BARTON & HUGHES

[2011] FamCA 105

FAMILY COURT OF AUSTRALIA

BARTON & HUGHES [2011] FamCA 105

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the mother seeks that previous orders providing that the father spend supervised time with the children be suspended – where the mother alleges that the father has sexually abused the children – where the father alleges that the mother is neglectful of the children’s needs – best interests – where there are concerns surrounding the mother’s capacity to cope under the stresses arising from the allegations – orders that the father’s time with the children be suspended

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

APPLICANT: Ms Barton

RESPONDENT: Mr Hughes

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: ADC 2191 of 2010

DATE DELIVERED: 15 FEBRUARY 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Justice Burr

HEARING DATE: 15 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Childs
SOLICITOR FOR THE APPLICANT:	Combes & Co

COUNSEL FOR THE RESPONDENT:	Mr Harley
SOLICITOR FOR THE RESPONDENT:	Dixon Gallash

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr McGinn
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Barr Lawyers

Orders

1. That the proceedings be adjourned before the Magellan Registrar for general trial preparation, mention and directions at 2.30 pm on Wednesday 16 March 2011.

2. That paragraphs 3 and 4 of the Orders made on 14 December 2010 be discharged.

3. That each party do all things necessary to attend upon, enroll and participate in all intake procedures to secure their enrolment at the S Children’s Contact Service in the event that the Court subsequently orders that the father spend time with the children at and under the supervision of the said Service.

4. That the Independent Children’s Lawyer do:-

   (a)    immediately refer the children J born … October 2002, N born … April 2004, C born … July 2005 and D born … January 2007 to the Child Protection Service (“CPS”) or CAMHS for therapy and counselling;

   (b)    immediately arrange the referral of the mother to CPS or CAMHS for assistance in dealing with the children’s alleged disclosures and behaviours, and to assist in educating her regarding protective behaviours and appropriate sexual boundaries;

   (c)    immediately refer the mother for intensive therapy regarding her alleged experiences of trauma and to explore her current feelings regarding the children’s disclosures;

   (d)    refer the mother to a parenting group;

   (e)    refer the mother to a women’s advocacy service or similar that may provide her with a social worker or support person who can assist her to develop empowerment and assertiveness skills and to assist her with any other issues as deemed relevant by the social worker or support person.

5. Until further order, the father is restrained and an injunction is hereby granted restraining the father from having any contact or communication with the said children and from permitting any other person to do so on his behalf.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2191  of 2010

Ms Barton

Applicant

And

Mr Hughes

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today disputed proceedings between the parents of four young children J born in October 2002 and who is hence aged 8 ½ years, N born in April 2004 and who is hence aged almost 7 years, C born in July 2005 and who is hence aged some 5½ years and D born in January 2007 and who has just turned four years of age.

2. The allegations made by the parties as against each other are serious and need to be tested on evidence before this Court.  The mother alleges that the children have made a number of disclosures to her that the father has sexually abused them and the father purports that the mother is incapable of caring for the children in a number of respects and has alleged that she is guilty of neglect in relation to them.  There have been comprehensive materials filed by the parties supporting the individual case that they will endeavour to make out before this Court.

3. There are a number of independent materials that have now been prepared and filed in these proceedings and they include a Magellan Report letter from the Department for Families and Communities – Families SA dated 23 July 2010, a Child Protection Service (“CPS”) report dated 2 August 2010 and a further CPS report dated 10 September 2010.  In the first of those documents in addressing the concerns expressed by the father and a number of other as yet unidentified notifiers, in the end result the Department was not concerned as to the care of the children by the mother.  There was a safety check at one stage undertaken by the police who arrived unannounced to find that the children were happy and well and that the mother’s property was found to be clean and tidy.  The police reported to the Department at that stage that they had no concerns for the children in the mother’s care.

4. The CPS reports were specifically intended to identify whether or not any of the children had been sexually abused.  The first of those reports concentrated particularly on the allegations made as against the father in relation to N.  A summary of the findings of that report is to the effect that CPS did not find it possible to draw a conclusion that N had been sexually abused.  However they also observed that it was not possible to completely discount that possibility.

5. The second CPS report concentrated in particular on allegations made as against the father in relation to the child C.  C did not make any disclosures to CPS in his interviews with them.  However they noted some significant anxiety by C when he was asked to provide names for body parts and in particular, genitals.  He became distressed and broke down crying when asked about genital touching.  Thus CPS felt that they were in the same position as they found themselves in relation to N, namely that it was not possible to draw a conclusion that C had been sexually abused.  However the clinician noted C’s high state of anxiety and distress when the topics of genitals and genital touching were discussed with him, and I quote from page 7 of that report:-

   “It is also concerning that [C] appeared highly anxious when asked to speak about his father, to the extent that he denied that he had ever had a father.  These behaviours would be considered to be unusual and may be indicative of the effects of possible experiences of abuse and/or being exposed to negative views or information about his father.  Further, [C’s] mother reported that, since making the allegations, he had displayed problematic regressive behaviour at home (i.e. bedwetting and separation anxiety) and signs of anxiety at Kindergarten (shaking).”

   CPS then summarise their concerns about the reaction of the mother to the disclosures made by the children and raise concerns that she may have in some part condoned the behaviour or certainly not moved to provide appropriate or adequate protection for the children.  They recommended that a Family Report be prepared by an appropriate consultant.

6. Such a Family Report was ordered by me and is now before the Court, being a Family Report dated 3 February 2011.  The Family Consultant makes a number of recommendations in paragraph 98 of that report.  The mother has agreed to undertake the various forms of therapy and counselling for the children and for herself as is recommended there.

7. The issue in dispute for the Court this morning is whether or not I should suspend paragraphs 3 and 4 of the orders made on 14 December 2010.  Those orders relate to the father spending some supervised time with the children pending the trial of these proceedings.  Counsel for the father makes a number of observations about the Family Report which I think can be summarised in these terms:-

   (a)that the children at various stages, save and except in relation to J, indicated a capacity to engage with the father and at times exhibited some pleasure in his company;

   (b)that one or two of the children sought further time with the father and were concerned when their time with him came to an end;

   (c)that the disturbing presentation of the children in the presence of the mother at the conclusion of the session conducted in the preparation of the report could also possibly be explained by the mother’s capacity to engage with the children and not that the children were distressed by their time spent with the father;

   (d)that the Family Consultant proceeded on the assumption that sexual abuse had occurred rather than maintaining an open mind in relation to that allegation.

8. The Court is obliged to make any determination, even on an interim basis, in accordance with what represents the best interests of the children, that consideration being paramount for the Court as is expressed in Section 60CA of the Act. Section 60CA requires the Court to consider all of the matters raised under Section 60CC, being two primary consideration and a multitude of additional considerations. The two primary considerations present the most difficulty for the Court on an interim basis in that they raise two entirely conflicting issues for the Court’s consideration. The first is that the Court is to consider:-

   (a)the benefit to the children of having a meaningful relationship with both of the children’s parents;

   and the second is:-

   (b)the need to protect the children from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

9. As is the case with most matters before this Court, these are the very issues that the Court is usually asked to determine as between parents raising competing claims before the Court.

10. Counsel for the father argues that there is insufficient in the Family Consultant’s report which could be considered reliable when she suggests that the father’s opportunity to re-establish a meaningful relationship with the children should be prevented or inhibited in any way by the suspension or discharge of the orders I have made that they spend supervised time with him.  Counsel for the mother, supported by the Independent Children’s Lawyer, raises the very issues that the Court is obliged to consider pursuant to the second of the primary considerations.  They are supported in that regard by the Family Report and the recommendations contained therein.

11. Whilst Counsel for the father takes the view that aside from J, the children could benefit from some time with the father and indicated some comfort in his presence and a desire to see him, that is not the conclusion drawn by the Family Consultant and I quote paragraph 87 of her report as follows:-

    “The writer holds a number of concerns relating to the wellbeing of the subject children, [J], [N], [C] and [D].  Whilst the veracity of the allegations of sexual abuse that have been made is a matter for evidence, information collected from both parties, as well as from the children, suggested that there had been few, if any, sexual boundaries in the home.  Both parents have made allegations against one another in this respect, though [the father] presented as critical of all aspects of [the mother’s] parenting. Conversely, [the mother] impressed as a compliant individual who had not demonstrated an adequate level of vigilance and protectiveness towards her children, and who continued to present as being in a state of denial regarding the current allegations.”

