Pettigrew and Bautista

[2015] FamCA 366

FAMILY COURT OF AUSTRALIA

PETTIGREW & BAUTISTA [2015] FamCA 366

FAMILY LAW – CHILDREN – Interlocutory Application – Where each party sought interim residence and sole parental responsibility for the child – Where the child has meaningful relationships with both parents – Where the child is displaying highly sexualised behaviours – Where the mother appears dismissive of the concerns raised by the father, the child’s school and the Department – Where the evidence raises sufficient concern about the risk of the child suffering psychological harm if she continues to live with the mother – Child to live with the father – Child to spend supervised time with the mother – No order made in respect of parental responsibility

Family Law Act 1975 (Cth), ss 60CC, 61C, 61DA, 62B, 65DA, 65DAC, 68L

APPLICANT: Mr Pettigrew

RESPONDENT: Ms Bautista

FILE NUMBER: MLC 5574 of 2010

DATE DELIVERED: 17 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Austin J

HEARING DATE: 17 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Robert Halliday & Associates

COUNSEL FOR THE RESPONDENT: Mr Phaedonos

SOLICITOR FOR THE RESPONDENT: Borchard & Moore

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. The orders made on 20 August 2012 in respect of the child B born … 2008 (“the child”) are suspended.

2. The child shall live with the father.

3. Each of the parties shall take all reasonable steps to ensure that the child spends supervised time with the mother for three hours every weekend, commencing Saturday, 21 March 2015, upon the following conditions:

   (a)  a supervisor of the time spent by the child with the mother shall be drawn by ballot from the respective choices of the parties;

   (b)  each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

   (c)  the time that is spent by the child with the mother each weekend shall commence at the time designated by the supervisor;

   (d)  the venue at which the time is to be spent by the child with the mother each weekend shall be designated by the supervisor;

   (e)  the parties shall pay in equal shares the costs due to the supervisor;

   (f)   the father shall cause the delivery of the child to, and the collection of the child from, the supervisor at the commencement and conclusion of the time spent by the child with the mother;

   (g)  the mother and father shall comply with all reasonable requests and directions of the supervisor; and

   (h)  leave is granted to the parties to provide to the supervisor a sealed copy of these orders.

4. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates by telephone with the mother each Wednesday at 7:00pm and for that purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure the child is able to receive the mother’s calls on that number at that time.

5. Each party shall forthwith inform the other and keep the other informed in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

6. Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the child from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on the Watch List for a period of no longer than

   
   

   12 months.

7. Leave is granted to the parties to provide a sealed copy of these orders to the principal of the school currently attended by the child.

8. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

9. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

10. Any and all outstanding applications for any interim orders are dismissed.

11. Pursuant to pursuant to s 68L (2) of the Family Law Act the child be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such representation.

12. The parties shall within seven days hereof provide to the solicitor in charge of the Family Law Section of Victoria Legal Aid, Melbourne Office, copies of the documents they have respectively filed in these proceedings.

13. The Registrar of the Family Court of Australia shall forthwith forward a sealed copy of these orders to the solicitor in charge of the Family Law Section of Victoria Legal Aid, Melbourne Office.

14. The Victorian Department of Human Services IS REQUESTED to prepare and furnish to the Court within 35 days hereof a Report pursuant to the Magellan Case Model Protocols (“the Magellan Report”) concerning the allegations of the father contained within the Form 4 Notices filed by him in these proceedings.

15. Copies of the Magellan Report shall, upon its receipt from the Director General, be given by the Registrar of the Family Court of Australia, Melbourne to:

    (a)  the parties and their lawyers;

    (b) the lawyers representing the child in the proceedings pursuant to order made under s 68L(2) of the Family Law Act; and

    (c)  if a party is legally aided, employees of the Legal Aid body providing financial assistance to the party, but only upon request from an employee of the Legal Aid body.

16. Except with the Courts permission, no person is to release the Magellan Report or provide access to the Report to any person other than those mentioned in the previous order.

17. The Registrar of the Family Court of Australia, Melbourne shall forthwith forward to the Director General of the Victorian Department of Human Services:

    (a)  a sealed copy of these orders;

    (b)  a copy of each Form 4 Notice filed in these proceedings; and

    (c)  any other document or part thereof containing allegations warranting the provision of a Magellan Report.

18. The further hearing of this matter is adjourned until to the Magellan Case Callover before Senior Registrar FitzGibbon at 10:00am on 27 May 2015. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pettigrew & Bautista has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5574 of 2010

Mr Pettigrew

Applicant

And

Ms Bautista

Respondent

EX – TEMPORE

REASONS FOR JUDGMENT

1. The dispute between the parties requiring the Court’s determination today is an application made by each party for the interim residence of a child who is currently six years of age (“the child”). 

2. The parties formally concluded parenting proceedings between them in respect of the child on 20 August 2012, when final parenting orders were made between them by consent. In essence, those orders provided for the child to live with the mother, but to spend substantial and significant time with the father, and equal shared parental responsibility for the child was allocated to the parents. The extent of the substantial and significant time spent by the child with the father encompassed each and every weekend and time in school holiday periods.

3. Those orders prevailed, relatively unexceptionally, until only a month ago, although it is plain that both parties had some level of dissatisfaction with the manner in which the orders were implemented in more recent months. 

4. These current proceedings were started by the father on 20 February 2015, when he filed an Initiating Application seeking both fresh interim and final parenting orders. Contemporaneously, he filed a Form 4 Notice of Child Abuse, foreshadowing a dispute in the fresh proceedings about the exposure of the child to unacceptable risk of harm through sexual abuse.

5. The mother responded only several days later by filing both a Response and an Application in a Case, although, it appears to me, the orders she seeks in both those documents are identical. In essence, she seeks a recovery order so as to enable the child’s removal from the father (he having detained her in late January 2015) and return of the child to her primary residential care.

6. More recently, the father filed a Response to the mother’s Application in a Case. They are the applications which currently require determination.

The evidence 

1. I should identify the affidavit material upon which the parties have each relied. 

2. In prosecuting his application, the father relies upon:

   a)His first affidavit filed 20 February 2015;

   b)His second affidavit filed on 13 March 2015; and

   c)The affidavit of his current partner, Ms C, filed on 23 February 2015. 

3. To prosecute her application, the mother relies upon:

   a)Her first affidavit filed on 24 February 2015;

   b)Her second affidavit filed on 13 March 2015;

   c)The affidavit of Mr D, filed on 27 February 2015; and

   d)The affidavit of Ms E, filed on 24 February 2015.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

2. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

3. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents, though that presumption may either not apply or be rebutted in the circumstances of the case. 

4. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other. 

5. If parental responsibility for the child is allocated in some other way then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being a paramount consideration.

Child’s best interests

1. Against that statutory background, I turn to examine the evidence which the parties have filed. 

2. In about mid-2014, concerns were raised at the child’s school about her sexualised behaviour, which behaviour came to be investigated by the Victorian Department of Human Services (“the Department”). In essence, the child and some of her school peers were in the same cubicle within the school toilet block and older children reported to a teacher on duty that the children were pulling their pants down and kissing one another. It was alleged the child was kissing one of the other girls on or about her naked genitals. 

3. The children were each individually interrogated by the school staff and, in various forms, they made concessions about the nature of their behaviour.  Concessions of a similar sort were made by the child when she was interviewed by staff of the Department. 

4. At that particular point in time, the child’s behaviour was raised directly with the mother by investigating officers and a contemporaneous note made by one of the officers provided:

   Mother holds no safety or welfare concerns about the subject child being with her father.  Mother is most concerned about the father not returning the subject child at the agreed time or keeping her too long. 

5. At or about the same time, a file note made by school staff in the child’s school file noted the mother was told by the staff member that:

   In her experience, the behaviour the child was displaying was often displayed by someone who was being sexually abused.

6. Notwithstanding the mother being notified by both school staff and the Department that the child had been acting in a sexualised way, which was consistent with her sexual abuse or her involvement in inappropriate sexual behaviour, the mother was dismissive of the problem. She did nothing, as far as the evidence is concerned, to have the child counselled and she did not raise the matter thereafter with the father. 

7. The father deposed that he held concerns for the child as a consequence of her sexualised behaviour over a period of time. He observed her to pull her dress up above her waist; say rude words in both English and Filipino languages; to jump onto a couch, throw her legs in the air and rub her genitals; to dance in a manner which emphasised her bottom; and, on occasions where he has raised those issues with the mother, he alleged the mother:

   ...consistently told me that there are no problems except for in [his] head.

8. The father’s partner, Ms C, deposed to her observations of the child acting in a similar sexualised way and she also deposed that she had seen the child try to teach some other child to say the words “eating pookie”, which she alleged meant “eating pussy” in a language other than English.

9. Ms C also alleges, although it is denied by the mother, that on an occasion in July 2014, at a time proximate to the child’s sexualised behaviour at school, the mother said to Ms C in the child’s presence:    

   I keep sucking [Mr G] as long as he gives me $700 even if his dick smells.

10. And she alleges that the mother also said:

    I have to do oral sex to [Mr G] to get money.

11. The problem with the child’s behaviour developed to the extent that the father raised the problem with the mother in writing. The mother herself concedes that, in late November 2014, the father handed her a typed but unsigned letter expressing concerns about the child’s welfare. The letter was annexed to the mother’s affidavit and, relevantly, in that letter the father complains to the mother:

    I am also majorly concerned that you are exposing [the child] to highly inappropriate behaviours around sex, as well as [the child] actually seeing you with different men in the bedroom. To me this is a great concern as [the child] is only five years old and I think we both want her to have a healthy and prosperous childhood.

12. Only days later, the mother typed and signed a letter in reply which she handed back to the father. Insofar as it addressed the father’s concern about the sexualised behaviour of the child, the mother said:

    Talking about inappropriate behaviours, it was your action towards our daughter, [the child], that landed us in a police interview as well as questions raised by school authorities.  I have always raised my children in a safe and God-faring environment and I do not see any problem with this.

13. One of the behaviours of which the father and his current partner have complained in these proceedings is to the way in which the child is permitted by the mother to act in her home. There can be little doubt about it because a video of the child was posted on a Facebook page controlled by the mother showing the child dancing seductively and provocatively to a song well known in popular culture, the lyrics of which would be most benignly described as inappropriate for a six year old child. They are highly sexualised. 

14. I do not accept the mother’s protestation that she has: 

    …always raised my children in a safe and God-faring environment.

15. There could be little doubt that behaviour of that sort by a six year old child should not be condoned. 

16. In any event, that was not the end of the complaints. More recently, over the summer holidays in January 2015, Ms C deposed to the child telling her that when she showers in the mother’s house with her older male sibling, that sibling would ask her to hold and kiss his penis.

17. It appears, from the evidence placed before the Court, that event was the straw that broke the camel's back. Rather than act on any particular incident in isolation, the father became concerned about an accumulation of circumstances related to both the child's representations and conduct in the period between July 2014 and January 2015. He decided to act by retaining the child in his care, by seeking legal advice, and by the institution of these proceedings in order to preclude the child's further interaction with the mother, other than in much safer circumstances.

18. Very little of the evidence to which I have just adverted is actually controversial. Although the mother deposed to her denial of the evidence of

    
    

    Ms C about what Ms C observed and heard from the child, clearly, the mother did not mean she denied it. She could not have, because she was not present to either see or observe what the child said to Ms C in the father's household. The highest her evidence can be interpreted is a refusal to accept the veracity of Ms C’s evidence, which is a quite different thing from a deposed denial. 

19. No reason or submission could rationally form the basis for summary rejection of the evidence adduced in these proceedings by the father and his partner, Ms C. The evidence is of such nature that evokes concern and which impels the Court to make orders varying the existing arrangements for the child regulated by the orders made on 20 August 2012.

Conclusions and orders

1. I earlier referred to the presumption of equal shared parental responsibility and its significance to these proceedings. Section 61DA of the Act requires the Court to apply a rebuttable presumption that the parties should have equal shared parental responsibility for the child.

2. The parties, when they agreed upon final orders some years ago in

   
   

   August 2012, agreed to the allocation of equal shared parental responsibility. The law, however, requires me to reconsider the allocation of parental responsibility for the child, because there is a fresh contest over parenting orders. Now, both parties want sole parental responsibility for the child, at least on an interim basis.

3. Section 61DA(2) of the Act would render the presumption of equal shared parental responsibility inapplicable in the event of evidence which satisfied the Court the child had been abused by a parent. No allegation is made by the father that the mother directly abused the child. Rather, his allegation is that any sexual misadventure which has befallen the child occurred in the mother's household rather than his own.

4. Because there is such a grave dispute about the origin of the child's representations and behaviour, it is inappropriate to apply the presumption of equal shared parental responsibility. The parties are so riven by their controversy that little confidence exists they would be able to exercise equal shared parental responsibility in the manner envisaged by s 65DAC of the Act. In those circumstances I do not think it appropriate to apply the presumption of equal shared parental responsibility at this interim stage. Section 61DA(3) of the Act enables me to take that course.

5. However, rather than to allocate sole parental responsibility for the child to either party, I intend to make no order in respect of parental responsibility and, as a consequence, the parties will individually retain parental responsibility for the child pursuant to the provisions of s 61C of the Act.

6. I have not addressed any of the individual features prescribed by s 60CC of the Act. Many are irrelevant to the current proceedings.

1. Both parties accept, pursuant to s 60CC(2)(a) of the Act, that the child has a loving and meaningful relationship with both parents and that ought continue.

2. There is no allegation in this case that either party does not have the capacity to cater to the child's physical and intellectual needs. So far as the mother's case is concerned, she does not allege the father cannot cater to the child's emotional needs. That, however, is the focal point of the proceedings so far as the father is concerned. He does not concede the mother has the capacity to cater to the child's emotional needs because of what he perceives to have been the child's exposure to sexually inappropriate conduct in and around the sphere of the mothers' influence.

3. The evidence adduced by the parties in relation to this interim dispute centres upon the application of s 60CC(2)(b) of the Act, which is a primary consideration in the determination of what orders will meet the child's best interests. I am satisfied by the evidence before the Court, untested though it is, that there is presently an unacceptable risk of the child suffering psychological harm if she continues to live with the mother or to spend time in her unsupervised care.

4. It may be that the evidence can be interpreted in a completely different way at final trial once the evidence is tested, but at this point in time the evidence raises sufficient concern that the Court is obliged to act in a protective manner.  The only appropriate way for the Court to handle the interim dispute is to vindicate the reversal of the child’s residence by ensuring she lives with the father, but preserving her relationship with the mother by ensuring she continues to see the mother, albeit under supervision.

5. It is not appropriate to order the child to spend unsupervised time with the mother in her household because that is where the father alleges the child has been exposed to problematic sexualised conduct. I intend to make orders for the child to live with the father and to spend supervised time with the mother. 

6. Unfortunately, none of the affidavit material adduced by either party addressed the prospect of the child spending supervised time with the mother. The supervision will need to be provided by some independent party – either a private or governmental organisation retained by the parties – and so, to that extent, the orders I make will necessarily be somewhat arbitrary.

7. The father did not want to be heard against a proposal for him to bear equally the costs of supervision and so I intend to make an order that both parties contribute to the cost of supervision equally.

8. Aside from the substantive dispute, there was an argument about whether or not this case should be designated for inclusion in the Court’s Magellan protocol.  Magellan cases are those which involve allegations of “sexual abuse” or “serious physical abuse” of children. There is a suggestion in this case that the child was sexually abused or treated as a sexual object by another child in the mother's household. The mother refuses to accept that that is so. There is, therefore, a factual dispute over the nature of the allegations that are pivotal to the outcome of the case. I am satisfied the case falls within the Magellan definition and I intend to make procedural orders that will place the case on a Magellan case management pathway.

9. One final issue to which I must advert is the father's application for the child to be placed on the Airport Watch List, on the basis the mother is Filipino and retains sole possession of the child's passport. The father is concerned the mother might spirit the child away to the Country H, beyond the reach of the Court. The matter was not addressed at all by the solicitor for the mother, in which circumstance I presume the order is not the subject of contest and I therefore intend to make it.

10. I also make an order permitting the parties to release the orders to the principal of the child's current school so the school is aware of the nature of the orders I have made.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 March 2015.

Associate: 

Date:  19 May 2015