Voltolini & Hjourt
[2024] FedCFamC1F 502
•26 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Voltolini & Hjourt [2024] FedCFamC1F 502
File number: ADC 1039 of 2020 Judgment of: AUSTIN J Date of judgment: 26 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the father reviews interim parenting orders made by a Senior Judicial Registrar (“the registrar”), which provide for the child to spend supervised time with him – Where final parenting orders were consensually made in May 2022 (the “consent orders”) – Where fresh proceedings were commenced by the father in November 2023 – Where the mother alleges the father has sexually abused the child – Where the allegations were not substantiated by investigating authorities – Where the father seeks restoration of the consent orders – Where the mother seeks that the child spend six professionally supervised visits with the father, followed by a further interim hearing – Where the father contends the evidence does not support any finding that he poses any risk to the child’s safety – Where the mother’s evidence cannot be discounted or disregarded at this interim stage and requires a circumspect finding be made that some level of risk to the child exists – Where the trial is the time and place to settle factual controversies – Where certain consent orders are suspended and the orders of the registrar discharged – Orders made – Child to spend time with the father each week supervised by the paternal grandmother. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61C, 61D, 62G, 64B, 65AA, 65D, 68B, 69ZL Cases cited: Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marriage of B & B (1993) FLC 92-357; [1993] FamCA 143
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 26 July 2024 Place: Newcastle (via Microsoft Teams) Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Tindall Gask Bentley Counsel for the Respondent: Mr Tredrea Solicitor for the Respondent: Williams Barristers & Solicitors Counsel for the Independent Children's Lawyer: Mr Hemsley Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 1039 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VOLTOLINI
Applicant
AND: MS HJOURT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
26 JULY 2024
THE COURT ORDERS THAT:
1.Orders 1, 2, 3, 4, 5 and 7 made on 3 May 2024 are discharged.
2.Orders 2.3, 2.4, 2.5, 3.3, 3.4, 3.5, 3.6 and 5 made on 30 May 2022 are suspended.
3.The parties shall take all reasonable steps to ensure the child X, born 2019, spends time with the father from 9.00 am until 5.00 pm each Saturday, subject to the following conditions being fulfilled:
(a)the paternal grandmother supervising the time spent by the child with the father; and
(b)the father first filing and serving upon the mother an undertaking signed by the paternal grandmother in the following terms:
I am willing and able to supervise the time spent by the child with the father under the orders of the Federal Circuit and Family Court of Australia (Division 1).
I fully understand the duties and responsibilities of a supervisor and I am prepared to and shall act accordingly.
I understand that any breach of my undertaking may be regarded as contempt of the Court, which could render me liable to prosecution and punishment.
4.Otherwise, save as to costs:
(a)the application for interim orders within the Initiating Application filed on 21 November 2023 is dismissed;
(b)the application for interim orders within the Response filed on 11 December 2023 is dismissed;
(c)the Application for Review filed on 24 May 2024 is dismissed; and
(d)the application for interim Orders contained within Exhibit M1 is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Voltolini & Hjourt has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the determination of the father’s application to review the interim parenting orders made by a senior judicial registrar (“the registrar”) on 3 May 2024 in respect of the parties’ child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Background
The parties’ relationship broke down in late 2019.
At that time, their child was only an infant, having been born in 2019. The child is now five years of age.
Proceedings between the parties in respect of the child were first commenced in early 2020 and were concluded by final consent orders made on 30 May 2022. Those orders provided for the parties to have equal shared parental responsibility for the child and for her to live primarily with the mother. The orders specified the child would live with the father on an escalating basis over following years, culminating in the child living with the parties for equal time from 2025, subject to the parties continuing to live within reasonable proximity of one another.
In October 2023, the mother feared the child may have been sexually abused by an unidentified work colleague of the father whilst the child was in the father’s care and so she withheld the child from him. Then, in November 2023, the mother feared the child may have also been sexually abused by the father, galvanising her belief the child should be withheld from him.
The father brought these fresh proceedings in November 2023, to which the mother responded in December 2023.
The child was forensically interviewed twice in December 2023 and January 2024, making no allegation of sexual impropriety against any person to the investigating authorities. In January 2024, the State child welfare agency ended its investigation, finding the sexual abuse allegations were not substantiated. The agency reported to the Court that no safety concerns for the child were identified in respect of either parent.
However, the non-substantiation of the sexual abuse allegations by independent investigation did not resolve the parties’ simmering dispute. They each pressed their interim applications for variation of the existing orders, which dispute was listed for hearing before the registrar in April 2024.
Before the registrar, the parties abandoned their polarised applications set out in the Initiating Application and Response. The father instead sought orders for the child to live with him for about two weeks and for the parties to then resume compliance with the existing orders. The mother sought variation of the May 2022 orders, requiring the child to spend professionally supervised time with the father for up to four hours, but no more frequently than once per week.
The registrar delivered judgment on 3 May 2024. In summary, orders were made for the child to spend time with the father on this escalating basis: first, four fortnightly visits of two hours duration under professional supervision; then, four fortnightly visits of 24 hours duration, subject to a paternal family member being “substantially present” (whatever that might actually mean); then, resumption of compliance with the May 2022 orders, but again subject to a paternal family member being “substantially present”.
The father applied to review those orders.
As this dispute relates to interim parenting orders, these reasons for judgment are given in short form (s 69ZL).
Legal principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC).
Parental responsibility for children is vested in their parents (s 61C(1)), whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). Since legislative amendments took effect on 6 May 2024, parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.
This is a review hearing, which entails the de novo hearing of the parties’ interim dispute. The principles to which I have just adverted apply equally to interim parenting orders.
Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):
…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.
In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.
Proposals and evidence
The father sought the orders set out within his Application for Review filed on 24 May 2024. In essence, he sought the mother’s immediate delivery of the child to him, the child’s residence with him for two weeks, and then the parties’ restoration of the May 2022 orders.
In support of his application, the father relied upon:
(a)his affidavit filed on 8 April 2024;
(b)his affidavit filed on 25 July 2024 (confined to paragraphs 1–16), which was allowed over the mother’s objection due to its late service, because it only sought to answer the evidence freshly adduced by her in an affidavit filed on 19 July 2024;
(c)the report of the State child welfare agency to the Court dated 25 January 2024 (Exhibit F1); and
(d)Numerous other exhibits (Exhibits F2, F3, F4, F5 and F6).
The mother sought the orders set out in a Minute of Orders she tendered (Exhibit M1). Essentially, she proposed that the child have six supervised visits with the father at a contact centre, for two hours per visit at fortnightly intervals. She proposed that, subject to the fulfilment of various other conditions, the Court would then conduct another hearing to determine what new parenting arrangements should apply thereafter.
In support of her application, the mother relied upon:
(a)her affidavit filed on 8 April 2024; and
(b)her affidavit filed on 19 July 2024.
The Independent Children’s Lawyer (“the ICL”) sought to retain the orders made by the registrar.
In support of her position, the ICL relied upon three exhibits (Exhibits ICL1, ICL2 and ICL3).
Child’s best interests
The parenting arrangements which will most ably serve the child’s best interests are established by consideration of the factors stipulated within s 60CC of the Act.
Self-evidently, when the parties agreed to the parenting orders in May 2022, they both had confidence in one another’s parenting capacity. They would not have otherwise agreed to the orders in the terms they did, requiring the child to live with the father for substantial, and eventually, an equal amount of time.
Those orders were the subject of compliance up until late 2023, when allegations of the child’s sexual abuse were raised, which is the only reason there is now a dispute over variation of the orders. It follows that s 60CC(2)(a) of the Act is the principal consideration in the contest. That provision states:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child)…
The mother’s case is that the professional supervision of the child when in the father’s company is the only way to promote her safety – by protecting her from sexual abuse which may be perpetrated by him or some other person within his milieu.
The father’s case is that the evidence does not support any finding that he or anyone associated with him poses any risk to the child’s safety – on account of sexual abuse or any other reason – and so the parties should revert to compliance with the May 2022 orders, subject to him and the child spending an initial period of two weeks together to restore and stabilise their relationship.
The resolution of that conflict requires analysis of the evidence adduced about the allegations of the child’s sexual abuse.
The first suspicion about the child’s sexual abuse arose in late September 2023 and was entertained by the father. He contacted the State child welfare agency to report the child’s sexualised behaviour, which he feared might be due to her molestation by someone within the maternal family.[1] Although the mother subsequently came to believe the father had sexually abused the child, it may be wondered at this point why he would first bring the child’s behaviour to the attention of the child welfare agency if he had sexually abused her, as that would only invite suspicion he would likely be anxious to avoid. Making the report strategically to cover his tracks by trying to lay blame at the feet of someone else would have been such a risky strategy that it can be discounted as a reasonably plausible explanation.
