Woodburn & Laverty

[2023] FedCFamC2F 607

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Woodburn & Laverty [2023] FedCFamC2F 607

File number(s):	PAC 5457 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	16 May 2023
Catchwords:	FAMILY LAW – interim hearing – suspension of interim order for time – transfer to division 1 – allegation of sexual abuse – department of health and human services investigation concluded – where it is unknown whether criminal proceedings will be commenced against the father – where the father denies any sexual abuse towards the child – where department of health and human services recommend supervised time.
Legislation:	Family Law Act 1975 (Cth), ss 69ZW, 91B.
Division:	Division 2 Family Law
Number of paragraphs:	16
Date of hearing:	16 May 2023
Place:	Melbourne
Solicitor for the Applicant:	Mr J. Pigott, JWP Lawyers
Solicitor for the Respondent:	Ms E. Bethavas, Barbayannis Lawyers
Solicitor for the Independent Children's Lawyer:	Ms. C Smith, Victoria Legal Aid

ORDERS

PAC 5457 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR WOODBURN Applicant
AND:	MS LAVERTY Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE O'SHANNESSY
DATE OF ORDER:	16 MAY 2023

THE COURT ORDERS THAT:

1.The order for a Family Report contained at paragraph 24 of the orders of 20 September 2022 be vacated.

2.The Final Hearing listed for 29 & 30 June 2023 is vacated.

3.Pursuant to section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1).

4.Paragraph of 3(d) of the orders of 20 September 2022 be suspended, with a right to apply for reinstatement on short notice reserved to all of the parties.

AND THE COURT NOTES THAT:

A.The matter has been transferred to Division 1 for the following reasons:

(a)An allegation of sexual abuse has been made against the Father; and

(b)The matter is not able to proceed for Final Hearing on 29 & 30 June 2023 and it is unlikely this matter could be contained to 2-3 days in the circumstances.

B.The parties will be contacted directly by the National Assessment Team confirming the transfer of proceedings and the next listing date.

C.The issue of whether this matter is appropriate for the Magellan List will be considered in Division 1.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 Woodburn & Laverty has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR EX TEMPORE JUDGMENT

JUDGE O’SHANNESSY

INTRODUCTION

1. These are the settled reasons of an interim judgment delivered ex tempore and delivered orally.  These settled reasons have been corrected from the transcript for grammatical errors, to add citations and to attempt to make the orally delivered reasons easier to read.  The substance is unchanged. 

2. This matter was listed for Final Hearing on 29 June 2023. On 4 April 2023 the parties requested that I make an order for a section 69ZW report, and I did so that day. Child Protection prepared a report dated 9 May 2023 and that was released to the parties. As a result of that report I listed the matter for Mention.

   BACKGROUND

3. In this matter the Applicant Father, Mr Woodburn (‘the Father’) and Respondent Mother, Ms Laverty (‘the Mother’) cohabited for a short time and were never married.  The parties have one child, X (‘the child’) born 2019.  The Mother became pregnant with the child shortly after the parties met.  The Mother moved into the Father’s residences for a short period, until the parties separated when the child was only a few weeks old.  The Mother returned to live in Victoria for family support whilst the Father remained in New South Wales.

4. The Father issued proceedings before the child’s first birthday, seeking that the child live with him and spent alternate weekends with the Mother.  All of the child’s birthdays so far in her life have been with her parents having competing applications listed in the Family Court.  Following the commencement of proceedings, a court-funded Child Impact Report was ordered and undertaken on 10 December 2020.  Of that report I refer to the following paragraphs:

   8.[The Mother]’s primary concern for [the child]’s safety and wellbeing was that [the Father] would “run away” with her. She suspected that this was his intention due to him making an application to the Court that [the child] live with him. She was also concerned for his capacity to provide [the child] with adequate care, alleging that she had observed him falling asleep on [the child] when intoxicated during the parties’ relationship and that he would not follow the routine she has implemented which would be disruptive to [the child]. Towards the end of the interview, [the Mother] expressed her worries that [the Father] might be “a paedophile” for wanting [the child] to spend time individual time with him in [New South Wales]. She expressed concern with regards to [the Father]’s living conditions alleging they were unhygienic and that when she first met him, his apartment resembled that of a “clinical hoarder.”

   …

   11.[The Mother] and [the Father] alleged significant and problematic alcohol misuse by the other party during the relationship, with both parties’ denying that these allegations about themselves are true.

   …

   14.[The Father] initially presented as calm and forth coming with information, but became combative, heightened and questioned the writer’s professional judgement, demonstrating poor emotional regulation when asked about the possible impact on [the child] spending a significant period of time away from her mother. [The Father] apologised for the manner in which he spoke later in the conversation. [The Father] identified that he was diagnosed with depression in October 2019 after the parties separated. He noted that he has been engaged with a psychologist since October 2020 and has completed approximately four sessions. He identified that he is well supported by his family and network of friends in [New South Wales]. [The Father] expressed concern for [the Mother]’s mental health, alleging she presented with unpredictable mood and aggressive behaviour during the relationship and allegedly regularly blamed him for her “aggressive behaviour.”

   …

   ISSUES FOR THE CHILD

   19.[The child]’s early childhood experience of parental conflict, separation and alleged family violence.

   20.The significant period of time that has passed since [the child] has had contact with her father.

   21.Geographical issues with regards to the parties residing in different States.

   22.[The child]’s young age and lack of independence which impacts the opportunity for extended spend time. 

   …

5. Following the release of this report, there were orders for supervised time between the child and the Father.  About 14 sessions of supervised time occurred between May 2022 and September 2022, supervised by a private supervision service.  I recite some of the summary of observations of the second-last supervised visit in September 2022 and summary and final handover of the last supervised visit in September:

   ([…] September 2022)

   SUMMARY OF OBSERVATIONS

   •The contact was positive in nature and the father managed the transport and safety of [the child] appropriately.

   •The father ensured that all of [the child]’s basic care needs were met.

   •The father engaged with [the child] in a soft and kind manner.

   •The father was calm and did not mention the other party in front of [the child] while organising the location of contact.

   •The worker had to consult with … the Director of Family Contact Service to seek directions as the mother was disputing the B Shopping Precinct and trying to control the visit location.

   …

   ([…] September 2022)

   FINAL HANDOVER: (Finish – 12:30pm)

   [The child] was transferred to maternal care without incident. At 12:40pm, the worker updated the mother on the details of the contact and the worker asked the mother if the father could have the pram dry cleaned and she could pick it up next Tuesday. The mother said that she was not interested in having the pram dry cleaned.

   At 2:31pm the worker received the following message from the mother:

   “If [the Father] would like to help with things he can start off by paying the $11,770 (which he owes in child support unfortunately the $8.60 a week for 2.5 years did not provide for all of [the child]’s needs L) and then maybe help with the pram dry cleaning.”

   SUMMARY OF OBSERVATIONS

   •The visit was positive in nature for the father and [the child].

   •[The child] remained settled during the contact the entire visit.

   •The father demonstrated positive parenting skills.

   •The father was responsive and warm towards [the child].

   •No risks or concerns were identified during the visit.

6. On 20 September 2022 further orders were made, mostly by consent.  The face-to-face time between the child and the Father orders were by consent, but the parties disagreed about the extent of telephone or video contact and that required a ruling of the Court.  The consent orders had a gradual increasing of the child’s time with the Father such that from 11 March 2023 the child would spend overnight time with the Father from 10.30am Saturday until 5pm Sunday each alternate weekend. 

7. In early 2023 a report was made to Child Protection. I recite the following paragraph from section 69ZW (of the Family Law Act 1975 (Cth)) report received by the Court on 9 May 2023:

   Give [the child] had made a clear disclosure regarding sexual abuse perpetrated by [the Father], the matter was referred to the Sexual Offence and Child-Abuse Investigation Team (SOCIT) of Victoria Police for a possible criminal investigation. [The child] was interviewed by [SOCIT] again [in early 2023], at which time she disclosed that [the Father] had moved her bather bottoms to the side and inserted his finger into her vagina. [The child] asked [the Father] to stop and he complied. It was alleged that this occurred outside of the pool at the [accommodation] that [the Father] would use during his contact with [the child].

   …

8. The overnight time that was to commence did not commence, and there was correspondence between solicitors relating to, at least in part, the allegations described in the early 2023 report.  From the first weekend of time in February 2023 it appears that time did not occur and had been ceased by the Mother.  Hence it appears that the last period of face-to-face time between the child and Father was 28 and 29 January 2023 where the child spent a period of eight hours each day, commencing at 10.30am on the Saturday and 9am on the Sunday. 

9. Child Protection visited the Mother on two dates in early 2023. The result of those attendances was that Child Protection regarded the child as having made a clear disclosure regarding sexual abuse perpetrated by the Father. It would appear from the section 69ZW report that the Father had not been interviewed by Child Protection or the police despite opportunities for that to occur, and it is alleged that the Father waived his entitlement to be interviewed by the police.

10. It is common ground between the parties that there remains an outstanding police investigation concerning allegations of sexual abuse and that the matter is neither ready, nor appropriate, to proceed at a final hearing on 29 and 30 June 2023.  Further, it is common ground, or at least not disputed, that a final hearing, whenever it occurs, is highly unlikely to be able to be contained to two or three days in the circumstances of the allegations, save for some significant new information that may arise from the conclusion of the police investigation. 

11. In all of those circumstances, I raised with the parties whether the existing order for face-to-face time should be suspended in the circumstances where that order was not being complied with in the context of the Child Protection investigation and the not-completed police investigations.  The Father did not consent to that suspension.  The Father, by his solicitor, denies the allegations.  The Mother and the Independent Children’s Lawyer both consented to the existing order for overnight time between the child and Father being suspended.  In my view, the order should be suspended so that the parties know what their current obligations are. 

12. It is important to note that the existing order for video time is not suspended, and it is common ground that that video time is occurring and, further, that video time would be consistent with the cautious recommendations of the section 69ZW report.

    It is noted that [the child] has lived in the care of her mother … since birth. [The Mother] served as [the child]’s primary attachment and they appear to have a close and loving bond. Child Protection has been unable to identify any concerns for [the child] in the care of [the Mother]. It is therefore recommended that [the child] remain in the care of her mother.

    Child Protection acknowledges that [the child] has the right to develop and maintain a relationship with her father … However, this must be balanced with [the child]’s right to safety. It is the assessment of Child Protection that [the Father] will require supervision when having in-person contact with [the child]. This will protect [the child] from the risk of sexual abuse in future and also preclude any further allegations being made against [the Father]. Given [the child]’s age, she cannot be expected to ensure her own safety while in contact with [the Father].

13. The matter should be transferred to Division 1 as a court that can accommodate the length of a hearing of a matter of this complexity.  I want to make clear that I make no findings or indication of what has occurred in this case, one way or the other. 

14. I note that the issue of a subpoena to the Department of Families Fairness and Housing has been raised by the Independent Children’s Lawyer, and is not pressed this day and will be, likely, pressed on the next occasion of the matter being dealt with on a triage basis in Division 1 of this court. 

15. The parties had previously agreed that I should make an order pursuant to section 91B of the Family Law Act 1975 (Cth). I did not make that order and deferred that decision until receipt of the 69ZW report. It is clear that Child Protection do not intend to intervene in these proceedings, and whether Child Protection should be invited to join remains undetermined. I will not enter into that but will leave that for the officers of the Court to which the matter is being transferred.

16. I regret the necessity to transfer the matter, and it is simply because this Court is set-up to accommodate two to three-day hearings and cannot accommodate four or five day, or longer, hearings.  Hopefully, this matter is able to be resolved without a hearing, but that looks to be a difficult prospect, but, nonetheless, I wish the parents in this matter all the best.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       23 May 2023