VIDUKA & VIDUKA - [2020] FamCA 235

FAMILY COURT OF AUSTRALIA

VIDUKA & VIDUKA

[2020] FamCA 235

FAMILY LAW – CHILDREN – Interim – With whom a child lives and spends time – Where the father seeks that the child recommence living with him and spends time with the mother – Where the mother seeks the child remain in her care and spends no time with the father – Where the child has been living with the mother – Where the father was incarcerated and has had no contact with the child – Where there are pending criminal proceedings – Best interests of the child considered – Orders

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the substantive proceedings are part-heard – Where there are criminal proceedings pending with respect to the father in the District Court of South Australia – Where the father seeks that substantive proceedings are not resumed until after the criminal proceedings have been resolved – Whether the father’s privilege against self-incrimination should outweigh the mother’s right to resolve these proceedings – McMahon v Gould considered.

Family Law Act 1965 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(3)

Marvel & Marvel [2010] FamCAFC 101
McMahon v Gould (1982) ACLC 98

APPLICANT:

Mr Viduka

RESPONDENT:

Ms Viduka

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

1114

2016

DATE DELIVERED:

15 April 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wabnitz

SOLICITOR FOR THE APPLICANT:

Daniel John Lawyers

COUNSEL FOR THE RESPONDENT:

Ms O'Connor SC

SOLICITOR FOR THE RESPONDENT:

Johnston Withers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That the child B born … 2014 live with the mother.
That the father be at liberty, at his own cost to obtain information from the child’s school in relation to the child as may be ordinarily available to parents.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Viduka & Viduka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1114 of 2016

Mr Viduka

Applicant

And

Ms Viduka

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Application in a Case filed 20 February 2020, Ms Viduka (“the mother”) and Mr Viduka (“the father”) remain in high conflict as to the future parenting arrangements for B born 2014 (“the child”).
I rely upon my reasons delivered 10 May 2017[1] and 13 December 2018[2] for the relevant background to the proceedings.
[1] See Vikuka & Viduka [2017] FamCA 292.
[2] See Viduka & Viduka [2018] FamCA 1064.
The father was arrested on … November 2016 and charged with offences including, one count of maintaining an unlawful sexual relationship with a child (the mother) contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
As at 10 May 2017, the child had lived with the father and had not spent time with the mother since 19 July 2016.
Orders were made on 10 May 2017 that the child spend time with the mother each alternate weekend and on the intervening Friday. On 25 September 2018 the mother filed an Application in a Case seeking a further extension of the child’s time with her. The mother subsequently filed an Amended Application in a Case on 26 October 2018 seeking orders that the child transition to her primary care and spend time with the father each alternate weekend and for some hours on the intervening Friday.
At the time that orders were made the mother was still charged with serious criminal offences. They were either withdrawn or not pursued by the Director of Public Prosecutions and on 16 July 2018 the mother was advised that no information would be filed against her.
That left the criminal charge against the father still to be resolved.
In making orders on 13 December 2018 that the child remain in the primary care of the father and spend time with the mother from Friday to Tuesday of each alternate weekend and during the day on the intervening Friday, the Court was assisted by the remarks of a family consultant consequent upon a family assessment being undertaken and a report, dated 22 March 2018, being prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”).
The difficulty for the family consultant was that her recommendations were very much dependent upon a factual determination as to whether each of the parties’ allegations against the other could be substantiated.
The family consultant was concerned that if the child remained in the father’s primary care, he may well not support the child’s relationship with the mother. The level of mistrust evident between the parties was and remains manifest.
The observations of the family consultant were that the child was relaxed in the care of each of the parties and did not evidence any fear.
Whilst I was prepared to significantly extend the mother’s time, I did not consider it would benefit the child to alter the child’s primary care arrangements given they had been in place for an extended period.
The Court was alive to the potential for a detrimental outcome for the child if he was subject to frequent changes in the parenting arrangements.
On … August 2019, the father was convicted of the charge of maintaining an unlawful sexual relationship with a child and was taken into custody following the revocation of his bail.
By Application in a Case heard on 17 September 2019, the mother was successful in having paragraphs 2, 3, 4, 5 and 8 of the orders made on 13 December 2018 discharged and, that until further order, she would have sole parental responsibility for the child and that the child would live with her.
The substantive proceedings were heard between 1 and 5 April 2019 and adjourned part-heard to 8 October 2019. Given the father’s incarceration, the orders of 17 September 2019 vacated the adjourned trial date and listed the matter for mention on 6 March 2020.
The father appealed his criminal conviction and on … January 2020 the Court of Criminal Appeal upheld Ground 6 of the Appeal Notice namely, “that the Trial Judge erred by failing to correctly and adequately direct the jury about the forensic disadvantage to the appellant pursuant to s 34CB of the Evidence Act 1929 (SA).”[3]
[3] See Exhibit 39.
The majority found that the Trial Judge had failed to direct the jury of the impermissible use of hearsay evidence.
The verdict was quashed and the matter has been listed for a retrial. The father has been released from custody.

FATHER’S APPLICATION

By Application in a Case filed 20 February 2020, the father seeks that the child return to his primary care and spend time with the mother each alternate weekend and for one half of every short school holiday period.
The application is supported by the father’s affidavit, filed 18 February 2020, which is predominantly directed to the exchange of communications between the solicitors for the parties.
The father has considered how he will manage the child’s transition into his primary care and proposes that the arrangements involve the paternal grandfather, with the child’s pet dog, attending at the first handover.
Given the five month absence whilst in custody, the father proposes to inform the child that he was required to go away on urgent work business, that there was nothing he could do to refuse the proposal, that he missed the child greatly and was very upset at their separation.
The mother filed an initial Response to the father’s Application in a Case on 3 March 2020, seeking orders that the child live with her but pending the outcome of the father’s criminal trial, the child spend time with the father as follows:-
3.1on each Saturday from 10.00am until 5.00pm for a period of four weeks.
3.2      after four (4) Saturdays:-
3.2.1on each Wednesday from 4.00pm until 7.30pm with the father to take the child to martial art classes (should the child be then enrolled); and
3.2.2   on each Saturday from 10.00am until 4.00pm.
3.3      after a further four (4) Saturdays:
3.3.1from 10.00am Saturday until 5.00pm Sunday on each alternate weekend; and
3.3.2   on each Wednesday from 4.00pm until 7.30pm.
Leave was given to the mother to file an amended response. By her Amended Response to Application in a Case filed 13 March 2020, the mother was no longer prepared to promote an order that the child spend time with the father but instead sought the following order:-
the father spend no time with the child but be permitted to communicate with the child by correspondence in the form of cards, letters and gifts at all reasonable times which shall be sent to the mother at an address to be provided noting that the mother reserves the right not to pass on such communication and/gifts if she deems them inappropriate.
The mother also sought that the father be restrained from communicating with the child directly or indirectly.

THE MOTHER’S RESPONSE

The mother’s initial response relied upon her affidavit filed 3 March 2020.
The mother has not told the child that the father had been in gaol. The child appears to be confused as to the father’s absence and the mother summarises her interaction with the child, concerning the father’s absence, in the following paragraphs:-
12.[The child] was initially very upset and confused as to his father’s absence and asked me a lot of questions. I did not want to tell [the child] that his father was in gaol. If [the child] knew his father was in gaol it was likely that [the child] would want to know why his father was in gaol. I did not know how I should answer such questions or how to tell [the child] about the situation in a way that would not be detrimental to [the child’s] emotional or psychological wellbeing. I have told [the child] instead:
a.that his father had to go away for work and that is something that adults sometimes had to do; and
b.that the father was unable to contact [the child] by telephone as there were no telephones where the father was working.
13.[The child] can be very persistent and will keep asking questions. I was aware that I had to be consistent in my response and not allow [the child’s] trust in me to be broken. I was aware that consistency must extend to any family members who would be interacting with [the child]. I was worried that if [the child] was told anything different about the father’s absence by anyone else, it may have a very negative impact upon [the child’s] emotional wellbeing.
The mother was concerned as to the child’s presentation. She concedes that the child was sad and that he missed the father. She records the child’s reflection that “maybe my dad doesn’t want me”[4] and “is it because my dad doesn’t want to be with me anymore?”[5]
[4] Affidavit of the mother filed 3 March 2020 at [15].
[5] Ibid.
The mother has sought professional assistance to assist in the child’s transition into her primary care and the impact on the child in terms of the commencement of his education in 2020, should other children be aware that the father had been incarcerated.
The mother now asserts that the child is well settled at school and no longer appears distressed or upset at his father’s absence.
The mother agrees that correspondence has passed between the parties’ lawyers concerning the child resuming time with the father. The mother remained opposed to a reinstatement of the orders in which the child lived in the father’s primary care, but was of the view that if there was to be time with the father then it should be undertaken “in an organised, sensitive and sensible manner, to have the least chance of causing further confusion to [the child]”[6]. A significant concern for the mother was that the father would be subject to further criminal proceedings in November, and if upon a further hearing he was again convicted and sentenced to a term of imprisonment, the removal of the father from the child’s life in circumstances where the father had been reintroduced to the child may well have an adverse psychological impact.
[6] Ibid at [29(c)].
The mother’s affidavit of 13 March 2020 seeks to explain why she sought orders in her initial response that the child would resume spending time with the father. The mother explains that she put forward a parenting proposal because she was “afraid that if [she] did not offer any time to the father, there would be very negative consequences for [her] and for [the child].”[7]
[7] Affidavit of the mother filed 13 March 2020 at [3].
The mother considered that the Court may consider her to be a poor parent if no time was offered.
It is a feature of the mother’s evidence in the substantive proceedings that she was subjected to sexual, psychological and coercive abuse. She remains frightened of the father. The father has consistently denied the mother’s allegations.
She was relieved when the father was convicted to a custodial sentence of 10 years with a non-parole period of five years and six months.
The father highlights that the mother has resiled from her previous position that it would be in the interests of the child to resume a relationship with the father.
The father urges the Court to consider that he is entitled to the presumption of innocence in respect of the criminal proceedings. Senior counsel for the wife urges the Court to look critically at the basis upon which the father’s appeal was successful and to find that the Court of Criminal Appeal did not uphold any of the grounds of appeal as to the integrity of the evidence and therefore the verdict, but rather, that the successful ground was based upon a misdirection to the jury as to how they were to use certain hearsay evidence.
I do not have the advantage of documents or the evidence in the criminal proceedings, but over the objection of the father’s solicitor I was prepared to receive the reasons of the Court of Criminal Appeal, now Exhibit “39” in the proceedings.
The reasons are of assistance, only in the sense that it provides a convenient summary of the conduct of the criminal proceedings and the basis of the father’s defence. The central issue in the criminal proceedings was whether sexual relations were a part of the relationship between the parties in the period when the mother was aged between 13 and 17 years. The only direct evidence of sexual activity was given by the mother. The father did not give evidence.
The father’s defence was that whilst he and the mother were in a relationship, it did not involve sexual activity.
The paternal grandmother and two paternal uncles gave evidence in support of the father’s defence.
The Court has the assistance of an Independent Children’s Lawyer (“ICL”). The ICL does not support the father’s application that the child transition to his primary care, nor the mother’s determination that the child should spend no time with the father. The preferred position of the ICL is more closely aligned with the child spending time with the father, in terms of the orders sought by the mother in her initial response to the father’s application.

PARENTING CONSIDERATIONS

In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing.
I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. In an appropriate case the Court is able to make interim orders, but generally the Court should be risk averse and cautious.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order, the best interests of the child is the paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) of the Act and the additional considerations in s 60CC(3) of the Act.
The Court is not assisted by the current recommendations of a family consultant. I accept that for a period after the father’s incarceration there existed a good relationship between the child and the father.
Whilst the mother has resiled from her proposal set out in her initial response to the father’s application, there is no suggestion that the matters contained in her affidavit in support are not a truthful observation of the child’s distress and upset at not seeing his father.
An assessment by a family consultant may assist the Court in better understanding the child’s presentation, level of maturity and resilience in circumstances where the child’s time with the father was interrupted, and now to potentially resume pending the determination of the criminal proceedings in November 2020.
Whilst a s 62G(2) report will need to be undertaken, its focus is likely to be in preparation for a resumption of the part-heard proceedings to be listed at a time after the anticipated conclusion of the criminal proceedings. In any event, a family report would not be available for several months.
Prior to the father’s incarceration, it is reasonable to find that the child benefited from maintaining a meaningful relationship with the father.
To some extent the mother’s proposal as set out in her initial response, supported by her affidavit and correspondence passing between the solicitors, acknowledges the importance of the relationship even though the mother now seeks to explain her position by reason of a fear that the Court may consider, that if she opposed the child spending time with the father, it might be considered as an attempt by her to disrupt the child’s relationship and alienate him from the father.
The substantive proceedings have, as a significant focus, the mother’s allegation that the father’s conduct was abusive, coercive and controlling. The father denies the mother’s allegations. He counters the mother’s position by referring to documents that he attributes to the mother wherein she admits that she perpetrated abusive behaviour.
The evidence in the proceedings has not closed. The father is yet to be the subject of examination in chief and cross examination.
Whilst I do not draw any conclusion adverse to the father by reference to the remarks of the Court of Criminal Appeal, it is not controversial that the father has not been acquitted of the charge but rather, he has been remitted for hearing.
At present the mother considers the child to be settled. A resumption of time with the father would likely enliven the child’s interest in him. However, without the assistance of evidence it is better not to speculate on the impact on the child of a further change to the parenting arrangements and the potential for adverse effect should the father resume a relationship and is then convicted and again incarcerated.
The Court understands the current circumstances of the child in the primary care of the mother. There is little information before the Court as to the father’s circumstances. His position may be supported by his parents and extended family. There is mistrust between the mother, the father and his family. It is the father’s application that a resumption of the substantive proceedings should occur only after the criminal proceedings have concluded.
It is a matter of the Court’s discretion whether to stay or adjourn civil proceedings where there are related criminal proceedings. The issues are succinctly summarised by Wootten J in McMahon v Gould (1982) 1 ACLC 98. His Honour’s formulation has been cited with approval extensively since then.[8]
[8] See Philippine Airlines v Goldair (Aust.) Pty Ltd [1990] VR 385 at 387; Re K (1994) FLC 92-461 at 80-763 and Olbers Co Ltd v Commonwealth (No 2) [2003] FCA 177 at [19].

In McMahon v Gould (supra) Wootten J considered that in deciding to stay civil proceedings, the Court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings. His honour went on to list the factors relevant to determining this question, summarised as follows:-[9]
[9]McMahon v Gould (1982) ACLC 98 at 101.
(a)Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;
(b)It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;
(c)The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with;
(d)Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of pending or possible criminal proceeding;
(e)The Court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors;
(f)Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;
(g)One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s “right of silence” and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding …;
(h)However, the so-called “right of silence” does not extend to give such defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;
(i)The Court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings.
Accordingly, it is a matter of balancing the justice as between the parties and to consider whether the father’s privilege against self-incrimination should outweigh the mother’s right to pursue her legitimate entitlements to have a resolution of the proceedings.
The Court is able to provide the father with a certificate pursuant to s 128 of the Evidence Act 1995 (Cth).
On balance, I have determined that the father should not be required to complete the part-heard substantive proceedings until his criminal proceedings have been resolved even though the father’s defence has been disclosed namely, that he did not engage in sexual relations with the mother during the period of her relevant minority years.
I consider that I should act cautiously in this matter. I accept the submission of the ICL that there should not be a change in the primary care of the child from the mother to the father.
I find that it is not in the best interests of the child that he resume a relationship with the father until the outcome of the criminal proceedings are known.
The issue is significant and has been a feature of importance in the recommendations of the family consultant in the 2018 Family Assessment Report dated 22 March 2018.
The decision not to reinstate the child’s time with the father is not based on any consideration as to the likelihood or probability of the father being convicted in November and if so that there will be a period of incarceration.
I am influenced by the need to ensure that the child remains in a stable environment particularly during the first year of his formal school education.
Until the Court is able to better understand the child’s psychological presentation and the level of his resilience should he come to understand the predicament in which his parents have placed him, on balance the need to protect the child is to be given greater weight than the need to promote the child’s relationship with the father at this stage.

CONCLUSION

I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 April 2020.

Associate:

Date: 15 April 2020