ETHEL & DOBBS

[2011] FamCA 110

FAMILY COURT OF AUSTRALIA

ETHEL & DOBBS [2011] FamCA 110

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the mother alleges that the father has sexually abused the child – best interests – where the Court is of the view that a cautious approach should be adopted – orders that the father spend supervised time with the child with the view that supervision be reduced on the adjourned occasion

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

APPLICANT: Mr Ethel

RESPONDENT: Ms Dobbs

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 788 of 2009

DATE DELIVERED: 21 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 21 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Anthony (by telephone link)
SOLICITOR FOR THE APPLICANT:	KPA Lawyers

COUNSEL FOR THE RESPONDENT:	Ms Ross
SOLICITOR FOR THE RESPONDENT:	Moore Law

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

Orders

UPON NOTING:-

(a)that the maternal grandparents are considering the value to them and to the child L of engaging in a parenting course; and

(b)that it is now the intention of the maternal grandparents not to attend future handovers

IT IS ORDERED THAT:-

1. Further consideration of the proceedings be adjourned to 10.30 am on Monday 30 May 2011 before the Honourable Justice Burr, with leave to the legal representative for the father to attend by telephone.

2. Paragraphs 4 and 5 of the Orders made by Federal Magistrate McGuire on 21 September 2009 and as varied by the Honourable Justice Burr on 19 July 2010 be discharged.

3. In consultation with the Independent Children’s Lawyer the mother take immediate steps to enroll in, undertake and complete a post separation parenting programme and do, within fourteen [14] days of the date hereof, file and serve an Affidavit indicating that she has concluded such arrangements with such a course to be undertaken at a time as soon as is possible.

4. Within seven [7] days of the date hereof the Independent Children’s Lawyer do file and serve an Affidavit annexing the addendum report letter from Ms C dated 17 February 2011.

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

1. The father spend time with the child L born … April 2006 from 10.00 am until 5.00 pm on each of Saturday 5 March 2011 and Sunday 6 March 2011 and for the same period calendar monthly thereafter, with all such time to be supervised by either the father’s mother … or the father’s daughter Ms M.

2. All handovers at the commencement and conclusion of each period of time the father spends with L be conducted inside the … Police Station.

3. The father be restrained and an injunction is hereby granted restraining the father from:-

   (a)    consuming any illicit substances for a period of twelve [12] hours prior to any time that he is to spend with L and during any time that the father spends with L; and

   (b)    bathing L.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 788  of 2009

Mr Ethel

Applicant

And

Ms Dobbs

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me a matter which has now become a long running dispute between the parties to these proceedings which were initiated on 3 March 2009.  The proceedings relate to a very young child L born in April 2006 and who will hence shortly be 5 years of age.  The allegations made by each of the parties in these proceedings run the full gamut of allegations that can be made in proceedings before this Court, and particularly proceedings that find their way into the Court’s Magellan programme. 

2. The mother has alleged that the father sexually abused L and as was appropriately the case, the Child Protection Service (“CPS”) then undertook an investigation into those allegations.  Whilst L made no disclosures of abuse upon which the CPS thought they could rely, they were nonetheless concerned about L’s presentation in a number of respects.  They were concerned too about the presentation of the father in a number of respects.  That CPS report then recommended that an accurate view of what may have occurred to L might not be discernable until she grows older.

3. The matter progressed through the Federal Magistrates Court and then, upon transfer to this Court, two Family Reports were prepared by Ms C, the first being dated 11 March 2010 and the second, 13 August 2010.  Ms C observed the difficult relationship between L’s parents which made L’s circumstances even more difficult than might be the case consequent upon the separation of her parents.  However, Ms C was sufficiently impressed with the relationship between L and the father to recommend that the father spend time with L for two days which was to include an overnight period.  In what appeared to be a surprising reversal of her position, Ms C, in her second report, no longer promoted overnight time between the father and L and instead recommended that there be supervised occasions at a Children’s Contact Service (“CCS”).

4. On the last occasion the matter was before the Court I asked the Independent Children’s Lawyer to enquire of Ms C why in the second report she had made no reference to her first report and also why her previous recommendations of overnight unsupervised time between the father and L was now to be reduced to supervised periods at a CCS.  Mr Stephen presented to the Court today a letter from Ms C dated 17 February 2011 in which Ms C made reference to paragraph 9 of the Evaluation Section of her second report and indicated that that was the reason why she had made an amended recommendation.  Paragraph 9 of the Evaluation Section of Ms C’s second report reads as follows:-

   “It is very clear that [the mother] does not want [L] to have a relationship with [the father].  She has been asking for his visits to be supervised for some time and is unhappy about them being supervised by members of his family.   Whilst it may seem a backward step to [the father], a period of supervised sessions at a Children’s Contact Centre may alleviate her anxiety and enable her to realise that {L} has a good relationship with him.  Again, [L] would benefit greatly from not being exposed to [the mother’s] anxiety.”

5. Thus, as it can be seen, the reduction in recommended time was not as a consequence of any concerns that Ms C had about the relationship between the father and L, but rather in order to address and hopefully alleviate any anxiety the mother may be experiencing as a consequence of the father spending overnight time with L.

6. I also ordered, on the last occasion, that the parties attend a relevant parenting programme.  The father has completed his arrangements in that regard and has already attended his first session. 

7. The mother’s anxiety does not appear to have been alleviated despite the amended recommendations of Ms C and her submissions made to the Court this day by her Counsel indicate that she is indeed still struggling with her concerns about her daughter.   Ms C puts it rather more bluntly than that and, as I indicated in the earlier quote, takes the view that the mother indeed does not want L to have a relationship with the father.  All of those matters will need to be explored in the trial of these proceedings where quite clearly the parties will be providing to the Court a significant amount of evidence ranging across allegations of sexual abuse, physical abuse, domestic and family violence, drug and alcohol abuse and psychological and psychiatric issues.  All of those matters will need to be tested at length when the parties give their evidence and are cross-examined, as indeed will be the case with the expert witnesses who are likely to be called in some numbers.

8. However, a document which provides some optimism against the background of that bleak summary is a report from the Anglicare CCS dated 10 February 2011.  The report records some very encouraging times that the father spent with L at that service and the conclusion of the supervisor at the end of each of those visits ranges through “happy” to “happy and relaxed”.  Despite those records of one of the few areas of independent observation and evidence available to the Court, the mother remains opposed to any supervision of the father’s time being lifted. 

9. The father has sought today an order that he spend a Saturday and Sunday each month with his daughter, to include Saturday overnight.  The mother is opposed to that.  The Independent Children’s Lawyer has indicated, in line with some preliminary intimations that I gave, that a gradual approach is still appropriate and would still represent L’s best interests. 

10. It is no doubt a matter of some concern for the father that matters are proceeding more slowly than he would desire but the Court is obliged to consider the child’s best interests as the paramount consideration guiding the Court’s decision, both on an interim basis and when the proceedings finally come to trial, if indeed that is the case. Thus the orders that I make today are not orders that promote the interests of either party, but promote what I deem to be the best outcome for L having regard to all, at times, conflicting material and information being provided to the Court. That obligation upon the Court is of course imposed by Section 60CA of the Act which obliges the Court to then consider all of the relevant matters pursuant to Section 60CC of the Act. Section 60CC is divided into primary and additional considerations. I have had regard to the provisions of that Section in making the interim determination I have today. As will be seen from the discourse today, I have considered, in my view, all of the relevant matters pursuant to those Sections without the need for me to individually identify and then deal with those sub-sections.

11. I deem therefore that it is appropriate that the father spend time with L on a Saturday and a Sunday once per month but not overnight.  I further deem that it is appropriate for that time for now to be supervised by either the father’s mother or the father’s daughter Ms M.

12. It is my intention, unless there is evidence that would suggest that it is entirely inappropriate to proceed in this manner, that on the adjourned occasion the requirement for total supervision will be lifted, with potentially something in the nature of the first hour or so of the Saturday and the Sunday to be supervised and potentially perhaps the last hour on the Saturday and Sunday to be supervised but with the intervening periods being on an unsupervised basis.

I certify that the preceding twelve (12) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 21 February 2011.

Associate: 

Date: