CHAMBER & REBULI

[2012] FamCA 87

FAMILY COURT OF AUSTRALIA

CHAMBER & REBULI [2012] FamCA 87

FAMILY LAW - CHILDREN – interim orders – where the father seeks that previous orders providing that the child spend time with him on an unsupervised basis be reinstated – where the mother alleges that the father has sexually abused the child – where the father alleges that the mother is intent on destroying the child’s relationship with him – where preliminary enquiries and reports have concluded that the child is suffering from emotional abuse at the hands of the mother – best interests – where the Court was of the view that it should err on the side of caution at this stage of the proceedings – orders that the child spend supervised time with the father

FAMILY LAW - PRACTICE AND PROCEDURE – orders that the matter be adjourned to allow further enquiries into the allegations of sexual abuse to take place

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

APPLICANT: Mr Chamber

RESPONDENT: Ms Rebuli

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

FILE NUMBER: ADC 5081 of 2008

DATE DELIVERED: 8 February 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 8 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Horvat
SOLICITOR FOR THE APPLICANT:	S J McKinnon & Assoc

COUNSEL FOR THE RESPONDENT:	Mr Eid
SOLICITOR FOR THE RESPONDENT:	Mellor Olsson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr McQuade
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Adey Lawyers

Orders

1. Further consideration of the proceedings be adjourned to 9.15 am on Friday 15 June 2012 before the Honourable Justice Dawe, with liberty to the parties and the Independent Children’s Lawyer to relist the matter at an earlier date in the event that matters impacting upon the best interests of the child J born on … April 2002 require an earlier hearing and in particular, the outcome of the further police enquiries and investigations becomes known prior to the adjourned date.

2. Each of the parties forthwith enroll in and complete a Kids Are First parenting course conducted by Anglicare and do on completion of same file and serve an Affidavit annexing the certificate of completion.

3. The mother forthwith:-

   (a)    take all steps necessary to ensure J’s re-enrolment at O Primary School at … V Street, Suburb Q;

   (b)    participate fully in J’s re-enrolment at the said school;

   (c)    upon re-enrolment and through her solicitors inform the father and the Independent Children’s Lawyer that she has done so;

   (d)    ensure J’s return to the said school by no later than the commencement of school on Monday 13 February 2012.

4. The father pay all fees associated with J’s education at the aforesaid school or do otherwise make arrangements for J’s attendance at the school with or without the payment of fees, be it on a staged basis or otherwise.

5. The Independent Children’s Lawyer forthwith:-

   (a)    make contact with J’s former psychologist Mr C and do:-

   (i)provide Mr C with a copy of the orders made today;

   (ii)endeavour to secure from Mr C an agreement to:-

   A.continue to provide counselling and therapy for J;

   B.accept information from and, if necessary, undertake an interview with J’s father in order to acquaint Mr C with other perspectives in the potential treatment of J;

   (iii)identify with Mr C whether or not he would be prepared to provide a report as to his sessions with J and his prognosis for J and any recommendations for J’s further counselling and therapy.

   (b)    provide the paternal grandmother with a copy of the Legal Services Commission pamphlet on the role and responsibility of a supervisor.

6. The paternal grandmother file and serve an affidavit forthwith upon receipt of the aforesaid pamphlet indicating that she has read the pamphlet and understands her obligations and responsibilities in her role as a supervisor.

7. The parties forthwith engage in communication and discussion with the Independent Children’s Lawyer to identify an appropriate counselling and therapy regime for themselves and for the child J and to identify more supportive parenting structures, capacities for communication and co-operative parenting UPON NOTING that in the event that they fail to do so on or before 4.00 pm on Friday 9 March 2012, the Independent Children’s Lawyer is at liberty to instruct a counsellor or psychologist deemed appropriate by the Independent Children’s Lawyer to undertake that task, with any costs associated with such an exercise to be borne equally by the parties.

8. Prior to the adjourned date for hearing the Independent Children’s Lawyer do:-

   (a)    secure, file and serve a report from the appointed counsellor or therapist detailing the programme undertaken by the parties and any suggested recommendations for the future direction of the parties and the Court;

   (b)    secure, file and serve a report from the aforesaid O Primary School indicating J’s progress (both academic and psychological) and whether or not any issues have emerged for J in his re-enrolment at that school;

   (c)    make all proper enquiries of the South Australian Police to establish the state of the investigations being conducted by them in respect of the allegations of sexual abuse of J by a number of individuals including the father, and be in a position to report to the Court on the adjourned date as to the outcome of those enquiries.

9. The mother take all such steps as are necessary, either through the pursuit of a mental health plan from her general practitioner or otherwise, to secure file and serve a psychiatric assessment if at all possible prior to the adjourned date.

10. The subpoena hearing listed on 22 February 2012 be vacated.

11. Leave is granted to the Independent Children’s Lawyer to issue and serve prior to the adjourned date a subpoena directed to the South Australian Police to produce all documents in relation to the aforesaid investigations and enquiries.

12. If there is no objection and subject to any privilege claimed, leave is granted to the parties, the legal representatives of the parties and the Independent Children’s Lawyer to inspect and copy the documents produced pursuant to subpoenas issued in these proceedings.

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

1. Paragraphs 3, 6 (as it relates to the father only) and 7 of the Orders made on 25 March 2010 be suspended.

2. The father spend time with J between the hours of 10.00 am and 3.00 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.

3. Leave is granted to the father to attend parent/teacher interviews at J’s school to be arranged at times when J is not present and the father be otherwise at liberty to secure from the school all progress reports, school reports, notices and the like with respect to J.

4. The father is restrained and an injunction is hereby granted restraining him from:-

   (a)    approaching the mother or J at O Primary School or in any way communicating with the mother or J at that school during J’s school hours;

   (b)spending any time with J during the periods exercised by the paternal grandparents pursuant to paragraph 14 of the Orders made on 25 March 2010.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chamber & Rebuli 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

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today disputed proceedings between the parties who are the parents of a young boy J who was born in April 2002 and who is thus almost 10 years of age.  Regrettably for J the dispute between his parents has been ongoing for a long time now.  Proceedings were first initiated in the Federal Magistrates Court in December 2008 and so well over three years later his parents are still engaged in combat over his future.

2. After a lengthy period the parties were able to resolve matters by consent on 25 March 2010 and those orders provided that the parties have equal shared parental responsibility for J, that he live with the mother and that the father spend regular time with him.  In addition the paternal grandparents who were then parties to the proceedings secured orders by consent that they spend time with J. 

3. Regrettably the proceedings were reactivated again in December 2011 by an application brought by the father, an application which he has since amended and filed on 6 February 2012.  The father is seeking orders that J now live with him and he is also seeking a variety of interim and procedural orders.  One of those is that J be delivered up to him or in the alternative, as advanced by his Counsel today, that the time that it was ordered that J spend with the father pursuant to the orders of 25 March 2010 resume.  That time had previously been suspended and remains suspended by orders made by Federal Magistrate Lindsay restricting the father now to spending time with J each Sunday between 10.00 am and 3.00 pm.  Conditions were imposed by the learned Federal Magistrate to the effect that such time was always to be spent in the presence of the paternal grandmother and in the absence of the child B.

4. The mother has made a number of allegations in her Response to these proceedings included among which are that J has been physically and sexually abused by the aforementioned child B, who is the child of the father’s current partner.  She now though makes even further serious allegations and they are set out in affidavits of her’s and Ms P filed this day.  The allegations which she promotes before the Court are contained in the latter paragraphs of her affidavit but specifically are as to alleged sexual abuse of J by three boys who live nearby, namely T, E and S.  She has though also implicated the father in sexual abuse of J and reference to that is found in paragraph 27 of her affidavit filed this day.  If she accepts what J says, then the allegation she makes is that the father has forcibly had anal intercourse with his son. 

5. Such an allegation as against the father is of course a horrific allegation and if true, would mean that the father almost certainly would be permanently disqualified from spending any time with his son at all.  If not true, then there may well be a number of explanations for J providing inaccurate information to his mother and possibly to the police.  Those explanations range through the more serious end, namely it is an allegation which has been deliberately promoted by the mother in order to ensure that the father spends no time with J.   It could also be that J understands the very position that his mother wants him to put and that she is open to allegations as against J’s father.  It could also be that J entirely misrepresents the position to everybody and it is merely indicative of a very troubled young man.

6. The one thing about which the Court can be certain is that indeed J is a troubled young man and that could well be as a consequence of abuse that he has suffered at the hands of others, including his father.   It could well be as a consequence of abuse he has received at the hands of his mother in the form of severe emotional abuse in promoting scandalous allegations and involving J in that process or it could just be that J is simply a victim of the appallingly toxic relationship between his parents.

7. In the preliminary determination of proceedings like this it is not possible for the Court to test the truth or otherwise of the allegations.  As is so regularly the case the allegations are in conflict and it is not possible to identify a clear path to the correct result.  In those circumstances the Court relies heavily upon independent information from those organisations and bodies which have had an opportunity to undertake enquiry and investigation.

8. The Court, on that basis, is greatly assisted by the Magellan Report that has been provided and which bears the date of 7 February 2012.  The mother contends that the matters conveyed in that report are inaccurate in a number of respects and lead to the Department and the Court therefore drawing very adverse conclusions against her which are unfair and inaccurate.  However, for now the Court is left with the opinion and view of Families SA purportedly supported by the police, that J is suffering emotional harm as a consequence of the mother’s actions and in particular, the possibility that she has directly or indirectly encouraged J to make false allegations.

9. In any event, on the detail contained in that report letter, neither the police nor Families SA take the view that sexual abuse has been substantiated but are far more confident in their expressed view that the mother has been guilty of emotional abuse of J.  The Court though is not at liberty to take risks with the health and wellbeing of a young child who is not able to defend or protect himself.  It is clear that J needs significant assistance to cope with the circumstances in which he finds himself.

10. The Families SA report was prepared, as I read it, in advance of them being aware of the allegations raised by the mother in her affidavit filed this day, specifically as to the interview that J had at the police station on 6 February 2012.   I note that it is proposed that there be further interviews of J in respect of his allegations.  I also note though that the mother does not raise in the context of the police interview any suggestion that J made a disclosure as against his father.  In paragraph 30 of her affidavit tendered today she identifies the potential abusers as being the boys E, T and S who live in the same street.

11. One of the other applications of the father before the Court is that J be immediately re-enrolled and returned to O Primary School at Suburb Q.  That is the school that J has attended for at least the last three years.  I propose to order his return to that school forthwith as it was not for the mother to make that decision unilaterally.  She made no application to the Court to do so and indeed by orders made on 25 March 2010 each of the mother and the father bear equal shared parental responsibility for J.  That naturally includes decisions about his education.  The father was not consulted in that regard.   I deem it appropriate that J be returned to potentially one of the few secure environments that he does have whilst further enquiries and investigations and counselling is undertaken.  I am satisfied that in the absence of any other evidence to the contrary, that that school environment where he has established friendship groups is the better for him despite the matters raised by the mother in her affidavit filed this day.

12. The issue of school fees is one in respect of which the Court is not able to make a determination as to where the truth might lie but given that the father has intimated in his affidavit that the school has no difficulty in accepting J irrespective of the fee position, then I will impose upon him the obligation to either pay the fees or make arrangements with the school to ensure J’s transition back to the school.

13. In making any determination in disputed parenting proceedings the Court is obliged to consider the provisions of Part VII of the Act.  In particular Section 60CA requires the Court to have regard to the best interests of J as the paramount consideration.  To do that the Court is directed to Section 60CC of the Act which is divided into two primary considerations and a raft of additional considerations. 

14. The first of the primary considerations for the Court is the benefit to the child of having a meaningful relationship with both of the child’s parents.  It is the father’s case that the mother is intent on destroying his relationship with J and is actively working towards that end and has done so now for quite some time.  He contends that the allegations that have been made by her have no substance and in the process has involved J in the dispute to the point where J reports inaccurately events that have happened to him.  If that allegation is true then indeed the mother’s conduct is destructive of a meaningful relationship and there may well be consequences for her in that regard as the proceedings unfold, particularly given the provisions of Section 60CC(4) which requires the Court in summary to consider in what way parties have promoted the relationship with the other parent or in fact sought to impede it.

15. As against that though is the other primary consideration which is the need to protect J from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.  The allegations the mother raises as to sexual abuse of J by the father, whilst based on very scant information to date, are purportedly based on a report by J himself to the mother.  There is no evidence that he repeated that allegation to the police but that is a matter for the future.

16. Allegations of sexual abuse by one parent are indeed at the most serious end of the scale.   If indeed the father has been guilty of such abhorrent behaviour, it is unlikely that he will get to spend time with J again.   If indeed the allegations have no substance and are found to arise from false allegations promoted by the mother, then her future role in J’s parenting will be subjected to considerable scrutiny.

17. There are of course a number of other possible explanations that would not result in the attribution of blame to either party.   It may well be that J is such a conflicted child that he simply resorts to realms of fantasy in order to secure comfort, nurture and support from those around him.   There may be other explanations.

18. The other issue raised for the Court’s consideration is the need to protect the child from emotional harm.  At the present moment the finger is pointed very directly and firmly by Families SA and the police at the mother.   In fact they state quite directly and emphatically in their report to which I have previously referred that J is suffering emotional harm due to the mother’s actions. 

19. Thus there is a raft of allegations that have been made all of which indicate that J is in a very, very difficult place indeed, is becoming an increasingly troubled boy and potentially will become an increasingly troubled young man with a raft of social, psychological and other problems.  It is important that the attention and direction of the Court be on J’s best interests at a time when the parents appear unable to do so themselves.  For that reason I propose making a number of orders which are designed to try and secure J’s position.

20. The additional considerations raised in Section 60CC(3) of the Act are many and varied.   In my view it is not necessary for me to articulate reasons in relation to each of those sub-sections.  In my view it is plain from the exchange between bar and bench as to the reasons why I am intending to make the orders that I do and indeed those additional considerations will merely require a repetition of the matters that I have raised thus far.

I certify that the preceding twenty (20) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 8 February 2012.

Associate: 

Date: