Gillies and Gillies

[2014] FCCA 1191

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILLIES & GILLIES [2014] FCCA 1191

Catchwords:
FAMILY LAW – Interim arrangements for children – children independently represented – allegations of sexual abuse – matters referred to Police and Child Protection Services for Investigation – family report available in anticipation of final hearing – recommendations of report as yet untested – mother seeks suspension of father’s time with children pending outcome of police investigation – father seeks urgent reinstatement of time – independent children’s lawyer seeks transfer of proceedings to Family Court for inclusion in Magellan List – matters to be considered.

Legislation:  
Family Law Act 1975, s.60CA

M & M (1988) FLC 91-979

Applicant: MS GILLIES

Respondent: MR GILLIES

File Number: ADC 2704 of 2013

Judgment of: Judge Brown

Hearing date: 11 April 2014

Date of Last Submission: 11 April 2014

Delivered at: Adelaide

Delivered on: 11 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Richards

Solicitors for the Applicant: Westley Di Giorgio

Counsel for the Respondent: Ms O’Dea

Solicitors for the Respondent: Commercial & General Law

Counsel for the Independent Children’s Lawyer: Ms Lindsay

Solicitors for the Independent Children’s Lawyer: Nicola Atchison

ORDERS

1. The matter be transferred to the Family Court of Australia, Adelaide Registry in the Magellan list and to be listed on a date and time to be advised to the parties.

UNTIL FURTHER OR OTHER ORDER THAT:

1. The orders made on 18 September 2013 pursuant to which the children X born (omitted) 2005, Y born (omitted) 2007 and Z born (omitted) 2010 spend time with the father are suspended.

2. The father is restrained and an injunction issue restraining the father from approaching any of the children or remaining in any place where the children are living, attend school, kindergarten or any other recreational activity.

3. The children X born (omitted) 2005, Y born (omitted) 2007 and Z born (omitted) 2010 live with the mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 2704 of 2013

MS GILLIES

Applicant

And

MR GILLIES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally, immediately following the interim hearing.  Given the controversy surrounding the matter and the fact that the case has been transferred to the Family Court, it is appropriate that the reasons be transcribed and released to the parties.

2. The matter of Gillies is listed before me today.  The parties to the proceedings are Ms Gillies and Mr Gillies.  I will refer to them respectively as “the mother” and “the father”. 

3. The mother was born on (omitted) 1980.  By occupation, she is a (omitted).  I understand that she suffers from a mild cognitive impairment.  The father was born on (omitted) 1973.  He is a (omitted). 

4. The parties met, I think, through their church sometime in 2003.  They married on (omitted) 2005.  They have been separated for a significant period of time and are now divorced. 

5. They are the parents of three children, who are the subject of these proceedings.  They are X, who was born on (omitted) 2005; Y, who was born on (omitted) 2007; and Z, who was born on (omitted) 2010. 

6. As I understand matters, Mr Gillies conducts his (business omitted) in the (omitted) area.  The mother currently lives in the township of (omitted) itself.  She has re-partnered.  Her partner is a gentleman by the name of Mr P, who was born in 1964.  He works at the (employer omitted), where like the mother, he is a part-time (omitted). 

7. The mother began these proceedings last year on 30 August 2013 in the Adelaide registry of the court.  On a final basis, she wishes the three children concerned to live primarily with her.  In addition, she has proposals for the children to spend time with their father regularly on weekends. 

8. She brought her application because, at the time, long standing arrangements for her to spend time with the children concerned had been unilaterally ended by the father.  This is highly controversial so far as she is concerned.  It is her case that, during the parties’ marriage, she was regularly the victim of coercive and controlling behaviour, which emanated from the father. 

9. There is some dispute between the parties as to precisely when they separated, as there was a period of time when they were separated under the one roof.  On one view, separation was in early 2010; on another, it was in July 2012, when the mother finally left the former matrimonial home.  She says she left, on this later date, taking the children with her, and thereafter they had little time with their father. 

10. However, it is common ground that there was an arrangement begun in February 2013, which saw the children living with each of their parents on a week about basis.  The mother’s position is that this was something with which she did not agree, as she did not think it was in the children’s best interests, but which was foisted upon her, as a consequence of the father’s domineering behaviour. 