[1] Mother’s affidavit filed 8 April 2024 at [38]
At that point in time, the mother had not noticed any sexualised behaviour by the child,[2] but she did so only a few days after she was informed of it by the child welfare agency.[3] The mother asked what was wrong and the child replied she had been touched on the vagina by “a man from dad’s work”.[4] Although that must have seemed an inherently improbable story, the child then drew a picture of the perpetrator,[5] which appears to show a person with an erect penis.[6] In answer to further questions, the child said she had seen the man’s “willy”, though she did not explain how she had come to see the person naked.[7] According to the mother, the child’s description of the perpetrator matches the father’s description, though the child did not then actually name the father as being the perpetrator.[8]
[2] Mother’s affidavit at [37]; Magellan Report dated 25 January 2024 at p.1
[3] Mother’s affidavit filed 8 April 2024 at [39]
[4] Mother’s affidavit filed 8 April 2024 at [39.3]
[5] Mother’s affidavit filed 8 April 2024 at [39.4]
[6] Mother’s affidavit filed 8 April 2024 at Annexure MH4
[7] Mother’s affidavit filed 8 April 2024 at [39.5]
[8] Mother’s affidavit filed 8 April 2024 at [39.4]
The mother reported the child’s allegations to the police for investigation. She then told the father by text message she had been advised to withhold the child during the investigation, though she said they could return to compliance with the May 2022 orders once the investigation was complete.[9] Not long afterwards, the mother contacted the police to propose that the child resume visiting the father, subject to him undertaking not to bring the child into contact with any of his work colleagues.[10] The plain inference is the mother expected the father to be exonerated by the formal investigation, as she would surely not have otherwise expected their resumption of compliance with the existing orders.
[9] Mother’s affidavit filed 8 April 2024 at [48]
[10] Mother’s affidavit filed 8 April 2024 at [52]
In late October 2023, the child hinted obliquely to the mother of some problem with the father about which she did not want the police involved, but then said nothing more.[11] By this time, the child had not seen the father for several weeks, so any imputation about his misconduct had to be more historic than that.
[11] Mother’s affidavit filed 8 April 2024 at [55]
In early November 2023, the mother sent a text message to the father asking if they could resume compliance with the May 2022 orders, to which the father agreed.[12] The parties restored the operation of the orders over the following week or so.[13] The mother would not have done so unless she was confident in the father’s ability to protect the child from harm. There is no other reasonable explanation for her decision.
[12] Mother’s affidavit filed 8 April 2024 at [58]
[13] Mother’s affidavit filed 8 April 2024 at [60]–[65]
In mid November 2023, apparently unheralded by any contextual conversation, the mother asked the child this leading question: had anyone “touched [her] inappropriately”?[14] The child initially denied it but, after being pressed again by the mother, she then alleged the father touched her on the vagina and on the bottom with his fingernail.[15] In response to the mother’s further question, the child then confirmed the father was the subject of the picture she had earlier drawn.[16] The mother reported those allegations to the police later that day.[17] As a consequence, she decided to again withhold the child from the father.[18]
[14] Mother’s affidavit filed 8 April 2024 at [70]
[15] Mother’s affidavit filed 8 April 2024 at [70]
[16] Mother’s affidavit filed 8 April 2024 at [70.12]–[70.13]
[17] Mother’s affidavit filed 8 April 2024 at [72]
[18] Magellan Report dated 25 January 2024 at p.2
In mid December 2023, the child was forensically interviewed by police.[19] She said nothing incriminating about any person to the police.[20] However, at home later that night, the child told the mother the father had licked her on the vagina and on the bottom.[21]
[19] Mother’s affidavit filed 8 April 2024 at [86]
[20] Magellan Report dated 25 January 2024 at p.2
[21] Mother’s affidavit filed 8 April 2024 at [88]–[89]
The child was then forensically interviewed for a second time in early January 2024, but again made no incriminating allegations against any person.[22] The police and the child welfare agency concluded the allegations of the child’s sexual abuse were unsubstantiated and their involvement was no longer required.[23]
[22] Magellan Report dated 25 January 2024 at p.2
[23] Magellan Report dated 25 January 2024 at p.2-3
The child welfare agency identified how the child “may have been inadvertently questioned in a repetitive and suggestive manner” by the mother, which may have “contributed to sexual abuse concerns arising”.[24] In any event, for present purposes, the child’s disclosures are taken to be those of which the mother gave direct evidence.
[24] Exhibit F6 at page 12 of 13
Although the father seemingly had trouble accepting the proposition, the mother’s evidence could not simply be discounted or disregarded. Inevitably, such evidence requires that a circumspect finding be made that some level of risk to the child exists. The salient question is how to ameliorate the risk, to which question the parties and the ICL gave different answers.
The father contended the risk could be attenuated by the imposition of supervision, which need not be provided by a professional contact service. He suggested the availability and willingness of the paternal grandmother as a suitable supervisor.
The ICL did not disagree with the use of the paternal grandmother as a supervisor because, under the registrar’s orders, she must be “substantially present” with the child and father once the initial period of professional supervision expires.
While the mother’s proposal was confined to the child spending only six professionally supervised visits with the father, with the Court then being called upon to hold another hearing to revise the arrangement in light of fresh developments, she properly conceded in submissions that her proposal was unrealistic. The Court cannot expend its resources holding fresh interim hearings for parties every few months. Unless and until circumstances are shown to have changed, once made, interim orders are intended to govern arrangements until trial. The mother accepted the parties would have to move on to a parenting model much like the program devised by the registrar and supported by the ICL after the expiration of the initial professional supervision. It therefore follows that, she too, foresaw the paternal grandmother would play an important role.
Traditionally, aligned family members are not generally regarded as being ideal supervisors (Marriage of B & B (1993) FLC 92-357 at 79,780–79,781). However, in this instance, both the mother and the ICL envisaged the paternal grandmother would play an important supervisory role. The child’s supervision by the paternal grandmother when with the father will serve several purposes. It will prevent disruption of the child’s filial relationship with the father, protect the father from further allegations of abuse being made against him, and presumably allay the mother’s fears of the father’s sexual abuse of the child. The mother did not submit she feared the paternal grandmother would be complicit in the child’s abuse or that the paternal grandmother would turn a blind eye to it just to protect the father.
In order that the paternal grandmother’s supervision is dependable and not merely an artifice, it will be necessary for her to sign an undertaking confirming her understanding of the gravity of the role she is willing to perform. The father will need to file her undertaking and serve it upon the mother before the child commences visits with him. In addition, the child’s visits with the father cannot be so long that the paternal grandmother is deprived of the capacity to properly perform her role. For that reason, the visits will be confined to the daytime, between 9.00 am and 5.00 pm. Because such visits will be much shorter than those the child previously experienced under the existing orders up until November 2023, they should be more frequent. For that reason, they will occur on one day each weekend.
Orders to that effect will promote the child’s safety (s 60CC(2)(a)(i)) and simultaneously allow her to benefit from the retention of loving relationships with both parents (s 60CC(2)(e)).
The mother sought to advance her apprehension about the hostility recently shown to her by the father and members of the paternal family as a salient issue, implying that she needed to be kept safe from them (s 60CC(2)(a)(ii)), but that is not an issue which requires any remedial order at this point in time. The mother did not seek an injunction against the father under s 68B of the Act and she accepted the child should spend time with him. The parties only dispute the manner in which that should occur.
The mother contended the father is not as capable as her of meeting the child’s developmental, psychological and emotional needs (s 60CC(2)(d)), but that is not an issue which has any material influence over the nature of the orders needed to resolve this interim dispute.
No other submissions were relevantly made to engage the provisions of s 60CC of the Act.
Conclusion
Neither party nor the ICL sought any change to the allocation of parental responsibility for the child established by the orders last made in May 2022. Nor was any change sought to the child’s primary residence with the mother. In his Initiating Application, the father sought to reverse the child’s residence, but he abandoned that application.
The orders made in May 2022 governing the child’s personal interaction with the father are suspended until the trial. The interim orders made by the registrar in May 2024 which govern the child’s personal interaction with the father are discharged. The child will instead spend time with the father each Saturday between 9.00 am and 5.00 pm, subject to supervision by the paternal grandmother, informed by her knowledge of the onus she thereby bears.
I decline to make the order sought by the mother for a family assessment under s 62G of the Act.[25] That will be a matter for the registrar in due course. The proceeding is next listed before the registrar for procedural directions on 14 August 2024.
[25] Exhibit M1, Order 6
There is no need for the injunction proposed by the mother to restrain the child’s involvement in the conflict.[26] That order was made by the registrar (Order 6) and is not reviewed.
[26] Exhibit M1, Orders 8(a) and 8(b)
The injunction sought by the mother requiring the parties to “use their best endeavours” to ensure the child is not left alone with “any male” is rejected.[27] The proposed order is aspirational and unenforceable in that form.
[27] Exhibit M1, Order 7
The mother also proposed an injunction restraining both parties from showering with the child,[28] which is rejected because it is bizarre. Presumably it was intended the injunction would protect the child against sexual abuse, but it was not the subject of any submission. Interpreted literally, it would preclude either parent from being in the shower with the child, but would not preclude them from being in the bath or in bed with her. Nor would it preclude either of them from abusing the child if standing outside and reaching into the shower. Evidently, the injunction would not accomplish what the mother hoped or expected.
[28] Exhibit M1, Order 8(c)
Subject to the question of costs, all outstanding interim applications are dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 30 July 2024
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