Starrett & Bacca

Case [2023] FedCFamC1F 808

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Starrett & Bacca [2023] FedCFamC1F 808

File number(s): ADC 60 of 2022
Judgment of: KARI J
Date of judgment: 25 September 2023
Catchwords: FAMILY LAW – CHILDREN – Where the parents have three children aged 17, 12 and 9 – Where all of the children are in the father’s sole care – Whether the mother should spend supervised time with the children – Where the children have not seen the mother for over a year - Where the eldest and youngest children have made serious allegations of sexual abuse perpetrated by the mother’s husband – Where the Department of Child Protection implemented a Safety Plan removing the children from the mother’s care and placing them in the care of the father – Where the Department of Child Protection have investigated the allegations and determined that the alleged abuse has been substantiated – Where in addition there are allegations about the mother’s lifestyle and her relationship with her husband - Where all allegations are denied by the mother and her husband –  No order for time spending prior to final hearing
Legislation: Family Law Act1975 (Cth) ss 60B, 60CC, 91B
Cases cited:

Bant & Clayton (2019) FLC 93-924

Deiter & Deiter [2011] FamCAFC 82

Edwards v Noble (1971) 125 CLR 296

Isles & Nelissen (2022) FLC 94-092

M and M [1988] 166 CLR 69

Norbis v Norbis (1986) 161 CLR 513

Secretary of Department of Health and Human Services & Ray and Ors (2010) FLC 92-457 Goode & Goode (2006) FLC 93-286

Division: Division 1 First Instance
Number of paragraphs: 86
Date of hearing: 30 August 2023
Place: Heard in Adelaide, delivered in Melbourne
Counsel for the Applicant: Mr McQuade
Solicitor for the Applicant: Themis Family Lawyers
Counsel for the Respondent: Mr Lewis
Solicitor for the Respondent: Devine Murdoch
Solicitor for the Independent Children's Lawyer: Ryder Family Law

ORDERS

ADC 60 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS BACCA

Applicant Mother
AND:

MR STARRETT

Respondent Father

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

25 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.That the Application in a Proceeding filed by the mother on 21 July 2023 be dismissed.

2.That the Response filed by the father on 23 August 2023 be dismissed.

3.That the matter remain in the pool of matters awaiting the allocation of a final hearing.

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…

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AGLC
Starrett & Bacca [2023] FedCFamC1F 808
Case
[2023] FedCFamC1F 808
Decision Date

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia concerned a dispute between the parents of three children, X, Y, and Z, who were 17, 12, and 9 years old respectively. The parents had separated, and the children were in the sole care of the father. The mother sought supervised time with the children, who had not seen her for over a year. The dispute arose from serious allegations of sexual abuse against the mother's husband, Mr G, made by the eldest and youngest children. The Department of Child Protection substantiated the allegations and implemented a Safety Plan removing the children from the mother's care. The mother and Mr G denied all allegations. The court was required to decide whether the mother should be allowed supervised time with the children.

The court carefully considered the evidence and recommendations from the court's co-located SAPOL officer and the Court Child Expert. The Court Child Expert recommended that the children remain in the sole care of the father and that the mother provide certain records to the father. The Expert also recommended that X and Z have supervised time with the mother, albeit infrequently and permanently supervised. The court noted the significant disclosures of sexual abuse, concerns about the mother's capacity to protect the children from Mr G, and the poor co-parenting relationship between the parents. The children expressed a wish to remain in their father's care, and Y did not want to spend time with the mother. The court concluded that, given the circumstances, it was not appropriate to order supervised time spending with the mother before the final hearing.

In light of the findings, the court dismissed the mother's application and the father's response, and the matter remained in the pool of matters awaiting allocation of a final hearing. The court emphasised that the form of the order was subject to review and variation as necessary. The decision underscored the importance of ensuring the safety and well-being of the children while the allegations and the overall circumstances were fully investigated and determined.

Orders

Orders of the court

ADC 60 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BACCA

Applicant Mother

AND:

MR STARRETT

Respondent Father

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

25 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. That the Application in a Proceeding filed by the mother on 21 July 2023 be dismissed.

2. That the Response filed by the father on 23 August 2023 be dismissed.

3. That the matter remain in the pool of matters awaiting the allocation of a final hearing.

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.

Background

Background to the litigation

For the reasons that follow, it is the court’s considered view that there should not be an order for time spending prior to any trial of these proceedings.BACKGROUND The short background for this family is as follows:(1)The father was born in 1977 and he is 46 years of age.(2)The mother was born in 1969 and she is 54 years of age. (3)The parents commenced living together in approximately 2004.(4)The parents married in 2006.(5)The parents separated on 30 September 2017. (6)The parents were divorced in 2021. There are three children born of the relationship, namely:(a)X, born 2006 who is presently 17 years of age;(b)Y, born 2010 who is presently 12 years of age; and (c)Z, born 2014 who is presently 9 years of age. The mother has four adult children from a previous relationship, namely:(a)Ms B, born 1992;(b)Mr C, born 1996;(c)Ms E, born 1999; and (d)Ms D, born 2000. The father has one child from a previous relationship called Ms F, who is an adult. Both of the parents have re-partnered. The mother has re-married to a man named Mr G and they live together. It is not clear to the court exactly when the mother and Mr G commenced their relationship, however they began cohabiting in 2017 and married in 2022. The father has re-partnered with a woman named Ms H. The father does not live with Ms H. However, Ms H plays a significant role in caring for the parties’ three children.THE LITIGATION These proceedings are not the first time that this family have come before the court seeking parenting orders. There were previous proceedings commenced by the mother on 14 June 2018 which were ultimately finalised by way of an order made by consent between the parties on 14 June 2019. Those orders in summary provided as follows:(a)That the parties have equal shared parental responsibility for the three children.(b)That the children live between the parents on an equal shared care week about basis with handovers taking place at the conclusion of school on a Monday or 3.00 pm if not a school day.(c)That handovers occur at the J Shop at Town K.(d)Time spending arrangements for the children to see each of their parents on special occasions including Christmas Day, Mother’s Day and Father’s Day.(e)Injunctions restraining each of the parties from:(i)Abusing, denigrating or assaulting the other party in the presence of hearing of the children or allowing any other person to do so;(a)Using any illicit substances whilst the children or any of them are in their care for a period of 24 hour prior to or during any period of time that the children are in their care;(b)Changing the children’s enrolment from the L School or M School without the written consent of the other parent. Following the making of final parenting orders on 14 June 2019 the arrangements between the parties appear to have proceeded uncontroversially. That included circumstances from about August 2021 when the child X indicated to the father that she no longer wished to live with him and she ceased to do so. In terms of X’s expressed wish at that stage, it appears uncontroversial that the father supported X’s decision and did not seek to interfere with it.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 15 December 2022 the court received an updated report from the court’s co-located SAPOL officer. Of significance that report identified that the sexual abuse charges laid against Mr G on 25 June 2022 had an outcome recorded as follows:Outcome: Charges not Proceeded With, [Intervention Order] application in consideration.[32][32] Information Summary Report – South Australia Police dated late 2022, p.3. The Family Report was prepared by Court Child Expert Ms S and is dated 3 May 2023. By that report the Court Child Expert made recommendations as follows:98.That the children remain in the sole care of [Mr Starrett] and that [Mr Starrett] have sole parental responsibility.99. That [Ms Bacca] provide [Mr Starrett], via the court, with records relating to any past medical or disability diagnoses for [X], [Y] or [Z].100. That [X] and [Z] be supported to have supervised time with [Ms Bacca] via a children’s contact service, such as the [R Children’s Contact Service] which has a contact centre in [Town W].101. That [X] and [Z’s] time spending with [Ms Bacca] be infrequent, for example once a month, and remain supervised permanently.102. That [Mr G] not have any contact with the children.103. That [Y] be offered the opportunity to spend time with [Ms Bacca] when her sisters do.104. That [Mr Starrett] seek therapeutic support for [X], [Y] and [Z], including further assessment or confirmation regarding any potential Autism diagnosis, in particular for [X] and [Y]. Any diagnosis or therapeutic support in relation to Autism for any of the children should be through as psychology service that has a sound understanding of childhood trauma as well as Autism (for example ‘[CC Psychologists]’, ‘[DD Psychologists]’, ‘[EE Psychologists]’ or ‘[FF Psychologists]’) Those recommendations were made against a background of:(a)The Court Child Expert properly identifying that significant disclosures of sexual abuse by Mr G had been made by Z and X (at [83]-[84]);(b)Concerns about the mother’s capacity to be a safe caregiver and ability to protect the children from Mr G (at [84]);(c)That shared care was not supported, even absent the disclosures made by the children, given the poor co-parenting relationship between the parents (at [85]);(d)That all three children “feel a sense of belonging and safety with the father, Ms H and with one another. All indicated they wished to remain in their father’s full-time care (at [87]);(e)The mother’s apparent fixed views about the falsity of the allegations and her inability to prioritise the children over her relationship with Mr G (at [88]-[89]);(f)That while the allegations and disclosures made by the children were a matter to be determined at trial, if accurate Mr G would pose a risk to the children (at [90]);(g)The child Y expressing the view that she did not want to spend time with the mother (summarised at [93]);(h)The children X and Z expressing a wish to spend time with the mother but in the absence of Mr G (at [63] and [77] respectively);