CALLENDAR & DAVENPORT

[2010] FamCA 637

FAMILY COURT OF AUSTRALIA

CALLENDAR & DAVENPORT [2010] FamCA 637

FAMILY LAW – CHILDREN – parental responsibility – interim orders – where there are allegations of sexual abuse by the father – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – not satisfied that sexual or physical abuse has occurred – where it is in the best interests of the child for the parties to have equal shared parental responsibility

FAMILY LAW – CHILDREN – with whom a child lives – interim orders – best interests – where there are concerns about the possibility of emotional abuse of the child by the mother – where there are concerns about the mother’s mental health – orders that the child live with the mother and spend time with the father on alternate weekends

FAMILY LAW – INJUNCTION – orders restraining the mother from permitting the child from attending further counselling sessions

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

APPLICANT: Mr Callendar

RESPONDENT: Ms Davenport

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 2033 of 2009

DATE DELIVERED: 5 JULY 2010

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

JUDGMENT OF: BURR J

HEARING DATE: 5 JULY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR BOWLER
SOLICITOR FOR THE APPLICANT:	SCALES & PARTNERS

COUNSEL FOR THE RESPONDENT:	MR JONES
SOLICITOR FOR THE RESPONDENT:	MICHAEL HEGARTY & ASSOC

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

Orders

1. Further consideration of the proceedings is adjourned to 12 noon on Monday 6 September 2010 before the Honourable Justice Burr (1 hour allowed).

2. All previous current parenting orders are discharged.

3. The child C born … April 2004 live with the mother.

4. The parties have equal shared parental responsibility for the child.

5. The father spend time with the child each alternate weekend from 10.00 am on Saturday until 5.00 pm on Sunday, commencing on Saturday 10 July 2010.

6. All handovers at the commencement and conclusion of each period of time the father spends with the child are to be conducted inside the Adelaide Police Station, with the mother to remain inside the Adelaide Police Station for a period of 10 minutes after handover has been effected at the commencement of each period and with the father to remain inside the Adelaide Police Station for a period of 10 minutes after handover has been effected at the conclusion of each period.

7. Within twenty-one [21] days of the date hereof the mother file and serve a report from Ms B of the S Medical Centre, S, as to:-

   (a)the manner in which she was engaged in the counselling and therapy of the child;

   (b)the purpose and intent of such therapy and counselling;

   (c)the anticipated further duration of such counselling and therapy;

   (d)her assessment of the value of such counselling and therapy; and

   (e)whether or not such counselling and therapy is a necessary future component of the child’s care.

8. Pursuant to Section 62G(2) of the Family Law Act 1975 as amended Ms A (who undertook and concluded the previous Family Report dated 20 November 2009) provide an updated report to the Court on such matters as are relevant to these proceedings in respect of the care, welfare and development of the said child, with such report to include:-

   (a)interviews with each of the parties;

   (b)observed interaction of the child with each of the parties and any other relevant adults;

   (c)discussions with the child’s school teacher(s) and/or principal;

   (d)discussions with psychologist Ms B;

   and that such report be released to the parties and to the Independent Children’s Lawyer on or before 4.00 pm on Friday 20 August 2010.

9. Prior to the adjournment date the mother secure, file and serve a psychiatric assessment and report as to her mental health.

10. The parties sign all such documents, attend all such interviews and pay all such fees as are necessary to enroll at the D Children’s Contact Service (“CCS”) for the purposes of future handovers being conducted at that facility.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The mother is restrained and an injunction is hereby granted restraining the mother from:-

   (a)discussing these proceedings with or in the presence or hearing of the child and from permitting any other person to do so;

   (b)engaging the child in any form of therapy or counselling without further order of this Court.

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

And

MS DAVENPORT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me for interim determination issues which have brought the parties into significant conflict for some time now.  Those proceedings were initially taken in the Federal Magistrates Court but on 9 June 2010 they were transferred to the Family Court.  This Court then immediately accepted the matter into its Magellan Project given the allegations made by the mother that the father has sexually and physically abused their young son C (“the child”) who was born in April 2004 and who is 6 years of age.

2. On 18 December 2009 Federal Magistrate Simpson made orders that the father spend time with the child, initially for 7 hours each Sunday for a period of some three months and then for alternate weekends from 10.00 am on Saturday until 5.00 pm on Sunday for a further three months.  There was then a continuing staggered increase thereafter.  There were other orders.

3. However, the father was only able to accept the benefit of the learned Federal Magistrate’s orders in relation to alternate weekends on one occasion prior to his time then being terminated by the mother and not enabling the Court to explore the allegations that she had made of abuse of the child by the father.  Thus the orders that the father seeks today is a reinstatement of paragraph 1(b) of the orders of Federal Magistrate Simpson made on 18 December 2009, being alternate weekends from 10.00 am on Saturday until 5.00 pm on Sunday.  The intention was for this order to operate for a period of three months and that is the request of the father today.  He further asks that handovers occur at the D Children’s Contact Service (“CCS”) given the level of conflict that exists between the parties.

4. In making any determination even at an interim level on what might be appropriate orders, I must have regard to the relevant provisions of the Family Law Act and they are specifically contained in Part VII.  The first section that attracts the Court’s attention is Section 60CA which directs that in making any parenting order the Court must regard the best interests of the child as the paramount consideration.  In making that determination the Court is then directed to Section 60CC of the Act which is divided into “primary” considerations and “additional” considerations. There are two primary considerations, the first of which is:-

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

   and the second 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.

5. These two primary considerations loom large in the interim determination of these proceedings and potentially in the final determination of the proceedings.  The issue at hand here is whether or not the child has been abused and whether it is appropriate that he enjoy a meaningful relationship with both parents.  It is the mother’s allegation that he has been sexually and physically abused by the father. The material upon which she relies in that regard is contained in a number of her affidavits filed in this Court and she also relies upon a report from the child’s general practitioner Dr M which is dated 17 May 2010 and annexed to her affidavit filed on 20 May 2010.  Dr M discloses:-

   “At a consultation on 1.04.10, [the child] said to me ‘[the father] licked my peepee’. I understood this to mean that his father had licked his penis.  He also told me that his father had slept with [the child] that night.  Subsequently I rang the Child Abuse report line with details of the situation; his mother had made a report the day before.”

6. Mr Jones, for the mother, directs me to the last paragraph of that report, namely:-

   “In conclusion, I have come to know [the child] and [the mother] quite well in recent months.  [The child] appears comfortable when talking to me, and I find his statements believable.”

   As Counsel for the Independent Children’s Lawyer has indicated, it is not possible to determine from Dr M’s report whether the mother was in attendance throughout that consultation and whether or not behaviours identified in a subsequent report to which I will refer were evident in the child, namely looking to his mother for approval of his remarks and disclosures.  In short, whilst Dr M provided his report with the very best intentions in mind and clearly motivated by his concern for the child, it is for this Court to determine on all of the evidence available to it whether or not it places any store in the child’s statements.   The Court has available to it presently, and certainly will by the time of the final hearing of the matter, significantly more information than was available to Dr M.

7. The most significant piece of information is contained in the Magellan report letter from Families SA dated 2 July 2010 and I will quote a number of paragraphs from that report, all of which suggest that the Court ought not be as concerned as to the issues of sexual and physical abuse raised by the mother, but rather more as to the possibility of emotional abuse of the child being perpetrated by the mother.  That is a matter which specifically is brought to the Court’s attention as the second of the primary considerations under Section 60CC.  I need to do what I can presently to protect the child from the potential of emotional harm which is the matter which looms largest presently in the determination of these proceedings.  I accept that that can only be a preliminary view prior to the final determination of the proceedings but certainly the evidence points very strongly in that direction presently.

8. Prior to quoting passages from the said Magellan report letter, I mention that I earlier had an opportunity to review the contents of a Family Report provided to the Federal Magistrates Court on 20 November 2009.  There are various relevant components to the said Family Report, not the least of which are the recommendations contained in paragraphs 116 to 126 inclusive.  In short, the recommendations were supportive of the parents having equal shared parental responsibility for the child, that he reside with his mother and spend alternate weekends from Friday after school through to Monday before school with the father, with incremental increases over 3 month intervals thereafter.  The recommendation was that any such time be unsupervised.

9. That follows the detail contained in the report itself and I will not quote from all of the relevant passages but it is perhaps appropriate to quote paragraphs 106 and 107 of that report, namely:-

   “106.It is clear that [the father] has mental health issues which are of an anxiety and depressive nature.  From observation and assessment [the father’s] mental health appears to be successfully managed by his treating psychiatrist.  In reviewing Dr [N’s] reports it would appear that there is no evidence which supports [the mother’s] concerns that the child is at risk from him.  The report writer assesses that there is no credible evidence which suggests the child to be at harm from [the father] out of mental health reasons.

   107.[The mother] claims the child to be at risk from [the father] based upon a confirmed child protection notification by Families SA.  The report writer has concerns regarding this confirmation as it does not indicate who the perpetrator was.  This lack of detail allows [the mother] to read into this at perhaps a greater level than what is warranted.  It is noted that there is no other reported child protection history on the child or any other party.  It is assessed that [the mother] has used the child protection issue to deny the child to have a meaningful relationship with [the father] on thin evidence.”

   As can be seen, some many months ago the expert Family Consultant tasked with preparing the Family Report was concerned as to the issue of alienation of the child from his father by the mother.

10. The Family Consultant’s view in relation to the child not being at any risk from the father in terms of his mental health issues is supported by the report of Dr N annexed to the affidavit of Ms SD filed on 23 July 2009.  Dr N is the father’s consulting psychiatrist.  He is not a psychiatrist tasked with making an assessment for the purposes of the Court as to the father’s psychiatric health.  He is a psychiatrist rather who has been treating the father every month to six weeks over a period of what is now 4 to 5 years.  I will not quote the entirety of his report but some aspects of it are relevant in my dealing with the primary considerations, namely:-

    “Over that period he has presented as a very conscientious, responsible, stable young man who has done all in his power to provide a stable background for his young son, to whom he is devoted. ….”

    “He now tells me that on a number of occasions his ex-wife has accused him of being ‘a schizophrenic’, a clearly irrational, mischievous and outrageous suggestion, there never, at any time throughout my involvement with him, having been any suggestion of emotional instability, ….”

    And further,

    “ ….. has demonstrated throughout considerable restraint, fortitude and emotional stability in doing all that he can to provide a constructive and stable background for his son when given the opportunity.”

    Dr N then concludes as follows:-

    “In summary then, I would reiterate that under no circumstances can he seen [sic] to be emotionally unstable or unsuitable as a parent, in the context of his well adjusted family, in providing an appropriate identity model for his son, nor in my view is there any justification for what I regard as a completely irrational suggestion that he needs supervision when having access to and having the opportunity to care for his son.”

11. All of those observations to which I have referred are supported, and in fact significantly emphasized, by the aforesaid Magellan report from Families SA dated 2 July 2010.  Again, I will not quote the entirety of the report but there are some particularly relevant passages which I will quote and they commence on page 2 of that letter as follows:-

    “Furthermore, the CPS clinician has advised Families SA that [the mother] presented as extremely disjointed throughout the interview process and suspects that she may have some underlying mental health issues.  In addition, the clinician maintained that the mother was observed to be bitterly disappointed when advised that [the child] did not disclose any information in relation to sexual abuse and asserted that [the mother’s] motives are questionable. This is consistent with the Families SA interactions with [the mother] who recontacted Families SA following interview with [the child] and requested he be re-interviewed.

    The CPS clinician stated that [the father] presented extremely well, very child focused and articulate.  The Clinician advised Families SA that [the father] denied ever using excessive physical discipline on [the child] and insisted that it had been threatened that [the child] would be hit with a belt although denied it ever occurring. It was also maintained that [the father] was adamant that [the mother] had been coaching [the child].

    The CPS clinician informed Families SA that given the information provided by [the child’s] psychologist and [the father], the clinician highly recommends for [the mother] to undertake an assessment of her mental health and maintained that they had grave concerns regarding the mother’s extreme isolation and the issue of her having limited family, social or community supports.

    The Departmental supervisor has reached an outcome of ‘abuse not substantiated’.  This decision was based on statements made by [the child], [the mother] and [the father] during the interview process.  Families SA are satisfied that the concerns can not be substantiated and that there is no current risk to the safety of [the child]. ….

    Additional Information

    It is of note that Families SA has no history of child protection concerns prior to the separation of [the child’s] parents.  …..

    Also of significance is that a serious notification alleging physical abuse was received by Families SA at the time that unsupervised contact between [the child] and [the father] was ordered through the Family Court.  Similarly the recent concerns received in March regarding alleged sexual abuse were received when contact between [the child] and [the father] was increased to overnight care.  This was the first and only overnight stay that occurred.  As such [the father] and [the child] have not had contact since March 2010. 

    Families SA also has serious concerns regarding [the child’s] erratic school attendance.   Families SA has been informed that since July 2009 [the child] has been absent from school 89 days and late or has left early on 43 other days within the past twelve moth [sic] period.  This equates to two school terms and if it has not already, can potentially have detrimental emotional and behavioural effects on [the child] and on his learning capacity.  Families SA is of the view that it is in [the child’s] best interests to maintain regular attendance with his school in order for him to reach his full potential in life.

    Families SA is concerned about [the child’s] wellbeing in the context of the current Family Law Court proceedings and the level of acrimony between the parties.  Children in a situation such as [C] can feel compelled to provide information to either parent which they hope will please them or validate their feelings.  Particularly in circumstances where they are aware of legal matters and of the negative view parents hold for one another, as appears the case for [C].  Research with children some years after parental separation clearly indicates that the conflict between the parents was the major influence on the child’s wellbeing.

    The apparent wholly negative view that [the child’s] mother has of his father is placing [the child] in a significantly difficult position as he attempts to find his way in the paternal household and form a bond with his father.

    Families SA would encourage an amenable line of communication between the parents whereby matters can be negotiated respectfully, without involving [the child].  At times, in situations where the level of acrimony between separated parents is so significant; it can lead to information that is provided from a child to a parent regarding events that occur during contact being interpreted in the worst possible light.  This can be done either deliberately or through a prism of over wrought emotions.”

12. Another issue which has emerged today is that the child has been referred by his general medical practitioner to psychologist Ms B.  Today is the first time that the Court, and I am informed the father, has heard of Ms B’s involvement.  Counsel for the Independent Children’s Lawyer was aware only as a consequence of a subpoena issued to Ms B by the mother on 25 June 2010.  I will make an order with injunction restraining the mother from permitting the child to attend any further counselling or therapy sessions with Ms B pending a report from her which I will also order today.

1. An interesting observation which emerges from the Families SA report letter is the possibility that it was Ms B who has expressed some concern in relation to the mother and contributed to the view that she need undertake an assessment of her mental health.  I could be wrong in that but in the third full paragraph on page 2 of the report letter from Families SA dated 2 July 2010 there is reference to information being provided by the child’s psychologist.  It seems to have played an integral part in the view formed by Families SA that the mother needs to address the possibility of there being some mental health issues for her.  I will therefore also be ordering that she undertake a psychiatric evaluation.

2. Thus, on the information presently available to the Court at this interim stage of the proceedings, there is a clear benefit to the child in having a meaningful relationship with his father.  Whilst the allegations of sexual and physical abuse need to be explored to their fullest and will be in a full trial of the proceedings, there is no present evidence before the Court on which it could in comfort rely in making any interim determination that the child is at risk of such conduct from his father.  Indeed all of the signposts point to the mother as being the one who is abusing the child in an emotional sense.

3. I am also directed to consider the “additional” considerations, the first of which is:-

(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 views;

In my view, it would be unsafe to accept any view purported to have been expressed by the child to his general medical practitioner or anybody else.  There is clear reference in the Families SA report letter of the real possibility of the child having been influenced by his mother in expressing any views or making any statements that he has. 

(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. In my view I have adequately covered the matters raised by this sub-section in my treatment of the primary considerations.

(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. If the mother is not already aware of it, that issue is now clearly on the table and lays at her feet in terms of the future conduct of the matter and the future conduct of her relationship with her son and with the father.  There is already clear and increasingly gathering evidence that the mother is unwilling and does not have the ability to facilitate a close and continuing relationship between the child and his father.  That will be a matter which along with all of the other important issues will attract the Court’s very close attention.  I note that the father, in his Initiating Application filed on 23 June 2010 has sought an order that the child live with him.  There is certainly a possible consequence for the mother of there being a change in the living arrangements for the child if her incapacity to facilitate and encourage a close relationship between the child and the father is demonstrated.  It may well be that it takes more than that for such an order to be made because there are many other considerations that would require the Court’s attention but the mother needs to be on notice that that is the most significant impediment to her potentially in playing a significant and ongoing role in the child’s care.

(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. In my view the change which has been effected in the child’s life, namely that he is not spending any time with his father, on the evidence available to the Court presently has been considerably detrimental to him.  Thus the change that I propose by the reinstatement of those orders I deem to be a change for the better in the child’s circumstances.

(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 for my consideration 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),

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

1. I have covered this sub-section already in terms of dealing with the primary considerations, the issue again being the mother’s capacity to cater and provide for the child’s emotional needs.

(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;

1. These sub-sections are not relevant for my determination.

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

1. This sub-section raises similar issues to those which I have already canvassed.  It is not necessary for me to provide any further information or detail under this sub-section.

2. In my view, the balance of the sub-sections under “additional” considerations are not relevant for my determination today.

3. Neither party today is inviting me to do other than maintain equal shared parental responsibility and thus it is not presently necessary for me to consider the other relevant sections of Part VII.

4. For all of the reasons above, I deem it appropriate that the father’s time spent with the child be reinstated immediately but a number of other orders need be made, in my view, in order to advance the matter and to endeavour to secure the best outcome for the child.

I certify that the preceding twenty five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: