Harris and Coates

[2012] FamCA 89

FAMILY COURT OF AUSTRALIA

HARRIS & COATES [2012] FamCA 89

FAMILY LAW - CHILDREN – interim orders – where the father seeks to spend time with the children – where the mother alleges that the children were witness to serious incidents of family violence – where there are criminal proceedings pending against the father – where there are concerns about the risk to the children’s emotional and psychological wellbeing if they were to spend time with the father – best interests – where the Court was of the view that it would be appropriate to err on the side of caution – no orders made for the father to spend time with the children.

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

APPLICANT: Mr Harris

RESPONDENT: Ms Coates

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1718 of 2011

DATE DELIVERED: 2 February 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 2 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Eid
SOLICITOR FOR THE APPLICANT:	SPK Legal

COUNSEL FOR THE RESPONDENT:	Mr Richards
SOLICITOR FOR THE RESPONDENT:	Howe Martin & Assoc

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Fuda Duncliffe
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

UPON NOTING that the father’s criminal proceedings are listed for trial on 6 August 2012

IT IS ORDERED THAT:-

1. Further consideration of the proceedings be adjourned for mention / directions / short argument before the Honourable Justice Dawe (Duty Judge) at 9.15 am on Wednesday 15 August 2012, with liberty to the father to apply on seven [7] days notice to the others in the event that his criminal proceedings are resolved at an earlier date or in the event that the report of the children’s therapists is such that the children could benefit from spending time with their father at an earlier date.

2. At regular intervals but at no more frequency than once every two [2] months, the Independent Children’s Lawyer make enquiries of the children’s therapists as to their progress and prognosis and do provide the information so obtained to each of the parties.

3. Just prior to the adjourned date the Independent Children’s Lawyer do secure, file and serve an updated report from the children’s therapists.

4. The parties be restrained and an injunction is hereby granted restraining each of them from discussing these proceedings and any of the allegations which arise in these proceedings or in the criminal proceedings with the children or within the presence or hearing of the children and from permitting any other person to do so SAVE AND EXCEPT for any of:-

   (a)    the children’s treating medical practitioners, medical specialists, psychologists, psychiatrists, counsellors, therapists or the like;

   (b)    any member of the police force, the prosecutions arm or legal representatives engaged in the criminal proceedings brought against the father.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Coates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA  AT ADELAIDE

FILE NUMBER: ADC 1718 of 2011

Mr Harris

Applicant father

And

Ms Coates

Respondent mother

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today adjourned proceedings in relation to three young children J born in August 2004 and aged 7 ½ years, L born in June 2006 and aged 5 ½ years and M born in May 2008 and aged almost 4 years.

2. On 14 December 2011, when considering the various allegations raised by the parties and the issues in dispute between them, an essential element missing was the view of the children’s therapists as to if, and when, they might feel comfortable and secure in pursuing their relationship with their father.  The children are in therapy as a consequence of the findings of Child Protection Services (“CPS”) made in a report dated 6 September 2011.

3. It is the mother’s allegation that the father was particularly violent to her and that had serious adverse consequences for the children.  The actions she took subsequent to separation have led to the father facing criminal proceedings in the context of the allegations of violence made by her.  The relevance for the children is the assessment by CPS that they are likely to have witnessed that violence or, at the very least, are very much aware of violent conduct that existed between their parents whilst their parents were together.

4. I will not iterate at length the findings of the CPS but in short they were satisfied that, and I use their words in this respect, “It seems likely that [J] and [L] have witnessed their father behaving violently towards their mother”.  They then provide a series of dot point reasons why they take that view.

5. Apart from the regrettable consequence for the children of possibly being victims of the violence in the household between their mother and father, if at no greater level than witnessing the violence, they now face the prospect, I am informed from the bar table today, of having to give evidence in the criminal proceedings being taken against their father.  Thus not only have they had to suffer the trauma of the events themselves but the potential trauma of giving evidence in relation to those unsavoury events.

6. The father disputes the allegations of the mother and is concerned as to the findings of the CPS.   His Counsel today quite rightly pointed to a number of areas in which there ought to be some concern about the veracity of the allegations but for now the Court has information from independent sources upon which it should rely when protecting the best interests of the children, that information suggesting that it would be inappropriate now for the father to spend any time with them.

7. The adjournment to today was to secure a report from the children’s therapists as to whether or not they could accommodate any time with their father presently and if need be, supervised time.  The father today advances no position other than that he have supervised time recognising that given the lengthy period of time since he last saw the children, apart from in the environment of this Court during the Family Assessment, it would be appropriate for there to be a very gradual and considered reintroduction of the children to him.

8. The request made of the therapists arose as a consequence of the recommendations of Mr P in his Family Report dated 6 December 2011.  He made two recommendations as a consequence of there not yet being any determination of the allegations of violence made as against the father.  As there are no findings as yet in either the criminal courts or here, then it is his second recommendation that had relevance to my decision making in these proceedings and that is:-

   “If it is found that the allegations made by [the mother] regarding violence by [the father] do not have a sound basis it is recommended that;

   2.In the first instance the advice of the children’s treating therapists is sought regarding a suitable arrangement for the children to begin spending time with [the father].”

9. The report from the therapists is annexed to the affidavit filed by Mr S on 30 January 2012.  There is some dispute between the Court and Counsel for the father as to how the final paragraph of the annexed report from the therapists dated 27 January 2012 should be read but in my view, the summary of their recommendation is to the effect that the children’s psychological and emotional wellbeing could be prejudiced if there was to be any contact, including supervised contact.  It is the position of the therapists that they will know more in 6 months time as to how the children are coping emotionally and psychologically and whether then it might be appropriate to gradually introduce the children to spending some time with their father.

10. In my view, and as expressed by me to Counsel for the father, promoting supervised periods of time between the father and the children in circumstances where their therapists say there is a risk in that process is tantamount to asking me to take that risk with the children’s health and wellbeing and in the event that I get it wrong then seek to redress that situation later.  In my view that is not an approach that represents the best interests of the children, an approach which is imposed upon me by Section 60CA of the Act and by consideration of the various matters raised in Section 60CC of the Act.

11. The two primary considerations are particularly relevant in that context, namely the need to maintain a meaningful relationship between both parents juxtaposed as against the need to protect the children from harm or abuse.   They are the very issues that are being raised by the parties here.  The father points to a number of indicators already that the mother is influencing the children against him whereas the mother, both by action and word, makes it very plain that she is of the view that the children are at risk of harm or abuse if in contact with the father.

12. The second of those primary considerations is confirmed to a degree by the children’s therapists who advanced their view that there is risk of emotional and psychological harm to the children in the event that they are now asked to spend time with their father.

13. As a secondary position Counsel for the father raised the possibility of the Court ordering that the two younger children L and M spend time with the father in a supervised environment, but give J the option as to whether or not he joins his brothers in that exercise.  In my view that, again, is not a child focussed manner in which to approach the situation.  I understand the reason for the recommendation having been made, given that J is the one who has demonstrated the most adverse reaction to the alleged violence and certainly the family dynamic.  However, in my view that thrusts upon a very young boy, namely a 7 year old, the onerous responsibility of making the decision which is a decision to be made by adults.  In having to make that decision, he may be obliged to consider the need to be there to protect his brothers if that is his view of the situation or in any event, a multitude of conflicting views and emotions that would make life very difficult for him.  Thus for me, that is not a solution either.

14. For all of those reasons, but in particular erring on the side of caution in order to protect the best interests of the children which is quite clearly my obligation and my duty, I decline at this time to make any orders that the father spend time with the children even in a supervised environment.

I certify that the preceding fourteen (14) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 2 February 2012.

Associate: 

Date: