FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scafides & Petrakou (No 2) [2023] FedCFamC1F 65
File number(s): SYC 1814 of 2020 Judgment of: CAMPTON J Date of judgment: 16 February 2023 Catchwords: FAMILY LAW – INTERIM PARENTING – Application in a Proceeding by the mother brought less than one week prior to the trial for the father’s time with the child to be supervised, an updating report from the single expert to be prepared and the trial to be vacated – Serious allegations as to the risk of sexual abuse – Where the evidence to date does not satisfy the Court of a realistic possibility of risk of sexual abuse to the child – Application refused. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 60CC, 65D, 69ZR
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Cases cited: Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 15 February 2023 Place: Sydney Solicitor for the Applicant: Ms Morris, Sexton Family Law Counsel for the Respondent: Mr Richardson Solicitor for the Respondent: Sullivan Legal ORDERS
SYC 1814 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCAFIDES
Applicant
AND: MS PETRAKOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
16 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the mother on 14 February 2023 be dismissed.
2.The mother be granted leave to rely on her affidavit filed on 14 February 2023 for the purposes of the trial listed to commence on 20 February 2023.
3.By 9.00 am on 20 February 2023, the father is to file and serve an affidavit strictly in reply to the mother’s affidavit filed on 14 February 2023.
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 the pseudonym Scafides & Petrakou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
These proceedings are listed over five days for the final hearing of the parties’ parenting and property dispute, commencing next week on 20…
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CaseChat Overview and Summary
The case of Scafides & Petrakou (No 2) involves a dispute between the father and the mother concerning the custody and care of their child, X. The father originally filed for custody arrangements, which led to various court proceedings over several years. The mother subsequently filed an Application in a Proceeding, contending that the father poses an unacceptable risk of sexual abuse to X. This led to an urgent hearing to determine whether the trial should proceed as scheduled or be vacated to allow for further investigation into the mother's allegations.
The court was required to decide whether the mother's evidence was sufficient to establish that the father poses an unacceptable risk of sexual abuse to X. The legal issues involved assessing the credibility and weight of the mother's allegations, considering the appropriate standard of proof for such allegations, and determining whether it was in X's best interest to proceed with the trial as scheduled. The court also had to consider the implications of delaying the trial for further investigation.
The court examined the mother's evidence, which included allegations of inappropriate behaviour by the father in the presence of X. However, the court found that the mother's evidence was not sufficient to establish the serious allegations of sexual abuse to the requisite degree. The court also noted that the mother had consented to unsupervised time arrangements between X and the father, which suggested a level of confidence in the father's care. The court concluded that it was not in X's best interest to disrupt the existing time arrangements and that the trial should proceed as scheduled. The court emphasised that further evidence could emerge during the trial to support the mother's allegations, but for the time being, the existing evidence was insufficient.
The court denied the mother's application to vacate the trial and obtain a further report from Dr G. The court found that delaying the trial would have significant consequences, including a potential delay of more than 12 months before the matter could be heard on a final basis. The court noted that Dr G was not available to meet the parties and X until late 2024, making it impractical to delay the trial for further investigation. The court concluded that proceeding with the trial as scheduled was in the best interest of X, allowing for the full presentation and testing of evidence on both sides.
The court was required to decide whether the mother's evidence was sufficient to establish that the father poses an unacceptable risk of sexual abuse to X. The legal issues involved assessing the credibility and weight of the mother's allegations, considering the appropriate standard of proof for such allegations, and determining whether it was in X's best interest to proceed with the trial as scheduled. The court also had to consider the implications of delaying the trial for further investigation.
The court examined the mother's evidence, which included allegations of inappropriate behaviour by the father in the presence of X. However, the court found that the mother's evidence was not sufficient to establish the serious allegations of sexual abuse to the requisite degree. The court also noted that the mother had consented to unsupervised time arrangements between X and the father, which suggested a level of confidence in the father's care. The court concluded that it was not in X's best interest to disrupt the existing time arrangements and that the trial should proceed as scheduled. The court emphasised that further evidence could emerge during the trial to support the mother's allegations, but for the time being, the existing evidence was insufficient.
The court denied the mother's application to vacate the trial and obtain a further report from Dr G. The court found that delaying the trial would have significant consequences, including a potential delay of more than 12 months before the matter could be heard on a final basis. The court noted that Dr G was not available to meet the parties and X until late 2024, making it impractical to delay the trial for further investigation. The court concluded that proceeding with the trial as scheduled was in the best interest of X, allowing for the full presentation and testing of evidence on both sides.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
As for risk, or unacceptable risk (which is at the heart of the mother’s case), the Full Court clarified in Isles & Nelissen (2022) FLC 94-092 (“Isles”) that past allegations of violence and abuse are to be determined by reference to s 140 of the Evidence Act 1995 (Cth). The Full Court added that the assessment “of ‘unacceptable risk’ cannot be measured by the civil standard of proof”. Rather, I look to realistic possibilities (see Isles at [86]).The mother’s evidence Broadly, the mother’s evidence to support her case as to risk was given in the following chronology in her affidavit. Throughout the parties’ relationship, the mother contended that the father walked around the house without clothes on, in the presence of X, and that he “would lie on the couch watching TV with his hands inside his underwear touching his genitals whilst [X] was playing in front of him”. She further alleged that the father would “constantly say to [X], ‘Daddy wants to bite you on the arse’, and would bite her bottom” (at paragraph 8). The mother said that she asked the father not to engage in such behaviours, but that he would either ignore or yell at her in response. She further said that in “around December 2019”, X said to the mother words to the effect of “Daddy touched my private parts”, a comment which she “brushed off as a reference to [the father] biting [X] on the bottom”, but which “instilled in [the mother] a sense of unease” (at paragraph 9). The mother’s case is that she has laboured under an unease since 2019, and if I understood the submission correctly, has held concerns as to the risk of sexual abuse since that time. Notwithstanding those very serious concerns, the mother consented to orders being made on 14 July 2021 for X to spend unsupervised time with the father, including overnight time commencing during the Christmas period in 2021. Her Response to an Initiating Application filed as recently as 14 November 2022 reflected an apparent confidence on the mother’s part at that time that it was in X’s best interest to continue spending time with the father, given that she sought orders that” 3. [X] spend time with the Father as agreed between the parties in writing, and failing agreement, as follows:a. Until the conclusion of Term 2, 2024 On a two weekly cycle, as follows:i. In Week One from Friday at the conclusion of school (or 3:00PM if a non school day) until 4:00PM on Saturday; and,ii. In Week Two on Wednesday from the conclusion of school (or 3:00PM if a non school day) until 6:30PM, or 7:00PM in Australian Eastern Daylight Saving Time.b. From the conclusion of Term 2, 2024, on each alternate weekend from Thursday at the conclusion of school (or 3:00PM on a non school day) until 4:00PM on Saturday. (As per the original) It was submitted that she has been cautious in arriving “recently” at her current contention and that her concerns in this regard are genuine. As part of that process of arriving at the conclusion that the father poses a current unacceptable risk to X, the mother gave evidence that in October 2022, as part of her casual employment, she completed a module on child protection (at paragraph 11 of her affidavit).
Decision
Reasons for decision
By way of the trial directions made on 9 May 2022, each party and the ICL had the capacity to relist the proceedings on short notice, “in the event of issues arising in relation to preparation for trial”. The mother did not exercise that capacity prior to the filing of her Application in a Proceeding on 14 February 2023. CONCLUSION The finding of fact the mother contends is that the father has occasioned sexual abuse upon X to date, or in the alternative, that it is likely in the future having regard to what she views as his longstanding (to her mind) inappropriate behaviour as identified in these reasons. In accepting the evidence identified by the mother in support of her Application in a Proceeding, taking it at its highest, I am not satisfied to the requisite degree that the serious finding sought by the mother as to the fact of the father sexually abusing X, or being likely to occasion sexual abuse upon X in the future, has been established. I am further not satisfied, importantly on the evidence to date, that a realistic possibility of risk of sexual abuse to X can be established. Doing the best I can on the substantially untested evidence currently before the Court, to which the father and the ICL have not had an opportunity to respond, I am not of the view that it would be in X’s best interests to disrupt the current time arrangements between herself and the father. That is reinforced by the fact of the trial being set commence in a matter of days, which will provide the parties an opportunity to more fully ventilate their concerns and test or substantiate their evidence. I have attempted to identify in these short reasons, produced urgently in the circumstances, the process of reasoning in reaching this conclusion as set out in the earlier paragraphs. For ample clarity, my view on this matter is not concluded. It may well be that over the course of the trial, further evidence becomes available that would support the finding of fact contended by the mother as to the father presenting an unacceptable risk to X. It will be a matter for the mother at trial, should she continue to press her case as to risk, to consider the evidentiary holes in the presentation of that case, and to adduce such evidence on those subject matters as she is advised. The mother’s application to vacate the trial and obtain a further report from Dr G As I advised these parties during the course of the hearing, in the event the trial (that has been listed for more than nine months) did not proceed, the Court would not have capacity to hear this matter on a final basis for greater than 12 months, well into 2024. That is some two years after the proceedings were first listed for final hearing, and four years after the proceedings were commenced by the father. It was submitted on behalf of the mother that it would be “unsafe” to proceed with the trial. That submission was grounded from a contention that it was necessary, given the mother’s allegations of risk, that a further report from Dr G be obtained so as to investigate such risk. During the hearing of the mother’s Application in a Proceeding yesterday, counsel on behalf of the mother submitted that Dr G is next available to meet these parties and X in late 2024. A report would be produced sometime thereafter.
Ratio Decidendi
Legal Principle Established
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