Beaumont & Gardiner

[2009] FamCA 58

FAMILY COURT OF AUSTRALIA

BEAUMONT & GARDINER [2009] FamCA 58

FAMILY LAW – CHILDREN – interim proceedings – Magellan matter – with whom children are to live and spend time – where child has made disclosures of inappropriate sexual behaviour – allegations against both the father and the step-father – where current weekabout living arrangements inappropriate upon commencement of the school year due to the distance between the parties’ homes – s 60CC factors – significance of the nature of the children’s relationship with the mother – difficulty associated with the children spending time with each parent given the distance the parties live apart – children to live with the mother and spend weekend time with the father pending final determination – conditions placed upon the mother’s care of the children to protect them from any risk of harm – father’s time with children to be generally supervised

FAMILY LAW – CHILDREN – schooling – consideration of school child to attend in the interim – where father objects to children attending a Christian school

Family Law Act 1975 (Cth) s 60CC

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Beaufort

RESPONDENT: Mr Gardiner

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 5124 of 2007

DATE DELIVERED: 23 January 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B.K. Deegan

SOLICITOR FOR THE APPLICANT: Brian K. Deegan

COUNSEL FOR THE RESPONDENT: Ms P. Dixon

SOLICITOR FOR THE RESPONDENT: Polly Dixon and Co

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Stephen

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission

Orders

1. The children M and R live with the mother and that they spend time with the father:

   (a)on two [2] weekends out of three [3] weekends from the conclusion of school at S Primary School on Fridays and returned to the mother at 5.00 pm on Sundays in the car park of the G Shopping Centre or such other place as the mother and father may in writing agree.

   (b)the first period of time spent with the father for the two [2] weekends out of three [3] weekends commencing Friday 30 January 2009.

2. The children reside with the mother on condition:

   (a)that during the times that the said children live with the mother:

   (i)the mother at no time is to leave the said children unsupervised in the care of or within the vicinity of Mr B;

   (ii)the mother is to attend to all of the said children's bathing, toileting, personal hygiene and other intimate needs;

   (iii)the mother is to put the children to bed each night or at any time that they require a sleep;

3. The time spent with the father is on condition he shall reside with either his parents or sister V and that his parents and/or his sister provide general supervision of his time with the children

4. The injunction is continued in paragraph 6 of the order made by the Honourable Justice Burr on the 16 December 2008.

5. The mother be at liberty to enrol the child M in S Primary School.

6. The mother provide the father with information concerning M’s teacher and any parent/teacher interview arrangements as become known to her.

AND IT IS FURTHER ORDERED THAT:

1. The Independent Children’s Lawyer is at liberty to file and serve an affidavit to which is annexed the transcripts of the CPS interviews with the child M.

2. Within seven [7] days the Independent Children’s Lawyer will file a fresh Outline of Case including a list of documents which the Independent Children’s Lawyer relies.

3. The parties have twenty-one [21] days to agree a chronology and for the mother and father to file amended Case Outlines.

4. Within twenty-eight [28] days THE COURT DIRECTS the mother and father to file and serve an affidavit setting out the facts upon which they rely concerning the issues in dispute and the affidavit of any witness indicated setting out the facts relating to the issues in dispute.

5. This matter is adjourned to the 3 March 2009 at 9.15 am before the Honourable Justice Dawe for a compliance check and any other necessary trial directions.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5124  of 2007

MS BEAUMONT

Applicant

And

MR GARDINER

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has come before me in relation to the preparation of the matter for conclusion of the trial.  On 19 January the matter was listed before me for a first day of the trial.  It has been designated a Magellan matter some time ago and has a complex history.

2. The matter concerns the welfare of two children of the parties:  M, who was born in April 2002 and is aged six, nearly seven; and R, who was born in April 2005, who is three, nearly four.  The children lived with their mother, who has since married Mr Beaumont.  She was living in Adelaide with Mr Beaumont since about the end of 2006.  Mr and Mrs Beaumont have two children, J and L

3. In September 2007 M made disclosures that suggested she had been the subject of inappropriate sexual behaviour by her father. Investigations were undertaken and, as a result of those investigations, there arose an allegation that she had been sexually abused by Mr Beaumont, the mother's present husband.

4. The matter has been before this Court on several occasions.  It was designated a Magellan matter.  The Minister of Family Services has been invited, but has declined, to intervene in these proceedings. Investigations have been undertaken by Families SA and Child Protection Services and reports made available to the Court.

5. The reports available to the Court in the early days made a clear suggestion that the CPS authorities and Families SA supported a finding that M had been sexually abused by her stepfather Mr Beaumont and not the father.  The children continued to live with the mother following the allegations in relation to Mr Beaumont, on conditions that the children not be brought into contact with Mr Beaumont.  Those arrangements continued (namely, the children M and R continued to reside with the mother) until March 2008, when the further allegations were made which resulted in both Mr Beaumont and the mother being charged and arrested in relation to allegations of breach of bail.  Those charges have since been dropped.

6. In the meantime, however, the matter came before the Court.  Indeed it was a decision of mine in March 2008 that the children move from the care of the mother into the care of the father.

7. Since then orders have been made which provided that the children lived primarily with the father, under certain supervision conditions, until orders were made in December of last year by His Honour Justice Burr.  The orders of 16 December changed the arrangement whereby the children were residing with the father such that on 16 December 2008 His Honour ordered that M and R reside at certain particular times during the Christmas period and concluded in paragraph 2(c) by saying that they live with their mother from 11 o'clock Thursday, 25 December until 12 noon on Thursday, 1 January 2009 and each alternate week thereafter and with the father at all other times.

8. This brought about a situation that during the school holidays, M and R live week and weekabout with the father, who was then residing in Y in Adelaide’s northern outskirts, and with the mother, who has at all times resided in the G area, around 45 minutes south of Adelaide.  There were conditions placed upon those arrangements which provided that, when the children lived with the father, he was to reside with his parents or his sister and that they were to generally provide supervision of his time with the children.

9. The mother was placed under conditions not to allow the children to be unsupervised in the care of, or within the vicinity of, Mr Beaumont and she was to attend to all of the children's bathing, toileting, personal hygiene and other intimate needs.  The mother was to put the children to bed each night or at any time that they require a sleep.

10. Handovers were to be effected at N, and other arrangements were made for pending the preparation of the matter for a first day of trial under the current procedures.  There were also injunctions restraining both parties from discussing the proceedings with the children.

11. His Honour delivered reasons on that occasion.  I note that on that occasion Ms Aglieco appeared on behalf of the Minister for Families and Communities.  It would be therefore apparent that she was aware of the orders of Justice Burr on that occasion.

12. The children are quite young and have been in the primary care of the mother prior to the events of February/March 2008.  They have since been primarily in the care of their father, under the supervision of his family, since February/March 2008 until the orders of December 2008.

13. In view of the distances involved once school started, the arrangements for M will be inappropriate or, at the very least, highly inconvenient because of the distance between the parents' homes.

14. Now the father comes before the Court and says that his parents are now residing in O, near Victor Harbour, his sister plans to move to O in the immediate future, and that therefore he should either have unsupervised time with the children or should be permitted to have the children reside with him in O so that they can attend a school at O.

15. In view of the distances, the practical difficulties of the children residing weekabout with both the mother and the father are a significant issue, because the father is indicating he will reside in the O area because the O area is the area his sister and parents have chosen.

16. This is only an interim hearing pending the listing of the matter for conclusion and trial as a Magellan matter.  There is a blitz of Magellan cases listed, which commences on 16 March and continues for three weeks.  This matter has been listed as a reserve.  It is hoped it will be possible to have the final hearing and all matters determined during that period.

17. In the meantime, however, it is necessary to make a decision, because the circumstances and the disagreements between the parties are such that the parents are unable to exercise their responsibility to make joint decisions concerning significant factors relating to the children's future welfare.

18. Even though it is an interim matter, the Court is obliged to follow the guidelines set out in the decision of Goode and Goode (2006) FLC 93-286 which indicate that the Court must give serious consideration to the detailed provisions of the Family Law Act, including those which relate to the question of shared and equal parental responsibility.

19. This is a case in which the issues concerning parental responsibility and whether there is shared parental responsibility and the question of substantial or equal time are not the governing factors.  The issues concerning the allegations in relation to abuse by the father and stepfather take it out of the category which would make it a simple case of exercising those provisions of the Act which relate to shared parental responsibility and fall within the exceptions clearly indicated in the Act.

20. The Court is still, however, required to consider the provisions under section 60CC and determine what is in the best interests of the children, that being the paramount consideration even in this difficult circumstance of the time pending the determination of the facts which would normally form the basis of a decision as to what is in the best interests of the children. Nonetheless, the Court is required to do what it can based upon the material available to it.

21. In this case there is a stark contrast between the facts alleged by each of the parties.  The mother maintains that her present husband has not sexually abused M and that the stability of her arrangements and her ongoing relationship with the children are significant factors.  The father raises his serious concern about the risk to the children because of the allegations that M has been sexually abused by Mr Beaumont and the mother's inability or unwillingness to accept the truth of those allegations by M.

22. As the Independent Children’s Lawyer clearly points out, there are significant matters which have to be determined when the factual basis of the various allegations in relation to sexual abuse and other matters are tested when the matter comes on for final hearing.  There are issues raised by the parties concerning the validity of the conclusions drawn by CPS and Families SA and those responsible for investigations. These are matters which I cannot determine on an interim basis and will obviously require careful consideration of very detailed evidence.

23. It is still necessary for me to determine what is in the best interests of M and R.  I have before me a large amount of material already on file.  In particular, in relation to schooling, the two recent affidavits, one by each of the mother and father, concerning their proposals for schooling.  I also have the decision of his Honour Justice Burr of 16 December 2008, when he made those orders on the conditions contained therein that the children reside week about with each parent.

24. Since his decision in December 2008, there is a further family assessment report of the Family Consultant Ms C which is available.  (There was one prepared by her in April 2008 and the latest in January 2009).  Again, those matters, and the factual basis upon which she has reached her conclusions and come to recommendations, will have to be the subject of evidence and testing in the final conclusion part of the trial and cannot be relied upon necessarily as conclusions which can merely be adopted by the Court.  It is, however, clear from her report that the children have a good relationship with both of their parents.  Ms C places an emphasis upon the strong relationship, in particular, between R and his mother and emphasises the stability of the children's upbringing, primarily in the care of the mother.

25. The provisions of the Act require that I consider as primary considerations the benefit of the children of having a meaningful relationship with both parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

26. As the facts in dispute in this matter indicate, there is an intricate interrelationship between the meaningful relationship which would be beneficial to the children and the need to protect the children from what is alleged to be both physical and psychological harm in this particular case.

27. I take into account the need for the children to have a meaningful relationship with both of their parents.  The issue of schooling does not directly relate to that.  However, the issue of with whom they reside so that they can have some consistent schooling does.

28. I also take into account the significant need to protect the children from harm.  I understand that, particularly in relation to the orders which have been made since the allegations concerning the father and stepfather have arisen, the orders have always contained conditions to protect the children.

29. The additional considerations which are relevant relate to the views expressed by the children and the weight that can be given to those views.  The children appear to have expressed clear views, or made comments to Ms C recently, which suggest the mother is the person with whom they would wish to reside.  I take into account, however, their young age and do not place considerable emphasis upon that, both because of their young age and because of the difficult circumstances the children have been experiencing now for a considerable period of time since the allegations concerning the father and stepfather first arose.

30. The nature of the relationship of the children with each of the parents, the willingness and ability of the parents to encourage a relationship with the other and the capacity of each of the children's parents to provide for their needs, including the attitude to the children and the responsibilities of parenthood, are discussed as separate factors in section 60CC but are all clearly interrelated.

31. Both parents have indicated a willingness to provide for the day‑to‑day care of the children and their emotional needs and contact with the other parent, dependent upon the conditions which would be attached to it to protect them in a manner that would be appropriate, considering the allegations which have been made.

32. There is not a significant tipping of factors in favour of one or other parent in that regard, save and except that the nature of the relationship of the children with the mother is one of more longstanding depth than with the father.  Offset against that, of course, is the recent time that the children have spent primarily in the care of the father and developed a relationship with him then.

33. Some of the significant factors are, however, the likely effect of any change in the circumstances, including any separation from either of the parents or any other child or person with whom the children have been living.  If the children were to reside primarily with the mother, then this would affect the relationship they have developed with the father and bring about a separation from him.  Similarly, if the children were to reside primarily with the father, this would bring about an end to the recent situation they have enjoyed of weekabout and may have an effect upon their relationship with the mother and their relationship with the siblings with whom they have been residing weekabout recently.

34. A significant factor is also the practical difficulty and expense of the children spending time with and communicating with a parent.  The mother lives at G, the father proposes to live either at Y or in O and, as such, there is significant practical difficulty in M resuming schooling and R commencing pre-schooling, due to the distance involved.

35. I have considered the submissions of both of the counsel for the parties and the Independent Children’s Lawyer.  The father proposes that the children reside with him and either his parents or his sister in the O area and attend the O state primary school.  The mother's proposal is that the children reside primarily with her, spend time with the father and attend either the local V Christian School or the S Primary School.  The Independent Children’s Lawyer, on an interim basis, supports the proposals of the mother.

36. The Court is not in a position to choose which is the better school for the children.  It is clear from the affidavit material provided by both of the parties that the state schools, S Primary School, O Primary School and Y Primary School, are state schools with similar facilities and some varying class sizes.  The mother submits that the Christian school - V Christian School - has a much higher student‑teacher ratio and smaller class numbers as a result.  It is not possible to grade the schools or choose a school for the children because one school is better than the other.  The significant factor in relation to the mother's proposal in relation to the V Christian School is the fact that the father is a Buddhist and objects to the children attending a Christian school.

37. These are matters which will need to be determined once all the factors have been assessed in relation to where the children shall reside on a permanent basis, who is to have parental responsibility and whether there are any factors which prefer one school over another.  In the interim situation, however (and bearing in mind the need to ensure a situation which does not negatively affect the relationship between the children and either of the parents pending the determination of those issues on a final basis) I consider that the V Christian School is not an appropriate school on an interim basis.

1. Weighing up all of the factors, I consider that the significant factors which assist the Court in determining the matter of the children's best interests on an interim basis pending final judgment, are the ongoing relationship of the mother with the children, the conditions which can be placed upon the mother's care of the children to protect them from any risk in relation to the allegations concerning Mr Beaumont and the comments made by Ms C in her most recent report concerning the welfare of the children (and, in particular, their strong relationship and bond with the mother) I therefore consider it to be in their best interests that they reside primarily with the mother during the week and spend weekend time with the father.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  5 February 2009