Federal Circuit and Family Court of Australia
(DIVISION 1)
Pires & Nandi [2022] FedCFamC1F 842
File number(s): PAC 2661 of 2020 Judgment of: SMITH J Date of judgment: 3 November 2022 Catchwords: FAMILY LAW – PARENTING – Where there is one child aged eight – Where the child lives with the mother – Where the mother believes the father has groomed the child and taken sexual pleasure from her – Where the father denies this – Where the child has made no disclosures of sexual abuse – Where the Court is not satisfied that the father has groomed or sexually abused the child – Where the Court does not consider that the father poses an unacceptable risk of sexual, or other, harm to the child – Where the Court finds that the mother was not acting maliciously but genuinely believed and believes that the father posed, and continues to pose, a risk of sexual harm to the child – Where the mother has avoided involving the child in the allegations to date – Where the mother has not sought to undermine the child’s relationship with the father despite her beliefs – Where the child has a meaningful relationship with both parents – Where the father accepts the child should live primarily with the mother and an equal time arrangement would not be in the child’s best interests – Where there is overwhelming mutual distrust between the parents – Where it is not feasible for the parties to effectively share equal parental responsibility – Where the Court is concerned, however, about the mother’s exercise of parental responsibility in relation to secondary schooling: Ordered that the mother have sole parental responsibility, except for selecting a secondary school which is to be shared, provided she take into consideration any views expressed by the father – Ordered that the child live with the mother – Ordered that the child spend time with the father – Ordered that the mother engage with a psychologist – Other orders. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth) ss 60CC, 60CC(2), 60CC(3)
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Carlson & Fluvium [2012] FamCA 32
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Re Andrew [1996] FamCA 43
Division: Division 1 First Instance Number of paragraphs: 384 Date of last submission/s: 5 May 2022 Date of hearing: 26-29 April, 5 May 2022 Place: Sydney Counsel for the Applicant: Ms Swart Solicitor for the Applicant: Sarah Bevan Family Lawyers Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: Shorehills Legal Solicitors Counsel for the Independent Children’s Lawyer: Ms Hamilton Solicitor for the Independent Children’s Lawyer: Mahony Family Lawyers ORDERS
PAC 2661 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PIRES
Applicant
AND: MS NANDI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
3 NOVEMBER 2022
THE COURT ORDERS THAT:
Parental…
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- Pires & Nandi [2022] FedCFamC1F 842
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- [2022] FedCFamC1F 842
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CaseChat Overview and Summary
Pires & Nandi was a case before the Family Court of Australia involving a dispute between the parents of a child, the father and the mother. The primary issue was the mother's belief that the father had engaged in sexually inappropriate and abusive behavior towards their child, which she claimed led to her decision to separate from the father and seek sole custody. The mother alleged that the father had acted as a predatory sex addict, and she sought to restrict his access to the child on the basis of these allegations. The father denied any wrongdoing and sought to maintain a shared parenting arrangement.
The court was required to determine the credibility of the mother's allegations and their impact on the best interests of the child. This involved assessing the evidence provided by both parties, including affidavits, witness statements, and expert opinions. The court also had to consider the mother's credibility and the reasons behind her decision to separate from the father, as well as the father's response to the allegations and his proposed parenting arrangements. Ultimately, the court had to decide whether the mother's concerns were justified and whether they warranted limiting the father's access to the child.
The court found that the mother's allegations were not substantiated and concluded that the mother's belief in the father's predatory behavior was not well founded. The judge noted inconsistencies in the mother's evidence and highlighted that her allegations were not supported by any concrete evidence or corroboration. The court also considered the impact of the maternal aunt's and paternal grandmother's involvement on the child and the family dynamics. The judge ruled that the father's access to the child should not be restricted based on the unsubstantiated allegations. The court ordered that the parties participate in a parenting course and that a further parenting plan be developed with the assistance of a Family Consultant.
The court was required to determine the credibility of the mother's allegations and their impact on the best interests of the child. This involved assessing the evidence provided by both parties, including affidavits, witness statements, and expert opinions. The court also had to consider the mother's credibility and the reasons behind her decision to separate from the father, as well as the father's response to the allegations and his proposed parenting arrangements. Ultimately, the court had to decide whether the mother's concerns were justified and whether they warranted limiting the father's access to the child.
The court found that the mother's allegations were not substantiated and concluded that the mother's belief in the father's predatory behavior was not well founded. The judge noted inconsistencies in the mother's evidence and highlighted that her allegations were not supported by any concrete evidence or corroboration. The court also considered the impact of the maternal aunt's and paternal grandmother's involvement on the child and the family dynamics. The judge ruled that the father's access to the child should not be restricted based on the unsubstantiated allegations. The court ordered that the parties participate in a parenting course and that a further parenting plan be developed with the assistance of a Family Consultant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
SMITH J
It was clear from her affidavit evidence, and despite what she said in cross examination, that the mother formed the opinion that, consistent with her view of the father as a predatory sex addict, he secretly engaged in sex tourism when he was meant to be on holidays back home in Country F.Early 2018: Mother's decision to finally separate The mother said that after this she wanted to leave the former matrimonial home but felt financially trapped, had no family in Australia, and was dependent on the father, and so she sought out personal counselling with a Family Relationship Centre. She said in cross examination that she attended on a “[Ms T]” in early 2018 through Relationships Australia. It was after this, in early 2018, that the mother told the father that she wanted to live in different houses. This caused further conflict between the parties.Maternal aunt and paternal grandmother The mother invited her aunt, Ms W ("the maternal aunt"), from Country F to come and stay and provide support. The maternal aunt stayed in early 2018, and then again in mid-2018. The mother described her aunt's support in, for example, telling the father that "we know all about your extra marital affairs".[18][18] Affidavit of the mother filed 09/11/2021, paragraph 103. In early 2018, the paternal grandmother arrived to stay. The mother felt that this was not helpful. She said "Suddenly after 2 years it appeared to me [X] had two sets of parents not just one mother."[19] There was clearly a degree of conflict between the paternal grandmother and the mother. It appears the paternal grandmother often communicated with the father by shouting at him, which the mother considers family violence.[19] Affidavit of the mother filed 09/11/2021, paragraph 106. Early 2018 Family Relationship Centre In early 2018, the parties participated in a parenting mediation and agreed on a four month trial parenting plan.[20] The plan was based on the parties residing under the one roof and provided for the father to collect the child from childcare on Thursdays and to feed and bath her, and to have her in his care on Saturdays from 8am to 7pm and on Sundays from 8am till 12pm. The parties agreed to access appropriate support for the child.[20] Affidavit of the mother filed 09/11/2021, Annexure H. THE FACTUAL BASIS OF THE MOTHER’S BELIEFS The mother said that she was concerned for the child's safety if left alone with the father because of incidents:[21]22. … over [late] 2018, [early] 2019 and [late] 2020 of [Mr Pires's] inappropriate behaviours towards [X] and behaviours towards [X] which I believed were sexually abusive. (As per the original)[21] Affidavit of the mother filed 09/11/2021, paragraph 22. The instances the mother identified as giving rise to her belief that the father had sexually abused the child were detailed under the heading "father's sexually inappropriate behaviours/abuse towards child".[22] [22] Affidavit of the mother filed 09/11/2021, paragraphs 139-153.Late 2018 events
Ratio Decidendi
Legal Principle Established
Established by: SMITH J
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