Court made orders, amongst others, pending further order:
1.That the current regime pursuant to the Order dated 12 May 2020 remain in force.
2.That the Mother be restrained from bringing her children, [X] born […] 2013, and [Y] born […] 2017, into contact with [Mr B].
3.That the Mother and Father be restrained from physically disciplining the children.
On 17 June 2021, the mother filed an Amended Response to Final Orders seeking the orders dated 12 May 2020 be discharged, that Order 1 of 1 June 2021 be discharged, and orders for the children to live with her and spend supervised time with the father at a contact centre for three hours per week and for 15 minutes per week via telephone.
On 25 June 2021, further orders were made by the same judge as follows:
1. That the Order dated 12 May 2021 remain in force.
2.That the Mother and Father be restrained from bringing the children, [Y] born […] 2017 and [X] born […] 2013, into contact with their respective partners.
…
8.Pursuant to 8.02 of the Federal Circuit Court Rules 2001, these proceedings be transferred to the Family Court of Australia at Brisbane to be listed on a date to be advised with a request that this application be considered for inclusion in the Magellan List.
(As per the original)
On 15 September 2021, a single parenting expert report was prepared by Ms C. Her recommendations varied dependent upon the findings made at trial, being:
(a)If the court accepts that the mother participated in the sexual abuse of the children, then it was recommended that the children live with the father while allowing supervised contact with the mother;
(b)If the court accepts the mother did not participate in the sexual abuse of the children and accepts the mother’s view that the sexual abuse is highly unlikely to have occurred as proffered by the father, it was suggested that risk be managed through precautionary measures, such as the mother or a third party being present whilst the children interact with Mr B, and for the children to undertake a protective behaviour program;
(c)If the court accepts that the father’s allegations of sexual abuse are not vexatious, but are disproportionate, for the father to engage in a parenting course or engage a developmental mental health practitioner to provide psychoeducation regarding normative child development; or
(d)If the court accepts that the allegations of sexual abuse made by the father were made vexatiously, for the children to live with the mother, spend supervised time with the father at a contact centre and for the children to commence therapeutic intervention.
On 30 September 2021 each parent sought discharge or a variation of the orders made on 1 and 25 June 2021 at a hearing before a Senior Judicial Registrar. The mother additionally sought for the children to live with her and spend time with the father for three hours per week at a Contact Centre and 15 minutes per week via telephone. The father sought, amongst other things, for the mothers’ time to be restricted to supervised visits, and for the order restricting the mother from permitting Mr B to have contact with the children to be upheld. The Senior Judicial Registrar ordered that the mother and father both be restrained from bringing the children into contact with their respective partners, that Order 24 made on 12 May 2020 (as to school holiday time) be suspended, and that during school holiday periods the week about arrangement pursuant to Order 23 made on 12 May 2020 was to continue.
On 8 March 2023, two affidavits were filed of the single expert psychiatric witness Dr D, annexing his assessments of both the mother and the father. He formed an opinion that the father met the criteria for Delusional Disorder, that there was a hypothetical risk of violence towards the mother and Mr B should the court change the current parenting arrangements, and a risk of emotional harm to the children due to the father’s persistent belief that they have been harmed.
On 8 June 2023, the mother filed an Application in a Proceeding seeking for all the previous parenting orders to be discharged, for her to have sole parental responsibility of the children, for the children to live with the mother and spend no time and have no communication with the father, and for the father to be restrained from approaching the mother and the children. She gave evidence detailing a telephone call in June 2023 with the children’s psychologist, Ms E. The therapist informed her that during appointments on the previous day 2023 the children had relayed to her threats made by the father to kill the mother and the children. An Application for a Protection order for the mother had been made by the Queensland Police Service.
On the day of the telephone call, the Child Protection Investigation Unit interviewed the children at school. On the same day, the father was arrested and interviewed by the Police. He was charged with an offence.
On the following day, the father entered bail conditions, including that he could not contact or approach, nor have someone else contact or approach, the mother, or the children.
On 9 June 2023, a Senior Judicial Registrar made ex parte orders on the mother’s application, pending further order, suspending previous parenting orders and providing for the children to live with the mother and have no time or communication with the father. An order was also made pursuant to s 68B of the Family Law Act 1975 (Cth) restraining the father from attempting to contact the children by any means, including through a third party, and from approaching or coming within 200 metres of any place where the children might reside from time to time or attend day care or school.
In mid-2023, a state protection order was made for the benefit of the mother and the children. It has eight conditions, including prohibiting the father from having any contact or communication with the mother or the children.
On 17 July 2023, an affidavit was filed exhibiting the report of another single expert parenting witness Dr F dated 30 June 2023. The report recommended, amongst other things, that:
94.Based on the information gathered in this assessment, the following is recommended:
a. The children remain in the primary care of [the mother].
b. [The mother] has sole parental responsibility for the children.
95.If the court accepts [the mother’s] position that [the father] poses an unacceptable risk of emotional, physical or other form of harm, then it seems prudent that the Court consider Ordering that [X] and [Y] spend no time with [the father] and have no contact with him.
96.That until the Criminal Court proceedings find fact in relation to [the father] and the risk he may or may not pose to the children and [the mother], that the court Orders abide by the Domestic Violence Orders and:
a. The children spend no time with [the father] and do not communicate with him at all.
b. The children’s healthcare providers, school and any extra-curricular activity or other administrators are all advised of the no contact Orders so as to ensure protective factors are in place for the children.
97.It is beyond the realm of the author to make solid recommendations about the children spending time with [the father] until both the criminal proceedings have been finalised and further psychological assessments and diagnosis have been re-conducted as well as appropriate treatments are in place to manage [the father’s] delusions.
98.That consideration be given to lifting restrictions upon [Mr B] spending time with the children with an Undertaking including:
a. That [Mr B] will not be left alone with the children;
b.This will be until such time there is a determination by the criminal court in the context of [the father] posing a risk to the family and the veracity of his allegations.
On 19 September 2023, the mother filed an Application in a Proceeding seeking that the 2021 injunctive orders restraining her from permitting the children to come into contact with Mr B be discharged, and she be permitted to travel with the children internationally. The father contested the application. The Independent Children’s Lawyer (“the ICL”) supported the application.
The Application was heard by a Senior Judicial Registrar on 16 November 2023. The mother’s Application to travel internationally with the children to Country G was adjourned for hearing to 8 March 2024 before Carew J. Judgment was otherwise reserved, being delivered on 21 November 2023. The order made was:
1.That the Mother’s application to suspend Order 2 made 1 June 2021 and to Amend Order 2 made 25 June 2021 and Order 2 made 30 September 2021 be dismissed.
The effect of the order was to dismiss the mother’s Application in a Proceeding to suspend or vary the injunctive orders restraining her from allowing the children to come into contact with Mr B.
THE REVIEW
On 24 November 2023 the mother filed an Application for Review of the order made by the Senior Judicial Registrar on 21 November 2023. The mother seeks the following orders on review:
1.That
(a)Order 2 of the Orders made 1 June 2021 be suspended;
(b)Order 2 of the Orders made 25 June 2021 be amended to read “that the Father be restrained from bringing the children, [Y] born […] 2017 and [X] BORN […] 2013, into contact with his partner” and
(c)Order 2 of the Orders made 30 September 2021 be amended to read “That the Father be restrained from brining the children [Y] born […] 2017 and [X] BORN […] 2013, into contact with his partner”
The ICL broadly supported the mother’s application on condition. As identified in her case outline filed 8 November 2023, the ICL sought:
1. That order 2 of the Order dated 1 June 2021, be discharged.
2.That order 2 of the Order dated 25 June 2021 and September 2021, be amended to read:
“That the father be restrained from bringing the children, [Y] born […] 2017 and [X] BORN […] 2013, into contact with his partner [Ms H]”.
3.That upon the undertaking of the mother being filed, the mother shall not leave the children in the sole care of her partner, [Ms B] at any time and that any time that the children are brought into contact with [Mr B] shall be at all times supervised by the mother.
The father opposes the relief sought by the mother and by the ICL upon review. He seeks for the application to be dismissed.
THE LAW
Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out that the power of the Court on review from an order of a Senior Judicial Registrar is to be exercised by way of an original hearing.
While the risk of harm to the children should they come into contact with Mr B is a central issue in this determination, it is not the only factor to be considered in this review. If there is an unacceptable risk of physical and/or psychological harm to the children should they come into contact with Mr B, the further enquiry is whether that risk can be mitigated such that it is no longer unacceptable.
CONSIDERATION
The mother conceded during the review hearing that the making of the injunctive order sought to be varied was:
(a)A reasonable protective and conservative determination of the Judge on 1 June 2021 pursuant to legislation and relevant authorities, having regard to
(b)The nature and content of the risk posed to the children on the case presented by the father at that time, including his evidence as to the children’s disclosures.
Implicitly, this also applied to the orders made by the Judge and the Senior Judicial Registrar later during that year. The ICL did not submit otherwise.
The mother and the ICL each bear an onus to demonstrate, on the evidence, a sufficient change of circumstances to warrant the Court re-embarking upon a reconsideration of the injunctive order sought to be varied.
The mother submitted that Dr D’s opinions of the father “informs a reading of the father’s material” and that the father’s psychiatric presentation is a “fundamental substratum of the case”. It was submitted that the expert’s opinion as to the father meeting the diagnosis for a Delusional Disorder underscores his processing of information, such that his evaluations as to abuse or risk are impaired as they occur through his “lens of delusion”. If I understand this submission, the mother suggests that the integrity and reliability of the father’s evidence as to she and her partner posing an unacceptable risk to the children requires closer critical evaluation.
The mother submitted that there are two central reasons why the Court should uphold the relief sought on review. The ICL accepted and adopted these submissions made by the mother.
Firstly, she submitted the orders as currently made impose an “artificial arrangement without substantiation of what has led to that arrangement”, in that the allegations of the father have never been made out. The mother identified that the father’s allegations have “never been substantiated by the Queensland police and the Queensland child welfare authorities” and that “no finding” has been made by either determining the substance of the allegations as to the risk posed by the mother and her partner. The mother’s case is that for this reason alone, the injunctive orders ought to be suspended because the father is likely to be a person with a delusional disorder that will “just make allegations”, and as such, the allegations of the father are a “straw man” argument. That is, the gravamen of her complaint is that the father’s evidence of the children’s disclosures, due to the characteristics of his possible Delusional Disorder impairing his capacity to accurately process information, undermines the integrity and reliability of his evidence and allegations such that they should not be accepted by the Court.
As to the mother’s first reason, the ICL submitted some disclosures had been made to child welfare, but they were unsubstantiated.
In response to the mother’s first reason, the father identified the basis of the single psychiatric opinion as the diagnosis for a Delusional Disorder:
Given the nature of [the father’s] concerns regarding the sexual safety of his daughters, I can neither confirm nor refute the possibility these are delusional in nature, however clinically I suspect they are, especially when taken with his concerns regarding being monitored by a GPS, being followed, and the police being involved in some form of conspiracy. These latter beliefs I do believe are delusional in nature.
It is now uncontroversial that the father was not delusional in his concerns as to he and his partner being tracked by a GPS device. Mr B has conceded that he hired a private investigator who installed a GPS device on the father’s motor vehicle to track both the father and his partner. The mother conceded this was the case. I give weight to such admission. The father further submitted that there was a dispute as to whether the mother was complicit or knew of the tracking device. Mr B has denied that was the case. This will be a matter for trial, as will the testing of the single expert psychiatric opinion. There is merit to this submission.
The father further submitted that the older child, X, made disclosures to the children’s treating current mental health practitioner, Ms E, as recently as June 2023, that are indicative of risk being posed by both the mother and Mr B.
He submitted that the reports of Dr F and Dr D, together with the subpoena material from the Department of Children, Youth Justice and Multicultural Affairs, all have not been tested in trial process, and accordingly should not be accepted until such time.
As to the mother’s proposed undertaking providing sufficient mitigation as to risk, the father submitted that the mother has breached undertakings given to the Court such that he and the Court could have confidence that she would comply with any undertaking to supervise the children at all times in the presence of Mr B.
Secondly, the mother submits that since varied parenting orders were made on 9 June 2023 the children have been in her full-time care. Prior to that time, she was able to spend time with Mr B as a domestic couple in her home, progressing the relationship. She now cares for the children without respite. She submitted that her relationship with Mr B may erode if they cannot spend time together, which may, in turn, have an indirect effect on her welfare and upon the welfare of the children.
As to the first reason to vary the injunctive orders, it is inexplicable that neither the mother, the father nor the ICL adduced evidence on review as to:
(a)The reasoning of the Federal Circuit Judge when making the primary orders;
(b)The documents produced on subpoena by the Queensland Police and Department of Child Safety as to the children’s allegations. There was a vacuum in the evidence as to the terms of or content of those investigations on the hearing of the review; or
(c)The clinical notes of Ms E, the children’s current treating therapist.
Neither the mother nor the ICL relied on affidavit evidence of Mr B as to the allegations of risk, or at all. The mother proffered no evidence as to her enquiries of Mr B regarding the installation of GPS tracking device. Mr B could provide evidence as to his role in the GPS tracking device of the father and his partner. He could engage directly with the allegations made of abuse and risk. This evidence was within the province of the mother to adduce. She did not.
In oral submissions the mother conceded that evidence as to her second identified reason for suspension or variation was broad and absent any particularity. The entirety of her evidence on this subject matter is contained in two paragraphs of her affidavit filed 19 September 2023:
19.As an immigrant in Australia, I have no local family support and a limited support network. The current orders restrict me from getting any help or support from my partner [Mr B] who plays a significant role in providing me and my family with emotional and practical support.
20.[Mr B’s] ability to be present would greatly assist me in managing my family responsibilities and contribute directly and indirectly to the welfare of the children and myself.
For the last two and a half years the children have not spent time or communicated with Mr B. The expert evidence records that Mr B spends week-about time with his own children from a previous relationship.
No proposal was put by the mother for any scaffold to ensure a sensitive re-introduction of the children to Mr B. No submissions were made as to the terms of any historical or proposed practical or emotional support to be provided by Mr B. The mother neglected to submit why contact with him is in the best interests of the children, beyond that Mr B would be able to assist her in “managing [her] family responsibilities”, whatever that may mean. The mother could have adduced evidence as to his ability to promote the children’s best interests through having contact and communication with them. She did not do so.
The ICL further made submissions as to the possible detrimental effect on the mother’s mental health if she does not spend time with Mr B, and a consequential impact on her parenting of the children. The ICL conceded that there was not a scintilla of evidence to support this submission.
In the single expert witness report of Dr F filed 4 July 2023, he opined:
78.Multiple risks have previously been identified for the children. These include family violence, parental mental health, sexual abuse allegations and the impact of same on both [X] and [Y’s] safety, sense of emotional security, and wellbeing with each parent.
The expert had access to the documents produced on subpoena by Queensland Police Service, the Department of Children, Youth Justice and Multicultural Affairs and of the Children’s treating therapist, Ms E. None of those documents were placed into evidence before the Court on the hearing of the review.
Submissions were made as to recent dysregulated behaviour being exhibited by the children. At best, such evidence was indirect and historic by way of the expert’s report. It did not find its way into the mother’s affidavit. At this point, it is difficult to identify the underlying reasons for this behaviour other than by speculation.
The mother did not engage with the father’s contention as to her prior failures to comply with undertakings given to the Court or with orders. She did not give evidence as to the circumstances she expected should Mr B come into contact with the children, how she would manage that circumstance, or as to Mr B’s attitude to the proposed undertaking. There was a lacuna in the evidence as to how she could in practice comply on a day-to-day basis with the terms of the undertaking as promoted by the ICL.
Another factor to consider is the likely period of continuation of the injunctive order, or for how long its suspension or variation will remain in effect. It is agreed that the matter will be ready for trial after the father’s criminal matters are determined. They are next listed for allocation of trial dates in the Brisbane Magistrates Court in early 2024. It was agreed that his charge(s) will be determined summarily in that forum between early and mid-2024. That determination may provide some clarity to the issues for trial and progress the evidence for the final hearing of this matter.
CONCLUSION
The fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it. The difficulties of determining cases which concern children in interim proceedings, which are necessarily an abridged process wherein evidence cannot be tested, are well known. The father’s allegations as to the disclosures of the children, the Delusional Disorder diagnostic opinion of the father by Dr D and other matters, such as the tracking device, are all serious matters which have not been the subject of testing.
Allegations of risk to children, that have been appropriately accepted on an interlocutory basis, cannot later be disregarded absent persuasive evidentiary foundations for doing so. Risk assessments have been made properly and appropriately in 2021 by both a Judge and a Senior Judicial Registrar. The Court on review must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the orders which meet the children’s best interests.
I find it would be unsafe to disturb an interim order made to reduce the risk of the children’s exposure to harm when evidence of the alleged harm has not yet been tested and judicially determined. On balance, it is in the best interests of the children to act conservatively and leave the restraint in place pending trial. The mother, notwithstanding the support of the ICL, has failed to discharge the evidentiary onus to demonstrate a relevant change in circumstance to warrant interference with the injunctive order. I am not satisfied in any event that a variation of the order, in the terms sought by the mother or the ICL, would best promote the best interests of the children at the current time. The matters as agitated shall be determined at a final hearing.
The matter can be listed before Justice Carew for case management. The allocation of trial dates and the continuation of the current position may not be for a significant period.
For all the reasons set out, the mother’s Application for Review filed 24 November 2023 will be dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 7 February 2024
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