Richmond & Tirado (No 2)
[2025] FedCFamC1F 48
•4 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Richmond & Tirado (No 2) [2025] FedCFamC1F 48
File number(s): CAC 695 of 2018 Judgment of: GILL J Date of judgment: 4 February 2025 Catchwords: FAMILY LAW – PARENTING – Interim orders – Where there is a risk of exposure to family violence in the care of the father – Where the risk has persisted despite a number of measures designed to be protective against exposure – Interim orders that time with the father will be professionally supervised – Release from Hearne v Street obligation – Parties released from Hearne v Street obligations in order to use documents in criminal proceedings involving family violence allegedly perpetrated by the father on the mother Legislation: Family Law Act 1975 (Cth) ss 60CC, 68Q Cases cited: Eastley & Eastley (2022) FLC 94-094
Hearne v Street (2008) 235 CLR 125
Isles & Nelson (2022) FLC 94-092
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283
Littlefield& Pemble (2008) 235 CLR 125
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 3 February 2025 Place: Canberra Counsel for the Applicant: Mr Stagg Solicitor for the Applicant: Parker Coles Curtis Counsel for the Respondent: Mr Fox Solicitor for the Respondent: Jeanine Lloyd & Associates Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid, ACT ORDERS
CAC 695 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RICHMOND
Applicant
AND: MS TIRADO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
4 FEBRUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
UNTIL FURTHER ORDER, IT IS ORDERED THAT:
2.The mother shall have sole parental responsibility for the child, X, born in 2015, save that the mother is required to give 7 days’ written notice to the father and the Independent Children’s Lawyer prior to engaging X with therapy.
3.The mother is restrained from changing X school without obtaining written agreement from the father.
4.X shall live with the mother.
5.X shall spend time with the father by way of professional supervision (“professional supervision”) for a period of no less than two visits per week, for a total of no less than two hours per visit, at such times and dates as offered by the professional supervision service.
6.The time set out in Order 5 above is subject to the following conditions:
(a)Professional supervision shall occur via O Supervision Services or another professional supervision service as agreed between the parties in writing within 2 days of the date of these Orders, and failing agreement, as nominated by the Independent Children’s Lawyer.
(b)The parties shall do all acts and things to request a written report issue at the conclusion of each period of professional supervision.
(c)Any cost associated with the professional supervision, including obtaining reports, shall be met solely by the father.
(d)Upon a professional supervision service being selected, each party shall do all acts and things and sign all documents necessary to engage the professional supervision program within 2 days of the date of these Orders.
(e)The location of the professional supervision to occur in a public location as agreed between the parties in writing and failing agreement within 2 days of the date of these Orders then as nominated by the Independent Children’s Lawyer.
(f)Other than P, born in 2023, the father is to seek the mother’s prior written consent prior to bringing any other person to the professional supervision.
IT IS ORDERED, BY CONSENT, THAT:
7.In respect of the wedding:
(a)X shall spend time with the father for the purpose of attending his sister Ms Q’s wedding in early 2025 at R Venue, Town S, NSW;
(b)The time shall be from 1:30pm to 6:30pm that day;
(c)The paternal grandfather or such other person as agreed in writing between the parties shall conduct the changeovers at the wedding venue with the exact location to be provided by the father to the mother in writing at the earliest possible time;
(d)For the purposes of X's time with his father the paternal grandfather or paternal aunt are to be in substantial attendance;
(e)The father is restrained from permitting X to come into contact with Ms E.
IT IS FURTHER ORDERED BY THE COURT THAT:
8.The mother and father be restrained from relocating X's permanent residence from outside of Region V or Region T.
9.The parties communicate with each other via the Talking Parents App.
10.In the event of an emergency involving X or the parent, the parent with the care of X shall contact the other parent via telephone or SMS as soon as practicable.
11.Pursuant to s 68Q of the Family Law Act 1975 and in the event these orders are inconsistent with the Family Violence Order made in 2021, or any special Family Violence Order that may be made these orders shall prevail.
12.The parents shall facilitate communication between X and the parent with whom they are not otherwise living, in accordance with X's’ wishes.
13.The parents shall facilitate communication between X and the parent he is not with on Christmas Day with the FaceTime to be placed between 9:00am and 10:00am.
14.Each parent shall keep the other informed as to their current contact details including but not limited to their phone number and email address and shall advise the other in writing within 48 hours of any such change occurring.
15.The parents shall each immediately inform the other of any serious illness or injury sustained by X while in their care via the Talking Parents App and further provide any particulars of any treatment received by X together with the name and address of the treatment provider and/or location at which X is a patient.
16.The parents each make available to the other any medication prescribed for X to the other parent to administer during contact periods and the other parent shall thereafter administer the medication as prescribed or required. That parent shall, at the conclusion of contact, return the medication to the other parent.
17.The parents are at liberty to obtain any and all medical records and to consult with X's’ medical and dental practitioners to obtain any and all information that they may be ordinarily entitled to obtain, and that for the purposes of this Order, a sealed copy of these Orders upon such a practitioner is deemed to be sufficient authority.
18.This Order provides authority to the Principal or alike at X's’ school to supply both parents with copies of school reports, progress reports, school letters, invitations to events and carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school, and service of a sealed copy of these Orders shall be sufficient to execute this Order.
19.The parents are permitted to attend any school event or occasion at X's’ school that parents are ordinarily able to attend when X is in their respective care.
20.Each of the parents be restrained by injunction from:
(a)Denigrating the other parent to X or within earshot of X and from allowing any other third party to do so;
(b)Using physical force to punish X and from allowing any other third party to do so;
(c)Consuming illicit drugs or alcohol 24 hours prior to, or at any time X is in their care.
21.Each of the parents be restrained by injunction from exposing X to any conflict or family violence and from allowing any other third party to do so.
22.The parties are at liberty to supply to the Supreme Court, investigating officers and legal representatives for use in the criminal proceedings all applications, responses, and replies and all notices of risk filed by either party in these proceedings along with all affidavits authored by the parties to these proceedings, along with any affidavit authored by Dr G or Dr U along with a child inclusive memorandum and single experts report.
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 the pseudonym Richmond & Tirado has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
There are two aspects of these proceedings, the first is as to interim parenting arrangements for the child, X, in circumstances where firstly interim orders were made in November 2023 providing for frequent unsupervised time between X and the father structured to reduce the risk of exposure of X to family violence. Second, that those orders were displaced by a Family Violence Order made on an ex parte interim basis in late 2024 that was voiced in a manner to suspend time between the child and the father pending further consideration by this court. Third, orders were then made by this court on 9 January 2025 for professional supervised time pending answer by Children, Youth and Families (“CYF”) to a s 60ZBE order. Four, now available to the court is material from CYF and the Australian Federal Police (“the AFP”) going to the issue of risk posed to X by the father pending final hearing, in particular risk of exposure to family violence.
The second aspect of the proceedings involves the release from Hearne v Street[1] obligations for the father to use in criminal proceedings all applications, responses, replies, notices of risk all affidavits authored by the parties or by Dr G or Dr U, along with the child inclusive memorandum and a single expert report. The mother opposes such a release being given to the father, but if the father obtains a release seeks a corresponding leave.
[1] (2008) 235 CLR 125.
RELEASE FROM HEARNE V STREET OBLIGATIONS
I will deal firstly with that issue. It is an issue that arises in circumstances where in early 2025 the father faces trial for criminal offences allegedly perpetrated by him upon the mother. Those alleged offences form a part of the context and subject matter of this family law proceedings. The parties have identified the law as set out by the Full Court in Littlefield& Pemble,[2] the relevant principles in short are as follows.
[2] (2023) FLC 94-165.
(1)At [34] the principles apply “where a party seeks leave to use material impressed with the implied undertaking for a purpose other than that for which was given or created.”
(2)The implied undertaking restrictions apply (at [39]) where a restriction on the use of the material supplied for court proceedings is provided by an order or relevant rules or the fact of production under compulsion.
(3)That release from those obligations pursuant to [35] require special circumstances meaning good reason to exercise the discretion to depart from the ordinary course of restriction.
(4)The sort of considerations that may be taken into account to determine whether or not there are such special circumstances justifying release include:[3]
[3] Littlefield& Pemble (2023) FLC 94-165 at [35] quoting Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 at [31].
•the nature of the document;
•the circumstances under which the document come into existence;
•the attitude of the author of the document and any prejudice the author may sustain;
•whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
•the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
•the circumstances in which the document came in to the hands the applicant; and
•most importantly of all, the likely contribution of the document to achieving justice in the other proceedings.
(5)Pursuant to [37] the exercise does not involve the consideration of admissibility or purpose, as those are matters properly for the other court.
Support for the release of material was reliant on a global assessment, the proposition being:
(a)There is some commonality between the Supreme Court proceedings and the subject matter of these proceedings;
(b)The documents may reveal inconsistencies and accounts;
(c)The documents may reveal the nature of the relationship between the parties relevant to credit; and
(d)The expert evidence may bear upon credibility, or in particular the expert opinion may bear on credibility.
At least (a)-(c) are reasonable propositions given the subject matter of these proceedings. As noted, the release of the material was resisted by the mother noting that it contains highly personal material, and noting that there was a failure to descend into the assessment of individual documents in the application. While it can be accepted that an individual identification of the nature of the documents is a helpful and sometimes necessary exercise, in this instance a global assessment is sufficient to determine that the interests of justice and the potential to inform those proceedings warrants the release of the material despite its personal nature.
The commonality in part and the potential to reveal relevant matters to the assessment of the parties, including by virtue of the explanation of the nature of their relationship and the attitudes to each other are sufficient matters. Orders will be made permitting release for the use in relation to those proceedings.
INTERIM PARENTING ORDERS
Moving to the parenting orders. Two issues are not in contention. The first is that X and the father should spend time together, at least professionally supervised time. Secondly, the terms on which X is to attend his sister’s wedding, the sister being the daughter of the father.
That second matter is dealt with by consent insofar as the parties have agreed to the arrangements and ask that they be formulated into orders.
Otherwise the contentions between the parties are as to supervision at all or supervision by nonprofessional relatives of the father. The Independent Children’s Lawyer (“the ICL”) and the mother sought professional supervision to continue.
These are matters that are to be determined on the basis of X's’ best interest and determined on consideration of the s 60CC considerations and here in particular s 60CC(2)(a) the arrangements that will promote the safety of X, including in relation to exposure to family violence, and secondly, the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant, where it is safe to do so.
In interim proceedings as here, the court is not in a position to make contested findings of fact however, the court is still required to assess risk issues that arise on the evidence. In considering risk in Isles & Nelson[4] the Full Court described the predictive nature of the exercise as involving the foresight of possible harm and in Eastley[5] the requirements for the court to consider the whole of the evidence, including the risk indicated by examination of the cumulative effect of the evidence even where the underlying events are unable to be determined one way or other on the balance of probabilities. The case for professional supervision is reliant primarily upon risks associated with the father or an intimate partner of the father engaging in family violence and X being exposed to such. The context for the assessment of that risk is that the suspended orders were already designed to alleviate that risk and to provide for X to have the benefits of relationship with his father.
[4] (2022) FLC 94-092.
[5] (2022) FLC 94-094.
The case put forward for the mother and the ICL draws heavily upon the material produced by the AFP and CYF, portions of which it may be noted were reliant upon hearsay accounts in large part without the identification of the source. Those aspects mark a weakness in the evidence that was lead in those respects.
The incidents relied upon may be summarised as follows.
Firstly, post-dating the orders made in 2022 and preceding the interim orders made in November 2023, three incidents occurred in particular:
(1)In early 2023 where X described an altercation between the father and his partner Ms E, in which Ms E was bleeding.
(2)In early 2023 X described an argument between the father and Ms E and damage to property occasioned by Ms E; and
(3)In mid-2023 the AFP attended the L Apartments in response to reports of a verbal argument and found the father at those apartments.
There have been other incidents including an incident with the father being charged in relation to purported violence on an intimate partner inflicted at the N Venue. It should be noted that prior to the previous orders in November 2023 two persons identifying themselves as in relationship with the father denied that he had perpetrated family violence upon them.
As already noted, those orders of November 2023 were designed to protect X from exposure to family violence and preserve the benefits of relationship with his father in the context of the evidence that was then led.
In relation to today’s judgment the following incidents were relied upon:
(1)From late 2023, so shortly after the previous orders were made, AFP records showing the response of the police to an anonymous complaint, the police attending upon the father while X was present and reporting the father to behave in a verbally aggressive manner towards the police.
(2)in mid-2024 an AFP attendance on an incident with the father and a female – they were called to the incident by the father who reported property damage by the female, the female was with a young child and was in apparent distress. The father and the female mutually complained of violence on the part of the other, the female left the premises and fell over while carrying the child.
(3)in mid-2024 AFP records show an attendance again at the request of the father whereupon they heard mutual complaints from the father and a female regarding violence and took undertakings from both to keep the peace.
(4)in mid-2024 an AFP attendance on the father and a female both asking for the other to be charged with assault and both being required to enter into undertakings to keep the peace.
(5)in late 2024 an attendance by the AFP in response to an anonymous report of a female screaming “he’s hit the baby” and a report of a welt upon the baby. Observed was a birthmark on the baby which may have been mistaken for a welt, a female interviewed by the police denied any such claim by her that the father had hit a baby.
(6)In late 2024 AFP records of the father and a female arguing, property damage inflicted by the father, the female leaving with the police and mutual undertakings been entered into to keep the peace.
(7)In late 2024 the AFP records of attending at the father’s residence in response to a home invasion and assault upon the father by persons known to him, the circumstances of such were unexplained and any outstanding issue between the father and persons was not identified as having been resolved.
(8)In late 2024 AFP records of an altercation between father and a female with mutual allegations of throwing of objects.
(9)In late 2024 AFP records alleging assault by the father by an unidentified person upon an unidentified person and an investigation by the police. The allegations involve property damage and the use of a motor vehicle to crash into another motor vehicle. While the person was not identified they identified themselves as an associate of a person associated with the father, presumably a partner or former partner of the father.
(10)In late 2024 AFP reports a mutual allegation of violence between the father and a female and CYF reports a non-identified detailed report attributed to X describing having observed the father engaged in family violence by means of physical assault upon a female.
(11)In late 2024 AFP records and an annexure to the mother’s affidavit are of the father messaging the mother in potentially threatening terms. Police investigation yielded no action. The communication appears to be in response to the mother having withheld X from the father across Christmas and with the father purportedly saying that he would “not forgive or forget, there will become a time one day where I’ll get to return this favour [Ms Tirado] or possibly even more and I will take that opportunity! Every time it arrises [sic].”
(12)Further incidents were identified in mid and early 2024 when the father was apprehended by drug driving tests, testing positive for illicit substance with an indicium that the female in company with the father and in apparent possession of drug paraphernalia in mid-2024 was the father’s partner, or former partner, Ms E.
For the father it was rightly observed that X has not been directly involved in any of these instances save that alleged in respect of the late 2024 where X described the father assaulting a female in his presence. For the father it was further observed that X was interviewed shortly before this time by CYF in late 2024 with such interview yielding no disclosure from X but identifying apparent pressure from the mother upon the process and potentially upon X in her following up requesting that X be re-questioned. That contact was potentially suggestive of influence of X pointing to caution regarding representations attributed to X due to those around him potentially influencing him. The father further conceded, not unreasonably, a volatile relationship between him and Ms E and of incidents of family violence occurring between them as indicated by police attendances. For the father it was suggested that any risk of exposure of X to such may be ameliorated by an injunction that he not expose X to Ms E and therefore protect against family violence occurring between he and Ms E.
Discussion
In assessing risk, the primary risk is the exposure to family violence in the care of the father. There are concessions as to multiple instances of family violence between the father and a partner, but the identity of each of the partners or females in respect of the complaints identified above remain unclear, as do the role of the protagonists. It is unclear the role the father took in those altercations, or the role that the female took in those altercations. What is identified is the enduring nature of the incidents that have occurred across a span of time. Even in the absence of being able to make contested findings, observing the exposure alleged by X in late 2024 is illustrative of a serious risk of exposure with consequences likely beyond the upset and trauma that have been seen. Accordingly, in assessing the risk of X being exposed firstly the frequency suggested by the reports indicates a high risk of exposure, and the amplitude of risk suggested by X's’ report of late 2024 suggests a risk of serious exposure. That is, what is identified is both a pervasive and serious risk of exposure to family violence. That is a risk that has persisted despite firstly orders designed to safeguard against such, secondly frequent police involvement, and thirdly multiple undertakings on the part of the father and an associated person to keep the peace. It might also be considered that the risk might be thought to be increased given the indicia of the use of illicit substances by the father, even though it is uncertain as to the extent of such use given a number of clear hair follicle tests presented by him.
Further and different risk is suggested in relation to X by virtue of a home invasion, especially given that the home invasion may have been perpetrated by persons associated with the father and there is an absence of an apparent resolution as to what has caused that underlying risk.
Where multiple police interventions have not quelled the family violence incidents, whoever the instigator might be, where the roles of the protagonists are unclear, and where the incident of late 2024 is suggestive of a risk of serious exposure an injunction restraining the father from bringing X into contact with Ms E is insufficient. The necessary precaution to preserve X's’ safety, to ensure that he can engage in a relationship with his father safely, in the hope of reaping the positive benefits of that relationship – what is required is professional supervision.
It seems despite X's’ initial refusal, it is a system that is currently working well. While it is noted that at the last moment of the hearing the father suggested an alternate arrangement by family supervision, in the absence of further and persuasive material to show that those closely associated with the father would be able to sufficiently and effectively ameliorate a risk of exposure to interpersonal violence, such a proposal is not demonstrated to be sufficient.
Orders will be made to continue professional supervision pending final hearing.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 6 February 2025
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