Beaumont & Gardiner

[2008] FamCA 1177

FAMILY COURT OF AUSTRALIA

BEAUMONT & GARDINER [2008] FamCA 1177

FAMILY LAW – CHILD ABUSE – Sexual abuse – disclosures of sexual abuse by the child M against both the father and the mother’s husband.

FAMILY LAW – CHILDREN – With whom a child should live – interim proceedings therefore the evidence is yet to be tested – children currently living with the father - essential for the children to spend more time with the mother – until there has been a final determination of the issues before the Court, the parties are to share in a week and week about care arrangement for the children with existing conditions and injunctions imposed upon the mother’s husband

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth)

Briginshaw (1938) 60 CLR 336

APPLICANT: Ms Beaumont

RESPONDENT: Mr Gardiner

INDEPENDENT CHILDREN’S LAWYER: Terrance Charles Stephen

FILE NUMBER: ADC 5124 of 2007

DATE DELIVERED: 16 December 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 16 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR BRIAN DEEGAN

SOLICITOR FOR THE APPLICANT: BRIAN K DEEGAN

COUNSEL FOR THE RESPONDENT: MS POLLY DIXON

SOLICITOR FOR THE RESPONDENT: POLLY DIXON & CO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR TERRANCE  CHARLES STEPHEN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: LEGAL SERVICES COMMISSION

Orders

UPON NOTING the intimation of Ms Aglieco that she will communicate with the South Australian police, Child Protection Services, Families SA and if necessary, the Director of Public Prosecutions to secure any outstanding and previously undisclosed records of interview(s) with the child M on 9 February 2008, 17 or 18 March 2008 or any other date

IT IS ORDERED THAT:-

1. The Orders made by Federal Magistrate Jarrett on 27 February 2006 be suspended.

2. The children M born … April 2002 and R born … April 2005 live with:-

   (a)    the mother, from 12 noon on Thursday 18 December 2008 until 11.00 am on Wednesday 24 December 2008;

   (b)    the father, from 11.00 am on Wednesday 24 December 2008 until 11.00 am on Thursday 25 December 2008;

   (c)    the mother, from 11.00 am on Thursday 25 December 2008 until 12 noon on Thursday 1 January 2009 and each alternate week thereafter;

   (d)    the father, at all other times

   UPON THE FOLLOWING CONDITIONS:-

   (e)    that during the times that the said children live with the father he resides with his parents and/or his sister Ms V Gardiner and that his parents and/or his sister provide general supervision of his time with the said children;

   (f)     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 Beaumont;

   (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;

   UPON NOTING that if at any time the mother is unable to meet any of these conditions she is to immediately return the said children to the care of the father until such time as she is next able to resume these responsibilities.

3. Handovers shall be effected at the N Tram Terminus.

4. Further leave is granted to the parties and the Independent Children’s Lawyer to issue and serve within seven [7] days of the date hereof such subpoenae to produce documents as they may be advised PROVIDED THAT any such subpoenae directed to the Department for Families and Communities – Families SA or Child Protection Services are to be subpoenae issued by the Independent Children’s Lawyer, and that such documents be produced at this Court by no later than 10.00 am on Monday 12 January 2009.

5. On or before 4.00 pm on Thursday 15 January 2009 the parties do file and serve:-

   (a)    a Less Adversarial Trial Questionnaire;

   (b)    a brief Outline of Case document which in brief detail provides chronological reference to relevant reports and interviews to assist the Court at the 1^st Day hearing before the Honourable Justice Dawe on 19 January 2009.

6. Both parties are restrained and an injunction is hereby granted restraining each of them from:-

   (a)    discussing these proceedings or any of the allegations that give rise to these proceedings with either of the said children or within the hearing of the said children and from permitting any other person to do so;

   (b)    calling the said children or in any way enabling the said children or facilitating the said children to be known by any surname other than Gardiner.

7. Pursuant to Section 62G(2) of the Family Law Act 1975 as amended a brief addendum report be prepared by a Family Consultant, preferably Ms C who prepared the Family Report dated 18 April 2008, with a view to undertaking observed interaction between the said children and Mr Beaumont and reporting to the Court, either in writing in advance of or orally at the 1^st Day hearing before the Honourable Justice Dawe at 11.30 am on Monday 19 January 2009.

AND IT IS FURTHER ORDERED, IN CHAMBERS THAT:-

1. A copy of these Reasons be released through the Independent Children’s Lawyer to Families SA.

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

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. There are two young children who are the subject of these proceedings before me namely M born in April 2002 and who is hence aged 6 going on 7 years and R born in April 2005 and who is hence aged 3 going on 4 years.  The parents of those two young children are unable to determine what is best for them and each is embroiled in a particularly difficult situation where allegations of the most serious nature have been made in these proceedings.  Without seeking to diminish the importance of other relevant considerations in these proceedings, the most striking allegations impacting upon this Court’s decision are those of sexual abuse of the child M.

2. Ordinarily in proceedings of this nature before the Court the task for the Court is not too difficult.  If there is an allegation of sexual abuse made against one party and that is then supported by a Child Protection Service report indicating that in their view abuse is confirmed by that person, then quite predictable interlocutory orders flow therefrom.  That is not the case here and I readily confess that this is one of the more difficult matters that I have encountered in my 11 years on the bench, certainly at its interlocutory stages.

3. The reason for that difficulty is the implication of both relevant and important adult male figures in M’s life, namely her father Mr Gardiner and her mother’s husband Mr Beaumont.  At various points in the process through the course of these proceedings, both have been implicated in one way or another as having been the perpetrator of sexual abuse upon M.  There will thus be a variety of findings that will be open to the Court after having tested all of the evidence and they will include, but not necessarily be restricted to, a finding that the father has sexually abused M; a finding that Mr Beaumont has sexually abused M; a finding that both have sexually abused M; a finding that neither has sexually abused M; a finding that on the relevant Briginshaw (1938) 60 CLR 336 and Section 140 of the Evidence Act 1995 (Cth) test it is not possible to make a finding of abuse against one or other or both of these gentlemen; a finding that M is at an unacceptable risk of abuse from the father; a finding that M is at an unacceptable risk of abuse from Mr Beaumont, a finding that M is at an unacceptable risk from both or a finding that she is at no unacceptable risk from either of these gentlemen in her life.

4. Originally the parties functioned well in their parenting capacity in that they were able to agree consent orders in the Federal Magistrates Court on 27 February 2006 the consequence of which was that the children were to live with the mother and have school holiday time and telephone communication with the father.  Matters became re-agitated in September 2007 when the mother filed proceedings in this Court seeking to suspend the operation of the existing Orders in terms of the father’s time with the children.  The reason for her application for suspension was her concern that the father had sexually abused M, a concern to which she had been largely alerted by Mr Beaumont when he encountered what he said was concerning behaviour on M’s part.  Whilst the mother records that she had some rather more historical concerns, it was that event or series of events that prompted her application to the Court.

5. In circumstances where Mr Beaumont has been identified as one of the possible perpetrators of sexual abuse upon M, the mother’s actions in that regard would appear to be entirely inconsistent with any belief that she had that Mr Beaumont was the perpetrator.  In other words, if she were seeking to be anything other than protective of her children and had the view that Mr Beaumont had sexually abused them, she would not have brought those matters to the attention of the Court and sought to continue her relationship with Mr Beaumont.  Thus her actions appear inconsistent, certainly with any belief by her and possibly with any view of the reality of the situation, that Mr Beaumont sexually abused M.  It must be remembered that it was Mr Beaumont who reported that M purported to demonstrate abuse which she had suffered at her father’s hands, upon him in the shower.  If Mr Beaumont had said nothing, he may never had had to endure that which he has experienced over the past 12 months.  It is an unusual action to report those matters if he was in fact reporting the reality of abuse by him on M.  As is the case with proceedings of this nature and children of M’s age, the matter was then referred to the Child Protection Service (“CPS”) in order for them to undertake enquiries, interviews and provide a report.  Those actions by CPS were undertaken on various dates over November and December of 2007.

6. On 20 December 2007 the matter was dealt with by this Court in its Magellan list and the Court at that time had available to it a letter from the CPS dated 14 December 2007 indicating that they indeed had concerns that M had been sexually abused but not by Mr Gardiner, her father, but rather by Mr Beaumont, the mother’s husband.  At that time the Court was satisfied that the mother had the capacity to be protective of her children by the imposition of injunctions which restrained Mr Beaumont from having any contact with the children.  I am further advised today that Families SA, looking at the overall picture at that time, also thought that the mother at that time exhibited the capacity to put her children first.  They felt the other option, namely putting the children into foster care, was simply unpalatable. 

7. On 4 March 2008 the CPS report was published.  Whilst the CPS made a number of observations of concern as to the relationships the children had with each of the parties and their unfortunate experiences caught in the conflict between the parties, their view expressed at page 17 under the heading of “Conclusions and Recommendations” was unequivocal and I quote the first paragraph:-

   “At the conclusion of the CPS assessment the information gathered did not support the original allegation that [M] had experienced sexual abuse by her father, Mr [Gardiner].  However, what did emerge were concerns that [M’s] step-father, Mr [Beaumont], had sexually abused [M].  During the evidential interview to explore the initial allegations of sexual abuse [M] did not provide any information which raised a concern that [the father] had touched [M] in an inappropriate manner.  However, [M] provided a narrative account of an event where she had experienced unwanted sexual touches by Mr [Beaumont].  The CPS took into account the following features of the assessment in assessing the reliability of [M’s] disclosure.”

   They thereafter relate a number of contextual and other issues that guided them to their view that abuse had been confirmed as against Mr Beaumont.

8. The matter then came on for hearing before Dawe J on 11 March 2008 and quite clearly as a consequence of the CPS report, Dawe J removed the children from the mother’s care and placed them in the care of the father.  She made Orders that the children spend time with the mother each Saturday and each Sunday between 9.00 am and 6.00 pm but on strict conditions that Mr Beaumont have no contact with the children at all.  That has effectively been the position that has been sustained by the Court since that date.  If the only material upon which the Court was entitled to rely was the CPS report, then it is unlikely that anything would change until after there had been a full review of all of the evidence during defended trial proceedings.

9. Also provided to the Court though was an ordered Family Report dated 18 April 2008 and I will return to that report a little later.

10. A compelling aspect of the CPS report and the finding that they have made is that M was brought to them effectively as a result of the mother’s own concerns about what M may have experienced at a time when she believed that the perpetrator was the father and not potentially her husband Mr Beaumont.  Thus M’s views at that time were untainted, seemingly free of influence and provided in contextually relevant and believable circumstances.

11. As a consequence of that and subsequent police interviews, criminal charges were laid against Mr Beaumont and those charges were as to indecent assault and procure an act of gross indecency.  He was granted bail and various conditions were attached to that bail.  Subsequently he and the mother were arrested and charged with various breaches of those bail conditions.

12. It is from this point on that the factual circumstances become increasingly muddied, more complex and make it more difficult for the Court to make an interim determination in the matter.  Without detailing all of the specific facts and circumstances that led up to the situation I am about to describe, the end result was that of 7 criminal trials faced by the mother and her husband Mr Beaumont, 6 in the Magistrates Court and 1 in the District Court, none proceeded.  The position of the prosecuting authorities not to proceed was also communicated to the mother and Mr Beaumont in almost eleventh hour circumstances.  Clearly, upon reviewing all of the material and the evidence available to them, the prosecution in all respects in relation to those charges were of the view that the charges could not be sustained on the evidence.  Thus all charges in relation to the breach of bail were either withdrawn or dismissed and in relation to the sexual offences for which Mr Beaumont was charged, the Director of Public Prosecutions entered a nolle prosequi on 25 November 2008, very recently indeed.  Thus it has taken effectively a year from the moment when the mother was first concerned about what may have happened to M for the various criminal proceedings to have resolved themselves in all respects in a manner favourable to her and to Mr Beaumont.

13. However the resolution of those criminal proceedings whilst it gives some level of comfort to this Court and provides some guide as to what might be appropriate leading up to the trial of these proceedings before this Court, a clear issue of relevance is the standard of proof which must be applied in the differing jurisdictions.  Whilst the allegations of sexual abuse of M by Mr Beaumont were required to be proved beyond a reasonable doubt in those jurisdictions that is not the case in this jurisdiction and indeed it will be both the father and Mr Beaumont who need to face the detailed exploration of evidence in these trial proceedings but on a lesser standard of proof.  Without detailing at great length the standard that does apply in this jurisdiction, it is of course on the balance of probabilities but at what is known at the high end of the scale namely on the Briginshaw (ante) test, a test which has since been incorporated into the Commonwealth Evidence Act.

14. Even if the Court on that standard was not satisfied that either of these gentlemen had sexually abused M, the Court on the balance of probabilities is then obliged to explore whether or not it is appropriate to make a finding that one or both of the father and Mr Beaumont present as an unacceptable risk to the children.  All of those matters will of course be explored.

15. As I said earlier, if I was left only with the CPS report the decision at the interim stages would be easy.  However, what has since arisen is that M has implicated her father.  She has now said on more than one occasion that it was the father who showered with her and requested that she wash his penis and that it was not Mr Beaumont.  There have been interviews conducted by the police and the Office of the Director of Public Prosecutions which have implicated the father as the perpetrator of abuse.  One of the documents to which I refer in that regard is a Charge Discontinuance Notice of SAPOL in relation to the breach of bail charges which is annexed to a facsimile from SAPOL dated 1 July 2008 and I quote from a portion of that Discontinuance Notice:-

    “ …  Since this incident, the victim/witness has been proofed by the D.P.P. (Sue Agnew) in relation to the sexual assault allegations made by her.

    The result of this was that the victim cannot recall any of what she has initially told Police.  She now claims that it was not the defendant but in fact her natural father who has assaulted her.  She was not able to tell AGNEW any information relating to the original complaint. …..”

    Another of the documents is a letter from Ms Agnew dated 8 July 2008 and I quote a few paragraphs therefrom, starting from the second paragraph:-

    “I advise that the Director’s Office has met with the complainant in this matter on 3 occasions.

    The first meeting was on the 17 March 2008.   The complainant meet (sic) with [Ms W] (Witness Assistance Officer) and the writer.  On that occasion disclosed the following:

    ‘[Ms W] asked whether what she had told [PR] was the truth.  The complainant confirmed that it was.  Said that we just needed to talk to her about what she had discussed with [PR], to make sure that we understood what had gone on.

    I then asked [M] about what she had told [PR].  [M] said that she had told [PR] – when she had a shower with [Mr Beaumont] she was just showing him what had happened in the shower with [the father].’

    At that point the meeting ended and a second time was made to meet with the complainant when the Investigating Officer could be present.

    We met with the complainant again on the 27 March 2008.  On that occasion the complainant did not wish to talk about the allegations, and so nothing relevant was discussed.

    A third meeting occurred on the 7 May 2008.  The investigating officer was present at that meeting, and a statement will be provided from him in relation to what occurred.”

16. Annexed to the Affidavit of Mr Brian Deegan filed on 1 December 2008 is that letter and also is a statement of the father given to SAPOL, namely to Detective Senior Constable CR on 10 July 2008 by telephone.  In it the father reports that after he had taken M to the Office of the DPP for proofing on 17 March 2008 M said to him as they were waiting at the lift “Do you remember when we had a shower and I washed your penis?”

17. As I indicated earlier, it would have been unusual for the mother to institute proceedings in this Court alleging sexual abuse of M if she held the view that they had been perpetrated by Mr Beaumont.  Also, as unlikely as it would seem that Mr Beaumont would report abuse if he was the perpetrator, it is similarly unusual that the father in these proceedings would have reported to police a statement which again implicates him. There could be a variety of interpretations which it is appropriate to apply to that action on his behalf including that he is entirely innocent of any such allegation and that he was concerned to report the matter to the police immediately in order that they had all information available to them.  Equally there could be some ulterior motive as yet unidentified which nonetheless implicates him in sexual abuse of his daughter.  There are a number of missing, absent or never recorded interviews that may have shed some further light on the matter before this Court, being interviews conducted by SAPOL and CPS, seemingly on 9 February 2008 and the further interview referred to but not disclosed in the letter by Ms Agnew.

1. Ms Aglieco for the Department has gone to a great deal of trouble in the past 24 hours to review all of the materials, speak again to Families SA and report back to the Court about the various concerns the Department has and the position that they have adopted.  Without reciting in detail all of the very helpful submissions that she made to the Court today, Families SA have not altered their view.  They believe that the most compelling evidence before the Court is the original statement made by M to CPS which implicates Mr Beaumont.  Since that time it is clear from the Families SA reports provided to the Court that they have had a somewhat troubled relationship with the mother.  They are clearly of the view, and say as much, that the mother is not being protective of M in so closely assigning herself with her husband Mr Beaumont and in simply not acknowledging the possibility that if there has been abuse of M, it may well have been perpetrated by Mr Beaumont. The spectre of the mother’s influence has been raised by Families SA and also quite compellingly raised by Ms Dixon who appears today for the father.  It is not beyond the realms of possibility that M has expressed to the various interviewers a different view and has indeed implicated the father, not because the father sexually abused her but because she has been influenced by her mother to express that view.  All of these matters will be revealed during the trial of these proceedings and the testing of the evidence.

2. The first stage of the trial process will be conducted before Dawe J at 11.30 am on Monday 19 January 2009 and I understand her Honour’s view to be that this matter should be referred to the Magellan blitz of cases to be conducted by this Court in March 2009.  However I note it would be a reserve matter and so there is no guarantee that it would be reached in March 2009.

3. Whilst I have a very detailed history from Families SA in their communications with this Court dated 2 November 2007, 16 November 2007, 7 March 2008, 10 April 2008 and 23 June 2008, from the Court’s perspective it does not serve to clarify the matter.  Indeed it makes the decision of the Court even more particularly difficult as does the affidavit of Ms Aglieco filed on behalf of the Minister on 15 December 2008.  I mean that in no terms as a criticism.  The Department is faced with the same difficult situation that this Court is, namely a series of conflicting statements and events.  Their role is to act almost entirely in a manner designed to protect M from any possibility of further harm.  Whilst my role is dictated as being one that must elevate M’s interests as the paramount consideration, it means that it is not the only consideration and that makes my decision more difficult than the decision taken by Families SA.  If the role of all Judicial officers in this jurisdiction was simply to make an order that would completely remove all children from the possibility of risk there would be a large number of parents who would not see their children.  An enormous amount of social scientific research tells the Court that that is not the best outcome for children and that if children can enjoy a meaningful relationship with both of their parents in circumstances where they are safe, then that is the best possible outcome.  Thus simply removing M from the mother’s care or removing her from Mr Beaumont’s influence does not provide the totality of the picture in terms of what represents the children’s best interests in this case. 

4. In that regard I am assisted by the Family Report prepared by Ms C on 18 April 2008 and in it she provides an extremely valuable evaluation commencing at page 14 and which runs from paragraphs 56 to 66 inclusive:-

   “56.For the bulk of [M’s] and [R’s] lives they have lived with their mother and spent time with their father during school holiday periods.  In September 2007 [the mother] would appear to have acted appropriately and protectively by notifying her General Practitioner, Dr [MA], and the court, of alarming disclosures [M] had made to her and her husband about [the father] being sexually inappropriate with her.  These disclosures seemed to coincide with stress related behaviours that [M] was uncharacteristically manifesting, both at home and at school, purportedly after a visit with her father in Queensland.

   57.Subsequent CPS findings identified [M’s] step father, Mr [Beaumont] to be the likely perpetrator of [M’s] abuse, rather than [the father] who [M] had reportedly initially named as having sexually interfered with her.  [The mother], who states that she has viewed [M’s] CPS interview transcript, reports serious misgivings in relation to the conduct of the CPS interviews that led to an outcome of ‘abuse confirmed’ against her husband.

   58.Whilst this is a matter for evidence, the history of this matter suggests that until September 2007 [the mother] had successfully endeavoured to provide a stable and secure environment for her burgeoning family with a man she has known since childhood.  She would appear to have also endeavoured to support [M’s] and [R’s] relationship with their father, despite [the father’s] initial reluctance to consider [R] to be his biological child, and despite [the mother’s] reported concerns whilst the parties were both still living in Queensland, in relation to [the father’s] alleged drug lifestyle and his capacity to ensure [M’s] safety when she was in his care given these circumstances.

   59.Observations of the children reveal them to have a strong attachment to their mother which is not surprising given that she has been their primary carer most of their lives.  Indeed for [R], who is not yet three years of age, she remains his primary attachment figure as evidenced by his separation anxiety when [the mother] left him at the end of the observation and his emotional dependence and physical proximity to her when in her presence, along with his fierce determination not to relinquish to his father or to [M] his mother’s parting gift of two 50 cent coins.

   60.[M’s] presentation when with her mother, wherein she sought close proximity to her and would gravitate to her mother’s lap whenever [R] vacated it was also suggestive of a child who has a strong and emotional connection with her mother.

   61.Clearly [M] is central to the dispute between the parties in as much as it was her disclosures of abuse that precipitated CPS, Families SA and SAPOL involvement.  However, for her to recall the name of the CPS assessor who interviewed her, and then accuse her of ‘making [Mr Beaumont] go to the mines’ is both perplexing and worrying.

   62.Both children have needed to adjust to dramatic changes in their circumstances since December 2007, and then again in March 2008 when they moved to live with their father.  Both no longer see their step father, Mr [Beaumont] who [M] believes has ‘been sent to work in the mines’.  They see their mother and half brother, [J] each weekend rather than seeing them both every day as they were when [the mother] had been their primary carer.  [M] now has to attend a new school despite enjoying attending a school throughout 2007 at [S].  [R] now spends the bulk of his time with his father when until March 2008 his primary carer was his mother and his daily companion for the past 20 months was [J], his younger half brother.

   63.[The mother] has been the consistent, stable and continuous adult caregiver in [M] and [R’s] lives so it is not surprising that the observations of them with their mother reveal that they are both heavily emotionally invested in their relationship with her.  Attachment literature posits the view that to maintain a secure attachment, children must feel that their primary attachment figure is physically and emotionally available to them.  The consequences of a disrupted attachment can be devastating, especially on young infants such as [R].

   64.Infancy and the first several years of life is the critical developmental stage in which children develop trust, patterns of relating, sense of self, conscience and cognitive abilities.  A disrupted attachment early in life can lead to a plethora of later problems and behaviours such as oppositional and impulsive behaviours, including an inability to self regulate intense emotions such as anger and frustration.

   65.The assessment was unable to include an observation of Mr [Beaumont] with the children due to current bail and court-ordered restrictions.  It would appear however, that Mr [Beaumont] has been the primary male attachment figure for both [M] and [R] since [R] was born.  Indeed, [M] calls both [Mr Beaumont] and [the father] ‘Dad’ or ‘Daddy’.  [M] and [R] have not had any meaningful contact with Mr [Beaumont] since he was arrested in December 2007.  It could be speculated therefore that not only has the children’s primary attachment to their mother been significantly compromised but also their attachment to Mr [Beaumont].  This is likely to have greater implications for [R], who is the younger of the two children and whose attachment relationships are still being refined and developed.

   66.Clearly evidencing the allegations of [M’s] disclosures regarding being abused by her father or step father is instrumental in determining the best outcomes for these children.  Meanwhile, it will be important for both children to be able to maintain their relationships with significant others (especially their mother) in a way that ensures that these relationships are not more disrupted.”

5. In summary, the mother had always been the children’s primary carer and indeed had been R’s almost sole carer.  Ms C raises concerns from which the father has presently escaped too much scrutiny about his drug lifestyle which will clearly be explored during the trial of the proceedings.  It raised then the spectre of his capacity to ensure M’s safety whilst she was in his care.  It was for reasons like that that the Court imposed conditions even upon the father’s care of the children, those conditions being that he reside with his parents and or his sister and that they provide general supervision of his time with the children.

6. Ms C reports very favourably on the mother’s role with the children in providing a stable and secure family environment, one in which interestingly, given the implications in the Families SA letters and the clear accusation in the Families SA letters and the clear attitude adopted by the Department and the submissions put to me today by Ms Dixon, that she had endeavoured to support her children’s relationship with their father despite the father’s initial reluctance to consider R to be is biological child and despite the allegations as to his drug use to which I have previously referred.

7. Thus Ms C’s report, in many respects, refutes the suggestion that the mother is somebody capable of or indeed who was guilty of influencing the children in a detrimental way in terms of their relationship with their father.  Thus to suggest that her actions now in relation to the sexual abuse allegations are based entirely upon a desire to exclude the father from that role and to influence the children against the father, do not accord with Ms C’s view of things or her findings in that report. 

8. Ms C reports upon the very close relationship between the children and the mother and reports upon the very close proximity to her which the children sought particularly in relation to R and she records that in her view R has a strong and emotional connection with his mother.  I am concerned that restricting the mother’s time with the children is not serving M’s or R’s best interests in that they are not having their emotional needs fully and adequately addressed at this time.

9. Equally though Ms C records a number of concerning statements by M which suggest that the mother may have been unable to contain her annoyance and suggested that the very reason why Mr Beaumont does not live with them anymore is because he had been sent to work in the mines.  Thus there is some evidence too that the mother has engaged the children in a discussion about the proceedings.  However, that is again against the detail provided by Ms C as to the very supportive role that the mother took in terms of the children’s relationship with their father.

10. Ms C concludes with two recommendations, the first of which in my view is obvious and that is that if the Court accepts the CPS findings that M was abused by her step father, then the children should remain in their father’s care especially given the mother’s firm belief that her husband has not abused M.  The second of them though interestingly is that if the court does not accept the CPS findings against Mr Beaumont, then the children should be returned to their mother’s care as soon as possible in order to reduce any further disruption to the children’s attachment to her.

11. I am satisfied that presently the orders made by this Court do not serve the children emotionally.  They do not serve their attachment needs.  They do not adequately recognise their need for a closer developmental tie with their mother.  That then means that really only Mr Beaumont stands between the mother resuming a very much more fulsome role in the care of her children or not. 

12. The reason why Mr Beaumont ought not be playing that role is because M has directly implicated him in sexual abuse of her as is evidenced in the CPS report.  What makes the position more difficult though is the matters to which I have earlier referred, namely M has subsequently implicated the father and Mr Beaumont and at other times only the father. 

13. Ms Aglieco, in her very helpful submissions to the Court, indicated that whilst it was not the Department’s primary position that the children ought to reside for any extended period with the mother in circumstances where Mr Beaumont would be there, they accepted as a possible “fall back” or secondary position that a series of quite restrictive injunctions be imposed upon the mother in circumstances where she was permitted to spend significant time with her children and in circumstances where Mr Beaumont would again be part of the household at those times.

14. Comforted as I am by the observations of Ms C of the mother and the close attachment she has with her children, the clear love she has for them and the concern that she demonstrates that nothing awful happen to them, I am satisfied that it is appropriate to permit with the best interests of the children in mind, a more fulsome role than she has had to date.  I am satisfied on an overview of all of the evidence presently before the Court, acknowledged though as being untested, that the children are simply in the vernacular “not getting enough of their mother”.  It is also clear from the evidence before me that the mother’s capacity to function fully in a parenting role is dependent to a large extent upon the love and support that she gets from her husband Mr Beaumont.  Thus I propose to construct Orders that enable the mother to spend more time with the children in circumstances where Mr Beaumont is a part of the household but by imposing very strict injunctions and impositions upon the mother.

15. I have taken the trouble of expounding all of these reasons in some detail, not just with a view to my obligation to do so as a Judge of this Court, but in order that the parties can hear the reasons why I have made this decision.  I make these statements also with the clear knowledge that the mother is almost certainly hanging on every word that I say and that in that context will understand that if anything happens to her children while they are with her in circumstances where she has not exercised sufficient vigilance over the children’s time with her and hence their association and contact with Mr Beaumont, she will pay the heaviest penalty a parent can pay which is that her children will no longer live with her and in all circumstances may have very restricted and limited time with her, if any at all.  I am satisfied though, or I would not be making these orders, that she has that capacity to do so, that she will treat this exercise as being the most important task that has ever been given to her, a task which I am satisfied she will not find difficult because I am satisfied that she does have her children’s interests at heart.

16. In reaching this decision I need, as the Full Court has said in Goode and Goode (2006) FLC 93-286 to consider all of the relevant provisions of Part VII of the Family Law Act. The principal one is Section 60CA and I have referred earlier to my task in deciding when making a parenting Order that I must regard the best interests of the child as the paramount consideration. That then guides me to Section 60CC of the Act. That Section requires the Court to consider primary considerations and additional considerations. The primary considerations are:-

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

1. This is obviously a particularly important consideration in this matter.  I am satisfied on the evidence before me that the present orders do not satisfy that requirement and do not enable the children to enjoy a meaningful relationship with the mother.  That though is always aligned with and not particularly subject to the other primary consideration which is:-

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

1. This is clearly the other situation which has agitated the Court’s concern throughout the proceedings.  M particularly, but both children, need to be protected from harm.  They need to be protected from the spectre of physical abuse by either Mr Beaumont or the father or by anybody else.  Equally though they need to be protected from any psychological harm which may be meted upon them. 

