Adams and Adams

[2011] FamCA 323

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS [2011] FamCA 323

FAMILY LAW - CHILDREN – interim orders – where the father seeks supervised time with the parties’ youngest child – where the father has been charged with a range of sexual offences against the mother and her daughter from a previous relationship – where the mother makes further allegations of sexual abuse against the father in relation to the parties’ children – consideration of the impact upon the mother’s parenting capacity should supervised time commence – best interests – where the Court was not satisfied that the child would be adequately protected from emotional and psychological harm which may arise from spending time with the father – application dismissed.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT: Ms Adams

RESPONDENT: Mr Adams

INDEPENDENT CHILDREN’S LAWYER: Mrs Tinning

FILE NUMBER: ADC 4741 of 2010

DATE DELIVERED: 3 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 3 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Annelles

SOLICITOR FOR THE APPLICANT: Degaris Lawyers

COUNSEL FOR THE RESPONDENT: Mr Aujard

SOLICITOR FOR THE RESPONDENT: Herman Bersee

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicole Atchison

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Tinning

Orders

1. Further consideration of the matter be adjourned to 10.00 am on 22 November 2011 before the Honourable Justice Burr.

2. Liberty to the parties to apply for an earlier date in the event that all criminal proceedings as against the father are resolved.

3. Leave to the Independent Children’s Lawyer to issue and serve subpoenas directed to CAMHS in Town 1.

4. Leave to the Independent Children’s Lawyer to inspect and copy documents produced pursuant to the subpoenas directed to CAMHS.

5. Leave to the parties to apply to the Court for permission to inspect and copy subpoenaed documents on the adjourned occasion.

6. By consent the mother be restrained and an injunction is hereby granted restraining the mother from removing the children S born … September 1997 and L born … May 2007 from a principal place of residence outside a radius of 75 kilometres from Town 1.

7. During the period of the adjournment paragraphs 5, 6, 7 and 9 of the orders of 21 February 2011 do continue.

8. The Independent Children’s Lawyer use her best endeavours to secure from the Department of Correctional Services details of any drug screening undertaken by the father during his time of incarceration or home detention and in the event the Independent Children’s Lawyer is unable to secure copies in that regard leave is granted to the Independent Children’s Lawyer to issue subpoenas directed to the Director, Department of Correctional Services to produce any documents in relation to drug screening undertaken by the father during his incarceration or home detention.

9. Leave to the parties and the Independent Children’s Lawyer to inspect and copy any documents produced pursuant to the aforesaid subpoena directed to the Department of Community Services.

IT IS NOTED that publication of this judgment under the pseudonym Adams & Adams is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4741 of 2010

Ms Adams

Applicant

And

Mr Adams

Respondent

REASONS FOR JUDGMENT

1. I have before me today disputed proceedings between the parents of two children, S, who was born in September 1997 and who is hence 13 years of age, and L, who was born in May 2007 and who is thus almost four years of age.  The matter was accepted within the Magellan project on the basis of some very serious allegations made by the mother as against the father in the nature of sexual impropriety towards the daughter of her previous relationship, a young adult by the name of Ms W.  Subsequently, further allegations of abuse were raised by the mother as against the father in relation to both S and L. 

2. Proceedings have taken a serious turn in that the father has now been charged with a large number of offences against Ms W.  There are also proceedings, as I understand it, underfoot in terms of charges laid as against the father for assault and attempted rape of the mother.  The charges as against Ms W are, indeed, of a sexual nature and were disclosed by counsel for the father as including unlawful sexual intercourse, indecent assault and gross indecency.

3. There are no charges laid against the father in relation to the youngest child L, but the circumstances of charges having been made against the mother and Ms W are of considerable concern to the Court.  I note that the father has already pleaded not guilty to the charges laid against him in relation to the mother and intends to plead not guilty in relation to the charges pending against him in relation to Ms W.  It is appropriate, of course, that those criminal proceedings run their course.  I am informed that as those charges will need to be heard as part of the circuits to Town 1 of the State courts, then there is no real likelihood of the proceedings being concluded much before March 2012.

4. The father has sought a number of orders in the interim.  The first of those is that he seeks a period of supervised time with L pending the final determination of the proceedings in this Court.  It will clearly be some time now before proceedings are concluded in this Court given the wide ranging criminal proceedings that the father now faces.  On that basis, I could understand his concern that any relationship that he might have enjoyed with his daughter L in the past and would hope to enjoy with L in the future, could well be prejudiced by the lengthy delays in the resolution of proceedings before this Court.  His application that his time be supervised recognises the need to protect L from any physical harm that is being alleged may be perpetrated against her by him.

5. There is no question that supervision would likely protect L physically from any harm that may come her way at the hands of the father, but the Court’s other concern is as to the emotional aspects of any supervised time that the father might spend with L.  The Court has no evidence yet upon which it could rely as to any emotional harm which may flow to L as a consequence of such supervised time.  However, S has indicated a quite clear resistance to her spending any time with the father.  On top of that, we have the serious charges that have been laid against the father in relation to alleged conduct towards the child Ms W and also the very serious charges that have been laid against the father in relation to the mother.

6. In my view, it is inappropriate that the father spend any supervised time with L pending, at least, the determination of the criminal proceedings.  The Court is obliged to consider the best interests of the child in making any decision either on a final basis or on an interim basis.  That arises under section 60CA of the Act.  In making that determination, the Court must have regard to the various provisions of section 60CC of the Act.  That section presents for the Court’s determination two primary considerations and a multitude of additional considerations. 

7. The two primary considerations stand in direct juxtaposition to one another in that the first requires the Court consider the benefit to the child of having a meaningful relationship with both of the child’s parents but as against the second consideration of needing to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  As I indicated, I am satisfied that the child would likely be protected adequately on a physical level from any potential harm from the father, but I am not satisfied that the psychological aspects could be adequately dealt with.

8. The mother, I accept through the submissions of her counsel, has been severely troubled and psychologically impacted, not just by the behaviour she alleges against the father but by the fact of criminal trial proceedings which she now must face in relation to the serious charges of assault and attempted rape of her by the father.  On top of that, she has to cope with the psychological needs of her 21 year old daughter Ms W, as she herself undergoes the difficult prospect of criminal trial proceedings being brought against her stepfather, again in relation to a number of various serious charges indeed.

9. It is important that the mother be available to her children in every sense.  She needs to be available to them physically but, more importantly, probably she needs to be available to them psychologically.  I am satisfied on the present evidence available to me that if I made any orders that the father was to have supervised time with L that the mother’s capacity to cope emotionally would be severely prejudiced and, thereby, her capacity to be available emotionally to her three children would be severely diminished and compromised.  In all of those circumstances, I am satisfied that in undertaking the difficult balance that the two primary considerations in section 60CC raised for the Court, that it is appropriate that I err on the side of caution in protecting the child L, both physically and psychologically, including ensuring that L has available to her a mother who is able to cope on an adequate psychological level for L’s needs and, indeed, for S’s and Ms W’s as well.

10. The additional considerations, in my view, do not require me to deal with them seriatim and make findings in relation to each of the provisions.  Suffice it is for me to say that I have considered each and every one of them and, in my view, the ultimate finding that is appropriate, having considered those additional considerations, it is the one that I intend to make which is to refuse the father’s application at this stage during the interim stages of the proceedings for him to spend supervised time with L.  Once the criminal proceedings are concluded it could well be a very different outcome and the Court will reconsider the position at that time.

11. The second of the father’s applications is for leave to issue a subpoena directed to CAMHS in relation to any counselling that he believes has been undertaken there by the children.  If, indeed, the children’s attendances at CAMHS are more in the nature of therapy than counselling, then it may not be appropriate that either of the parties have access to the information on CAMHS’ records.  That can be dealt with, in my view, by me giving leave to the Independent Children’s Lawyer to issue that subpoena and for the Independent Children’s Lawyer only to be the one to inspect and copy the documents.  The Independent Children’s Lawyer will then be in a position to make submissions to the Court as to whether or not it is appropriate that the parents of the children also be entitled to view those materials.

12. The third of the father’s applications before the Court today is for an order that the father’s solicitor be entitled to request supervised drug testing of the mother on a random basis.  In my view, it is appropriate to continue the order made on the last occasion being 21 February 2011, that such random drug screening be sought by the Independent Children’s Lawyer.  I note that the Independent Children’s Lawyer does not appear to have made any such request to date and I suggest that that order of the Court be actioned by the Independent Children’s Lawyer, as the information secured by such screening may be very important in the determination of these proceedings.

13. The fourth application of the father today is for an injunction restraining the mother from removing the principal place of residence of the children from a radius beyond 75 kilometres from Town 1.  That is an order to which the mother is prepared to consent, having indicated to the court she is now residing at Town 2, which is only some 50 kilometres from Town 1.       

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr delivered on 3 May 2011.

Associate: 

Date: