Vitalis & Kazan
[2022] FedCFamC1F 559
Federal Circuit and Family Court of Australia
(DIVISION 1)
Vitalis & Kazan [2022] FedCFamC1F 559
File number(s): SYC 2820 of 2022 Judgment of: ALTOBELLI J Date of judgment: 5 August 2022 Catchwords: FAMILY LAW – PARENTING – Interim – Where the applicant is a transgender female – Risk assessment of alleged physical or sexual harm – Where impression formed from the evidence is the applicant may have acted inappropriately but does not present risk of physical or sexual harm to the children – Risk assessment of alleged psychological harm – Where the Court is unable to identify the source of psychological harm without expert evidence – Where parties have consented to the appointment of a single expert – Independent Children’s Lawyer appointed – Order for supervised time to continue pending preparation of single expert report. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 21 July 2022 Place: Sydney (via videoconference) Solicitor for the Applicant: Mr Reeve, Marsdens Law Group Counsel for the Respondent: Ms Lawson Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 2820 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VITALIS
Applicant
AND: MS KAZAN
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
5 August 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The children X born 2013 and Y born 2017 (“the children”) live with the Respondent.
2.The children spend supervised time with the Applicant each Saturday for three hours, with such time to be supervised by M Contact Service or such other supervision agency as may be agreed between the parties in writing.
3.The costs of supervision to be conducted by M Contact Service or such other supervision agency is to be met by the Applicant.
4.The Applicant be at liberty to initiate telephone/FaceTime communication with the children each Monday and Thursday at 5pm, and the Respondent shall do all acts and things to ensure the children are available to take and receive such telephone/FaceTime calls from the Applicant.
5.Pursuant to s 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed for the children and the Legal Aid Commission of New South Wales is requested to provide such representation by appointing a senior in-house solicitor in this role.
6.Once appointed, the parties provide to the Independent Children’s Lawyer copies of all documents filed by them in these proceedings, together with all existing orders and copies of any relevant reports, within seven days of such a request being made.
7.Leave is granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.
8.Leave is granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena or pursuant to s 69ZW of the Family Law Act 1975 or ss 245D and 248 of the Children and Young Persons (Care and Protection Act) 1998 (NSW) in these proceedings.
9.Leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with chambers in appropriate circumstances.
10.The matter is listed for mention on 21 September 2022 at 9am to facilitate the involvement of the Independent Children’s Lawyer in the proceedings.
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 Vitalis & Kazan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction
This case is about whether two children, aged 8 and 4, should continue to have supervised time with a parent who is going through gender transition. These reasons explain why supervised contact will continue until expert evidence is available to assist the parents and the Court to determine longer term parenting arrangements.
Background
The children’s parents separated when Ms Kazan (“the respondent”) left the former matrimonial home with the children in February 2022. Ms Vitalis (“the applicant”) remained in the family home. The evidence before the Court suggests that even though the separation took place relatively recently, the relationship had broken down many months before the physical separation and, indeed, the parental relationship had been in difficulty for several years beforehand.
The applicant is 44 years old and is a transgender woman. She is self-employed in her own business. The respondent is 46 years old and describes herself as a public servant. The parents married in 2010.
This is a family experiencing significant change. The applicant is transitioning from male to female. The separation of the parents means they are attempting to resolve the multiple challenging problems that arise as a result of the restructuring and renegotiation of their relationship. The children are involved in complex changes as a result of the above. As will be seen from the evidence, they are showing signs of confusion and anxiety. The children have had to move homes. They are navigating not just physical, but emotional changes. This family is travelling through uncharted waters for them, and relatively uncharted waters for families in general where a parent is transitioning from one gender to another. The Court is not aware of any established social or legal script which either prescribes or describes how families adapt to a family member transitioning gender. This is a complex case which, particularly at an interim level, needs to be considered carefully, sensitively, and cautiously until appropriate expert evidence is engaged.
