Regna & Eline (No 2)
[2024] FedCFamC1F 566
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Regna & Eline (No 2) [2024] FedCFamC1F 566
File number(s): BRC 12601 of 2021 Judgment of: BRASCH J Date of judgment: 8 August 2024 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the father’s legal representatives were given leave to withdraw on the afternoon of the first day of trial- Where the final hearing was adjourned for father to engage new legal representation – Where the final hearing can proceed in less than one month from the adjournment– Where Independent Children’s Lawyer sought an interim hearing after supporting the adjournment application – Where Independent Children’s Lawyer and mother submit the children are at an unacceptable risk of harm in the father’s care and propose the children live with the mother and spend no time with the father – Where father submits the children are at an unacceptable risk in the mother’s care but proposes the week about orders continue – Independent Children’s Lawyer’s application granted – Where children to live with mother on interim basis – Where children to spend no time with father on an interim basis Legislation: Family Law Act 1975 (Cth) ss 60B, 60C, 60CC, 61DA, 65L
United Nations Convention on the Rights of the Child
Cases cited: Goode & Goode (2006) FLC 93-296; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Division: Division 1 First Instance Number of paragraphs: 101 Date of hearing: 8 August 2024 Place: Brisbane The Applicant: Litigant in Person Counsel for the Respondent: Mr Christie Solicitor for the Respondent: Power Legal Counsel for the Independent Children's Lawyer: Ms Gajic-Pavlica Solicitor for the Independent Children's Lawyer: Norman & Kingston ORDERS
BRC 12601 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR REGNA
Applicant
AND: MS ELINE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.The father is to remain in the courtroom until excused.
2.Only the mother, and any support person she has with her, are authorised to remove the children from Court Child Service.
Living Arrangements
3.Order 2 made by this Court on 1 March 2024 is discharged.
4.X born in 2011, Y born in 2013 and Z born in 2014 (“the children”) live with the mother.
5.The children spend no time with the father.
6.If the father becomes aware of the children not being in the mother’s care, the father is to take all steps necessary to deliver the children to the mother forthwith.
Recovery Order
7.Pursuant to s67U of the Family Law Act 1975, a Recovery Order issues addressed to the Marshal, all officers of the Australian Federal Police and all officers of the State and Territory police forces and:
(a)Such persons are authorised and directed to find and recover the children X (male) born in 2011, Y (male) born in 2013 and Z (female) born in 2014 and for that purpose, with such assistance as they require:
(i)to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found; and
(ii)to enter and search the premises or place situated at and known as U Street SUBURB V QLD.
(b)The children are to be delivered to the mother, MS ELINE born in 1989 or to some other persons she nominates in writing to receive the children on her behalf;
(c)MR REGNA, born in 1979, is prohibited from removing or taking possession of the children;
(d)If MR REGNA, born in 1979, removes or takes possession of the children, he may be arrested without a warrant;
(e)The Recovery Order remains in force for a period of 12 months.
8.All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
9.The Recovery Order herein is to lay in the Registry and will be considered if the mother approaches the Court by email to chambers, copying in the other parties, deposing, by way of affidavit, to the failure of the father to return the children to her care pursuant to the Order.
Changeover of the children’s belongings and information
10.For the purpose of facilitating the change of residence, the father is to deliver the children’s clothing, all school uniforms and supplies and all other items reasonably requested by the children to the office of the mother’s solicitor at 10.00 am on Friday, 9 August 2024.
11.After delivering the children’s possessions, the father shall immediately leave the area and shall remain at least 100 meters away from the area until the following day.
12.The mother shall attend and collect the children’s possessions from her solicitor’s office at 12.00 pm on Friday, 9 August 2024.
13.The father is to provide the mother, via her solicitors or the Independent Children’s Lawyer, details of the children’s treating medical practitioners (including allied health professionals) together with the locations, dates and times of any future appointments.
Further trial direction
14.The parties have leave to file and serve an updated affidavit dealing with any relevant matters since 5 August 2024 to 30 August 2024 by no later than 4.00 pm on 30 August 2024.
THE COURT NOTES THAT:
A.The Independent Children’s Lawyer has offered to explain these Orders to the children.
B.Section 122AA of the Family Law Act 1975 (Cth) authorises the use of reasonable force in making an arrest or to prevent the escape of a person after arrest.
C.Section 122A sets out the powers of entry and search for the purposes of arresting a person.
D.It is at the discretion of the person authorised or directed to find and recover a child under this order to recover the child from the place where the child is found if the person to whom the child is to be returned or delivered it not present and able to receive the child.
E.If a person who is authorised or directed to find and recover a child is given information provided to the Registrar of a court under a location order, that information shall not be disclosed to any person, except as authorised by section 67P of the Family Law Act 1975.
F.Sections 65S to 65W of the Family Law Act 1975 (Cth) set out what happens to a person who is arrested without warrant.
G.Section 67X provides that it is an offence to prevent or hinder the taking of action by a person authorised by a recovery order. A person found guilty of such an offence can be fined, ordered to enter a recognizance or imprisoned.
H.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
I have before me an oral application brought by the Independent Children's Lawyer (“ICL”) on Tuesday [6 August 2024]. The relevance of Tuesday is that this matter should have commenced with a trial then. It would be the second attempt of having a trial in this parenting matter.
For reasons given on Tuesday, the trial has been adjourned to three days to commence at the start of September [2024].
Upon doing so, Counsel for the ICL made an oral application, supported by the mother, opposed by the father, that today [Thursday 8 August 2024], which would have been day three of the trial, I have an interim hearing.
Background
The brief background in this matter is as follows.
The father was born in 1979 and the mother in 1989. They commenced cohabitation in 2010, married in 2012, and separated on 15 August 2015.
There are four children relevant to this matter, but J has been the subject of previous [final] orders. J was born in 2007.
The trial that should have occurred - twice by now and the third attempt listed in September - concerns: X born in 2011; Y born in 2013; and, Z born in 2014 (“the children”). These children have been the subject of legal proceedings for a considerable period of time.
On 20 June 2016, Judge Jarrett (as he was then) made final orders by consent that the parties equally share parental responsibility (as it was called then), with a week about arrangement, phone calls and communications.
This round of proceedings was started by the father on 16 September 2021.
The February [2024] trial was adjourned and an updated report has been subsequently obtained.
Relevantly, on 12 February 2024, Justice Baumann adjourned the final hearing, that was on the oral application of the ICL, and on 1 March 2024 his Honour made an interim, best interests determination that the children would live week about as between the mother and father.
His Honour listed the matter on 6 August 2024, being the Tuesday to which I have referred.
It seems to be common ground that prior to that, the children were spending little, if any, time with the mother and for a considerable period of time.
Material Relied Upon
The parties had many affidavits before me for trial, but for the purposes of this interim hearing, the ICL relied upon:
·The two affidavits of Family Reports by Ms H dated 1 November 2022 and 15 July 2024;
·Affidavit of Dr P filed 31 August 2023; and
·Four bundles of documents which became exhibits.
The mother relied upon:
·An Order of a Senior Judicial Registrar made on 27 November 2023;
·The orders and ex tempore reasons of Baumann J of 1 March 2024, with the reasons delivered on 15 March 2024;
·The mother's affidavit of 5 August 2024; and
·The updated Family Report.
Mr Blayney, who appeared as duty lawyer for the father (with the Court's gratitude) relied upon:
·The father's affidavit filed 5 August 2024; and
·Various documents that were the subject of tenders and became exhibits.
Legal Principles – Part VII of the Family Law Act 1975 (Cth) (“the Act”)
The legal principles in interim proceedings have been long and well established. They are set out in decisions such as Goode & Goode (2006) FLC 93-296 (“Goode & Goode”). Goode & Goode, of course, pre-dates the recent legislative amendments, but I have no reason to doubt that the sentiments expressed therein are not inappropriate.
This matter, as will become apparent in the trial, is one where risk looms large, and I have been referred by all parties to the decision of the Full Court a couple of years ago in Isles & Nelissen (2022) FLC 94-092.
Ultimately, what I must do today is what I consider to be in the best interests of the children.
Section 60B of the Act sets out the objects of the Act to ensure that the best interests of the children are met, including by ensuring their safety and to give effect to the [United Nations] Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CC sets out a list of matters or considerations that help me work out what is in the children's best interests.
Broadly speaking, the proposals that are before me today is the ICL’s position that, in short, the children live with the mother between now and any further orders that might be made, and, have no time with the father. The mother supports those orders. Both have provided a Minute of Order, which are in similar terms. Both propose a Recovery Order lie in the registry.
The mother had sought interim orders that she have sole parental responsibility for the children, and they be enrolled in a school near her residence, but, sensibly and appropriately, they were not pursued in the submissions before me. I highlight that the final trial in this matter is not that far away.
The mother also proposed orders for the exchange of the children's belongings, and whilst the Minute referred to using Childrens Court Services, the mother's solicitor is able to offer that.
The father's position is that, notwithstanding he says the children are at risk, or in particular, Z at risk of sexual abuse in the mother's care, and, the boys are at risk of witnessing family violence (as has been his case for a long time), it is his position that the children continue on the week about that was ordered by Baumann J. It is uncontroversial that those orders were not complied with [by the father] in the lead up to the [August 2024] trial.
The father said that he had been told by Child Safety and/or Queensland Police not to hand the children over to the mother, but at least on the evidence before me, including a subpoena that was issued only on Tuesday to Child Safety and the Queensland Police Service, there is nothing to support what he says the Police or Child Safety told him.
It may be that there is an ongoing investigation, as the father maintains, and that was not produced in response to the subpoena. Exhibit 1 gave some support for that, but that makes it all the more curious why the father would ask me to expose the children to the risk that he believes the mother poses to the children every second week.
I am conscious that I cannot make findings of [controversial] fact on this interim basis, but it is also equally clear that I must act cautiously.
I return then to the framework that Goode & Goode provides. That suggests that I identify the competing proposals of the parties, and that has been done. It suggests I identify the issues in dispute in the interim hearing, that I identify any agreed or uncontested facts, look at the s 60C factors as are relevant, and if findings can be made on uncontroversial evidence, I can make them.
Under the new changes, however, I am not required to decide whether the presumption that used to exist in s 61DA applies or not, and I obviously do not now need to look if that presumption is rebutted. So, those parts of Goode & Goode have been overtaken.
It is useful, though, to understand a little bit about the history of these proceedings. I will do this in the issues that were identified by the ICL in her very helpful written submissions, which no one took issue with in the hearing before me.
The first issue that is identified is, are the children at imminent and unacceptable risk of suffering significant emotional and/or physical harm in the care of the father?
The father would probably say [risk of harm] in the care of the mother, but it seems hard for him to maintain the children are at risk in the mother's care when he proposes the children have week about. I note, on a final basis, he says the children should have alternate weekends with the mother as the children wish, but he has an alternate which is week about as well.
It is the ICL’s submission that the father's views about the risk to the children posed by the mother comes with no evidence supporting his assertions. The submission was made on behalf of the father that he believes the children are at risk. That is no doubt something that will be explored at trial and how that sits with the orders he seeks.
It is common ground that between 2021 and 2024, the children spent little, if any, time with the mother. The ICL says that was in contravention of the orders. I do not need to make a finding about that today. It was also the case that the children spent some time [with the mother] under s 65L visits last year [2023].
Child Safety Notifications
There have been a number of recent notifications in this matter. First of all, Child Safety subpoena records (Exhibit 2) indicate that in 2024, J, who I have already referred to, (the 17 year old daughter of the mother and a different male, not the father in these matters, but nevertheless she resides with the father in these matters), contacted Child Safety and reported Z told her that mum goes into the shower to help her wash.
The notifier seemed to be aware that Z predominantly was residing with the mother at that time. I am not sure how that works, but no doubt that will be clarified for me at trial.
Various things were said, as set out in paragraph 19 of the ICL’s submissions, with respect to that 2024 notification. A Child Safety intake officer made the following record in the intake form, after the notification:
…It was noted that the notifier was taking prompts and instructions from an unknown adult male in the background on what to say and had to be prompted to answer questions by CSO, the response would then be delayed until the adult in the background told notifier what to say.
(Exhibit 2, p. 14)
It seems common ground at this time that J resided in the father's care.
Child Safety undertook an assessment of that intake and that is set out in the ICL’s submissions at paragraph 21(a)-(g). They suspected it was the father who was in the background, but that is not something that I can decide today.
What is clear, though, is that those allegations were substantiated, "child not in need of protection" with Child Safety stating:
…the family trauma that has occurred through [Mr Regna] [the father's] DFV and ongoing prolonged family law court matters has caused the children emotional harm…
(ICL’s written submissions dated 8 August 2024 at paragraph 21(e)).
That is Child Safety's assessment. It will be for another day at trial whether I make similar findings or not.
Chronologically the next thing relevant that happens is the Family Report interviews with the parents in 2024.
There, the mother told the Family Report Writer that police from the Child Protection Investigation [Unit] had called her and said the father reported that she, the mother, had sexually abused Z in the shower. The mother further said that Z had told her, "Daddy made me do it, he told me to say it," and the police, according to the mother, spoke to her [the mother] on the phone and said they were not taking any further action.
Who might have been the source or cause of the phone call the mother received is again something I cannot determine today.
The father told the Report Writer that Z had made statements to a community group leader that when the mother was washing her hair the mother washed other body parts and Z did not like the mother doing this in what she [Z] referred to at paragraph 6.6 of the Family Report, as the "no-no zone".
In mid-2024, the Family Report interviews with the children took place.
Z was asked if there was anything she was worried about. She is described (again this is an untested report at this point) as appearing slightly nervous, fidgeting with her fingers, squirming in her seat. She confirmed, according to the report at paragraph 5.6, the father had said she needed to say things, however, she, Z, did not think that was fair. She also confirmed she did not like saying things that are not true.
Y was reported as saying or as disclosing that his father had said bad things about the mother and Y said that that makes him angry. He does not like hearing the father say bad things about the mother, and he is reported at paragraph 5.9 of the Family Report saying that the mother never says bad things about the father.
In 2024, Child Safety Records indicate a notification was received. The notification came from the father of X's friend, who is apparently a community group leader. The intake records the following, and these come from the exhibits - Mr Regna [the father] is a friend of his, the community group leader, and Mr Regna asked him to call Child Safety.
The ICL’s counsel says this may be relevant given the history of the father using systems to interfere with the mother's contact with her children. That is not something I can find today, but no doubt it will be the subject of cross-examination at the trial.
In 2024 at 2.30 in the morning, X and the father attended the Suburb W Police Station, with X telling the police that his mother and her partner fight all the time, and he is scared. The child is recorded, at page 46 of that subpoena document from Queensland Police Service, as reluctant to give information.
Thus, in 2024, the Queensland Police Service said they would investigate further to establish the nature of family violence. Their initial report indicated “NO physical violence observed - yelling, things being thrown only…” (Exhibit 3, p. 45). The police determined there was insufficient evidence to establish a prima facie case at this time in the mother's household, and they, at page 45, said domestic violence had not occurred. Again, they are findings I cannot make today, but in three weeks’ time when I hear the evidence, I will.
The most recent subpoena records, and they were subpoena issued at short notice on Tuesday just gone, indicate the father made a notification to Child Safety in 2024, so just over a month ago, and this is at about page 39 of the Child Safety submissions [(Exhibit 2)] where he said, including but not limited to:
·There is lots of violence perpetrated by the mother;
·He has sought advice from the police, however the police have stated that children cannot be interviewed in relation to the alleged DV in the mother's house, as there have been no reports of family violence made to the police;
·He said he was aware X had spoken to his community group leader, who reportedly made a three hour report to Child Safety;
·The children, he said, are hiding in their rooms at the mother's house to avoid arguments, and said X does not want to go to the mother's house on the next day and will just run away if he is made to go; and
·He said Child Safety provided him with support services and suggest he contact and obtain legal advice if he intends to withhold X.
Child Safety made an assessment, which is, of course, not binding on me, but all of these matters become relevant when I draw them all together to work out what is a cautious approach to take on this interim basis that is in the children's best interests.
Child Safety's assessment, which is at page 45 of the subpoenaed documents [Exhibit 2], indicates the father said he had sought legal advice as well as advice from the police and had been informed that due to there being family law court orders in place, he must return X.
That seems to be at odds with what he was telling me on Tuesday that the police told him to keep the children.
The police advised him there were no recorded incidents of domestic violence in the mother's home and thus the children would not be spoken to. Child Safety were concerned the father is manipulating the current situation with X to try and undermine the mother's parenting and the upcoming Family Court proceedings.
Child Safety received (again, this is the subpoenaed documents that have been put into evidence before me, page 52 [Exhibit 2], three separate notifications in 2024 in relation to X allegedly disclosing: the mother verbally abuses him and will not stop; the mother yells at him when he cannot use technology outside of allowed hours; calls him names; and, he witnesses fights between the mother and her partner.
Child Safety noted that the allegation was very similar to what X said earlier in 2024. Interestingly, X made no such disclosures to the Family Report Writer in 2024, nor to the police
Child Safety's assessment is at page 63 in the most recent subpoenaed documents [Exhibit 2]. I will include in my reasons those three paragraphs that the ICL sets out at page 7 of her written submissions:
The family's child protection history indicates that [Mr Regna] is a perpetrator of significant domestic and family violence against the children including using systems (Child Safety, Education, Health, and FLC) to manipulate the children and exert his power and control over [Ms Eline] to undermine her parenting. Considering this and that the department has previously assessed that the children have experienced significant and detrimental harm resulting from [Mr Regna]'s behaviours, it is likely that [X] is being manipulated into believing that his mother's household is not safe and therefore the children are at risk of experiencing cumulative emotional harm.
It is acknowledged that the children have felt unsafe in [Ms Eline]'s care due to the perpetration of violence against her by [Mr Regna] and other intimate partners, however this is not a reflection of [Ms Eline]'s actual parenting.
[X]'s increase in emotional dysregulation including hiding under a desk for 70 minutes are likely indicators of ongoing harm. Departmental investigation is required to determine if [Mr Regna] and [Ms Eline] are parents willing and able to care for and protect their children in the context of [Mr Regna]'s continued perpetration of violence against the entire family.
There, I think it is fair to summarise, Child Safety's concerns are not with the mother, but with the father.
The Family Report was released on 15 July 2024 which was, incidentally, a day that I had a mention of the matter to see what needed to be done, if anything, to get the matter ready for trial.
Ms H had observed a range of things, which is, of course untested, but I note the parties’ filed affidavits after this and no one took issue with what she had observed.
She [Ms H] observed Y and Z were happy to engage and play games, different games, exploring the office, and seemed to be happy with the mother. X was disengaged at first, but after time became more at ease. It was the Family Report Writer's assessment the children have a close relationship with one another, and the children appeared to have a very positive relationship, at least Y and Z, with their mother.
The Report Writer (again this is untested) was concerned that although X was trying to portray he was not interested in interacting and playing games, he had difficulty maintaining his attitude the entire observation period. She observed the children interacted well with the mother whilst in the waiting room. She observed, at paragraph 8.7, the relationship between the children and the mother had significantly improved and was significantly more natural and normal following the children spending time [with her].
One of the s 60CC factors that I am to take into account is, of course, the children's views.
The father tells me a lot about that in his material, and which I can summarise that, as far as he is concerned, the children really do not like the mother, and they do not want to spend any time with her. However, the Family Report Writer said this and this report was only produced quite recently:
·Z said that she really loves staying with her mother and their relationship has improved a lot (Family Report dated 15 July 2024 at [5.3]). She said J lives with the father, and not J's biological father, but the father in this matter, and does not come to the mother's house (Family Report dated 15 July 2024 at [5.4]). She said there is nothing she would change about the mother or father's households (Family Report dated 15 July 2024 at [5.5]).
·Y said he liked spending more time with his mother - he would like to spend more time with his mother and liked it there (Family Report dated 15 July 2024 at [5.7]). He spoke about his father getting angry "and he gets up us a lot" (Family Report dated 15 July 2024 at [5.8]). He said the mother gets angry if the children fight, but she doesn't yell loudly like the father. Y said his father tells lies, and when asked about what he told a lie about, he said that the father told him that the cat had run away, but Y is of the view the father dropped the cat to an animal refuge because the father didn't like the cat (Family Report dated 15 July 2024 at [5.9]).
He says some things about school, but that is not before me today.
X is reported as saying week about with each parent is a bit annoying, and he is most annoyed that he gets less tech time with the mother. It is not unusual for children to have that view. He is upset that he is not allowed to phone his friends as frequently as he might like in the mother's household.
On 5 August 2024, both parties filed affidavits, noting the trial was due to start on 6 August 2024.
The father deposed that in 2024 he received a phone call from the police, the CPIU, advising they were investigating an allegation of sexual abuse against Z by the mother. The father also deposed to the community group leader, which I have already referred to, ringing a helpline. But there is, at least on the information before me, no record of the police contacting the father in 2024 notifying him that they are still investigating an allegation of sexual abuse.
It may be, as I have already said, that if there is an ongoing investigation, as the father maintains, those documents are withheld, but that again raises the curiosity in what seems to be an inconsistency in the father firmly believing that Z is at risk of sexual abuse, but saying Z can go to the mother, the alleged abuser, every second week.
On a day in mid [2024] at 7.00 am, the father deposed that Z was questioned by the QPS, and it seems to be in records at page 49 of the subpoenaed documents that confirm that. Of course, this is only last week.
On 2 August [2024], the children were required to transition to the mother's care, but that did not occur. It is common ground that the father is still not complying with orders because it should be the mother's week this week with the three children, who are the subject of my orders.
Y and Z were delivered by the mother to court counselling this morning and X delivered by the father.
It would seem on the face of it, although without making a finding, every party agrees that X is with the father, which would seem contrary to the orders. That seems to present a difficulty for the father's position here, where he implored me through the duty lawyer that he will abide by the orders. It would seem he is not, at least insofar as X is concerned.
At paragraph 6 of the father's very recent affidavit, he deposed that the Queensland Police Service advised him not to deliver the children to the mother's care whilst there was an ongoing investigation.
Again, I am told by the ICL, and it is at page 49 of the subpoenaed documents, there is no record of that. It also seems a bit odd that the father says at an earlier point QPS told him there are Family Court orders in place and ‘you must comply’, but now are telling him not to comply.
In any event, Z was interviewed on and was described as fine and healthy. There were, on the face of it, no disclosures made by the child, and again, she was described as healthy.
The police formed the view, not something I can find today, but they formed the view it is likely Mr Regna is withholding the children until the hearing.
The mother was advised to make contact with her lawyer and raise this in Court. A welfare check was not conducted in mid-2024 as the children were healthy and had been spoken to by CPIU.
The father deposed that he was contacted by Child Safety, and they would open an investigation, and he was requested to bring the children to questioning. There is no record of that in the Child Safety subpoena records, but again, it may well be something that is under investigation. Not to labour the point though, it seems to sit at odds with the father's position about, "I will abide by the orders for week about."
The ICL, in her written submissions, and highlighted by the father, refers to previous allegations of sexual abuse that have come from J. They were, it would seem, made in 2022, and that concerned the mother's ex-boyfriend.
In 2022, J and the father contacted the police and J wanted to proceed with the matter. Importantly, J's allegations were about allegations of being sexually abused by the mother's ex‑partner, and do not, at least on my reading of the material, extend to J being sexually abused by the mother.
There seems to me to be no evidence before me, even on this interim basis, that I could form a concern on this interim basis that X, Y or Z are at risk, as that concept is understood in the Family Law Act 1975 (Cth) and jurisprudence, in the mother's household.
I do, however, have a concern that the father's fervent belief that the children are exposed to that risk in the mother's household requires me to not make the week about orders that the father proposes, but to take some steps that the children, at least between now and trial, are quarantined from the father's belief system. I will elaborate on my reasons for doing so.
The Family Report Writer expressed various concerns in her report. They are not matters, of course, that are binding on me, and I have said a number of times they are untested.
She is concerned the children are being influenced by the father, and there is some resonance, it would seem, on a first blush basis for that, when Z told the Report Writer that she was told by the father to say things and she did not think it was fair. The Report Writer is concerned the father will not facilitate the children's time with the mother, Ms Eline, and as the matter started on Tuesday, that had occurred. He was not complying with Court orders, and it seems common ground and an agreed fact that he is not complying with current orders that were a best interest determination of another judge with respect to X.
The Family Report Writer spoke about the children's internal sense of confusion and the father's continuing negative opinion of the mother. I also am troubled by the father's submissions - not only does he believe the children are exposed to a risk of harm in the mother's house, but they can go on week about, and because he is under the spotlight, he will comply with orders. He was under the spotlight last week, and the week before. This trial, the September trial, will be the third go at having a trial in this matter. But notwithstanding the trial was meant to start on Tuesday, he chose to hold over the children.
Section 60CC factors
I turn now more specifically to the s 60CC factors, many of which I have already touched upon. What I must do, even on an interim basis, is make orders that promote the children's safety.
Section 60CC(1)(a) says I must consider the matters in ss (2) in determining the children's best interests.
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
Section 60CC(2)(a) is what arrangements would promote the safety of the children and each person who has care of the child or parental responsibility. Promoting safety includes safety from being subject to or exposed to family violence, abuse, neglect or other harm.
Mr Blayney [duty lawyer for the father] valiantly made the submission, “what if all of the allegations are true”, “what if Child Safety are wrong”, “what if the police are wrong”. That is an entirely valid submission but one that sits absolutely at odds with the father's position both for trial on Tuesday [just gone] and before me now to continue the week about on an interim basis.
I am, though, concerned, and I have formed the view that acting cautiously requires me, at least on this interim basis, to place the children in the mother's care and that the children have no time with the father. I do so because the children, at least acting cautiously on this interim basis, need the safety from the father's belief system.
(b) any views expressed by the child
The views expressed by the children is ss (2)(b), and I have already indicated what the children's untested views are.
(c) the developmental, psychological, emotional and cultural needs of the child; (d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
Subsection (2)(c) and (d) go hand-in-hand together: the developmental, psychological, emotional and cultural needs of the children and the capacity of each person to provide for those needs.
Acting cautiously, I cannot make a finding other than to express my concern about the father's capacity to parent the children. I am concerned not only about the impact of his belief system on the children, noting the trial is not all that far away, but I am also concerned, and it is why I gave the father liberty to put on evidence about medical issues he may have, but I have very little [evidence] about that. I know nothing about someone who may or may not be his partner. But I am not raising these questions for the first time. They were matters that were raised by Justice Baumann when the matter should have been at trial in February.
There is nothing before me, though, other than the father's say-so, that the mother lacks capacity and the children's needs will not be met by remaining with her and not having time with the father, at least on this interim basis.
(e) the benefit of the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so
Subsection (e) is the benefit of the children being able to have a relationship with the child's parents where it is safe to do so. I have already referred to that either implicitly or explicitly. The important bottom line is, where it is safe to do so, and acting cautiously right now, I have already indicated the orders that I am going to make.
(f) anything else that is relevant to the particular circumstances of the child
Anything else that is relevant to the circumstances of the children. The only thing that I consider relevant at this point in time is that there is a trial very soon where all these matters can be tested.
I will make the orders for the reasons I have just given.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 2 September 2024
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