11. This arrangement came to an end when allegations arose that Mr P had inappropriately dealt with the children concerned.  The inappropriate dealing was said to be sexual in nature.  In those circumstances, on the advice of police and others, the father withheld the children from the mother between 15 July and late August, which, as I say, was the precipitating factor for the mother to bring her application to the court. 

12. It was the mother’s case, at this stage, that the police had interviewed Mr P and spoken with other witnesses and had concluded that the children had not been subject to any criminal behaviour.  Certainly, no charge was to be laid against Mr P.  In those circumstances, she sought the immediate reinstatement of her time with the children and was concerned that the father was intent on undermining her hitherto strong relationship with them, by beating up claims of abuse.

13. The matter came into court on 18 September 2013.  I determined that, given the police had not elected to charge Mr P, it would not constitute an unacceptable risk, to the children concerned, for the week about regime be resumed.  However, I also ordered that the mother be restrained from bringing any of the children into contact with Mr P. 

14. At the time, I was of the view that this was a proportionate response to the degree of risk to the children, which Mr P constituted to the children concerned.  At that early stage, it was clear to me that there was a level of complexity about the case which necessitated that it be heard sooner rather than later.  In these circumstances, I put in place steps to gather further salient evidence and expedite the hearing as far as was practicable.

15. As the parties live in the south east of the state, it seemed appropriate that the matter be dealt with on the court’s regular circuit to Mount Gambier.  With that in mind, the matter was listed on 8 to 11 April 2014 at Mount Gambier.  Currently, I oversee the Mount Gambier circuit.

16. In addition, given that issues of abuse of children had been raised, it also seemed appropriate that X, Y and Z be independently represented in these proceedings and an order to this effect was made. 

17. The children’s representative is Ms Atchinson, who is an experienced family lawyer who practices in Mount Gambier.  She is very often appointed to the role of independent children’s lawyer. 

18. In addition, at this comparatively early stage, it seemed appropriate that there be an independent psychological assessment made of the needs of the children concerned and, particularly, what was the nature of their relationship with each of their parents. 

19. It is, I think, the mother’s longstanding position that issues to do with the parties’ lack of trust with one another; their different parenting styles; and their currently compromised capacity to communicate effectively with one in respect of parenting arrangements for their children; render an equal time regime inappropriate and impracticable.

20. It is also her case that, historically, she has been the children’s main provider of care and, therefore, it is likely to be in the children’s best interests they live predominantly with her. 

21. As I indicated at the outset – and I mean Ms Gillies no disrespect in referring to it – she, it seems, has some form of chromosomal abnormality.  This, as I say, has led to some mild form of cognitive impairment, on her part.  The father place emphasis on this matter.

22. It is his case that the mother has significant psychological and psychiatric deficits.  He asserts also that other members of her family share the same difficulties, particularly the children’s maternal grandmother.  It is, I think, the father’s position that these factors make him the better qualified parent to provide the majority of care for the children concerned. 

23. Accordingly, notwithstanding past care arrangements for the children, the parties agree that a shared care arrangement is not likely to be in X, Y or Z’s best interests.  In these circumstances, both the father and mother assert that he or she is the best placed carer for them.

24. I summarise these matters to give some indication of the complexity of the case.  Firstly, the case began with an allegation of sexual abuse connected with the mother’s partner.  Necessarily and for obvious reasons, the court is required to give close consideration to any allegation of sexual abuse involving a child.

25. Secondly, the mother has made significant allegations of being the victim of coercive and controlling behaviour throughout the parties’ relationship.  In effect, she says she was denied financial autonomy by the father, in the sense that she was denied proper access family resources. She also makes other allegations relating to verbal denigration.  Again the structure of the Family Law Act requires the court to give close considerations to matters of family violence.

26. Thirdly, there are issues raised by the father regarding the mother’s level of psychological functioning and her degree of insight into the responsibilities incumbent on being a parent. 

27. They are just some of the elements of complexity in the matter which were apparent at an early stage and which resulted in a family report being ordered expeditiously and an appointment of an independent children’s lawyer. 

28. The trial scheduled for the Mount Gambier circuit in April, as is apparent from the interim nature of these proceedings, did not occur.  It did not occur because on 16 January 2014, Ms Gillies filed an application in a case.  It is this application to which these reasons for judgement are directed.

