EVANS & SIMMONS

[2009] FamCA 1117

FAMILY COURT OF AUSTRALIA

EVANS & SIMMONS [2009] FamCA 1117

FAMILY LAW – CHILDREN – interim proceedings – Magellan – best interests – where allegations have been made that the father has sexually abused one of the children – where allegations of alcohol abuse and mental ill health have been made against the mother – order for the child to be interviewed pursuant to s 11F of the Family Law Act 1975 – matter adjourned

Family Law Act 1975 (Cth) ss 11F, 60CA & 60CC

APPLICANT: Mr Evans

RESPONDENT: Ms Simmons

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 3513 of 2009

DATE DELIVERED: 11 NOVEMBER 2009

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 11 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR EID
SOLICITOR FOR THE APPLICANT:	ANN JOSEPHSON LAWYERS

COUNSEL FOR THE RESPONDENT:	MRS LINDSAY
SOLICITOR FOR THE RESPONDENT:	VOUMARD LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR KENT

Orders

1. Further consideration of the proceedings be adjourned to 12.30 pm on Tuesday 8 December 2009 before the Honourable Justice Burr.

2. The father use his best endeavours to effect the delivery up to the mother of the child C born … September 1995.

3. Pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for the Department for Families and Communities – Families SA be invited to intervene in these proceedings UPON NOTING that in the event that the Minister declines to do so then a representative of the Minister be in attendance on the adjourned date to assist the Court in framing appropriate Orders in relation to the child C.

4. The mother, or any person in whose care C is at the time, do arrange to deliver C to the premises of the Adelaide Registry of the Family Court, Commonwealth Law Courts Building, at 11.00 am on Tuesday 8 December 2009.

5. Pursuant to Section 11F of the Family Law Act 1975 as amended:-

   (a)at 11.00 am on Tuesday 8 December 2009 Dr A do interview C and ascertain, if at all possible, her views, wishes and any other matters of relevance for the consideration of the Court;

   (b)at 12.30 pm on Tuesday 8 December 2009 Dr A do give oral evidence to the Court in order to inform the Court as to the information she gleaned from C and any recommendations she may have to assist the Court in determining the interim issues.

6. On or before 4.00 pm on Tuesday 1 December 2009 the father do file and serve his answering documents.

7. Leave is granted to the mother to file and serve any documents in response to those filed by the father should she be so advised prior to the adjourned date.

8. In the event that either of the parties urge upon the Court the need for C to live with any other person then such other person is to file and serve an Application and supporting Affidavit prior to the adjourned date for hearing.

9. Pursuant to Section 62G(2) of the Family Law Act 1975 as amended a family assessment and report be undertaken to include observed interaction between each of the children C, B born … July 1996, H born … April 1999, T born … March 2001 and K born … September 2002 and each of the said children with relevant adults, such report to be released to the parties and the Independent Children’s Lawyer on or before 4.00 pm on 15 January 2010.

10. If there is no objection, leave is granted to the parties and the Independent Children’s Lawyer to inspect and copy the documents produced pursuant to subpoena directed to the South Australian Police, subject to any privilege claimed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3513 of 2009

MR EVANS

Applicant

And

MS SIMMONS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The Court is obliged to make any decision in a parenting dispute in accord with what Orders and circumstances might best represent the children’s interests and that emerges from Section 60CA of the Family Law Act 1975 as amended.  To try and undertake that difficult task and work out what might well be in the best interests in this case of the child C who was born in September 1995 and who is the 14 year old daughter of the parties, I am obliged to look at Section 60CA of the Act and I also have to consider Section 60CC which divides the matters the Court has to consider into “primary” and “additional” considerations.

2. The two primary considerations describe the difficulties the Court faces in circumstances like this.  The first is:-

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

   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.

   That somewhat encapsulates the issues that the parties have put in dispute before the Court.  On the one hand we have the necessity to ensure that both parents can enjoy appropriate time with C but on the other, in circumstances where C would be safe.

3. The allegations in the documents as against the father raise that issue of safety and whilst the Court undertakes some further enquiries and makes some further Orders to assist in its enquiries then it is appropriate, in my view, for the Court to err on the side of caution in order to accommodate that primary consideration contained in Section 60CC (2)(b) of the Act.

4. To assist the Court in resolving the dilemma thrown up by those two competing primary considerations I intend to arrange for C to be interviewed in a Section 11F environment by Dr A at 11.00 am on Tuesday 8 December 2009. Fortunately the Court’s listings then enable at 12.30 pm on that same day for Dr A to give evidence to the Court as to what C’s wishes, views and other relevant considerations might be.

5. I was keen to try and impress upon the parties that any orders that are made today or indeed any orders made on any subsequent interim or interlocutory basis may not represent the final outcome of the proceedings.  It is a case of the Court doing the best it can in the face of highly conflicting allegations and counter allegations within the context of an extremely toxic relationship which has had its impact upon C and her sisters for many years.

6. The allegations as against the father are of the more serious nature, namely that he has sexually abused C.  The father’s allegations as against the mother are also serious and apart from many other allegations, are recorded as alcohol abuse and mental ill health.  Further tainting the mother’s application is the fact that on a previous occasion she was simply unable to look after C and abrogated her responsibilities in that regard to others.  She now comes to the Court indicating that she is better equipped to care for C but of course that is yet to be explored as these proceedings further develop.

7. The additional considerations contained in Section 60CC (3) in my view do not require me today to undertake a detailed examination and exploration. One of the more critical things that the Court would like to hear is indeed the views expressed by C and that arises under sub-section (a) of those additional considerations. Hence the proposed Order under Section 11F.

8. The other additional considerations which are along the lines of the nature of the relationship of C with each of her parents and the willingness and ability of each of the parents to facilitate a relationship between C and the other parent are indeed the very live issues to which I earlier referred.  There is an enormous amount of conflicting material on the Court file which simply does not make it possible for me to determine which of the parents enjoys the better relationship with C presently and which of them would demonstrate the greater ability to make sure that the other parent remains involved in C’s life.  There is too the importance of sibling relationships between C and her sisters and the numerous other issues that arise for the Court’s consideration under Section 60CC (3).  In my view, apart from my reference to the materials I have before me today, those issues are better left for another day when there is more information available to the Court.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  11 November 2009