BARTEL & SCHMUCKER

[2012] FamCA 250

FAMILY COURT OF AUSTRALIA

BARTEL & SCHMUCKER [2012] FamCA 250

FAMILY LAW - CHILDREN – interim orders – application by the mother seeking a change in the care arrangements for the parties’ children – where the mother makes allegations of sexual abuse against the father – best interests – where the Court does not have the information before it to significantly alter the care arrangements for the children – application dismissed.

FAMILY LAW - CHILDREN – interim orders – application by the mother seeking orders that the children receive counselling or therapy – where the mother makes allegations of sexual abuse against the father – best interests – where the Court was not prepared to make such orders when it was not clear what form of counselling or therapy was likely to take place – orders that the Independent Children’s Lawyer make further enquiries as to options for future counselling and therapy.

Family Law Act 1975 (Cth)

APPLICANT: Mr Bartel

RESPONDENT: Ms Schmucker

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Tydeman

FILE NUMBER: ADC 4233 of 2008

DATE DELIVERED: 16 April 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Andrew Hill & Co

COUNSEL FOR THE RESPONDENT: Ms Hurley

SOLICITOR FOR THE RESPONDENT: Moore Law

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Tydeman

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission

Orders

1. The mother’s Application in a Case filed on 12 April 2012 is dismissed.

UPON NOTING:

1. No orders in relation to the child K born on … February 1999 SAVE AND EXCEPT the mother is seeking an injunction restraining the father from spending time with the child K and the father is not proposing to spend time with the child K born on … February 1999.

2. The orders for the child C born … July 2003 continue.

3. The mother has been directed to ensure that the child C attend the N Contact Centre and where possible participate in the times spent with the father in accordance with the Orders.

4. In relation to the question of therapy and counselling that has been referred to the Independent Children’s Lawyer to make enquiries about any psychologist or counsellor who would be appropriate and who is willing to conduct any therapy or counselling in the current circumstances of the serious disputed allegations.

5. The matter is already listed before a Registrar for preparation for final hearing and parties agree to the matter coming back before me if it is necessary for me to make an order for Dr B to update his report when he has been given access to the subpoena material.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bartel & Schmucker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4233 of 2008

Mr Bartel

Applicant

And

Ms Schmucker

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. At this stage the evidence in relation to changing arrangements concerning P appear to be that set out very briefly at page 5 of the Affidavit of the mother, which was filed in support of the Application in a Case.  It is clear from the material before the Court that even though C and P are the same age that their living arrangements have been significantly different recently.  The paragraphs concerning P in this recent Affidavit talk about P’s bullying behaviour and angry behaviour towards his sisters and that he calms down after a couple of days.

2. I am not able to draw the conclusion that P’s behaviour is solely due to his father’s behaviour or what he experiences in his father’s household.  An opposite conclusion would be capable of being drawn, particularly when one takes into account the Family Consultant’s Report which sets out the history of the extremely antagonistic attitude of each of the parents towards the other parent and how the children have been at risk of emotional and psychological abuse by the behaviour of their parents in this ongoing litigation “in the adversarial legal system” as it is referred to by Ms A.

3. I am therefore, not in a position to significantly alter the arrangements which have been in place for some time for P.  This takes into account the primary responsibilities to ensure a meaningful relationship is encouraged between each of the parents at the same time protecting the children from abuse (and that includes emotional and psychological abuse).  I am therefore not proposing to make any alteration to the orders in relation to P.

4. As far as K is concerned, the allegations in relation to K’s Facebook comments are of serious concern and need to be investigated.  I am told that the matter has been referred to the police, but there is no indication of whether the police are actually investigating or what other steps have been taken in relation to K’s comments, which could be seen to imply that she was raped by her father.  This is of concern.  However, it also needs to be seen in the context that K is not spending any time with the father and he is not seeking orders in that regard at the present time.

5. These allegations impact significantly upon what should happen in relation to C.  The current arrangements, however, for C are that she spends only supervised time with the father at a Contact Centre.  Therefore, although perhaps not protected from the risk of emotional or psychological abuse she is protected from the risk of sexual or physical abuse. 

6. There is an issue, concerning the mother’s attitude towards C’s attendance.  I make it clear that the mother is required to deliver C to the Contact Centre and take all steps necessary to encourage C to comply with the direction that she spend time with the father.

7. In relation to the question of counselling, I am proposing to stand the matter down in order for the counsel for the mother to consider the information to be given to Dr B in relation to his Report, as referred to in paragraph 7 of Ms A’s Report.  The difficulty with the recommendation of Ms A’s Report about C and K having counselling/therapy is that it is not clear from those recommendations exactly what form of counselling or therapy is likely to take place.

8. Paragraphs 90 and 91 of the Family Consultant’s Report, however, refer to the view that K would benefit from counselling directed at exploring the nature of her relationship with others, including family members, such as her father, mother and younger sister C.  Paragraph 91 concludes that C’s profound emotional distress when speaking about her father is of concern and needs to be explored in a therapeutic environment in an effort to avoid future pathology.

9. The Report itself says there is considerable concern.  I express some difficulty, however, in the counselling or therapy taking place when one parent clearly believes that the other parent has been responsible for sexual abuse of the children and the other parent (the father) believes that the mother is psychologically and emotionally abusing the children by promoting the allegations of abuse.  It would be difficult for a therapist or counsellor to conduct any definitive counselling or therapy because of the dispute between the parties.

10. At this stage, therefore, I would not propose to be ordering the counselling or therapy to take place, but will be requesting the Independent Children’s Lawyer to making inquiries of available psychologists or counsellors as to their view of the capacity to provide therapy for the children pending the determination of the serious matters which are in dispute in this litigation. 

11. Dr B’s Report refers at paragraph 7 to an updated psychiatric report of Ms Schmucker by Dr B being ordered after Ms Schmucker has attended counselling and after Dr B has had the opportunity of reviewing Ms Schmucker’s hospital records.  I understand that the latter is a reference to the allegations by the mother that she was raped by her uncle when she was 14, speculation that that may be impacting upon her current attitude towards the children, C and K.  The mother should give appropriate instructions to her legal representatives about a significant order after they have also carefully considered the subpoenaed material.  I will stand the matter down briefly for the mother to give instructions and receive advice.

12. I do not propose to make any order at this stage changing the parental responsibility for the children as that would pre-empt a decision that needs to be made after the evidence has been heard and tested.  The matter is already listed for the 24^th of this month before a Registrar for it to be given a listing for a final hearing.  As a Magellan matter, it will be given priority when there is the judicial availability.

13. Ms Hurley has a concern about having the material considered by the mother’s legal representatives and her having an ability to give proper instructions.  This carries some weight, but the updating of the report by Dr B would seem to be something that is clearly recommended by the Family Consultant.  The material to be considered and the question of Dr B updating his psychiatric report can be either the subject of a consent order in due course or brought back before me if there is a dispute about it.

14. It will be noted then that the father is not proposing to have any contact with the child K.  I will note that the orders for C continue and that the mother has been directed to ensure that C attends the Contact Centre and where possible participates in the time spent with the father in accordance with the orders.  The parental responsibility is to remain as it is. 

15. I have already indicated that I am not proposing to change the orders on an interim basis in relation to P.  In relation to the question of therapy and counselling that has been referred to the Independent Children’s Lawyer to make inquiries about any psychologist or counsellor who would be appropriate and who is willing to conduct any therapy or counselling in the current circumstances of the seriously disputed allegations.  On that basis I dismiss the Application in a Case filed on 12 April 2012 and note that the matter is already listed before a Registrar for preparation for final hearing.  I would agree to the matter coming back before me if it is necessary to make an order about Dr B updating his report when he has been given access to subpoenaed material.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 16 April 2012.

Associate: 

Date: 20 April 2012