29. In her application, Ms Gillies requested that the matter be listed urgently before the court in Adelaide and that all previous orders of the Court be suspended, particularly in respect of the children interacting with their father.  In these circumstances, until further or other order, Ms Gillies sought that X, Y and Z should live with her. 

30. In support of her position, the mother filed an affidavit.  In her affidavit she deposed that disclosures had been made to her and others by primarily Y of some form of sexual abuse.  Those disclosures allegedly took place on the morning of 8 January. 

31. The mother alleges that Y told her last week:

    “Dad videoed me with his iPhone,” to which I replied, “Videoed or photographed,” to which Y replied, “Video.”  I then asked, “Anything else,” to which Y replied, “With no clothes on.”

32. The mother then elected not to inquire further.  She rang the child abuse report line, who advised her to go to the police and seek legal advice.  This advice led to her attendance at the (omitted) Police and a complaint of some form of sexual abuse. 

33. The mother then alleges that Y made further disclosures to her, on 10 January, that she was, again, filmed and allegedly pushed against a cupboard and touched on – and these are alleged to be the words she used – her “fanny” and “bum” by the father.  This led to Y being taken, by her mother, to the (omitted) Hospital, where it is alleged that the child made a further disclosure of sexual abuse to a doctor at the hospital. 

34. The doctor, who is of a mandatory reporter, as I understand it, being a medical practitioner, rang a police officer who came to the hospital.  Ms Gillies has made a formal statement to the police and, apparently, an investigation has been handed by the (omitted) police to Detective (omitted) from (omitted) CIB for oversight. 

35. The matter has also been referred to Families SA.  As a result there is a safety plan in place which requires the mother to isolate the children from their father. 

36. I have subsequently been told that the children have taken part in a forensic interview with the Child Protection Service and those interviews have been forwarded to the police.  But I do not know what the content of those interviews is. 

37. I am also told that the police have attended at the father’s premises and have seized some electronic equipment – a mobile phone or an iPod or something similar.   I am also told by counsel for the independent children’s lawyer, Ms Lindsey that Ms Atchinson has been advised by the police officer concerned that images of the children, in an inappropriate posture or position have been isolated, from the electronic equipment.

38. But I am not informed, nor indeed is the independent children’s lawyer, of what is the nature of those images.  Of course, it is possible, for all I know, that the images were created by one of the children or perhaps by somebody else other than one of the parties concerned or a person associated with either of them. 

39. It is also possibly that when viewed with objectivity, the images themselves are innocent in nature or are of a less serious rather than grossly serious kind.  Again, I do not know.  There may turn out to be some innocuous explanation for what has been recorded electronically, which may demonstrate that what has happened is not in any way sinister.

40. What I do know is that Families SA are aware of the matter and have put in place a safety plan in respect of the children, which involves them not coming into contact with their father.  Further, there is an active police investigation, which includes interviews between the children and appropriately qualified people to ascertain the nature of their disclosures about these matters and their degree of authenticity. Finally, items have apparently been seized from the father, which are apparently incriminating to some degree or other. 

41. Today I am also told that the police investigation is likely to be concluded in about a month and that the police intend to interview Mr Gillies as part of their investigation.  Accordingly, the investigation is far from concluded and has all the hallmarks of being a significant one.

42. There is one other significant piece of evidence available to me at this interim stage.   That is the family report of Mr B, who interviewed the parties and the children concerned prior to releasing his report on 23 December 2013.  The family report was prepared in anticipation of the trial of the matter proceeding in this court shortly.

43. I am told by Mr O’Dea, who is counsel for Mr Gillies, that his client does not accept the rationale or methodology adopted by Mr B in his report.  It is, I think, Mr Gillies’ position that for some reason Mr B is either biased against him or is incompetent in some way or other.  Certainly, it is submitted that Mr B has not been able to pick up what Mr Gillies regards as the obvious manipulation of the children by their mother.

44. In any event, when the children were interviewed by Mr B, X said as follows – she wanted to remain living primarily with her mother and have time with her father.  She suggested a sleepover on a weekend.  She denied any inappropriate touching to her private parts or the truth of a threat allegedly earlier made that Mr P was going to put her in a wheelie bin. 

45. When she was asked one thing she would like the judge to know about her or her situation, she said that Mr P is nice, regardless of what her father thought.  At the time of interview, X was aged about eight.

46. Y was six.  She was described by Mr B as a shy and timid girl, but in Mr B’s professional view, it did not appear that she had been coerced or manipulated.  She was, in fact, somewhat reticent about speaking with Mr B. 

47. In this context, Mr B opined that this may be due to some fear that she may get into trouble later.  The one thing Y wanted the judge to know was that her father had lied about Mr P.  Z, a little girl who has just had her fourth birthday, but was three when Mr B met her, was not interviewed. 

48. The children, when they were observed interacting with their mother, seemed to Mr B to act in an age-appropriate manner, which was spontaneous and respectful to her.  They did not appear to compete with each other for their mother’s attention and Mr B thought Ms Gillies was responsive and animated to their attention.  He certainly did not note any signs of depression in the mother. 

49. With their father, the children were described as being initially pensive, but obviously, from Mr B’s perspective, having a deep level of affection for their father.  In fact, X and Y wrote on a whiteboard in the observation room:  “I love dad.”  

50. However, Mr B was concerned that, towards the end of the observed interaction, Mr Gillies began questioning the children about Mr P and if they had any worries about him.  The children did not answer these questions and Mr B cautioned Mr Gillies about his line of questioning, which he thought was inappropriate and inquisitorial in nature. 

51. When Mr B saw Mr P with the children, he found there to be an appropriate level of relationship between him and the children.  In his evaluation, Mr B considered that Mr P was a positive factor in the children’s lives.  In fact, Mr B thought that Mr P engaged with the children in an age-appropriate, respectful and natural manner. 

52. So I acknowledge that Mr B’s report is as yet untested and it is not beyond the bounds of possibility that he has overlooked something which later proves to be significant or his methodology has in some way miscarried, but at first blush his report appears comprehensive and it adds, I think, to the level of complexity which surrounds the matter. 

53. It remains Mr Gillies’ position, as I understand it, that Ms Gillies, notwithstanding Mr B’s view about the nature of the children’s relationship with their mother,  remains psychologically impaired and depressed and so not properly emotionally available for the children concerned. 

54. In all cases to do with children, I must bear in mind that their best interests are the paramount or most important consideration [see Family Law Act 1975 at section 60CA].

55. Mr O’Dea, counsel for Mr Gillies, has asked me to treat the mother’s application as being an abuse of process.  He, I think, submits that I have an inherent jurisdiction to deal with any abuse of process arising in cases which come before me and I think there is no doubt that this is the case. 

56. His submission rests on the assumption that it is apparent or axiomatic, at this stage, that Ms Gillies’ stance in the matter is coloured or tainted by her obvious male fides towards Mr Gillies.  Essentially she is motivated, in her application to suspend the children’s time with their father, by her desire to pay back Mr Gillies for what she perceives is to be his previous shortcomings and behaviour towards her, particularly in respect of the allegations concerning Mr P.

57. I should also point out that Mr Gillies resolutely refutes any suggestion that he was controlling or violent or coercive towards Ms Gillies during the parties’ relationship, which was one of significant length.  It is Mr O’Dea’s position, thus, that the mother’s application should be dismissed out of hand as being maliciously motivated. 

1. With the greatest respect to Mr O’Dea, that, at this juncture, is not the main issue for the Court, which needs to remain focussed on issues relative to the best interests of the children. 

2. I acknowledge that this difficult issue arises at the interim stage.  As a consequence, I am not in a position to hear lengthy evidence from either of the parties themselves or see them being cross-examined at length. 

3. In my view, there would be no point in having such a length inquiry at this stage anyway, because notwithstanding any findings of fact I might make about the parties themselves, it would remain the case that the police investigation would be outstanding still. 

4. I would not have access to what the children have apparently said in the forensic CPS interview.  I would not have access to these images that are said to have been quarantined on the electronic equipment seized from Mr Gillies’ home. 

5. I am not at this stage assessing whether there has or has not been an abuse of process, in terms of the bona fides of each of the parties concerned.  Rather, as I say, my function is to concentrate on the best interests of the three children concerned, all of whom are young and therefore likely to be vulnerable in the extreme.

6. In this context, I am greatly concerned about the highly conflicted nature of the relationship between the parties.  It concerns me greatly that each party now has made allegations, which can only be regarded as serious, in respect of the conduct of the other. 

7. In those circumstances, it is easy to jump to a conclusion that these proceedings, to use Mr O’Dea’s expression, which is one that I think I have used myself, have become reduced to a  “tit for tat” affair.  This, for what it worth is also how Ms Gillies has described them in her affidavit of 16 January 2014.  That is an ever escalating series of allegations and counter allegations.

8. But, as I have already said on a number of occasions, I have to be careful in cases of this kind.  On the one hand, one’s natural inclination is to think that no person – no parent, certainly – would interfere sexually with a young child. 

9. One’s natural reaction to such allegations could only be horror and disbelief, but the reality is, sadly, that children are very often abused and manipulated and hurt by those who are in positions of responsibility towards them.  For that reason, the Court cannot easily overlook allegations of sexual abuse. 

10. However, regrettably, the fact remains that the parents do make allegations for tactical reasons in conflicted proceedings of this kind.  In addition, they may misconceive a piece of behaviour that, when subjected to objective scrutiny, is innocent in nature.  In all these circumstances, the Court is directed to apply a test which was first propounded by the High Court in the case of M & M. [1]

    [1] M & M (1988) FLC 91-979

11. The High Court recognised that there are risks in severing a worthwhile relationship between a parent and a child, but the risk of a child coming into contact with a person who has abused him or her was far greater.  In those circumstances, the Court is directed not to make orders allowing a person to interact with a child if it is of the view that that such contact would constitute an unacceptable risk to the child or children concerned. 

12. At this stage, the mother has no proposals for the children to spend time with their father in a supervised setting, either professionally supervised or by a lay person. 

13. As I understand things, it is her position that Families SA do not support such an outcome.  In my view, in this case, there is much that I must be concerned about in this particular case, notwithstanding the assertion that the more recent allegation are tactically motivated. 

14. Firstly, there is a disclosure of abuse to a parent.  Secondly, that disclosure has apparently been repeated to lay independent medical person.  Thirdly, there has been a forensic interview of the child allegedly making the disclosures in question.  Fourthly, the police are involved.  Fifthly, they have seized electronic equipment alleged to have depicted the abuse in question. 

15. The important consideration is that the relevant authorities are still investigating the matter and appear to be doing so with rigour.  In my view, those matters, when considered in their totality, support a finding, at this interim stage, that for the children to spend time with Mr Gillies would represent an unacceptable risk that the children might come to harm, which the Court cannot countenance taking. 

16. I appreciate that Mr Gillies is frustrated by the slowness of the process.  He has changed solicitors.  He has engaged Mr O’Dea recently, who has been steadfast in his efforts to secure what he believes is a just outcome for his client. 

17. Mr O’Dea has told me on several occasions that Mr Gillies is innocent of what he regards as scurrilous claims against him which are motivated by the malice of the mother.  He has told me that his client is frustrated by what he thinks is the slowness of the police process

18. In this context, I am informed by Mr O’Dea that his client has made a formal complaint to the superiors of the officer concerned.  But, at this stage, until the police have concluded their investigations, in my view, it would constitute an unacceptable risk if I was to discharge the orders which I made on 19 February 2014. 

19. The independent children’s lawyer who, by statutory obligation, is required to put forward the position he or she believes is likely to be in the best interests of the children  concerned submits that this is a matter which should be referred to the Magellan list of the Family Court in Adelaide. 

20. The Magellan list is a specialised intervention of the Family Court to deal with difficult cases of child abuse.  It represents a multidisciplinary approach to such issues which draws together the police, Families SA and, as appropriate, independent experts.  Clearly, this is a matter which dovetails or falls within the rubric of the Magellan list. 

21. So, for those reasons, what I propose is that the matter be transferred to the Family Court of Australia to be listed in the Magellan list as soon as is practicable on a date to be advised to the parties, but until further or other orders, the orders that were made on 19 February 2014 will continue.  As a consequence it must also follow that an order be made that X, Y and Z should live with the mother until further or other order. 

22. For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  11 April 2014