Sacco & Allan (No 2)

Case [2024] FedCFamC1A 139

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sacco & Allan (No 2) [2024] FedCFamC1A 139

Appeal from: Allan & Sacco (No 2) [2024] FedCFamC1F 15
Appeal number: NAA 31 of 2024
File number: BRC 15354 of 2020
Judgment of: ALDRIDGE, ALTOBELLI & SCHONELL JJ
Date of judgment: 20 August 2024
Catchwords: FAMILY LAW – APPEAL – Appeal from final parenting orders – Where the primary judge conducted a “discrete hearing as to risk” – Consideration of s 69ZR of the Family Law Act 1975 (Cth) – Delay – Error in fact finding – Appeal allowed.
Legislation:

Family Law Act 1975 (Cth) s 69ZR, Pt VII

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9
Cases cited:

Allan & Sacco [2022] FedCFamC1F 120

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fowles & Fowles(No 2) [2024] FedCFamC1A 115

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Lee v Lee (2019) 266 CLR 129; [2016] HCA 28

Neil v Nott (1994) 121 ALR 148; [1994] HCA 23

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

SS & AH [2010] FamCAFC 13

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Number of paragraphs: 55
Date of hearing: 2 August 2024
Place: Sydney (via video link)
The Appellant: Self-represented litigant
Counsel for the Respondent: Mr Bolovan
Solicitor for the Respondent: KA Criminal Law Pty Ltd
Counsel for the Independent Children’s Lawyer: Mr Hartnett
Solicitor for the Independent Children’s Lawyer: Seth Solicitors

ORDERS

NAA 31 of 2024
BRC 15354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS SACCO

Appellant
AND:

MR ALLAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, ALTOBELLI & SCHONELL JJ

DATE OF ORDER:

20 AUGUST 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 14 May 2024 is allowed.

2.The appeal is allowed.

3.The orders made 30 January 2024 are set aside.

4.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.

5.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the disbursements incurred by her in the appeal.

6.The respondent and the Independent Children’s Lawyer are granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of the costs incurred in the appeal.

7.The appellant, the respondent and the Independent Children’s Lawyer are granted costs certificates pursuant to s…

Continue reading Sacco & Allan (No 2)

Sign in free to access the full text

Details
AGLC
Sacco & Allan (No 2) [2024] FedCFamC1A 139
Case
[2024] FedCFamC1A 139
Decision Date

CaseChat Overview and Summary

The appeal in Sacco & Allan (No 2) was brought by the appellant, Ms. Sacco, against the respondent, Mr. Allan, regarding final parenting orders for their child. The primary dispute involved allegations of sexual abuse made by the child against the respondent, leading to a hearing under s 69ZR of the Family Law Act 1975 (Cth). The appeal centred on the primary judge's decision to conduct a limited "discrete hearing as to risk" and the findings made regarding the respondent's risk of harm to the child.

The legal issues before the court were whether the primary judge erred in conducting the limited hearing and if there was any error in the fact-finding process. The court had to consider whether the primary judge's approach was appropriate and if the findings were supported by the evidence. Specifically, the court examined whether the primary judge adequately considered the child's disclosures and the credibility of the parties' testimonies.

The court found that the primary judge's approach to the limited hearing was not inappropriate but concluded that errors in fact-finding warranted the setting aside of the orders. The court highlighted that the primary judge did not adequately consider the child's disclosures and the credibility of the evidence presented. The court emphasised that the primary judge's conclusion that the respondent did not pose an unacceptable risk was not supported by the evidence, particularly given the child's detailed account and the respondent's lack of a credible explanation. The court also noted the importance of considering the child's developmental stage and the inconsistencies in the evidence. Consequently, the appeal was allowed, and the matter was remitted for rehearing before a different judge.

The court set aside the orders made on 30 January 2024 and ordered a rehearing before a different judge. The appellant was granted a costs certificate under s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), while the respondent and the Independent Children's Lawyer were granted certificates under s 6. All parties were granted costs certificates under s 8 for the rehearing.

Orders

Orders of the court

NAA 31 of 2024

BRC 15354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SACCO

Appellant

AND:

MR ALLAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, ALTOBELLI & SCHONELL JJ

DATE OF ORDER:

20 AUGUST 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 14 May 2024 is allowed.

2. The appeal is allowed.

3. The orders made 30 January 2024 are set aside.

4. The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.

5. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the disbursements incurred by her in the appeal.

6. The respondent and the Independent Children’s Lawyer are granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of the costs incurred in the appeal.

7. The appellant, the respondent and the Independent Children’s Lawyer are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.

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.

Background

Background to the litigation

For reasons which follow, the appeal will be allowed.BACKGROUND The child the subject of the proceedings is the only child of the appellant and the respondent. The child is currently aged nine years. The appellant and the respondent commenced cohabitation in January 2008 and separated in or about 2015. The child was approximately 12 months old at the time of separation. Following separation, the parties entered into final consent orders on 4 September 2018. The orders provided for equal shared parental responsibility, for the child to live with the appellant and for the child to spend time with the respondent with incremental increases of time such that by September 2019 the child was spending overnight unsupervised time with the respondent. An incident occurred in October 2020 when the child returned to the appellant’s care after having spent time with the respondent. The appellant contends that the child disclosed to her that she had been touched inappropriately by the respondent. Consequent upon the disclosure, the appellant ceased all time between the child and the respondent. On 30 October 2020 the respondent commenced proceedings seeking orders that the child live with him on a week-about arrangement. In November 2020 the child was interviewed by officers from the Child Protection and Investigation Unit (“the Police”). On 2 December 2020 the Police advised they would not investigate the matter further. At the request of the parties, we have viewed the video recording of this interview. It contains a graphic demonstration by the child of what she said had occurred. Officers from the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) interviewed the respondent, his new partner, and the child. On 21 December 2020 the Department advised that the allegations were unsubstantiated. The matter came before the primary judge for case management on 9 March 2021 and the primary judge determined that he would list the matter for a “discrete hearing as to risk” (Allan & Sacco [2022] FedCFamC1F 120 at [6(e)] (“the 2022 reasons”)). The hearing was solely as to whether, in light of the child’s disclosures, the respondent posed an unacceptable risk of harm to the child by reason of sexual abuse. No party raised any objection to the primary judge conducting such a limited issues hearing. The hearing took place on 24 May 2021. At that hearing there was some limited cross-examination of the parties by their respective counsel and the Independent Children’s Lawyer. There was no expert evidence before the primary judge. The Court had a transcript and recording of the child’s interview with the Police, and the interviews conducted by the Department. On 17 August 2021 the Court heard the appellant’s application to reopen. On 11 March 2022 the primary judge delivered the 2022 reasons. Under the heading “Discussion”, his Honour observed as follows:30.Sexual abuse allegations by young children, if made, are fraught with uncertainty due to their young age, developing verbal skills and diminished ability to link time and place with accuracy.31.The child says to Police it happened on one occasion that she can recall, whereas the [appellant] says the child says it happened “often”.32.Yet this is a little girl who has a history of itchiness, soreness and redness; where the [respondent] did apply cream; where the [respondent], when the child was younger, actively ensured she was clean by assisting with bathing her.33.[Counsel] for the [appellant] contends it is “entirely unlikely that [the child] made up what she did in the bath”, and in circumstances where the [respondent] does not proffer any proper innocent explanation, he should not be believed when he says he has not bathed the child for two years or so.34.However, if, as the child is said to have informed the [appellant], this inappropriate sexual behaviour by the [respondent] has been occurring regularly for some time, the lack of any hint of disclosure by the child to her primary carer (the [appellant]) or to any other person since she has become more verbal developmentally over the last two to three years, makes no sense,35.The [respondent] is in a household that includes three girls (when [the child] is staying), and the older “siblings”, when interviewed by Police at school, raised no concerns at all.36.I cannot accept that the [respondent]’s entire household have either turned a “blind eye” to repeated abuse of this little girl or would not be aware of it occurring.37.On the evidence produced and tested, I am not persuaded, after giving careful consideration, that the [respondent] poses a risk at all (certainly not unacceptable) to [the child] of sexual harm.38.In making this finding, I have formed the view that there is not likely to be a future incident of sexually motivated behaviour of the [respondent] and, although I did not receive any evidence from the [respondent]’s wife [Ms B], as the mother of two girls (and the step-[mother] to [the child]), her interview with the Department Officers support her being seen as a protective factor. I do accept that if inappropriate touching or sexual abuse of [the child] at the hands of the [respondent] was to take place it could have a significant adverse effect on [the child].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.