AMT and ALK - [2003] FMCAfam 420

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMT & ALK

[2003] FMCAfam 420

FAMILY LAW – CHILDREN – Varying existing orders – contact – allegations of sexual abuse – whether the Court should accept an affidavit sworn by a child under 18 – leave of the Court not sought in relation to the affidavit as is required by section 100B – separate representation of children – obligations placed on party by section 67Z.

Family Law Act 1975, ss.67Z; 67ZA(2); 100B(1)

Re: K (1994) FLC 92-461

Applicant:

MTA

Respondent:

LKA

File No:

PAM 3754 of 2001

Delivered on:

5 September 2003

Delivered at:

Parramatta

Hearing date:

5 September 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

Ms Lansley

Solicitors for the Applicant:

Lansley Lawyers

Counsel for the Respondent:

Ms Snelling

Solicitors for the Respondent:

RJ Russell Solicitors

ORDERS

The Terms of Settlement are marked Exhibit 2, and by consent and until further order, I make orders in accordance with paragraphs 1, 2, 3, 4 and 5 inclusive.
That pursuant to section 68L of the Family Law Act 1975 the children OSA born 24 July 1993, BAA bon 22 April 1996 and EJA born 17 July 1998 be separately represented AND I REQUEST that the Legal Aid Commission of New South Wales provide such representation.
That each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all Applications and Affidavits filed in these proceedings by the party together with all existing Orders and copies of any relevant reports.
The Respondent Mother is to file a Form 66 Notice of Risk of Child Abuse pursuant to section 67Z(2) of the Family Law Act 1975, within fourteen (14) days.
The Application is adjourned Monday 20 October 2003 at 10.00am for further mention.
I require a typescript of the hand written Consent Orders to be filed with the Court within fourteen (14) days.
I require a transcript of the reasons for my decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 3754 of 2001

MTA

Applicant

And

LKA

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court is an application by the father of three children, a boy and two girls, to vary the existing residence orders to provide for the fact that the children should reside with him rather than residing with their mother. For a period of time the eldest child, OSA, has been residing with the father in what was said to be a temporary arrangement. The mother does not wish for that arrangement to continue.
The father has formed a new relationship and the lady with whom he resides has children of her own. One of these children is a teenage boy who was living with his father and stepmother, but since the end of May has taken up residence in the household with his mother and with the father of the children who are the subject of these proceedings.
The current arrangements are that contact takes place in such a way that the three children, the subject of these proceedings, spend weekends together at each parent's place.
An incident arose early in June of this year in which the youngest child, a little girl aged 5, was, according to the affidavit evidence, observed by the mother and another person in the mother's household behaving in or speaking in a sexualised manner. The child was reported to have made some allegations relating to inappropriate touching, which would amount to abuse by the 14-year-old boy who resides in the father's household. The father was made aware of that by the mother who telephoned him.
The mother and another woman who resides in the household swore affidavits on 17 June which were filed in this Court on 25 June and contact continued as per usual. The mother had referred to this incident in the presence of a counsellor, not a court counsellor, and there is evidence in a later affidavit that the counsellor indicated that she, the counsellor, would have the obligation of notifying the Department of Community Services.
It is not in evidence, but I am informed from the bar table that the Department of Community Services has in fact been notified about this matter. No Notice of Abuse has been filed and it does not appear that section 67Z of the Family Law Act has otherwise been complied with. The provision of section 67Z places a responsibility or an obligation on the party who has knowledge of, or reasonable suspicion of any abuse to file a notice of abuse. The exact wording of the section is:
(1)This section applies if a party to proceedings under this Act alleges that a child to who the proceedings relate has been abused or is at risk of being abused.
Section 67ZA(2) goes further by placing an obligation upon Court personnel to notify the relevant authorities if they have reasonable grounds for suspecting that a child has been abused, or is at risk of being abused.
Without a doubt the Federal Magistrate comes within the definition of court personnel. It is my understanding of the legislation that if the Court is not satisfied that an allegation of abuse has been notified to the appropriate welfare authority, in this case the Department of Community Services, that court personnel themselves are mandatory notifiers. It is my reading of the Act that a Federal Magistrate, on being aware of this and on being aware that the matter had not otherwise been notified, would be under the obligation provided by the legislation to make such a notification.
If, however, it appears that the department has been notified, then there is no mandatory requirement for the Court to do so, although I am of the view that the mother should have filed a notice of abuse and should do so before the matter proceeds further. It is the Courts duty, once the Court becomes aware of allegations of child abuse being made, even of this late stage as I am conscious of the fact that this incident did not arise until after the Family Report had been prepared, the Court must take action to deal with the allegations before it.
The mother has made it clear in her affidavit material that she regards the matter as serious and indeed the mother's counsel in the practice direction document that has been filed makes reference to it and makes reference to the need to protect, not just the little girl concerned, but her sister from any such matters in the future.
Where there is an allegation of abuse of this nature the Court should look at the guidelines set out by the Full Court of the Family Court in Re K (1994) FLC 92-461. The guidelines set out in Re K point to the appointment of a children’s representative as a fundamental factor for the Court to contemplate in circumstances as is described and presented before me today. I am of the view that I should make that order today of my own motion and that the representation should extend to both of the girls concerned. The matter will need to be adjourned for a period of several weeks until a child representative can be appointed and the material can be made available to that person.
I expressed concern earlier in the day about the mother’s handling of the allegation of abuse by the child, and that her response was insufficient to prevent the child from being exposed to such acts. It was put that by making the father aware of the allegation that the father and his de facto partner would take whatever steps were necessary to deal with the matter until it came to Court on a final hearing. I am not satisfied that her notifying the father of the matter concerning the child, together with filing an affidavit constitutes an adequate response.
To reiterate, section 67Z of the Family Law Act does place an obligation on a party to file a Notice of Abuse. I am also mindful of the fact that the matter was listed for final hearing in early September and the allegation came to the mother's notice in early June. The matter has come back to Court on two occasions for mention between those dates, one of them being quite recently, on 27 August, which was purely to deal with the return of subpoenas.
Nevertheless, it appears to me that there was an opportunity for an interim application to be brought on an urgent basis to either vary or suspend the contact orders in order to safeguard the little girl and perhaps, for that matter, her sister from any possibility of abuse until this matter could be decided on a final basis. I am not satisfied that the reasons given for this failure are sufficient.
I indicated earlier that unless some contact arrangement could be agreed upon between the parties, which were sufficient to protect the girls concerned from a risk of sexual harm, then I would have no other option but to suspend contact. I am pleased to say that some minutes of order have been prepared which contain some detailed proposals for future contact, which contain adequate provisions to safeguard against a recurrence of the incident that is said to have occurred early in June. I have now made orders by consent in accordance with those minutes of order.
I wish to make it quite clear that allegations of child sexual abuse should not be made lightly, but when they are made in the course of proceedings before this Court, the Court will take those allegations seriously and will take the steps that the Court considers necessary to protect the child concerned from the risk of harm in the future. The law is quite clear that there is this obligation. The Court must consider whether or not there is an unacceptable risk. As I said in this case the consent orders remove that degree of risk.
There is one other issue to which I propose to refer. The child concerned, or the child against whom the allegations have been made, who is a boy 14 years old, swore an affidavit in the presence of the father's solicitor and that document was filed in Court on 8^th August having been sworn the day before. No leave was obtained.
Section 100B of the Family Law Act makes it quite clear and I quote from sub-section (1):
A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the Court makes an order allowing the child to do so.
I am of the view that the preparation and swearing of the affidavit constitutes a clear breach of that section and indeed the affidavit not only should never have been prepared without leave of the Court, but should never have been filed. There was certainly opportunity for the matter to have been brought back to Court so that that leave could have been obtained and it is a matter of criticism of the party concerned that that was not done. Preparing a document in this way, contrary to a requirement of the law, without obtaining the leave of the Court could in a proper circumstances amount to a contempt of Court.
That being said, however, that the solicitor concerned has expressed a full and unequivocal apology and I accept that apology. I am not of the believe that any useful purpose will be served in taking that matter any further, except to make it quite clear that the Court requires practitioners to pay strict regard to the requirements of the Family Law Act, particularly where they relate to the parties' obligations relating to children.
Practitioners must be aware that if there is any future failure to comply with this particular section that the Court will regard the matter with a great deal of seriousness and would certainly consider taking the matter further. I am not of a view that that is appropriate in this case.
I propose to include the representation to include the child O as well and the Orders that will issue will include that.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: C. Soliman

Date: 16 September 2003