Preliminary observations
The evidence before the Court leads to a number of broad observations and principles which provide the foundation for these reasons for judgment. The Family Law Act 1975 (Cth) (“the Act”) applies equally to all parents. The focus is on the children. In the respondent’s case, there was no suggestion that a transgender parent is less capable of parenting because of transition. The process of transition does not necessarily impact on parenting capacity. Consistent with the Act, the best interests of the children will be the paramount consideration. As will be seen, there are a number of risk factors raised in the case that will need to be determined, only one of which is the impact of the applicant’s transition on her relationship with the children, and on the children generally.
The applicant’s own evidence suggests that for her, the transition from male to female is a process, rather than an event. Indeed, it is a complex process for her. It may well be that the better managed the transition is for the applicant, the less stress there will be on the children and their relationship with her. A possible corollary of that is that the better managed her relationship with the children is, the smoother will be her transition. The applicant’s own evidence suggests that the transition process might create feelings including fear, uncertainty, and emotional and physical fatigue.
The evidence to date suggests that building resilience for this family looms as a significant issue. It may well be that in order to achieve this for the family partnerships will need to be formed between the family, the Court, the legal representatives, the Court-appointed experts, medical experts, those providing therapy, and a host of others supporting the family through this period. The starting point will be to examine what supports are already in place. The limited evidence in this regard suggests that they are inadequate.
The Court is invited in this case to assess the risk of harm to the children arising out of the actions, omissions and behaviour of the parents. There is nothing unusual about that, and indeed it is standard for this Court. It may well be that in this case, however, the applicant’s gender transition raises another complex dimension, particularly as the children interact with a society whose knowledge and attitudes about gender identity are still evolving. The evidence suggests that the risk of bullying and exclusion for the children is real. In any event, the Court must be particularly cautious in terms of the cause or causes of harm to the children, if any.
The issue of confidentiality is an important one. The Court discerns that the events in the life of this family are already difficult enough for the parents and the children. For them to be inadvertently identified would only exacerbate the stress for them. Extra precautions will be taken to protect the identities of all parties concerned.
It is possible (indeed, the evidence suggests it is likely) that the applicant, the respondent, and the children are experiencing a form of grief as a result of the multiple changes in their lives. If this is the case, the process of grief through its distinct and well-recognised stages, perhaps provides an insight into the experiences of this family as reflected in the evidence. Thus, by analogy with the process of grief, the applicant is likely to be more advanced in the adjustment process than the respondent and the children. Some evidence already indicates that the applicant is likely to be much closer to acceptance, and further away from denial, than the rest of the family. This provides a possible lens through which to understand the totality of the evidence.
It may well be that there are cultural factors also at play in this case. The parents are of non-English speaking background. They married overseas. The children are comfortable both with the English language and the language of the parents’ culture. Indeed, they attend a school which has strong cultural and religious affiliations.
When exploring the evidence about the impact on the children of what this family is experiencing the Court must keep an open mind and explore multiple hypotheses. For example, are the behaviour and experiences of the children attributable to the applicant’s transition, the parental separation, poor communication, developmental issues, the alleged family violence and child sexual abuse, the children experiencing bullying, discrimination or isolation, or to something else, or a combination of some or all of the above?
Whilst this case was presented largely as a risk of harm case, there are other considerations under s 60CC of the Act that are perhaps even more important, such as the relationships between the children and the parents, and especially the impact of change on the children. It may well be that it is important to allow the children time and space to adapt to the change that is happening around them. The Court must also consider the possibility that they do not adapt. The evidence suggests that for the children, well-established gendered parental identities and roles have changed. Ambiguity has been introduced in this regard. The changes are public, not private. Hitherto simple and clear protocols about what to call a parent are fundamentally called into challenge.
The Court accepts that it routinely deals with cases involving children experiencing ambiguity in relationships. Life-changes including death and the entry and exit from relationships are difficult family transitions that disrupt defined roles and expectations for children. It may well be that many children are now accustomed to stepparents, foster parents, and same-sex parents. Even if that is the case, perhaps gender transition within an existing family presents particular challenges for the children in this case. In part this may be because the way in which children interact with a mother and father is culturally scripted.