2. Ms C’s report makes it plain that it is likely that the children are experiencing some psychological harm at the moment by not being able to explore a much fuller relationship with their mother, the mother’s very life and essence of being presently inextricably linked with her husband and her family life with him. 

3. I will not again recite all of the reasons that I have earlier just for the sake of positing them under those appropriate headings.  However, it should be clear to all that I have given lengthy and detailed attention to those primary considerations.

4. I then need to turn to the additional considerations. 

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

1. Ms C’s report clearly indicates that if not so much by the spoken word, certainly by actions and issues of attachment and proximity, the children have expressed a very clear view in those ways and means of their need to spend lengthy meaningful time with their mother.  That is not to disregard the importance to them of the father in their life.  I am satisfied too that the children’s interests will be protected by his vigilance and his observations henceforth.  The children clearly have a close relationship with him and he has undertaken an admirable task in attending to the children’s physical, and as far as he is able, emotional needs since the orders made by Dawe J on 11 March 2008 placing the children in his care.  Thus he has had that role for some 9 months now.

(b)the nature of the relationship of the child with:

(i)each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

1. Again, I believe that I have expounded fully on the reasons why that issue is important in the decision I have taken.  The children’s relationship with both of their parents is particularly relevant but the lack of a full and meaningful relationship to date with the mother is the one which has caused me the greatest concern and one which I believe needs to be redressed by these orders.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. Ms C’s report speaks glowingly of the mother in that regard and records the actions that she took to support the relationship between father and children.  Equally since the orders of 11 March 2008, the father has responded on each and every occasion to the ordered times that the children were to spend with the mother.  The spectre of whether or not there are issues of influence imposed upon M in her reaching the expressed views and making the statements that she has, is a matter yet to be tested in evidence and would be particularly relevant under this heading.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Again this is a matter which has impacted upon my decision today.  In my view it was a necessary and essential change for both M and probably particularly R that they spend more time with their mother.  Thus it is a change that in my view will be beneficial, particularly in circumstances where the mother now I am sure will be, and most certainly will be required to be, particularly vigilant as to her children’s safety in her household.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. This sub-section is not relevant to my determination today.

(f)the capacity of:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

to provide for the needs of the child, including emotional and intellectual needs;

1. This is a very similar provision to the first of the primary considerations and the earlier additional consideration mentioned by me, namely (b) and (c).  Thus in my view it is not necessary to canvass that issue in detail again.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

and

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

These sub-sections are not relevant for my consideration.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Again, this is a similar provision and gives rise to similar considerations to those expressed in (b), (c) and (f).  Thus in my view it is not necessary to provide more detailed reasons than I already have.

(j)any family violence involving the child or a member of the child's family;

and

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. Save as to the issue of sexual abuse previously canvassed in detail by me, these sub-sections are not relevant for my consideration today.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

and

(m)any other fact or circumstance that the court thinks is relevant.

1. In my view these sub-sections and indeed Section 60CC(4) require no further consideration by me today and do not throw up any additional matters for my consideration.

2. Issues of shared parental responsibility and the like as raised in Section 61DA and Section 65DAA of the Act will be matters more pertinent to the trial of these proceedings.

3. A further important consideration for the Court in reaching its decision and framing the Orders it is about to make has been the very detailed and helpful submissions made by the Independent Children’s Lawyer.  The Independent Children’s Lawyer has been intricately and intimately involved in the matter effectively since its outset.  He has been privy to all of the reports, discussions, interviews, affidavits and materials to which this Court has been privy and indeed, it would seem from submissions received from him, that he has been privy to additional matters and materials which the Court has not yet had the opportunity to view or test within the context of contested trial proceedings. 

4. Given all of that information and material, despite the very persuasive matters put to the Court today by Ms Aglieco for the Department and by Ms Dixon for the father, he remains firmly of the view as he has been now for the past few hearings that it is appropriate for the mother to have a very much more fulsome role in the care of her children and he supports my proposal that until there has been a final determination of the issues before the Court, that the parties share in a week and week about care arrangement for the children.  He too supports the Court’s view that the existing conditions that are imposed upon the father should remain and that the injunctions which I foreshadowed, together with the additional injunctions urged upon me by Ms Aglieco for the Department, be imposed and are most certainly appropriate.

I certify that the preceding fifty two (52) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date: