Goldman and Goldman (No 3)
[2017] FamCA 677
•27 February 2017
FAMILY COURT OF AUSTRALIA
| GOLDMAN & GOLDMAN (NO. 3) | [2017] FamCA 677 |
| FAMILY LAW – INTERLOCUTORY – Application for an adjournment on first day of hearing– Where there is an active JIRT investigation of the father – Where the mother seeks an adjournment until the JIRT investigation has concluded – Where the single expert report indicates a change of residence should be considered, depending on the truthfulness of the mother’s allegations - Concluded there is urgency and a need for the examination of all issues – Ordered the adjournment application is dismissed | |
| Vasser & Taylor-Black [2007] FamCA 547 | |
| APPLICANT: | Ms Goldman |
| RESPONDENT: | Mr Goldman |
| INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
| FILE NUMBER: | (P)SYC | 3001 | of | 2015 |
| DATE DELIVERED: | 27 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 27 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wearne, Solicitor |
| SOLICITOR FOR THE APPLICANT: | Reid Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Humphreys Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Tiyce & Lawyers |
Orders
The oral application for adjournment made on behalf of the Respondent mother is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Goldman & Goldman (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: (P) SYC 3001 of 2015
| Ms Goldman |
Applicant
And
| Mr Goldman |
Respondent
And
| Independent Children’s Lawyer |
Ex Tempore
REASONS FOR JUDGMENT
This is an application made on behalf of the respondent mother for adjournment of these proceedings. An application was made on very short notice, on 23 February 2017. On the same day the father had an application before the Court in respect of how witnesses should give evidence. The adjournment application was also heard on that day, opposed and refused.
The application is raised again this morning, and I have allowed further submissions on behalf of the applicant mother and responses by the other parties, in the circumstances of the first application having been made urgently, and by telephone.
The decision in Vasser & Taylor-Black
In support of her application the mother, first of all, relies on the authority of a decision by the Full Court of the Family Court of Australia, in Vasser & Taylor-Black [2007] FamCA 547. That was an appeal from a decision of a Federal Circuit Court judge in relation to interim proceedings.
The child in question was subject to Family Court orders which had been made three years previously and in circumstances where an allegation was said to have been made by the child, to the mother, and she withheld the child.
The matter came before the Federal Circuit Court as a recovery application by the father. The circumstances of the orders saw the child spending equal time with each parent, and about to change to weekly time, the child being due to start school.
In the proceedings before the Federal Circuit Court, the father asserted that there was a risk of psychological abuse to the child in the mother’s care and the mother asked for an adjournment to enable the allegation of abuse to be considered by the Joint Investigation Response Team (“JIRT”). The mother sought a short adjournment of the father’s recovery application, and had her own application in the wings for interim residence. The adjournment application was denied.
The Full Court came to the conclusion that there had been insufficient reasons for denying that adjournment application, when it would have required only a short period of time and was in the context of recovery and disputed interim arrangements. It was effectively a fresh application.
The child was spending equal time with both parents and the Full Court considered that the federal magistrate, now Federal Circuit Court judge, insufficiently weighed the consideration in simply refusing the adjournment and making an order that the time for the child with the mother was to be foreshortened and supervised.
In the matter before me, one of the subject children has made a disclosure, it is said, to the mother.
There has been a JIRT interview on 29 September 2016.
There was a visit by the JIRT team to the home on 6 October 2016.
There was a second JIRT interview by the JIRT team on 20 October 2016, where the child is said to have made an allegation or a disclosure.
On 28 October 2016, interim orders were made in this Court by her Honour, Rees J, and the matter came before me on 19 December 2016 for directions.
Not only that, the issue has been referred to the Single Expert, Dr G, who had prepared a Single Expert Report for these proceedings on 20 September 2016; his interviews having taken place on 5 and 6 September 2016. His report was released, highlighting the possibility of emotional abuse of the children by the mother, and raising the prospect, possibly, of a change of residence.
The allegation of sexual abuse raised by the mother, on behalf of the child, came at least by 23 September 2016, before the Court.
The Notice of Risk that was filed on 23 September particularised the allegations as follows:
In September 2016 the child, [C], has alleged that she remembers being asleep in bed and waking up and her father was touching her genital region. [the child] said to the mother words to the effect of, “I remember being asleep in bed and waking up, and [Mr Goldman] was touching me here”. [the child] reportedly gestured towards her crotch region.
Other matters of abuse were raised as follows:
a)Prior to this allegation, the father had previously struck the children. The mother is concerned about the father’s mental health.
b)Also, in paragraph 3A, the father was physically and verbally abusive to the mother during the marriage and after separation.
c)And finally, in section 4, the mother is concerned that the father suffers from a mental health condition. She is unaware as to whether he currently takes non-prescribed drugs, but is aware he was hospitalised for drug-induced psychiatric conditions in about 1998.
The father has estranged himself from the children since separation, and has previously suggested he may relocate permanently to the United States of America.
The parties returned for further interviews with the Single Expert, and that took place on 31 January 2017.
A second report and then a revised version of the second report was released on 8 February 2017. The final paragraph of that report raises an issue which creates urgency, as follows:
This review was broadly consistent with my previous assessment. Should it be held by the Court that the children’s disclosures are factual, the mother’s proposal for supervised contact and ongoing therapy would be in their best interests. If however it was held by the Court that the mother’s allegations regarding the father are not factual, her contribution to the children’s alienation from their father should be regarded as emotional abuse. Should this be the Court’s finding, there was no indication that her attitude or parenting would be ameliorated by therapeutic intervention.
Her approach to the children’s care had alienated them from other sources of support, such as their social network within the school community. In the context of her impaired parenting capacity, there should be serious consideration of a change in residence and temporary suspension of the children’s contact with their mother. The children’s presentation on 31 January 2017 was consistent with a pattern of alienation, which had been damaging to their psychological integrity, emotional stability and self-esteem. The children will require support in such a process. However, it will be inappropriate for therapy to continue with their current therapist.
There was then a recommendation of a particular therapist.
I take the urgency of the possibility of the findings and observations of the Single Expert being accurate as a significant factor in determining whether or not this matter should be adjourned.
The report is only, at this point, four weeks old but the urgency is there and an examination of all issues is crucial. That is the basis of the independent children’s lawyer’s opposition to an adjournment, particularly as the children are almost 12 and nine and a half, respectively. There has been a significant period of separation and there are profound difficulties in the relationship between the children and the father.
I note that subpoenae have issued and been returned in October and December of 2016, in respect of the JIRT inquiry.
I also note that a copy of the report of Dr G, as untested evidence, was supplied to JIRT. I am told that JIRT is aware that final parenting orders are to be heard at this time in this Court, and there is a statement made from the bar table at my request that there had been an indication that JIRT would not supply certain information until the evidence was concluded. I do not take that to mean that JIRT was in any way resisting a subpoena to produce that material when required.
I also note that tendered into evidence, or at least handed up, is a document which indicates that the supervision service, which the mother would consider appropriate in the event that supervised time between the children and their father was ordered will not undertake supervision where there is an active JIRT investigation, and does not accept matters where child abuse allegations have been substantiated.
CONCLUSION
I consider all of those matters, and the competing considerations, are the risks raised by the father in his material, supported by the Single Expert; against the JIRT inquiry not being concluded and the mother not knowing what finding has been made or how to propose appropriate orders. If the matter proceeds it will proceed on the basis that findings on the civil standard will be made.
If, ultimately, JIRT finds that harm has been substantiated but no further step is taken, then the hearing of these proceedings will be a hearing where findings on the civil standard are made, in any event.
If JIRT finds that harm has been substantiated and proceeds to prosecution, obviously there may be applications to suspend the hearing or to suspend any orders that are made after hearing and determination. Of course, if there was a prosecution and conviction, then no doubt there would be fresh applications. It would be inevitable.
One consequence of that is that all parties and the Court would have invested time which may prove to have been not efficacious for the children, because fresh considerations and fresh orders would have to be made, but against the convenience for the Court and the possible risk of costs and other considerations for the parties, there is the possibility that the children are being abused by one parent or the other in the way that the material sets out.
Now is the time, in terms of the freshness of the evidence and the urgency of what is said, and it is on that basis that I decline to adjourn the proceedings.
An order is made accordingly.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 27 February 2017.
Associate:
Date: 31 August 2017
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