CALLENDAR & DAVENPORT

[2011] FamCA 402

FAMILY COURT OF AUSTRALIA

CALLENDAR & DAVENPORT [2011] FamCA 402

FAMILY LAW - PRACTICE AND PROCEDURE – preparation of further material – where the mother alleges that the father has physically and sexually abused the child – where there are ongoing concerns about the mother’s capacity to support the child’s relationship with the father – where the child has recently been diagnosed as suffering from Autism – where the matter has a long history – orders that the matter be adjourned and that an updated Family Assessment Report be prepared.

Family Law Act 1975 (Cth)

APPLICANT: Mr Callendar

RESPONDENT: Ms Davenport

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 2033 of 2009

DATE DELIVERED: 16 May 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 16 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Not relevant
SOLICITOR FOR THE APPLICANT:	Father in person

COUNSEL FOR THE RESPONDENT:	Not relevant
SOLICITOR FOR THE RESPONDENT:	Mother in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Kent
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. That the proceedings be adjourned to 2.15 pm on Monday 25 July 2011 before the Honourable Justice Burr to:-

   (a)    consider the recommendations contained in the updated Family Report to be prepared pursuant to paragraph 3 hereof;

   (b) consider the success or otherwise of the Section 11F counselling and conference to be conducted pursuant to paragraph 4 hereof;

   (c)    make appropriate trial directions, including for the filing of trial affidavits.

2. That the trial of these proceedings be listed as the first reserve matter before the Honourable Justice Burr to commence as not before 10.00 am on Thursday 8 September 2011.

3. That pursuant to Section 62G(2) of the Family Law Act 1975 as amended a family consultant in the employ of the Court do provide an updated family assessment and report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the child C CALLENDAR (“C”) born … April 2004 with such report to:-

   (a)    consider the Family Reports previously prepared in these proceedings by Ms A dated 20 November 2009 and 20 August 2010;

   (b)    consider the other materials on the Court file from Families SA and Child Protection Services;

   (c)    consider all of the affidavit material filed by the parties and the Independent Children’s Lawyer;

   (d)    consider the SACCAT Intake Summary dated 7 April 2011 prepared by the Z Child Development Unit (being annexure “AMK-1” to the affidavit of the Independent Children’s Lawyer filed on 11 May 2011);

   (e)    include observed interaction between C and the parties and C and extended family members;

   (f)     include contact with C’s school;

   (g)    include contact with C’s doctors, medical specialists, therapists and all relevant treating practitioners

   and that such report be released to the parties and to the Independent Children’s Lawyer on or before 4.00 pm on Friday 8 July 2011.

4. That pursuant to Section 11F of the Family Law Act 1975 as amended the parties do attend upon a family consultant at the Adelaide Registry of this Court on a date and at a time to be advised by the Court subsequent to 8 July 2011 (being the release date of the Family Report to be prepared pursuant to paragraph 3 hereof) for such appointment(s) as the family consultant deems necessary and upon such date(s) as are advised by the family consultant in an endeavour to assist the parties in achieving a final resolution of the issues between them.

5. That on or before 4.00 pm on Friday 27 May 2011 the mother do file and serve an Affidavit detailing her most recent concerns and allegations.

6. That leave is granted to the father to file and serve on or before 4.00 pm on Friday 3 June 2011 a further Amended Initiating Application detailing the orders that he now seeks in relation to C and generally.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2033  of 2009

Mr Callendar

Applicant father

And

Ms Davenport

Respondent mother

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me this morning the continuation of a matter that has already had a long history in this Court, the proceedings having been instituted on 26 May 2009.  The proceedings relate to a young boy C CALLENDAR (“C”) born in April 2004 and who is hence 7 years of age.  The matter came to the attention of the Court’s Magellan Project because of allegations made by the mother that the father had sexually and physically abused C.  There have been a great deal of resources disposed to this matter from Families SA, Child Protection Services and from this Court.

2. The early and continuing concerns from all of those experts were to the effect that the mother was not able to support the father’s relationship with C which led to some very strong recommendations being made to the effect that it was important that C reside with his father as soon as possible.

3. There were two Family Reports prepared dated 20 November 2009 and 20 August 2010.  The recommendations were emphatic and more so than is frequently seen in this jurisdiction.  Such was the concern of the Family Consultant, Ms A, that in the latter of her two reports she recommended that not only should C live with the father but that the father should have sole parental responsibility.

4. Things appeared to be developing for the better of more recent times and there were signs, as noted by me in an earlier ex tempore Judgment of mine, that the mother now understood the importance of supporting the relationship between the father and C.  The child’s attendance at school had improved out of sight and as a consequence there were very healthy developmental signs for C.

5. The matter came before me this morning with, on my part, the Independent Children’s Lawyer’s part and the father’s part, a good deal of optimism.  It did not take long for that optimism to be shattered once the mother addressed the Court.  She has indicated she still takes the view that C is suffering at the hands of his abusive father and his abusive extended paternal family members.  She has again promoted delays in the resolution of the matter suggesting that it is in C’s best interests that those delays be further perpetuated.  They have not been the indications to date and indeed it is appropriate to record again that it appears that the delays being pursued by the mother are very much in order to favour her position and her role in the ongoing care of C.

6. There is another significant event that the Court has needed to consider today and that is the report from the Z Child Development Unit dated 7 April 2011 wherein a significant number of professionals across a broad spectrum of areas of expertise formed the view that C met the diagnostic criteria for Autism and that he displayed “the qualitative impairments in socialisation, behaviour and communication which are consistent with this diagnosis.”

7. One of the matters the Court will have to explore among a broad range of matters that the parties seem intent on presenting to the Court for determination, will be whether or not that diagnosis would contra-indicate any shared parental arrangement.  It may be that the diagnosis suggests that C being in the primary care of one parent is the most appropriate outcome for him. 

8. The father filed an Amended Application in which he moved away from the position of seeking that C live with him primarily and indeed promoted a week about shared care arrangement.   Having heard the mother’s position this morning he has now sought the Court’s leave to further amend his Application to seek an order that C live with him.  Given the intimations from the mother today, her quite clear ongoing concerns about the possibility of C being abused in the household of the father despite the extensive investigations that have taken place to date which have all reached the conclusion that no such abuse is the case, it is appropriate now that all of those opportunities and options be explored.

9. I indicated at the beginning of today’s hearing that I thought a mediation exercise between the parties appeared to be appropriate as the more recent history had indicated a co-operative parenting arrangement of an improving nature which was clearly benefiting C.  The matters promoted by the mother today suggest that that is now no longer a sensible option.  It would also appear that a mediated outcome at this stage is impossible.  The mother appears to have reverted to the view that she took many months ago which is to the effect that C is at risk in the household of the father and that he is being abused by the father and members of the father’s household, although I note now that she has made a very different allegation this morning which is to the effect that the abuse is now very much more in the form of verbal rather than the earlier allegations that she made and which were found by the various authorities, although not yet by this Court, to have had no substance.

10. It is important now that the mother also put her further allegations before the Court in the form of a sworn affidavit in order that the father may have an opportunity to respond to those allegations and for the Court to explore whether or not there is anything in those allegations which might suggest that C would be at risk in the care of the father’s family or indeed, to the contrary, is at risk in the mother’s care because of ongoing psychological impressions that may be imposed upon C by her.  These are all matters of great importance to C and need to be resolved as promptly as possible.

11. Another issue raised by the mother was as to the identity of the Family Consultant who ought next conduct an updated assessment.  An updated assessment and report is clearly necessary and is promoted by the Independent Children’s Lawyer and certainly has my support.  It is also a matter in which the parties do agree.  They both accept that an updated Family Assessment is appropriate given the new material available which is to the effect that there has now been a diagnosis of Autism in relation to C.

12. The mother though has sought an order from this court that a different Family Consultant undertake the preparation of that updated assessment and report.  The father was opposed to there being any change referring to Ms A’s familiarity with the matter.  There is nothing in Ms A’s reports or in terms of the complaints made by the mother which suggest to me that Ms A ought to be removed from that task or exercise on the basis that she has in any way acted improperly or had regard to irrelevant material.  I do not accept on the evidence presently available to me in the Family Reports that she has exhibited any bias against the mother.  In my view she has acted entirely professionally and indeed the Court has appreciated the very robust recommendations that she has made in face of the significant emotional turmoil being experienced by C as a consequence of the pressures imposed upon him through the poor relationship between his father and mother.

13. In order to afford one last realistic opportunity of there being a resolution between the parties, a further opinion from a different highly qualified Family Consultant in my view is predicated in this matter and indeed supported by the Independent Children’s Lawyer.  If the further Family Assessment and report supports the earlier recommendations of Ms A, then the task of the Court is made significantly easier and there might be a clearer direction to be taken which would promote C’s best interests.  In the event that that Family Consultant identifies any flaws in the approach or the reasoning of Ms A, then the Court will be able to explore that during evidence in the trial of the proceedings, a trial which now seems almost unavoidable as a consequence of the quite clear change in attitude by the mother this morning from that demonstrated by her in more recent appearances before the Court.

I certify that the preceding thirteen (13) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 16 May 2011.

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