Scafides & Petrakou (No 2)
[2023] FedCFamC1F 65
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 February 2023. The trial dates were listed and extensive trial directions made on 9 May 2022.
The current orders regulating the parenting of the parties’ only child, X (“X”) were made on 14 July 2021 and provide for her to live with the mother and spend time with the father each Wednesday, from 3.00 pm to 6.30 pm (or 7.00 pm if daylight savings is in place), and each alternate weekend from 3.00 pm on Friday to 4.00 pm on Saturday. The father has additional time with X on special days, including holiday periods.
In the afternoon of 14 February 2022, being six days before the commencement of the final hearing, the mother filed an Application in a Proceeding seeking an urgent hearing to prosecute her relief that:
(a)Dr G, the single parenting expert witness, be engaged to prepare an updating report to that released on 26 April 2021 in relation to the care and welfare of X;
(b)The trial listed to commence on 20 February 2023 be vacated; and
(c)Until further order, the father’s time with X be limited to a four hour period each Saturday under the professional supervision of H Services (or any such other agency as agreed upon by the parties).
As was identified by her counsel at the hearing of the mother’s Application in a Proceeding before me on 15 February 2023, the crux of the mother’s application is her allegation that the father poses an unacceptable risk of harm to X in the event he is permitted to spend time with X, which could only be sufficiently mitigated by such time being limited and professionally supervised. The precise risk contended by the mother was identified by her counsel as X “having experienced or being at risk of experiencing sexual abuse” occasioned by the father. So far, the evidence available to the Court grounding the mother’s serious contention was restricted to and not expanded from that contained in her affidavit filed on 14 February 2023. She did not identify any other evidence to ground her orders sought.
The father and the Independent Children’s Lawyer (“the ICL”) have been afforded a few hours to read, digest, consider (and as for the father, to provide instructions) the mother’s relief and evidence. The father vehemently denies each of the allegation made and opposes the relief sought by the mother. The ICL did not support the mother’s application for the time between X and the father to be suspended but said that she was not in a position to address the balance of the relief sought in the Application in a Proceeding yesterday. She raised concerns as to how the allegations of risk have been articulated by the mother and when the factual matters underscoring the contended risk had arisen. She said that if the mother’s belief as to X being at risk is genuine, even if unwarranted and unreasonable, it is important that the allegations be investigated so as to not undermine any concerns in the mother’s mind as to orders made at the conclusion of any trial process.
THE LAW
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2007) 26 Fam LR 422 (“Goode”). The High Court in MRR v GR (2010) 240 CLR 461 (“MRR v DR”) affirmed those principles.
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts. That process is modified in these circumstances by the application of s 69ZR of the Act, in that findings of fact can be made for the purposes of this determination insofar as it is safe and appropriate to do so.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Act dealing with parenting. Pursuant to s 65D(1), subject to certain sections, a court may make such parenting order as it thinks proper. Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. The matters which the Court must consider in determining what is in the child’s best interests are set out in s 60CC. The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The relevant question here is whether, on the evidence, there is an unacceptable risk to X grounded from prior or current sexual abuse of X should she continue to spend time with the father pursuant to the existing orders.
There was some misapprehension in the prosecution of the mother’s case that the Court in determining this application in a proceeding is prohibited from making any finding of fact on a controversial issue as part of this abridged interim hearing process. Although the Full Court in Goode cautioned that the Court should be circumspect in making findings on contentious facts in such a context, it has made clear that evidence must not be ignored simply because it is contested. At any stage of a proceeding, including in an interim hearing, the Court is both expected and required to give credible evidence appropriate weight. This is reinforced by s 69ZR of the Act, which provides that in child-related proceedings conducted pursuant to Pt VII, Div 12A of the Act:
Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a) make a finding of fact in relation to the proceedings;
(b) determine a matter arising out of the proceedings;
(c) make an order in relation to an issue arising out of the proceedings.
Note:For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a person who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.
I am mindful that the Court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the orders which meet X’s best interests. This has been on occasion described as a need to act cautiously.
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).
She said that shortly after having completed her child-protection training, she reflected on her “concerns around [X’s] wellbeing” in the father’s care, and made a preliminary report to the child protection helpline (at paragraph 12 of her affidavit). She did not say when such a report was made, nor give any details as to the contents of her report or any response received from the child protection helpline. It was not clear whether the report was ever investigated by child welfare, and I note that the mother did not seek to tender any documentary evidence (for example, information produced under subpoena) from whatever organisation or helpline she made the report to.
Then, in December 2022, it was the mother’s evidence that X made an “unprompted” comment to the effect that the father “sleeps in [her] bed with [her], in his underwear”. She said although she had some initial concern about the comment, she “dismissed it as a onetime occurrence”. It was only when X continued to “volunteer comments” that the father was sleeping in her bed that the mother’s concern allegedly grew. Arising from such comments, the mother deposed that:
15. In late December, whilst dropping off [X] from one of her sessions, I raised my concerns with [X’s] psychologist, [Ms D], hoping to gauge whether [X’s] comments were cause for concern. I recall that I said words to the effect of, "I am concerned that [X] has told me that her father is sleeping in the same bed as her when she overnights at his partner’s house, especially when it is a 3 bed room apartment".
As to this evidence, the mother:
(a)Did not provide details as to who was present when she raised such concerns, including X; and
(b)Did not provide evidence as to the response received from X’s psychologist, (“Ms D”), if any.
The mother said that she made a further report to the child protection helpline in January 2023, although she again gave no details of that report, or any response received to that report, or of any actions taken by the helpline to investigate the report.
Her affidavit next records that in January 2023 the mother had an “unprompted” conversation with X, as follows:
18. [In] January 2023, on the eve prior to an overnight stay with [the father], [X] woke up at midnight and stayed awake until 5:00am the next morning, and she said to me words to the effect of, "there are too many things in my head."
19. Later that day, [X] commented to me, unprompted, that “I don’t feel safe when I am at Daddy's when he is in my bed and you’re not there”. I replied with words to the effect of, "Would you feel safe if Daddy slept in his own bed?" and I recall that [X] responded, "Yes, I am scared of Daddy. 1 cry into my pillow and turn my back to Daddy in bed, and I pray to God for you to come and get me, he yells at me in bed, he yells all the time Mum". I observed [X] to be visibly distressed, and on the verge of tears– I could see the tears welling up in her eyes.
20.I said to [X], “Did you tell Daddy you don’t like it?”, and [X] replied, “I’m scared of Daddy”. I did not her any further, but as a result of this heightened concern, I once again contacted the child protection helpline directly, as I had been taught to do in my recent training, and made a further report about my concerns about [X] in [the father’s] care, and in relation to their sharing one bed.
(As per the original)
Again, the mother’s affidavit gave no evidence as to this third report to the child protection helpline or any fallout from the report. There was no evidence that the mother suspended the father’s time with X, which she said was to occur the following evening. That time implicitly continued in accordance with the 14 July 2021 orders, until the hearing yesterday. The mother did not raise any concerns as to the father’s alleged behaviour with the father or the ICL. She did not explain why she did not do so.
The mother did, however, give evidence that she again contacted Ms D and said:
21.…words to the effect of, “I am concerned that [X] has told me that her father is still sleeping in the same bed as her,” and [Ms D] replied with words to the effect of, “we can have a one-on-one session to discuss, and I will extend a similar invitation for a private session to [the father].” I had this one on one session with [Ms D] one week later, on 31 January 2023.
The mother’s affidavit does not record whether Ms D did extend such an invitation to the father, or whether they have discussed the issue at all. It did not detail the conversation between the mother and Ms D on 31 January 2023. Significantly to my mind, the mother does not give any evidence of Ms D raising concerns for X’s safety or wellbeing in response to the mother’s reports, or arising from her own sessions with X. There is, for example, no evidence before the Court, for the purposes of this hearing, of Ms D raising concerns with any authorities as to X’s wellbeing. The mother further did not seek to explain why she did not seek to rely on any evidence from Ms D.
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.
I do not accept the submission made on behalf of the mother that Dr G could not be appraised as to the affidavit evidence of the parties prior to her giving oral evidence and could not take into account for the purposes of her evaluation and conclusion as to relevant s 60CC factors that evidence. I do not accept that Dr G could not express opinions grounded from possible findings of fact raised in the course of the trial.
I reject the mother’s submission that a risk is presented to X in the event the proceedings are heard over five days commencing next Monday (20 February 2023). With respect, that submission is nonsensical, in circumstances where the parties will have ample opportunity to adduce and assess evidence, make such applications as they are advised and otherwise to be heard with the benefit of their solicitors and counsel in that trial process. The conduct of the trial on those terms is anything but a “patched up process” and cannot be described as “palm‑tree justice”.
The recently obtained updated valuation evidence as to the property, liabilities and superannuation of the parties will become stale, occasioning a gross waste of costs. That process will need to be undertaken again in 12 months’ time. The Court is obliged to apply the provisions of s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) in its management of litigation which provides as follows:
67 Overarching purpose of family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 1) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
There is an obligation in the management of proceedings in this forum for parties to press the resolution of outstanding issues as quickly, efficiently and inexpensively as is possible. The vacation of the trial listed to commence in what is now in reality one business day is counterintuitive to those matters.
The application to vacate the trial and to obtain a further report from Dr G is refused.
I grant the mother leave to rely on her affidavit filed on 14 February 2023 for the purposes of the trial commencing on 20 February 2023. The father shall have liberty to file a further affidavit strictly in reply to the mother’s affidavit.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 16 February 2023
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