The Court accepts that terminology is very important. One of the opening submissions made on behalf of the respondent took exception to my initial description of the applicant as “second mother”, a term I have discontinued in these reasons. Counsel for the respondent submitted that the children did not have two mothers, but are grieving the loss of their father. Counsel submitted that there was no evidence that the children regarded the applicant as their mother, but conceded that they are learning about her and they have a relationship with her which is evolving. Implicit in this submission was the suggestion that to describe the applicant as the children’s mother was, in reality, aspirational.
The submissions made by the respondent’s counsel is an example of the observation made above that there is no established social or legal script that applies in a situation such as the present where a parent is transitioning gender. From the applicant’s perspective, she considers herself a woman even if her transition is not complete. She is a woman on her passport and Medicare card. For present purposes, the Court considers her a woman.
The applicant is no longer the children’s father, a matter which the evidence suggests the children seem to be slowly accepting, albeit not without difficulty. The respondent herself gives evidence that the applicant is now a transgender woman and that she accepts and respects that decision. The children refer to the applicant as “[Dad]”, the term they have used historically. It may well be that this term has a masculine overtone, and that it is the children’s attempt to reconcile that the person who was their male parent is now their female parent.
The orders proposed
In short, the applicant proposed an order that the children live with both parents in an equal shared care week-about arrangement. In the alternative, she proposed that the children live with the respondent, but spend time with the applicant each alternate weekend from after school on Friday to before school on Monday, as well as each Wednesday night and school holidays. The detailed orders proposed are reproduced in Schedule A to these reasons.
The respondent proposed that the children live with her, and continue to spend supervised time with the applicant every Saturday for three hours, and in addition there be telephone and FaceTime communication. The respondent also sought an order for exclusive occupation of the former matrimonial home. The detailed orders proposed are reproduced in the Schedule B to these reasons.
The cases summarised
By way of summary, the applicant’s case was to the effect that there was no unacceptable risk of harm to the children in this case, whether attributable to the allegations of child sexual abuse or family violence, or otherwise. This was a case where the applicant had a good relationship with the children and was very actively involved in their lives at all relevant times before a sudden separation, even after she commenced transitioning gender from male to female. Moreover, there was no basis for the order for exclusive occupation. In the alternative, were the Court concerned about risk, any such risk would be adequately managed by Court order, especially in view of the physical separation of the parents.
By way of summary, the respondent’s case was to the effect that the children were at risk of harm because of historical behaviour of the applicant which constituted sexual abuse and/or inappropriate behaviour, concerns about her mental health, as well as the family violence perpetrated by her. In addition it was submitted that even if the Court did not find the children to be at unacceptable risk of abuse in the applicant’s care because of the allegations of sexual abuse, inappropriate behaviour or family violence, the Court would nonetheless require the children’s time to be supervised for a range of other subtle but important emotional risks to the children arising out of the applicant’s transition.
The issues for the court
The issues for the Court raised in this case include:
(1)Whether the children are at some form of unacceptable risk of physical or psychological abuse in the unsupervised care of the applicant;
(2)Consequentially, the parenting arrangements in the best interests of the children (including therapeutic support);
(3)Whether the respondent should have exclusive occupation of the former matrimonial home; and
(4)Other issues identified by the Court.
The material before the court
In support of her case, the applicant relied on the following documents:
(a)Initiating Application filed 29 April 2022;
(b)Notice of Child Abuse, Family Violence or Risk filed 29 April 2022;
(c)Her affidavit filed 27 June 2022;
(d)Financial statement filed 22 June 2022;
(e)Case outline filed 14 July 2022;
(f)Helpline assessment dated 4 November 2021, marked as exhibit A1;
(g)Safety assessment, marked as exhibit A2;
(h)Helpline assessment dated 11 April 2021, marked as exhibit A3;
(i)Alternate assessment, marked as exhibit A4;
(j)Material produced by New South Wales Police, marked as exhibit A5;
(k)Supervised contact reports dated 2, 9 and 16 July 2022, marked as exhibit A6;
(l)Income statement for B Pty Ltd for the year ending 30 June 2022, marked as exhibit A7;
(m)The applicant’s mental health care plan dated 19 April 2022, marked as exhibit A8; and
(n)Alternate assessment dated 19 May 2022, marked as exhibit A9.
In support of her case, the respondent relied on the following documents:
(a)Amended Response to Initiating Application filed 7 June 2022;
(b)Notice of Child Abuse, Family Violence or Risk filed 17 May 2022;
(c)Her affidavit filed 17 May 2022;
(d)Affidavit of Ms C filed 13 July 2022;
(e)Her affidavit filed 14 July 2022;
(f)Parenting questionnaire filed 17 May 2022;
(g)Financial statement filed 7 June 2022;
(h)Case outline filed 14 July 2022;
(i)Referral letter of Dr D dated 27 November 2019, marked as exhibit R1;
(j)Referral letter of Ms E dated 11 September 2020, marked as exhibit R2;
(k)Case reports of New South Wales Police, marked as exhibit R3;
(l)Clinical notes of Ms C, marked as exhibit R4;
(m)Teacher/parent contact form dated 31 May 2022, marked as exhibit R5;
(n)New South Wales Police narratives, marked as exhibit R6;
(o)Bank statements for B Pty Ltd, marked as exhibit R7; and
(p)Letters from clinical psychologists, marked as exhibit R8.
The applicable law
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Agreed facts and common ground
The respondent conceded that the applicant’s supervised time was proceeding well, as evidenced by the supervised contact reports. Indeed, the Court observes, the reports are glowing.
In terms of the risk of sexual abuse case, the respondent’s case did not contend that the evidence would establish that sexual abuse had actually occurred. The focus of her case was risk of abuse.
It was further conceded that neither New South Wales Police nor the Department of Communities and Justice had open files or were intending to further pursue the reports and allegations made by the respondent.
It was agreed that a single joint expert should be appointed as soon as possible. An order was made by consent in this regard. The significance of this is that any order in place is likely to have a relatively short lifespan because of the opportunity to review it once further expert evidence becomes available.
There are some uncontested facts that appear from the documents contained in the tender bundles of the parties.
For example, the applicant’s medical records clearly indicate a psychiatric diagnosis of gender dysphoria, with an innate and enduring gender identity as female since childhood. Feminising hormone treatment commenced in mid-2016. The medical records indicate social transition since mid-2018. A medical procedure was planned for late 2020 but other gender affirmation surgery was delayed for financial reasons. The applicant has the benefit of a mental health care plan which refers, in part, to the anxiety that she is experiencing both as regards her transition, and the breakdown of her relationship with the respondent and its consequential impact on her relationship with her children.
The respondent is engaged with a clinical psychologist who she meets on a weekly basis. The respondent reported stress and anxiety, as well as her experience of being in a coercive, controlling and abusive relationship.
discussion
Is there an unacceptable risk of harm to the children arising out of the allegations of child sexual abuse/inappropriate behaviour?
During submissions counsel for the respondent made the entirely appropriate concession that whilst the risk of sexual misconduct or inappropriate behaviour could not be ruled out, the present case was more nuanced in that the concern would be characterised as the lack of personal boundaries. The Court agrees. Having regard to the extensive evidence presented on behalf of each party, the high point in the respondent’s case is the alleged incident that occurred on 22 February 2022. The respondent deposes that on this date she observed the applicant rubbing the oldest child’s chest, abdomen, legs and across the vaginal area. The applicant denies this. The police investigated by way of further interview with officers from the child abuse and sex crimes squad, as well as staff from the Department of Communities and Justice. Once again, the investigation was closed. Even if the Court were to accept the respondent’s evidence at its highest, the Court would not be satisfied that it necessarily is sexually or otherwise abusive behaviour, but if accepted at face value it would seem inappropriate. The Court also cannot rule out the potential significance of cultural factors as contextualising the behaviour.
Even at an interim level, it is apparent that the respondent’s evidence does not give rise to an unacceptable risk of abuse to the children if the applicant spends unsupervised time with them.
Is there an unacceptable risk of abuse to the children arising out of other allegations of physical abuse?
Once again, even if the respondent’s case is taken at its highest, it is not possible to elevate what are largely ambiguous allegations and evidence into evidence of physical abuse. Even bruises on a child can have a plausible explanation which is inconsistent with abuse.
Is there an unacceptable risk of abuse to the children arising out of the applicant’s inappropriate behaviour?
In this regard the respondent refers to behaviour such as: bathing with the oldest child whilst in the bath partially clothed; allowing a child to sleep in bed with her when the child was not wearing underwear; a near kiss between the applicant and the oldest child where the child had an open mouth with her tongue out; and the rubbing of the chest, abdomen, legs and the vaginal area incident. The applicant presents plausible explanations which convert seemingly inappropriate behaviour into quite innocent behaviour. Once again, ambiguous allegations in the context of heightened sensitivity do not necessarily amount to unacceptable risk to these children.
Is there an unacceptable risk of harm to the children arising out of the family violence allegations?
The respondent’s allegations in this regard arguably represent the nadir of her case. There is no substance to them. There is no discernible pattern of behaviour. The applicant provides context for the alleged events which render her evidence plausible.
Is there an unacceptable risk of emotional harm to the children arising out of the applicant’s behaviour and the behaviour of the children?
This is the strongest part of the respondent’s case, and it was presented as such in submissions. The evidence in this regard is exclusively that of the respondent who deposes to what she observed the children do, and heard the children say. In the present circumstances, the Court accepts this evidence for the purpose of this present interim hearing noting, of course, the possibility that the children have misrepresented what the applicant allegedly said.
It is disturbing evidence which depicts the children reacting to the transition of the applicant from male to female. In general terms, the children manifest behaviours, and say things, indicating that they are confused and angry. The children are reported telling the applicant that they want her to be a boy, not a girl. They make comments suggesting at times that they are confused about their own gender. They physically lash out at the applicant, ostensibly in anger, confusion and frustration about the changes they have observed. The respondent has observed the children become distressed and cry and attribute the reason for this to the applicant dressing like a girl. The oldest child became distressed in the car and claimed that she: “…can’t get [Dad’s] girl stuff out of my head. It makes me so sad.” The children are seemingly confused when the applicant allegedly calls them boys when they are girls.
The Court repeats its earlier observation that these behaviours could be attributable to, or associated with, multiple factors in addition to the stated ones. The children are making these statements, and exhibiting these behaviours, at a time of high tension in the home, involvement of professionals such as police and officers of the child welfare authority, and at a time when both parents are obviously stressed and anxious not just about their own relationship, but also about the applicant’s transition.
The respondent’s case is implicitly, if not expressly critical of what it is alleged that the applicant said and did. The Court cannot make findings. It is only assessing risk of psychological harm at this stage. However, even if it were found that the applicant had behaved in the manner alleged, it may well be that the Court would recognise the stress and anxiety that is associated with transition in this case. Some of the applicant’s reported attempts to discuss her transition with the children might even be regarded as awkward, but there is no script for such a conversation. The present evidence neither permits a finding nor an inference that the applicant acted with intent to distress her own children. That the children are in fact distressed is apparent from the evidence.
Nonetheless, the strong impression formed from the evidence is that the children are struggling with the enormous changes that have happened, and continue to happen in their young lives. For them there are public elements to this involving their school and their friends. It may well be that this is a tumultuous time for them and their parents, but the children lack the emotional resilience that their adult parents likely have.
The Court accepts that there is a risk of psychological harm to the children arising out of the changes described above, and specifically the transition of the person who was their father, into the person who is now their parent.
The essence of the respondent’s case is that the risk is unacceptable if the children’s time is not supervised. By contrast, the applicant’s case is that the excellent supervised contact reports are the clearest possible indicator that the children are coping well with the changes that they have experienced over a period of many years.
In many ways this case could be considered less as one involving unacceptable risk of emotional harm to the children, but rather as one that explores the emotional impact on the children of the significant change that they have experienced, and continue to do so.
For the time being, the Court does not accept the submission made on behalf of the applicant. Supervised contact is a highly artificial construct within which children spend time with a parent. The high degree of vigilance ensures behaviour that is more likely to be artificial than natural. That is not to minimise the benefit of supervised contact particularly as a transitionary measure, but it does mean that this Court is more cautious about the weight that is given to otherwise glowing supervised contact reports.
In reality there is so little that the parents and this Court know about what is happening in the children’s lives. An appropriate child-focused response must take into account the actual causes of what appears to be the children’s confusion, anger, frustration and possibly even anxiety. This is the realm of expert evidence which has been ordered and should be available within a period of months. As I have taken this matter into my docket, at least for the time being, the case will benefit from relatively quick and easy access back to Court, if necessary. The Court’s strong inclination is, in the circumstances of this case, to continue the existing supervised contact arrangement, which involves the applicant meeting the cost, but to review the same on receipt of an expert report.
Therapy for the parents and children
There is evidence that both parents are being psychologically supported but it is not clear that this specifically relates to issues arising out of the parent’s transition. The Court could not discern any evidence about emotional or psychological support for the children. Both sets of proposed orders refer to the children attending on a psychologist or counsellor, and there is a dispute about who that should be. It is not clear to the Court why in circumstances where it must have been apparent to both parents that the children were struggling with, at the very least, issues associated with the parental separation and the applicant’s gender transition, the children could not have received the benefit of some therapeutic assistance before now. If it is truly the case that the reason is because they could not agree as to who should provide this therapy, this reflects poorly on both parents. Psychological support for the children is a priority. The Court is not well-placed to determine who should provide this therapy. This will be addressed below.
Appointment of an Independent Children’s Lawyer
When the matter came before me I expressed surprise that no Independent Children’s Lawyer had been appointed so far in a case that I considered to be so complex. Counsel explained that there were two reasons for this. First, the parties were represented by experienced family lawyers. The Court agrees. Second, the recent experience of these family lawyers was that Independent Children’s Lawyers were being appointed who lacked the knowledge, experience and aptitude to properly perform the role. The Court cannot comment on this. This is a complex case that would benefit from the appointment of an appropriate Independent Children’s Lawyer whose first role will be to make recommendations to the parents, and if necessary to the Court, about who should provide therapy for the children. The Court will urgently appoint an Independent Children’s Lawyer, and request the Legal Aid Commission of New South Wales to appoint a senior in-house lawyer to this role.
The application for exclusive occupation
The respondent sought, and the applicant opposed, an order for exclusive occupation of the former matrimonial home. The home is currently occupied by the applicant. The Court declines to make this order. It is unnecessary. It would expose the children to yet another change in their lives, albeit a return to their home. The evidence indicates that the children are in a highly supported and comfortable environment in the home of the respondent’s parents. The evidence suggests that the respondent is in a superior financial position to that of the applicant. The applicant’s case about the difficulty that she would experience in relocating to a residence that is not just her home, but also her work space, is plausible. The balance of convenience favours maintaining the status quo.
Progression of the matter
An order was made by consent for the appointment of a single joint expert who may be able to provide a report as early as mid-to-late November. As foreshadowed in these reasons for judgment, it may be necessary to revisit the existing interim orders once that expert report is available. The Court will accommodate this to the best of its ability. In the short term, the Court will accommodate an appearance by an Independent Children’s Lawyer who may bring fresh insights to this case and make recommendations about how it should progress. A mention date will be appointed in about six weeks hence.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 5 August 2022
Schedule A
FAMILY LAW ACT 1975
MINUTE OF ORDERS
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
AT SYDNEY File No. SYC2820/2022
BETWEEN Ms Vitalis
Applicant
AND Ms Kazan
Respondent
UPON APPLICATION TO THE COURT IT IS ORDERED:
1. The Children shall live in an equal shared care arrangement with the Parents as follows:
1.1 During school terms:
1.1.1 Week 1:
(a)With the Applicant Mother from before school (or 9am on non-school days) Monday to before school (or 9am on non-school days) the following Monday.
1.1.2 Week 2:
(a)With the Respondent Mother from before school (or 9am on non-school days) Monday to before school (or 9am on non-school days) the following Monday.
1.2 During school holiday periods:
1.2.1 In odd numbered years:
(a)With the Applicant Mother for the first half commencing on the last day of the school term and concluding at 6pm Saturday on the middle weekend of the school holiday period.
(b)With the Respondent Mother for the second half commencing at 6pm Saturday on the middle weekend of the school holiday period and concluding before school on the first day of the following school term.
1.2.2 In even numbered years:
(a)With the Respondent Mother for the first half commencing on the last day of the school term and concluding at 6pm Saturday on the middle weekend of the school holiday period.
(b)With the Applicant Mother for the second half commencing at 6pm Saturday on the middle weekend of the school holiday period and concluding before school on the first day of the following school term.
OR IN THE ALTERNATIVE
2. The children live with the Respondent.
3. The children spend time with the Applicant as follows:
3.1 During school terms:
3.1.1Each alternate weekend from after-school Friday (or 3pm on non-school days) to before-school Monday (or 9:30am on non-school days); and
(a) Each Wednesday:
(i)X: From after-school (or 3pm on non-school days) to before-school Thursday (or 3:30pm on non-school days).
(ii)Y: From 3pm on Wednesday to 3:30pm Thursday.
3.2 During school holiday periods:
3.2.1 In odd numbered years:
(a)With the Applicant Mother for the first half commencing on the last day of the children’s school term and concluding at 6pm Saturday on the middle weekend of the school holiday period.
(b)With the Respondent Mother for the second half commencing at 6pm Saturday on the middle weekend of the school holiday period and concluding before school on the first day of the following school term.
3.2.2 In even numbered years:
(a)With the Respondent Mother for the first half commencing on the last day of the school term and concluding at 6pm Saturday on the middle weekend of the school holiday period.
(b)With the Applicant Mother for the second half commencing at 6pm Saturday on the middle weekend of the school holiday period and concluding before school on the first day of the following school term.
3.2.3For the purpose of these Orders, school holidays shall be deemed to commence at close of school on the day the school term finishes for students and conclude at 9:30am on the day the school term recommences for students and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Applicant Mother shall retain the additional night in even years, and the Respondent Mother shall retain the additional night in odd years.
4.That notwithstanding any other Order, the children spend time with the parents during special occasions as follows:
4.1 Christmas:
4.1.1 In odd numbered years:
(a)With the Applicant Mother from 12pm Christmas Eve to 12pm Christmas Day.
(b)With the Respondent Mother from 12pm Christmas Day to 12pm Boxing Day.
4.1.2 In even numbered years:
(a)With the Respondent Mother from 12pm Christmas Eve to 12pm Christmas Day.
(b)With the Applicant Mother from 12pm Christmas Day to 12pm Boxing Day.
4.2Mother’s Day: The children spend time with the Mother they are not due to spend time with from 12pm to 4pm.
4.3Applicant Mother’s birthday: In the event the children are not due to spend time with the Applicant Mother, they spend time with her from after-school (or 3pm on non-school days) to 8pm.
4.4Respondent Mother’s birthday: In the event the children are not due to spend time with the Respondent Mother, they spend time with her from after-school (or 3pm on non- school days) to 8pm.
4.5Children’s birthdays: The children spend time with the parent they are not due to spend time with from after-school (or 12pm on non-school days) to 6pm.
4.6Children’s name day: The children spend time with the parent they are not due to spend time with from after-school (or 12pm on non-school days) to 6pm.
4.7Australian Easter Sunday: The children spend time with the parent they are not due to spend time with from 12pm to 4pm.
4.8Orthodox Easter Sunday: The children spend time with the parent they are not due to spend time with from 12pm to 4pm.
4.9Respondent Mother’s grandparent’s birthdays: In the event the children are not due to spend time with the Respondent Mother, the children shall spend time with the Respondent Mother from after-school (or 3pm on non-school days) to 6pm.
5.That changeover occur as follows:
5.1On the alternate weekend: at the children’s school on school days and on non-school days the parent that is commencing their time with the children will collect the children from the residence of the other parent.
5.2On Wednesdays: The Applicant will collect Y from the respondent’s residence and X from school immediately afterwards and return X to school and Y to the respondent’s residence.
6.That the Respondent facilitate the children speaking to the Applicant via FaceTime at 5pm each Monday and Thursday and that the the children are to be afforded privacy for the duration of each call.
7.That at other times in addition to the above order, the parent shall facilitate the children speaking to the other parent via FaceTime at the request of the children and that the children are to be afforded privacy for the duration of each call.
8.The applicant and respondent do all things reasonably necessary to facilitate the Children’s attendance upon psychologist, Dr F and follow all reasonable recommendations of Dr F including the frequency and period of the children’s attendance upon him.
9.That the costs of the children’s attendance upon Dr F is to be shared equally by the parties.
10.That the children’s school uniforms, shoes and clothing, lunch boxes, homework, text books and electronic devices shall remain with the Children as they move between the parents’ households.
11.That the parents and their respective families shall be at liberty to attend the Children’s special school events, including but not limited to extra-curricular concerts, competitions, sports activities, and awards ceremonies.
Schedule B
1.That pursuant to Section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the entire proceedings involving the parties be transferred to the Federal Circuit and Family Court of Australia (Division 1) in Sydney.
2.In the event that Order 1 is not made, leave is granted to the Respondent to rely on affidavit material exceeding 10 pages and 5 annexures for any interim hearing.
PENDING FURTHER ORDER:
3.The children X born 2013 and Y born 2017 ("the children") shall live with the Respondent.
4.The children shall spend supervised time with the Applicant each Saturday for three (3) hours, with such time to be supervised by M Contact Service or such other supervision agency as may be agreed between the parties in writing.
5.The Applicant shall be liable for meeting the costs of supervision to be conducted by M Contact Service.
6.The Applicant shall be at liberty to initiate telephone/ Facetime communication with the children each Monday and Thursday at 5:00pm, and the Respondent shall do all acts and things to ensure the children are available to take and receive such telephone/ Facetime calls from the Applicant.
7.That within fourteen (14) days, the Applicant shall vacate the property situate at and known as G Street, Suburb H in the State of New South Wales ("the Suburb H property") and thereafter the Applicant is restrained by way of injunction from entering upon or remaining in the Suburb H property without the consent of the Respondent first obtained. The Respondent shall, from that day which is fifteen (15) days from the date of these Orders, have sole and exclusive use and occupation of the Suburb H property.
8.Forthwith upon the making of these Orders, the Applicant and Respondent shall do all acts and things to facilitate the children engaging in therapeutic counselling at Clinic J at Centre K (to be conducted by Mr L and/or Ms N), with all out of pocket costs of such therapeutic counselling which are not covered by any Mental Health Care Plan, Medicare and/or private health insurance rebate to be paid by the Applicant and Respondent in equal shares as and when the same falls due and payable.
9.That the proceedings be adjourned for further case management hearing before a Judicial Registrar on a date convenient to the Court is approximately three (3) months' time to enable these Orders to be put into effect.
10.The Applicant shall pay the Respondent's costs of and incidental to these proceedings.
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