Richmond & Tarido
[2023] FedCFamC1F 984
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Richmond & Tarido [2023] FedCFamC1F 984
File number(s): CAC 695 of 2018 Judgment of: GILL J Date of judgment: 17 November 2023 Catchwords: FAMILY LAW – PARENTING – Interim parenting orders – Assessment of risk – Family violence – Unacceptable risk – The principle in Rice v Asplund – Where consent terms are currently in force – Where the mother asserts that the child is at risk of being exposed to family violence perpetrated by the father against his current partner – Where there are criminal charges against the father for family violence against the mother – Where a number of incidents of family violence are alleged to have been perpetrated by the father against his partners – Where the current risk of exposure to family violence is unacceptable and warrants a modification to the time spent with the father – Sole parental responsibility Legislation: Family Law Act 1975 (Cth) (“the Act”) ss 60B, 60CA, 60CC, 60CG, s 65DAA Cases cited: Bielen v Kozma (2023) 66 FamLR 59
Eaby & Speelman (2015) FLC 93-654
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Salah & Salah [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 55 Date of hearing: 10 November 2023 Place: Canberra Solicitor for the Applicant: Jeanine Lloyd, Jeanine Lloyd & Associates Counsel for the Respondent: Ms Gillies, SC Solicitor for the Respondent: Parker Coles Curtis Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid ORDERS
CAC 695 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS TIRADO
Applicant
AND: MR RICHMOND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Orders 2, 4, 9 and 10 of the orders made 27 October 2022 are discharged.
2.Orders 3, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the Orders made 27 October 2022 shall remain in effect.
Parental responsibility
3.The mother shall have sole parental responsibility for the child X, born 2015 (‘the child’), save that the mother is required to give 7 days written notice to the father and ICL prior to engaging the child with therapy.
4.The mother is restrained from changing the child’s school without obtaining written agreement from the father.
Lives with/spends time with
5.The child shall live with the mother.
6.The child shall spend time with the father from the commencement of school, or 9am if not a school day, each Wednesday, to the commencement of school, or 9am if not a school day, each Friday.
7.If the child becomes unwell at school and requires collection earlier than 3pm, the parent that is due to collect X at the conclusion of school shall collect the child as requested by the school. To facilitate this Order, the parent that receives the call from the school advising that the child is unwell and needs to be collected shall contact the other parent immediately to make arrangements for the child to be collected.
8.The child shall spend time with the father on special occasions as provided for in Order 11 of the Orders made 27 October 2022.
Other
9.By 17 December 2023, both parents shall undertake a hair follicle test for illicit drugs to cover the previous one month period, and provide the results of the test to the parties’ solicitors and the ICL within 7 days of receipt of such results.
10.By 17 March 2024, both parents shall undertake a hair follicle test for illicit drugs to cover the previous three month period, and provide the results of the test to the parties’ solicitors and the ICL within 7 days of receipt of such results.
NOTATIONS:
A.For the purpose of order 4, it is noted that the child is currently enrolled at and attending C School.
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 a pseudonym, Richmond & Tirado, has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
BACKGROUND
These proceedings, which involve a parenting dispute about the parties’ child X and a challenge to a Binding Financial Agreement, are currently stalled awaiting the hearing of criminal charges against the father for alleged family violence upon the mother. As a result, the proceedings have not moved to final resolution, and X’s parenting arrangements have been the subject of long-standing interim orders that have been the subject of two sets of contested interim proceedings, and which are currently governed by consent orders entered into on 27 October 2022.
Those interim parenting arrangements, which provide for a sharing of parental responsibility and an equal sharing of time are the subject of the current application, brought by the mother, to end that arrangement, invest her with sole parental responsibility, and provide for no time with the father.
That application is predicated upon the notion that X is at risk of exposure to family violence whilst in the care of the father to a degree that would justify the cessation of any time with him.
ORDERS SOUGHT
The mother sought sole parental responsibility for X, that X live with her and spend no time with the father, X obtain therapeutic psychological support and counselling, an injunction against exposing X to family violence and for the parties to undertake hair follicle testing.
The father sought the parties to attend ‘non-reportable’ family therapy with X, the parents abstain from using any illicit substances and abstain from drinking alcohol 24 hours prior to the time X is in their care, an injunction against exposing X to family violence and for the parties to undertake hair follicle testing.
The Independent Children’s Lawyer sought the mother have sole parental responsibility of X, that X live with the mother and spend no time with the father. The ICL also sought an injunction against the father from attending at X’s school, C School.
DOCUMENTS RELIED UPON
The mother relied on:
(1)Affidavit filed 27 October 2023; and
(2)Application in a proceeding filed 27 October 2023.
The father relied on:
(1)Affidavit filed 9 November 2023;
(2)Affidavit of Ms E filed 9 November 2023;
(3)Affidavit of Ms J filed 9 November 2023;
(4)Affidavit of Dr K filed 15 July 2021; and
(5)Response to application in a proceeding filed 9 November 2023.
The ICL relied upon:
(1)Application in a proceeding filed by the mother on 27 October 2023;
(2)Affidavit of Ms Tirado filed on 27 October 2023; and
(3)Outline of case document filed 9 November 2023.
PRINCIPLES
The paramount consideration in determining what interim parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of X. Those best interests are to be determined on consideration of the matters set out at s 60CC of the Act, in the legislative context of the objects and principles set out in s 60B of the Act, and pursuant to s 60CG, in a manner that does not expose a person to an unacceptable risk of family violence. Further, where applicable, s 65DAA sets out a reasoning pathway to be followed.
In this case, the key considerations are risk to X of exposure to family violence though the father, and the opportunity to secure the benefits of meaningful relationship through regular time with the father as well as the mother, along with the impact of changes in X’s circumstances if his time with the father is suspended or amended.
Given the interim nature of the proceedings, there are significant limits that are imposed upon the manner of dealing with the s 60CC considerations in determining best interests. Such limitations were identified by the Full Court in cases such as Salah & Salah, where it was observed that “it is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial.”[1] Reflecting the earlier case of Goode & Goode,[2] it was accepted at [68] that the court in interim proceedings should not be drawn into:
…issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute...
[1] Salah & Salah [2016] FamCAFC 100 at [36].
[2] Goode & Goode (2006) FLC 93-286.
Importantly, however, it was accepted, as identified in Eaby & Speelman, that such an approach “does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”[3]
[3] Eaby & Speelman (2015) FLC 93-654 at [18].
That is, the court, despite the limitations on testing the evidence, and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS v AH,[4] identified at [100]:
…weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[4] SS v AH [2010] FamCAFC 13.
Given that the key issue raised to justify the departure from the current orders is that of risk, it is important to recognise the nature of the court’s function in assessing such, even in the context of the limitations imposed by the interim nature of the proceedings. In Isles & Nelissen,[5] the approach to risk taken by Austin J in Fitzwater[6] was adopted at [50] as:
… a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm.
[5] Isles & Nelissen [2022] FedCFamC1A 97.
[6] Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251.
It was accepted that this is an exercise to be undertaken even where the underlying facts cannot necessarily be determined one way or another. Isles & Nellison was a case such as this where one issue is that of risk of sexual abuse, in which the court further accepted from Austin J in Fitzwater that:
It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true.
(Citations omitted)
The limitations inherent to interim proceedings necessarily form a part of the consideration of risk.
In Bielen v Kozma[7] the Full Court identified that in considering risk it is necessary to also consider the potential to ameliorate the risk, the measures that are proportionate to the risk, and to consider how the benefits of meaningful relationship with a parent might be able to be retained while dealing with that risk.
[7] Bielen v Kozma (2023) 66 FamLR 59.
Further, here the issue is raised as to whether, pursuant to the principles contained in Rice v Asplund,[8] the mother should be permitted to relitigate an issue previously resolved by the current consent orders, where a portion of the matters raised by her are identified as being known to the mother at the time of the entry into the consent terms.
[8] Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84.
THE EVIDENCE
The primary focus of the evidence was on matters that have arisen since entering into the consent orders in October 2022 that the mother asserted indicated that the father had been engaging in family violence with two other partners following the ending of the relationship with the mother. The particular evidence identified by the mother is set out below.
A police report dated mid-2023[9] recorded a police attendance on that day upon the father and a woman at L Apartments in City M. The police record hearing an argument on approach, the parties explaining that they were just having a verbal argument. Police noted no concerns for the parties. There was no suggestion that X was present.
[9] Ex ICL 1
An affidavit of Ms J dated 9 November 2023 described that Ms J appears to be a current partner of the father, describing that a relationship commenced in April or May 2023, and that she and her son have commenced cohabitation with the father recently. While Ms J asserts that the father has not perpetrated family violence upon her, she describes that the police have charged him with an incident involving her at the N Hospitality Venue. She reproduced correspondence that she has sent to the Director of Public Prosecutions in the following terms:
In regard to the matter I, as the apparent victim i have stated that I am not scared for my safety, that the assault was defiantly not a assault or something to be charged over, As me and [Mr Richmond] train every day in the gym we are both very strong and hot headed and it can be seen to others that our arguments can be over the top when they are not. The evidence may look worse than what happened, but I assure you its not how it seems, and I was not assaulted in any shape of form and was trying to calmly leave with [Mr Richmond] to go back home. When police arrived to arrest [Mr Richmond], we were content and happy and settled. Now the bail conditions are putting strain on our family as we don't know what's going on and we need to contact each other and move on.[10]
(As per the original)
[10] Affidavit of Ms J filed 9 November 2023 [7].
The father’s material does not disclose anything about this outstanding criminal charge.
Whatever the incident entailed, it appears accepted by the witness that to an outside observer an “over the top” argument was occurring that preceded the arrest. The circumstances of such were not described by either the father or Ms J. It is not suggested that X was present at the incident.
Ms J asserts that X has a good relationship with her son.
A police report of early 2021[11] that relates to an unidentified partner (later identified in the affidavit of Ms E to be Ms E) of the father, and a third party reporting to have received a complaint from that person that she had been injured by the father. Police then attended upon the father, who is recorded as initially telling the police that the other person was not feeling well and did not want to talk to the police, becoming angry and saying that he could not make her come to the door. When the woman came to the door she presented with a black eye. She then described to the police (in the presence of the father), in response to questions about her black eye that she had fought with her mother.
[11] Ex ICL 4
A police report dated mid- 2023,[12] which in part recorded (inferentially, given the content of Ms E’s affidavit) Ms E asserting that she did not want to get the father into trouble, that he has been visiting her daily, perpetrating coercive control, verbal and physical abuse. Police asserted that Ms E appeared anxious and shaking on receiving a call from the father whilst the police were present.
[12] Ex ICL 2
An affidavit of Ms E dated 9 November 2023 that in part dealt with the police incidents of early 2021 and mid-2023. Ms E appears to have had an intermittent relationship with the father, describing such for a period of eight years ending in April 2023. They now have a child together who she says that X was excited about. Ms E asserts that there has been no family violence perpetrated by the father upon her, and described the father’s parenting of X in glowing terms.
Ms E accepted that she spoke with the police in early 2021.While denying any form of violence, Ms E states as follows:
[In early] 2021, [Mr Richmond] did not engage in any form of assault towards me. The allegations regarding domestic violence have been grossly exaggerated. [Mr Richmond] and I have consistently remained close and have encountered myriad challenges together. [Ms Tirado's] involvement has consistently created obstacles for us, which have undoubtedly taken a toll on our relationship. This situation became overwhelming and I succumbed to the temptation to fabricate details about an […] injury, as I sought a means to evade the necessity of admitting that [Mr Richmond] could not or would not commit to me. I had no inkling of how a seemingly insignificant falsehood could reverberate so widely. I harbor feelings of shame and embarrassment, and I have gleaned valuable lessons from this experience and the ensuing aftermath.[13]
[13] Affidavit of Ms E filed 9 November 2023 [12].
Ms E asserts that a later dealing with police in mid-2023 was in relation to the mother hacking Ms E's Instagram account and otherwise harassing her. Accepting that she presented as nervous on the police attendance, Ms E explained that this was not because the father was calling her, but due to her nervousness in respect of the police.
The mother also relies upon comments attributed to X. The mother says that on his return from spending time with the father on 27 January 2023 X described an altercation between the father and Ms E, which was followed by Ms E emerging from the bathroom bleeding, and saying to X “look what your dad did.” The mother alleges that X later got into trouble for telling the mother about this from the father.
The mother further alleges that in early 2023 X told her that the father had an argument with Ms E and the kitchen was damaged, and that subsequently the father told him that Ms E was not coming back.
The mother says that in mid-2023 X described that Ms J had torn the father’s shirt because she had found him with Ms E.
The mother says that X is distressed at the prospect of going to the father during school holiday time.
The mother further asserts that the father is consuming alcohol and drugs, relying on his appearance as “drained” being reminiscent, she says of previous occasions when she has observed him to use drugs. Each of the parties consents to hair follicle testing, albeit on different timetables. The mother seeks testing for the last six months, whilst the father seeks a month’s testing to occur in a month, on the basis that there is, as yet, no prohibition under the orders as to use of drugs other than in connection with time spent with X.
The mother complains that she has been unable to progress counselling for X due to the father withholding permission.
The mother points to written communications from the father on the parenting app on 27 July 2022[14] that include the proposition that he would pay the mother $50,000 if the criminal proceedings against him went away.
[14] Ex M2
These matters are cast against a background that predates the entry into the current consent arrangements, being a background that includes the fourteen counts of violence against the mother that the father is currently awaiting trial for. Those charges include 9 counts of common assault, one of assault occasioning actual bodily harm, 2 of reckless threat to kill a person, and one of chokes, strangles or suffocates a person.
They are further against the background of the previously contested hearings that determined that there should be an equal sharing of time, consent orders of 27 October 2022, and the preparation of expert material that, having reviewed significant amounts of material produced by police and other sources concluded that there were strong bonds between X and each of his parents, and that a change in arrangements would risk destabilising him.[15]
[15] Affidavit of Dr K.
The father also produced material from the school from July and August 2023 noting X having presented positively coming from the care of the father.[16] In contrast records from CYPS from 2021 identified the mother as having, then, poor engagement and communication with the school, including abuse of staff.[17] Those same records identified the school as having more concerns about X in the mother’s care than in the father’s care. Against the mother’s complaints the father also observed issues raised by the report writer as to the mother having a tendency to exaggerate.
[16] Ex F5
[17] Ex F1
DISCUSSION
The father contends that the bulk of the matters raised by the mother were known to her prior to entry into the current consent terms. While a number predate those orders, a significant portion of the matters identified above fall themselves constitute potentially significant further events postdating the consent orders, but which are to be understood in the context of what preceded those consent orders.
To the extent that it was argued that the principle in Rice v Asplund prevents further consideration of the parenting arrangements set by the consent terms, X’s best interests, in particular as to his potential exposure to family violence, call for a further consideration in the light of the matters postdating the orders.
The matters raise, but in the context of interim proceedings do not determine, factual considerations that point to the father engaging in violent and coercive acts with intimate partners. A number of those do not indicate X’s immediate presence, whilst a number do. Although at present it is unable to be determined whether the father has engaged in family violence upon Ms E or Ms J, the evidence raises the prospect that such has occurred. The combination of the police reports with the affidavits of Ms J and Ms E provide a sufficient basis to consider a potentially high risk of the father engaging in family violence with an intimate partner. Given the evidence that one of the partners currently lives with the father (and accordingly half time with X) the risk of X’s exposure to family violence is significant.
It should be considered that X’s exposure to acts of violence by the father upon an intimate partner, including exposure to injuries to those persons as a consequence of such, is potentially psychologically harmful to X. Not least, it cannot be thought that observing the father to hurt those he cares for may instil in X a sense of insecurity in his father’s care.
While it must be recognised that in the context of the interim proceedings it cannot be categorically determined that the underlying incidents occurred, the evidence is sufficient to raise a level of risk that is unacceptable to X in the absence of adequate amelioration.
The mother’s proposal is that X’s time with the father be brought to an end. The ICL proposes that pending further investigation the time be suspended. Each of these would constitute a sharp change for X in circumstances where the evidence is otherwise suggestive of benefits to X in spending time with the father (albeit benefits that themselves may be limited and compromised if the father is engaging in intimate partner violence). In the light of the potential benefits for X in time with the father the question arises as to whether amelioration of the potential risk is available that will provide the X benefits of meaningful relationship with the father.
The only potential mechanism that arises is by reduction of X’s time in the father’s household, thereby reducing his exposure to conflict within that household and to occasions of the perpetration of family violence. While what accompanies this is a reduction in X’s exposure to the benefits of time with the father, s 60CC(2A) right provides greater weight to the protection of X.
Reducing X’s time to periods during the week would have the effect of X spending time with the father for short periods before reattending school and being exposed to the mandatory reporters associated with the school, maintaining the protection given by that, whilst limiting exposure to the risk.
At present the arrangement is for X to spend time with the mother and father equally, on a week-about basis, with changeover to occur at the commencement of school each Friday.
The orders should maintain the school to school handovers where available. This minimises X’s exposure to interaction between the parents. Accordingly, where such a mechanism best supports X, the injunction preventing the father from attending at X’s school as proposed by the ICL should not be made.
The reduction in overall time and change in structure of X’s time with the father has the potential to be destabilising for him. To seek to maintain the benefits of meaningful relationship with the father, while the time will be reduced its frequency will be increased, such that X will spend two weeknights each week with the father. Although the protections are less during school holiday periods, the regime should be maintained during such periods. The reduced time is protective of X, and some school holiday time may be expected to assist X to receive the benefits of relationship with the father.
The mother seeks that she hold sole parental responsibility. This is not a matter in which the presumption in favour of equally shared parental responsibility applies, given the outstanding criminal charges against the father in relation to the mother. That background also points to issues surrounding the parents being compelled to engage in joint decision making. The mother points to her inability to secure psychological intervention for X as an example of the futility of sharing parental responsibility, whilst the father points to his agreement to so called ‘non‑reportable’ therapy as supporting the notion that parental responsibility can be shared.
It cannot be anticipated that the parties will be able to cooperate even with the above concession made by the father. Nor can it be said that X will benefit from one parent having unconstrained parental authority, given the background of acrimony and litigation. In that context sole parental responsibility should rest with the mother but with restraints as to relocation (noting the mother’s ultimate intent to move to Queensland), as to modification of X’s schooling arrangements, and requiring notice to the father and the ICL prior to engaging X with therapy (such being contentious not least for reasons of its potential use in the proceedings).
The parents agree that there should be hair follicle testing, but disagree as to the regime. The mother’s case is predicated on an appearance, and conduct, on the part of the father that she adjudges to be consistent with times when she knew him to be consuming drugs during their relationship. The father agrees to testing but says, effectively, that it should be prospective given that there has to date not been a ban on use of illicit substances other than when caring for X.
In terms of safeguarding X’s well-being during the period leading up to trial, drug use prospectively is the risk issue to be dealt with by hair follicle testing. While ultimately it may be of benefit to have a broader perspective at trial, the basis for such has not yet been established. The regime proposed by the father should be adopted.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 17 November 2023
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