Chapman and Cousins

[2010] FamCA 403

FAMILY COURT OF AUSTRALIA

CHAPMAN & COUSINS [2010] FamCA 403

FAMILY LAW – CHILDREN – parenting issues – interim orders – where there have been allegations of sexual abuse – where the father’s time has been suspended – where the father has filed an application seeking to resume spending time with the child – best interests – where there is evidence that the child is under a significant degree of stress – father’s application declined – orders for the child to attend counselling – adjourned to allow Minister for the Department of Families and Communities to determine whether they will intervene in the proceedings

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

APPLICANT: Ms Chapman

RESPONDENT: Mr Cousins

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 315 of 2008

DATE DELIVERED: 4 MAY 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 4 MAY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS BOSKO
SOLICITOR FOR THE APPLICANT:	ALL FAMILY LAW

COUNSEL FOR THE RESPONDENT:	MR BERMAN
SOLICITOR FOR THE RESPONDENT:	BARNES BRINSLEY SHAW LAWYERS

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

Orders

UPON NOTING the Court’s view that paragraph 19(c) of the orders of 24 September 2003 has lapsed

IT IS ORDERED THAT:-

1. Further consideration of the proceedings be adjourned to 11.00 am on Thursday 24 June 2010 before the Honourable Justice Burr (allow 1 ½ hours).

2. By no later than the adjourned occasion the Representative for the Minister for the Department for Families and Communities – Families SA (“the Minister”) inform the parties and the Court as to whether or not the Minister intends to formally intervene in these proceedings.

3. A copy of the P Psychology Family Report dated 7 April 2010 is authorized to be released to the Minister’s representative, the South Australian Police and if deemed necessary and appropriate by the Minister’s representative and the South Australian Police, to the Child Protection Services at the Women’s and Children’s Hospital.

4. The parties and the Independent Children’s Lawyer engage in discussion in order to identify:-

   (a)a counsellor suitable to undertake the task of identifying with the child N (also known as …) (“the child”) born … December 1998 any concerns she may have about engaging in a counselling process with her father;

   (b)a counsellor suitable to undertake the task of assisting the child in understanding, irrespective of the child’s own views, that she may be asked to engage in counselling with her father; and

   (c)the manner in which the costs of such counselling may be met.

AND IT IS ORDERED, UNTIL FURTHER ORDER THAT:-

1. The parties are restrained and an injunction is hereby granted restraining the parties from permitting the child to be engaged in any counselling or therapy prefaced on the assumption that she has been the victim of sexual or other abuse.

2. The father’s ordered time to be spent with the child be suspended.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 315  of 2008

MS CHAPMAN

Applicant

And

MR COUSINS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me for determination today an application in what is a continuation of long running litigation between the parties which first emerged by an Application filed by the father in these proceedings on 23 February 1999.  Hence some 11 years later the parties remain in heated dispute over what parenting arrangements represent the best interests of their children, but specifically now their daughter N (also known as …) (“the child”) who is 11 ½ years of age having been born in December 1998.  

2. Those proceedings initiated in 1999 concluded with final Orders made by consent on 24 September 2003 after a number of days of hearing before me.  The preamble and notations to those Orders make for interesting reading and clearly indicate a significant concern that I, the Independent Children’s Lawyer and the father had in relation to the general conduct of the mother’s case and the allegations made by her at that time. 

3. The notations are quite emphatic, both as to there being a complete absence of any evidence that would support a finding of abuse or unacceptable risk and indicate some serious concerns about the manner in which the Department, then known as FAYS, and a member of that Department conducted the investigation and assessment in relation to the matter.  That led to a number of consent Orders that dealt with the parenting issues as between the parties and provided that the child reside with the mother who was to have sole parental responsibility for the child’s care, welfare and development.  They also though provided quite extensive Orders of the time that the father was to spend with the child.  A consequence of the manner in which the mother had conducted the proceedings and a consequence of the concern about the lack of veracity in the allegations made at that time led to some additional Orders which were designed to protect the child from further intrusion into her life and further exposure to a form of institutional abuse of her.

4. One matter that I need to determine today is whether or not there needs to be a suspension of paragraph 19(c) of those Orders to allow the Minister for the Department for Families and Communities – Families SA (“the Minister”) and others to undertake further enquiry and investigation in relation to the issues now before the Court for its determination.  However, I think an accurate reading of paragraph 19(c) suggests that those Orders have now expired given the release of the P Psychology report.  I am uncertain as to whether or not the P Psychology process envisaged in those Orders was concluded at any earlier stage but certainly there can be no doubt now that the envisaged process has been completed consequent upon the release of the report of Ms J of P Psychology dated 7 April 2010.  Should there though be any residual doubt about the position I will make an Order which will enable both the counselling in part promoted by the husband and the Independent Children’s Lawyer and by the Representative of the Minister, but also to enable the release of a copy of the P Psychology report dated 7 April 2010 to the South Australian Police and then if they consider it necessary, to the Child Protection Service.

5. It is the father’s position before the Court that the existing suspension of his time is terminated and that the matter needs to be reconsidered by the Court today.  Irrespective of whether or not that is the case, I permitted the father to promote a fresh application before the Court.  His application was that he be entitled to resume his time with his daughter N as was promoted in the Orders of 24 September 2003.  It was in response to opposition by the mother today, to that taking place.

6. In making any determination of a parenting issue both on an interim and a final basis, I need to have regard to the provisions of the Family Law Act.   The first of the sections to be considered is Section 60CA which provides that in deciding any parenting order both at an interim or a final level, the Court must regard the best interests of N as the paramount consideration.  In coming to that determination the Court is guided to the provisions of Section 60CC which is divided into two primary considerations and a raft of additional considerations. 

7. The first of the primary considerations is the benefit to the child N of having a meaningful relationship with both of her parents.  In relation to this matter, it particularly means the benefit to N of having a meaningful relationship with her father as the father has not been able to see or spend any time with the child now for some 5 months since the original suspension of the Orders of 24 September 2003 which were made by this Court.  What constitutes a meaningful relationship between the father and N at this interim stage of the proceedings is particularly difficult, if not impossible, to determine.

8. The second of the primary considerations is really the one that agitates the Court’s attention and concern at this interim stage of the proceedings and that primary consideration is the need to protect N from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

9. The allegations promoted by the mother as allegedly reported to her by her daughter N are the allegations which attract the Court’s attention to that particular primary consideration.  Counsel for the mother referred to a number of paragraphs in the mother’s affidavits filed in these proceedings on 7 September 2009 and 15 October 2009.  The allegations include that when on holiday with the father in Queensland the father entered the bathroom while the child was showering and despite her vehement request that he remove himself from the bathroom, he refused.  It is further alleged that the child then locked the door but the father prised it open and that the child was scared and embarrassed by the entire incident.  A further allegation as against the father is that he walks around openly in front of the child in his “knickers” and “plays with himself whilst he is talking to her”.  N further alleged, according to the mother, that the father encouraged the child to just wear underwear.  Consequent upon those allegations the police requested interviews with N. 

10. It is the mother’s further allegation that the child’s behaviour changed dramatically after the holiday in Queensland in January 2009 in that she thereafter suffered outbursts of anger and mood swings.  That affidavit then recites an occasion when the mother was visited by a woman named L from Anglicare and it was mentioned during the course of that conversation that a notification had been made to the Child Abuse Report Line.

11. A further allegation of the mother is that the child reported to her that the father had said that he would kill her for not attending upon the ordered contact weekend then due.

12. In the latter of the mother’s affidavits, namely the one filed on 15 October 2009, the allegation is that the father arranged for a father of another student to approach the child at her school, seize her, embrace her and say “this is a hug from your dad”.    A further allegation arises in that affidavit that in the event that the child was forced to see her father as was ordered on 24 September 2009 that she would run away.

13. There have been materials filed by the father in which he denies the allegations that have been made and indeed goes into great detail to provide possible plausible explanations of both the background to the allegations made by the child and the general background to the relationship he has with the mother.  His case is that the case being run against him by the mother presently is a continuation of the litigation which commenced in 1999 and which led to a particularly damning outcome as against the mother on the 24 September 2003.

14. There have been a number of interlocutory and interim events leading up to today’s hearing. Today though the parties, the Independent Children’s Lawyer and the Representative of the Minister as does the Court, have available to them the P Psychology report previously referred to being the one dated 7 April 2010.  The conclusion of Ms J who prepared the report is that the father’s time with the child ought to be suspended for a period of approximately 12 months in order to relieve her from the stress she is experiencing as a result of the continuing altercation between her parents being conducted in this Court and otherwise.  There are a number of observations contained in that report which support Ms J’s assessment that N is under stress and indeed, under significant stress.  There are a number of references in the report that require some comment.  There are many others as well that are relevant ultimately to the Court’s determination of the issues but for now I will deal only with those matters which, in my view, justify the position this Court has taken in refusing the father’s request that he be able to resume his time with his daughter and they are:-

    Page 4

    Ms J records the relationship that the father previously enjoyed with the child as being one that was positive, open and honest to one which has now progressively worsened.  There is specific mention of “[N’s] own report is one of feeling uncomfortable at least and intimidated, bullied and abused by her father at worst”. 

    Page 5

    The mother purported to hold the view that the matters raised by the child were not serious enough to prevent the father spending time with the child and promoted counselling.  However she made the counselling in her view conditional upon it being undertaken by a mandated notifier.  Ms J recorded the mother’s concern “ … her concern that [N’s] level of anger and agitation towards the father has not softened over time but has continued to intensify, which adds to her concern that something significant has occurred”.  

    This is one of the areas in which Counsel for the father was critical of the mother and indeed of the presentation of the report.  Here is an example of an instance where the mother purports to take the view that the child’s allegations are not serious enough to have warranted a refusal of contact but that now they are so significant that something serious has occurred.

15. As I indicated during discussion between bar and bench the Court remains vigilant as to potential motive by the mother given the history of the proceedings before this Court and the ultimate determination on 24 September 2003.  The child’s views though are particularly relevant and this is a matter which emerges as one of the additional considerations under Section 60CC of the Act.  At page 5 of Ms J’s report the child is recorded as consistently expressing concerns about spending time with her father.  The child then again repeated the allegations previously mentioned which she indicated were the reason why she felt most uncomfortable in her father’s company.  However, for the first time there is mention of the father whilst wearing only his underwear, lying behind her on the couch watching television such that she can feel his genitals against her back.  There are other issues or privacy raised by the child.  In the end though it is clear that she is vehemently opposed to spending any time with her father and it is recorded at the bottom of page 5 of Ms J’s report:-

    In discussing whether [N] would be willing to meet with her father to talk about her concerns, [N] reported that she had already told her father that she was uncomfortable with these actions and wanted him to stop.  She stated that as he had continued, she did not believe he would change and did not wish to spend time with him again.  [N] could not think of anything she was missing by not spending time with her father.”

16. There is though an indication of a possible substratum of reason for the child not attending to spend time with her father and I quote from page 6 of the report:-

    “She also spoke of it being difficult to leave her mother’s home, when her siblings are all engaged in activities, in order to spend time with her father – [N] is the only child to have contact with their father.”

    There is also a portion in this report that indicates the child’s ambivalence about spending time with her father possibly being connected to the mother’s view on the topic and I quote:-

    “[N] was unsure how her mother would feel if she started spending time with her father again, but noted that her mother is always trying to make her go there, telling her that he is her father and she has to.  [N] predicted that she and her mother would fight more if she was made to spend time with her father because she refused to do so.” 

    Thereafter, again interestingly, the child mentioned a number of activities that she did enjoy with her father. 

17. At the foot of page 6 reference is made to the deterioration in the child’s functioning over the course of the assessment which includes difficulty in sleeping, trouble concentrating and listening in class and some occasions which have led to detention at school. 

18. At the top of page 7 Ms J expresses what ultimately became her recommendation in a sense in these terms:-

    “Continuing to press [N] to have contact with her father against her wishes is considered likely to result in escalating stress levels which might continue to negatively impact upon her studies and more general development (e.g. social and emotional).”   

    Ms J then recognises the possible detrimental impact though that a termination of time with the father might have and this is indeed a recognition of the first of the primary considerations and I quote:-

    “On the other hand, should [N] continue not to have contact with her father for insubstantial reasons she will lose the opportunity to develop a meaningful relationship with him through her adolescence and into early adulthood.”

19. As a general observation and without quoting in great detail from the report, Ms J does not speak in flattering terms of the capacity of N’s parents to shield her from the dispute.  It is also clear that the mother has been unable to shield her own stress and feelings from the child.  There is no question that the child would have picked up on the strain and stress being exhibited by her mother with whom she has lived exclusively now for 5 months in the sense that she has not spent any time with her father in that period.

20. As is the case with most interim proceedings before this Court (although there are always exceptions to that rule) it is difficult for the Court to make any determination of the issues in dispute.  That ordinarily would require the Court to hear the evidence in its fullest, to see the parties and others called in support cross-examined and then make a more fulsome assessment of what would represent the child’s best interests. 

21. The additional considerations in Section 60CC, as I indicated earlier, are many.  I have considered each of them and in my remarks in discussion on the second of the primary considerations, I have already canvassed a number of those additional considerations. 

22. Ultimately the decision as to what is the most protective outcome for N is a difficult one to make, particularly given the earlier history of these proceedings.  Looming large for the Court’s determination in the ultimate trial of the proceedings will be whether or not the allegations now raised represent a continuation by the mother of a seeming programme designed to inhibit, or at worse terminate, any relationship that the father might have with the child.

23. The Court though, because of the requirements of the legislation but particularly Section 60CA, needs to remain cautious even though there is some serious potential for the Court to be wary about the manner in which the mother has progressed this litigation.  That caution at this interim stage of the proceedings, in my view, can only be demonstrated by declining the father’s application for a resumption of time with the child.  There are sufficient indicators contained in the report of Ms J of the need to shield N presently from the stress imposed upon her by the litigation and by the intensely bitter dispute between her parents.

24. I am conscious of the urgings contained in the report of Ms J that the child indeed also be shielded from the process of further counselling which involves her father and indeed I note the specific reference to the child not wishing to be engaged in any such additional process on the basis that her father has already made a number of promises which in N’s reported view he has failed to fulfil. 

1. Nonetheless one other thing is particularly obvious to the Court and that is it becomes increasingly difficult to support any meaningful relationship between the father and the child the longer it takes to resolve the dispute between the parties and the longer it is that the father gets to spend no time with the child.  The child is clearly, in those circumstances, going to be subject only to the influence and views of her mother and in the event that the mother is inclined to a deliberate programme of alienation, then she will be afforded additional opportunity for that to occur.  Equally though the Court needs to be alert that even though on the last occasion the allegations of the mother were without foundation, it needs to retain an open mind as to the possibility of abuse by the father subsequent to the Orders of 24 September 2003.  Whilst it may well appear on the face of it that the allegations are at the less serious end of the scale, any allegations of sexual abuse are matters of serious concern to the Court and require the Court’s caution.  There is certainly some prima facie evidence that the father may lack the capacity to exhibit appropriate sexual boundaries with his 11 ½ year old daughter.  The evidence may well not ultimately support that but at the present moment, harsh as it may be for the father, it is necessary to decline his application in that regard.

2. Given what I said about the Court’s awareness of the detrimental impact of delay upon re-establishing and reinvigorating any relationship between the father and N, I intend to refer the matter immediately along a trial pathway. 

3. Counsel for the father also raised concern that the Representative of the Minister was appearing having not yet made a determination as to whether or not the Minister was going to intervene.  I had undertaken some preliminary analysis and review of the law in that area and on that preliminary basis and without having had the benefit of argument, I am satisfied that at least for a time it is appropriate to permit the Minister through the Minister’s representative to appear as amicus curiae.  That may change at a later stage but certainly it is appropriate in my view for that position to continue until a formal determination has been made by the Minister as to whether or not the Minister will intervene.

4. The remaining issue is as to whether it is appropriate for me to order that the child undergo further counselling.  The father promotes a counselling regime which is designed to re-establish and reinforce his relationship with the child.  The preliminary indication from Ms J’s report is that such an exercise is not likely to be productive as it is directly contrary to a view expressed by the child about such a process.  However, in seeking to balance the history of the matter where the mother’s allegations in the past were unfounded as against the need to protect N, it is my view that it is appropriate to prepare the ground for possible counselling between N and her father.  In my view that would be undertaken by ordering that the child undergo some counselling informing her of the possible future programme of counselling for her and the possible future outcomes for her and to be able to determine what her reaction to that might be. 

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: