Perego & Perego

[2021] FCCA 1051

FEDERAL CIRCUIT COURT OF AUSTRALIA

Perego & Perego [2021] FCCA 1051

File number(s):

PAC 5325 of 2020

Judgment of:

JUDGE OBRADOVIC

Date of judgment:

19 May 2021

Catchwords:

FAMILY LAW – Interim Parenting – short form reasons – young child – best interest of child – assessment of risk – child to live with mother – child to spend time with father initially supervised to progress to unsupervised time.  

Legislation:

Family Law Act 1975 (Cth), s 69ZL

Cases cited:

Goode v Goode [2006] FamCA 1346

Keats & Keats [2016] FamCAFC 156

Number of paragraphs:

35

Date of hearing:

29 April 2021

Place:

Heard in Parramatta, Delivered in Canberra

Counsel for the Applicant:

Mr Givney

Solicitors for the Applicant:

Apex Legal

Counsel for the Respondent:

Ms Giacomo

Solicitors for the Respondent:

Kenneth Harrison Solicitor & Attorney

ORDERS

PAC 5325 of 2020

BETWEEN:

MR PEREGO

Applicant

AND:

MS PEREGO

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	19 MAY 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1.The child, X, born in 2017 shall live with the mother.

2.The child shall spend time with the father as follows:

(a)for a period of three months from the date of these orders on no less than two occasions of two hours each week, supervised by an appropriate supervising service or centre, as nominated by the father within 7 days;

(b)thereafter for a further period of three months, each Tuesday from 3pm to 5pm and each Sunday from 9am to 11am; and

(c)thereafter, each Tuesday from 3pm to 7pm and each Sunday from 9am to 5pm.

3.The costs of the supervision be shared equally by the parents.

4.The parents are to do all acts and things necessary to comply with the intake process of the supervisions service or centre.

5.The child communicate with the father via FaceTime or other appropriate application, each day the child is not spending time with him, between 6.00pm and 6.15pm for a period of no longer than 15 minutes.

6.The matter is listed for directions at 11:30am on 20 September 2021.

7.The parties are to file a jointly drafted agreed statement of issues 7 days prior to the directions hearing, together with an agreed minute of order for the further progress of the matter.

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 under the pseudonym Perego & Perego is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. These are short form reasons pursuant to s.69ZL Family Law Act 1975 (Cth) (“the Act”).

2. X was born in 2017. He presently lives with his mother, the respondent in these proceedings, and he has not spent any time with his father, the applicant in these proceedings, since September 2020.

3. The parties separated in January 2020, when X was 2 years and 2 months old.

4. From separation until September 2020, X spent time with the father, including overnight time. On 13 September 2020, the child spent time with the father supervised by the maternal grandmother. Since that date, the parties have not been able to agree to the child spending any more time with the father.

5. On 7 October 2020, the father commenced these proceedings. At the first return date of the application for parenting orders, namely 25 November 2020, the matter was set down for an interim hearing on 29 April 2021.

6. On 25 November 2020, the mother through her solicitor notified the father of an image which she had located on his phone. In her evidence she describes the image as “a clear image of small boy of about 3 to 4 years of age who had his penis in the mouth of a lamb”. The father, through his evidence, is said to have described the image as “a cartoon depiction of a male child sustaining an animal bite to his penis”. The image itself is not in evidence.

7. On 25 November 2020, following the first Court event, the mother attended upon New South Wales Police to report the matter of the image. Exhibit 1, being the police records, show that the mother located the image on the father’s phone on 24 October 2020. The mother’s sworn evidence is that she first saw the image on 19 November 2020.

8. Since receiving the complaint on 25 November 2020, the Police have taken the mobile telephone into their custody and the matter is under investigation.

9. The evidence is that the mother had access to that particular mobile phone since July 2020 and that she had been scrolling through the photographs on the father’s phone when she had located the image. She does not report any similar image being seen by her, and it is inferred that if she had seen other similar images that she would have similarly reported those matters to the Police. The mother submits that at least until the police investigation is concluded, that there should be an order for no time between the child and the father. The mother submits that there is an unacceptable risk to the child if he were to spend any time with the father. It is submitted that if the father is charged with any offences relating to the image (or any other images), then the question as to whether it is in the child’s best interests to spend any time with the father in the future looms large.

   The evidence before the Court

10. As noted earlier, the parties separated in January 2020, and the parties were able to come to arrangements for the child to spend time with the father until May 2020, including overnight time, and then on one occasion in September 2020. The mother says that X would become distressed at being separated from her and that this is why she was reluctant to facilitate time.

11. The mother’s evidence is that she never stopped the father from seeing X, and that she tried to explain to the father that the parents needed to work slowly, and work towards sleep overs, as the child was not used to being with the father. She then goes on to say that when the father threatened that he would take the child to Country B if she “did not allow him to come and take X anymore”. It is confusing that the mother is on the one hand saying she never stopped the child spending time with the father but then on the other hand saying she did not allow the father to take the child to spend time with him anymore.

12. It is certainly agreed between the parents that the child spent overnight periods with the father following separation, that the mother then made the decision that she would not be facilitating such time anymore due to her concerns about the child’s separation anxiety, that the child did not spend time with the father from 24 May 2020 until the second week in September on one occasion supervised by the maternal grandmother and for a very limited period of time, and not again since then. The time between the child and the father has been sporadic at best.

13. The parents are also in agreement as to the following matters:

    a.The parents were married in 2015.

    b.During the parties’ relationship, the father operated a business in which he worked long hours.

    c.The parents separated in January 2020.

    d.The child spent time with the father, including overnight time post separation.

    e.The parents attended a mediation in September 2020, but were unable resolve the parenting dispute.

    f.The child has not spent any time with the father since 13 September 2020.

14. The mother’s evidence is that during the parties’ relationship, the father was not an interested or involved parent and that he was at times, abusive and violent towards her.

15. The police records (Exhibit 1) reveal that:

    a.On 24 October 2020, the mother located the image on the father’s phone, that she “took a photograph of the screen with her phone and sent it to her solicitor”.

    b.The mother did not report the matter of the image to the Police immediately as she believed that if she reported it, the Police would think that she was making it up to make her Family Law Court case better.

    c.The mother had informed her solicitor however, did not give the solicitor instructions as to what to do with the image.

    d.On 9 April 2021, the mother attended the Suburb C Police Station “wishing to document her relationship history”. She provided details of a pre-nuptial agreement, that she was employed by the father but that the working conditions were not legal, that after the child was born the father required her to return to work immediately and did not allow her maternity leave, that the father slept with his mobile in his underwear (although the parents did not sleep together and the father would lock the mother out of his bedroom), and that on 7 April 2021, she arrived at her grandmother’s house observed a motor vehicle parked across the house, saw a person inside it whose face she was not able to see, but feared that it may be the father. The motor vehicle then tooted its horn and another vehicle drove down the street, and the motor vehicle followed. The mother did not recognise either of the vehicles.

16. Despite apparently going to the Police on 9 April 2021 to document her relationship history, the mother does not appear to have reported to the Police, many of the matters which she has deposed to in her affidavit, including the serious allegations she makes against the father of abusive behaviour towards her.

17. At the time of the filing of her Response, namely on 24 November 2020, which on the evidence is after she had told her legal representatives about the image she had located on the father’s phone, the mother sought orders for the child’s time with the father to be limited to two occasions of one hour each week, and that such time be supervised by a member of the mother’s family.

    COURT’S DETERMINATION

18. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact.

19. Even in such constrained circumstances, the Court is still required to determine the applications before it.

20. In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).

21. X is a young child of 3 years and 7 months. The last time he spent time with his father was 8 months ago, and the time before that was another 3 to 4 months prior. The mother says he is very attached to her and does not like being separated from her. The mother is the child’s primary care giver, and likely his primary attachment figure.

22. While the father says in his evidence that he was an involved father and that he did take a very strong interest in caring for the child, it appears to be uncontroversial that the father during the parties’ relationship, worked long hours in his business. It also appears to be uncontroversial that he has had a limited opportunity of spending time with his young son since January 2020.

23. If time was to occur between the child and the father there will likely be a period of adjustment for the child, particularly noting the concerns the mother raises about how he previously coped with being away from her and spending time with the father, including overnight time. He is however, now a year older then when he last spent overnight time with the father.

24. Of bigger concern though is the risk which the mother says the father potentially poses to the child. Neither parent immediately reported the image to the Police upon being made aware of it.

25. The father says it was shared through a group of his friends, and that whilst inappropriate, it is not an image as described by the mother. The father says that he barely recalls receiving the image and that he considered it an attempt at humour by the person who sent it to him years ago. The father did not consider the image to be sinister when it was sent to him.

26. Annexed to the father’s affidavit is a report from a psychologist, Mr D. The father was referred to Mr D for a psychological assessment, which was conducted over two one-hourly consultations on 25 March 2021 and 14 April 2021. Mr D notes as follows:

    It is [the father’s]… opinion that the cartoon was circulated in the context of humour. He did not consider the cartoon to be inherently offensive or pornographic in nature. He made no efforts to conceal the cartoon from his wife, whom he claims regularly checks his phone. He made no effort to delete the image. I assume the subject image is the solitary image in the pone which is considered distasteful. Should the subject image be considered to be evidence of pornography, the matter should be referred to NSW Police.

    …

    During the assessment I was unable to establish any evidence which supported the proposition that [the father]… demonstrates a sexual attraction to children.

    …

    During the assessment I could establish no evidence that [the father]… represents a risk to his child or any other children.

27. The mother of course was not interviewed by Mr D, nor did Mr D have the opportunity of viewing the image in question. Mr D’s opinions are therefore of limited weight, but still relevant.

28. The father argues against an order for supervised time, and submits through his counsel that there is no allegation of any inappropriate behaviour towards the child or indeed any children, and that the evidence of risk is so scant so as not to warrant supervision. It was submitted on behalf of the father that the child should be reunited with the father immediately as the child is now of an age that children are developing attachments, and that unless there is time between the child and the father any attachment the child has with the father will be insecure, and that this is where the abuse would be.

29. The mother submits that there should be no time until the Police investigation is completed. One then asks, how long will the investigation process take? What if there are no charges? What if charges are laid? How long might a prosecution take? What if ultimately, charges are laid, the father is prosecuted for something but acquitted. This will likely take years. All the while, X is growing older and if the mother succeeds in her application, he is denied a relationship with his father.

30. It has been submitted in the mother’s case that she has been advised of the Police downloading some 35,000 images from the father’s phone. There is nothing in the police material which indicates this. The mother’s evidence is that she scrolled through the father’s phone, checking his messages and later checking his photographs, and only came across this one image.

31. The New South Wales Police received the mother’s complaint on 25 November 2020. To date, the Police have not taken any steps to interview the father nor to lay any charges. It has been close to 6 months. Indeed, the father says that he has not been contacted by the Police at all, in relation to any matter.

32. While the Court accepts that at times it is appropriate that it take a cautious approach, the risks which have been identified in the mother’s case are capable of being ameliorated by an order that the child spend supervised time with the father. It is a balancing exercise, on the one hand ensuring that the child is safe from harm while on the other hand ensuring that the child has the benefit of a meaningful relationship with the father, which on the father’s evidence he has in the past had.

33. An order for supervised time will also ensure there will be a gradual process of reintroduction of time between the child and the father. Time will be supervised for a limited period only, and then proceed to unsupervised time. This will allow further time for any investigations which may be undertaken by the Police to be finalised, and if there is to be any action taken by the Police the parties will have the opportunity of bringing an appropriate application in respect of unsupervised time which will be now ordered.  

34. In all of the circumstances, the orders which the Court makes will put in place appropriate safety guards to ensure that the risk of harm identified in the mother’s case is minimised and appropriately dealt with.

35. For those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

36          I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 19 May 2021