    That paragraph, of course, raises concerns not just about the father in relation to issues of sexual abuse or indeed the children’s psychological capacity to relate to him, but also concerns about the compliant nature of the mother, and her possible capacity not to protect the children at times when they need her care and protection.

12. The report writer, in paragraph 88, acknowledges the conflicting pictures that have been presented by the parties and I do not accept that she has in any way discounted the possibility that there could be alternative explanations that would explain what she observed.

13. I have had regard to all of the matters contained in the Family Consultant’s report and in particular, those paragraphs set forth in her evaluation which commence at paragraph 87.  Of concern is the observation by the Family Consultant in paragraph 91 where she says:-

    “ …. Further to this, notwithstanding [the father’s] denial of these allegations, he displayed no insight regarding the children’s current emotional needs and interpreted [J’s] avoidance of him during the observations session as evidence of her boredom.”

    The report writer then makes a number of observations about her concern as to the mother’s capacity to meet the children’s emotional needs and her own capacity to cope under the psychological stress which has resulted from the various allegations and observations and from the Court process.  However, Counsel for the mother has already indicated that she will accept all of the Family Consultant’s recommendations in relation to improving her capacity to cope emotionally and generally.

14. In paragraph 93 of her report the Family Consultant makes these observations about interactions between the father and the children and the children’s presentation:-

    “A number of features of the children’s interactions with [the father] gave rise to concerns for their emotional wellbeing.  [J] presented as withdrawn from [the father], avoidant of interactions with him, and her body posturing suggested that she was experiencing anxiety when in close proximity to [the father].  Both [N] and [C] demonstrated behaviours that suggested that their feelings regarding [the father] were conflicted, and [C] displayed several odd and incongruent behaviours that raised questions about his internal emotional state.  Whilst [D’s] interactions with [the father] appeared more positive, it was noted that all three younger children presented as unsettled in the period immediately following the observation session with [the father].”

15. In paragraph 95 of her report the Family Consultant summarises her concerns which led to her recommendation that there should be no time spent by the children with their father pending the ultimate determination made by this Court in trial proceedings as follows:-

    “Given the children’s alleged disclosures and their presentations, the writer holds reservations regarding them spending time with the father.  It is considered that although supervision of this time will ensure their physical safety and provide them with some sort of assurance that they will return to [the mother] afterward, there remains a risk to the children’s emotional wellbeing.  It should also be noted that if any of the children are to spend time with [the father] in future, this may have an indirect impact on the emotional wellbeing of siblings who do not attend visits with [the father].  Relatedly, the siblings may feel bound to attend together, as [J] made a statement that suggested she felt responsible for keeping her younger siblings safe.”

16. The Family Consultant, in a sense, summarises her view as to what should happen in relation to these proceedings, certainly at the interim stages, at paragraph 97 of her report as follows:-

    “Irrespective of the Court’s findings in relation to the allegations of sexual abuse made against the father, the children, particularly [J], [N] and [C], presented as children whose emotional wellbeing was severely compromised.  Whilst comments made by the older three children’s school counsellor suggested that she held no concerns for them, it is a concern of the writer that these children may be internalising any traumatic responses resulting from their alleged experiences of physical and sexual abuse.  Although it is heartening that the children are doing well at school, it may be important for the school to be made aware of the alleged context for [N’s] shy, and at times withdrawn, behaviours.  It is considered that the children’s recovery from their alleged experiences is contingent on [the mother’s] ability to process the allegations and provide emotional support to her children, as well as improve her own protective behaviours so that her children are not at risk of future abuse.”

17. In all of the circumstances and having considered all of the matters which I am obliged to consider pursuant to Section 60CC of the Act, I am of the view that at an interim stage, the best interests of the children would be represented by me making an order discharging, or at least suspending, the orders I made on 14 December 2010 that the father spend supervised time with them.

18. I have not articulated specifically my findings pursuant to each of the additional considerations set forth in Section 60CC(3) of the Act, but I consider that I have canvassed in the general sense all of the relevant matters that arise pursuant to that sub-section earlier in these reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 15 February 2011.

Associate: 

Date: