Chamber and Rebuli (No.2)

[2012] FamCA 492

FAMILY COURT OF AUSTRALIA

CHAMBER & REBULI (NO.2) [2012] FamCA 492

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the father seeks that his time with the child be increased and that such time be unsupervised – where there are allegations that the child has been sexually and physically abused by the children present in or related to the household of the father – where the child has not spent time with the father as of late – best interests – where the Court was of the view that there should be a gradual reintroduction of the child’s time with the father – orders that the child spend supervised time with the father.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Chamber

RESPONDENT: Ms Rebuli

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

FILE NUMBER: ADC 5081 of 2008

DATE DELIVERED: 15 June 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: S J McKinnon & Associates

COUNSEL FOR THE RESPONDENT: Mr Eid

SOLICITOR FOR THE RESPONDENT: Mellor Olsson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER n/a

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Adey

Orders

UPON NOTING

1. The parties agree to undertake counselling with Mr C in relation to the child J CHAMBER born on … April 2002.

1. The Family Court of Australia and the parties involved in the matter of Chamber & Rebuli (Action number ADC5081/2008) consent to the documents in the Court File and the documents subpoenaed in this matter being made available to the Family Consultant preparing the report and the legal representatives of the parties and the parties in the matter of Baxter & Rebuli (Action number ADC531/2012) PROVIDED THAT the information is clearly made available to the parties’ legal representatives and copies not made available to the parties themselves other than the Independent Children’s Lawyer and it being made clear to the parties that they are not able to use any of the material made available from this Court for any purpose other than for proceedings in the Federal Magistrates Court and that it would be a contempt of Court to use that information or release for any other purpose.

IT IS ORDERED THAT

1. Pursuant to Section 62G(2) of the Family Law Act 1975 as amended a Family Consultant provide to the Court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the child J CHAMBER born on … April 2012 and that such report be released to the parties and to the Independent Children’s Lawyer on or before 6 September 2012 UPON NOTING the report is requested to be prepared after the receipt of the report from Mr C to be provided by the Independent Children’s Lawyer to the Family Consultant preparing the Section 62G(2) report.

1. Matter further adjourned to Monday 10 September 2012 at 9.15 am before the Honourable Justice Dawe for mention in relation to the parenting orders and to prepare the matter for final hearing.

1. By way of interim order during the period of the adjournment that J spend time with the father between 10.00 am and 8.00 pm each Sunday UPON CONDITION that all such time is supervised strictly by the paternal grandmother and that there be no contact with the child B.

1. The Independent Children’s Lawyer has leave to issue a subpoena to the South Australian Police in relation to the alleged incident between the father and Ms D PROVIDED THAT the subpoena is issued and made returnable before a Registrar in the usual course of events prior to 1 September 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chamber & Rebuli (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5081 of 2008

Mr Chamber

Applicant

And

Ms Rebuli

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a consideration of interim orders to be made in relation to J (“the child”), who was born in April 2002 and is therefore aged 10. 

2. Proceedings have been on foot, in relation to the child, between the mother and father for a considerable period of time.  There are a large number of documents on the Court file.  Significantly the matter has been designated Magellan.  Orders were made for various steps to be undertaken pursuant to that process.  What the Court now has before it today is a detailed report from the psychologist who has been assisting the child dealing with the issues concerning the alleged abuse of the child. 

3. Issues arose some considerable period of time ago in relation to the child having been physically and sexually abused by other children in the household, or related to the households of the father.  Issues also arose in relation to the possible abuse of the child by the father and another adult known as John.  They were more clearly dealt with in all of the affidavit material which is on file and, in certain summary fashion, in the recently received report of the psychologist, Mr C. 

4. The Court had put in place an arrangement whereby the father was spending time with the child, in accordance with the orders of this Court, each Sunday between the hours of 10.00 am and 8.00 pm, upon condition that the time was strictly supervised by the paternal grandmother, and on further condition that there be no contact between the child and the child B, who was one of the children implicated in the allegations of abuse. 

5. The mother has not complied with that order now for a period of weeks, following allegations being made and criminal charges being laid against the father in relation to an alleged incident involving an assault alleged to have taken place by the father on his then partner, Ms D. 

6. This incident apparently occurred in mid or late May, when Ms D and the father separated (according to the limited material on the Court file, on 26 May 2012).  It would appear that the father has not spent time with the child since those allegations became known to the mother. 

7. The Court does not have before it anything other than a very brief summary of an incident having occurred between the father and his partner, Ms D, and now submissions that the criminal charges which have been laid are to be withdrawn. 

8. Clearly the question of what is in the best interests of the child on an interim level must also consider the provisions of the well known case of Goode & Goode (2006) FLC 93-286 and take into account the provisions of the Family Law Act1975 (Cth) (“the Act”).

9. The primary considerations as set out in the Act (for matters which have been instituted prior to the amendments coming into effect on 7 June 2012) are determining the best interests of the child, the benefit to the child of having a meaningful relationship with each of the parents and the need to protect the child from any abuse, be it emotional, psychological or other abuse.

10. The Court has considerable difficulty in weighing up the various facts in this matter which have not been tested.  The Court is required, in any event, to make an order taking into account the material that is before it to determine what will be in the child’s best interests, even on an interim basis. 

11. I have taken into account the report of Mr C, the clinical psychologist who has been providing the child with assistance due to the difficulties in his behaviour which had been acknowledged.  It is obviously not possible to come to a definite conclusion as to what was causing the child’s difficult behaviours. 

12. There are extreme views in relation to whether that was caused by something which happened to the child in the father’s household or whether it was caused by the mother’s improper influence.  What is significant, however, is the ongoing treatment recommended for the child and the conclusion of the psychologist in the report which has been provided to the Court, dealing with sessions that Mr C has had with the child over a considerable period of time, leading up to as recently as a session on 7 June this year. 

13. The report needs to be considered in the light that the father has had less input into the information provided to the expert psychologist than the mother and her family.  Nevertheless, the Court is required to ensure that any orders that are made are in the best interests of the child.  I take into account what could be described as “his special needs” in relation to the diagnosis or opinion of Mr C. 

14. Before me this morning the father seeks increased time and, in particular, overnight time with the child, and that any of his time not be supervised.

15. He is no longer living in a relationship with his former partner, Ms D, but is now residing in the home of his mother who was the supervisor who was providing strict supervision for the time he spent with the child recently. 

16. The mother opposes that and proposes that the time that the child spends with the father be reinstated to each Sunday, and be reinstated with strict supervision. 

17. The submissions of the Independent Children’s Lawyer support the retention of the orders of March 2012, and do not support an increase in time or the removal of supervision.

18. There are considerable matters to be determined, but the father also has to indicate to the Court whether, following upon the report of Mr C, he accepts the conclusion made by Mr C that the child was probably the subject of physical and sexual abuse and intimidation by at least B if not the other children, F and G. 

19. In his report, Mr C says that he believes:

    [The child] has understood well the level of inappropriateness of his behaviour towards his brother, [H], which I believe he has learnt from his time and interactions with [B, F and G].

20. He then refers in the report, to the fact that:

    [The child] would benefit from increased monitoring in the home for a further three months to ensure that he does not regress to these behaviours.

    He continues, under the heading “Prognosis”:

    I am also of the opinion that these behaviours manifest when he is feeling frustrated, angry and sad, or other distressful feelings, as a way of coping or taking his focus of what he was thinking or remembering or as a way of trying to exert control of his current environment.

21. Mr C has come to the conclusion, under the heading “Opinion” that he was of the opinion that the child was bullied and mistreated physically by at least B, and was involved in sexualised behaviour with possibly all three children, B, F and G.  The report continues:

    I shan’t read it all out, but I am taking into account the conclusions of the qualified clinical psychologist in relation to [the child’s] difficulties that he has been experiencing, and his behaviour.

22. In relation to the submissions of the Independent Children’s Lawyer, I accept that it is appropriate to draw attention to the conclusions of the psychologist when he says, towards the end of the report:

    I believe that [the child] has been in a very difficult situation as a whole, with pressure exerted upon him throughout this ordeal to date and I believe it has proven to be overwhelming and exceeded his ability to cope as a young 10 year old boy.

23. I am taking into account the opinion of Mr C which supports the view of the Independent Children’s Lawyer, that there should be caution in increasing the time that the father spends with the child.  I take into account that it is not the father’s direct fault that the mother has not complied with the order in the last three weeks, but it would be in the child’s best interest for there to be a careful re-introduction of the time, bearing in mind the issues which are set out in the psychologist’s report.

24. In relation to the further progress of the matter, it was agreed that there should be a section 62G report, and that the writer of that report have access to Mr C’s report, which will be supplied to the Family Consultant preparing the section 62G report by the Independent Children’s Lawyer. 

25. The question then remains as to the period of the adjournment, and also an issue that arose in relation to the Federal Magistrate’s Court having access to the Family Court file and the subpoenaed documents in the Family Court file. 

26. The Court was waiting to hear from the solicitors for the parties, as to their attitude towards this Court releasing to the Federal Magistrate’s Court in the proceedings between Ms Rebuli and Mr Baxter, but the Court did not receive any response. 

27. There will need to be some time for the child to spend with his father before the Family Consultant completes the section 62G report, and time for the report to be prepared for further consideration of the Court.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 June 2012.

Associate: 

Date:  29 June 2012