L and B - [2003] FMCAfam 211

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & B

[2003] FMCAfam 211

FAMILY LAW – Children – contact – interim orders – suspension of contact – allegation of sexual abuse – best interests of child.

CHILDREN – separate representative – abuse allegation – child aged 3 years 10 months.

Family Law Act 1975, ss.68F, 68L, 97(2)

B and B (1988) FLC 91-978
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant:

KML

Respondent:

SWJB

File No:

PAM 307 of 2000

Delivered on:

23 May 2003

Delivered at:

Parramatta

Hearing date:

23 May 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Lapthorne

Solicitors for the Applicant:

Broun Abrahams

Counsel for the Respondent:

Mr Campton

Solicitors for the Respondent:

Matthews Folbigg

ORDERS

That the matter will be adjourned until 9.30am on Friday 13 June for further mention before me.
I direct that the respondent is to file and serve a response and an affidavit stating the facts upon which he seeks to rely by 4.00pm on Friday 6 June.
I further grant leave for the parties' solicitors to approach my Associate for leave to serve short notice of any appropriate subpoena.
Until further order the orders for contact made on 3 July 2001 and varied by the orders made on 29 November 2002 are suspended.
I order that neither party is to discuss these proceedings with the child in any way.
I grant liberty to apply on 48 hours notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 307 of 2000

KML

Applicant

And

SWJB

Respondent

REASONS FOR JUDGMENT

Application

This is an application which has been brought on at very short notice. Indeed, I note that the application and the affidavit in support were in fact only filed yesterday. The affidavit having been sworn the day before. Indeed the matter did not even appear on my list yesterday afternoon when the file was brought to my chambers and added to the number of matters waiting there after I got out of Court yesterday afternoon.
It is quite clear therefore that the respondent has had very little time to respond to this application and it is hardly surprising that he would react to the application the way described by his counsel. The allegation is a grave one. It is for that nature that I have taken the step of exercising the Court's power under section 97 of the Family Law Act to close the Court and indeed it is the only time that I have had recourse to do that, to take that step for a considerable period of time.
I note that this is a matter where there is a considerable history. There have been proceedings between the parties over the last couple of years and indeed orders were made by consent varying contact arrangements on 29 November last year. Those orders were made by consent before me.
I note that it is put that the father is intensely critical of the mother's attitude to contact and indeed charges that she will engage in any course available to her to in fact frustrate the child's contact with the father. There is a considerable degree of criticism of the process that is said to have been adopted by the mother set out in some detail in paragraph 12 of the affidavit which goes for a number of pages and is in fact a verbatim transcript.
There is criticism of the mother's leading of the child to describe certain things and it would be fair to say that such evidence dealt within a Court having jurisdiction to hear matters under the New South Wales Crimes Act for instance would face serious submissions that such evidence should not be admitted and indeed there is a body of evidence relating to such matters, certainly going back to well before the notorious Mr Bubbles case a number of years ago.
The matter has been referred to the Department of Community Services. There is affidavit evidence of a notification. I have been informed by Mr Lapthorne of counsel from the Bar table today that there have been some inquiries made and indeed he tells me that his own instructing solicitor has made inquiries from the Department of Community Services as to the progress of any investigation. The only information to hand is that the file has gone from one office to another.
Unfortunately this is not uncommon when dealing not only with the New South Wales Department of Community Services but its counterparts in other states. They are all extremely busy with large numbers of notifications and my own experience of the Department of Community Services indicates that it is still considerably under-funded and under-staffed for the work load that it has.
At this stage, apart from submissions through his counsel, the respondent has had no opportunity to put before the Court material that he would seek to rely on in reply to this extremely serious allegation. Obviously he must be given that opportunity and indeed I will be over the period of an adjournment I will be giving him an opportunity to do so because the matter will be adjourned until Friday 13 June and I informed that a response and an affidavit setting out the facts can be filed by 4.00pm today fortnight, Friday 6 June. I have also indicated that I will be giving leave to serve short notice of subpoenaed material. Certainly, it seems to me to be appropriate but whilst I have not canvassed this with counsel that I should make an order that the parties are not to discuss these proceedings with the child concerned.
I am also of a view that because of the very nature of this matter which I do regard as serious, that I should grant liberty to apply on 48 hours notice so that for any reason the matter could come back before me a lot earlier than the three week adjournment that is contemplated.

It may not be necessary but I believe that it would be of assistance to the legal advisors for both parties to have that facility available to them.
That gets us to the point as to what order I should make relating to contact in the meantime. I am asked by the applicant to suspend the father's contact orders between now and when the matter is next before the Court. Obviously that is opposed by the father.
The two other options are either that I make no suspension or variation of the orders and leave the contact as is or that on an until further order basis that I introduce a form of supervision of contact.
I am of course governed by the imperative, the golden thread perhaps of parenting proceedings to act in the best interests of the child. I am urged in fact to act in the best interests of this child by erring on the side of caution. I could indicate at this stage that I would not be at all satisfied that I should make no order relating to the variation or suspension of the contact in the meantime. I do not consider that the seriousness of the allegation and I stress that it is an allegation would allow me to take no action. The choice therefore is between the suspension of contact or contact under supervision.
It is relevant that the current orders involve weekend contact and indeed there would be not only contact this coming weekend but there would be another weekend that would be missed out and there is also a couple of Wednesdays. That would clearly have some disruptive effect on the child, it could also have a disruptive effect and a highly distressing effect on the father and indeed on the father's family.
At this stage, as Mr Campton pointed out, the father has not had the opportunity to do a great deal to put together any options, a wide range of options for supervision of contact if that were a path that the Court chose to take. Needless to say he suggests his parents or suggests his sister and brother. These are opposed by Mr Lapthorne for the mother.
At this stage, without referring to any specific authority, I am mindful of the fact that in circumstances where there are allegations of sexual abuse of a child that the Full Court of the Family Court has expressed the view that supervision of contact by another family member is often not desirable when one considers the best interests of the child is concerned. As I say, I cannot recall offhand the name of the authority but that is my understanding of the current thinking of the Full Court of the Family Court but I stand to be corrected.
At this stage I would make one other comment. I note that

Mr Lapthorne of counsel has referred to a statement that appears in the applicant's affidavit as having come from the child that the parental grandparents have been present at the time of some untoward behaviour and on page 6 of the affidavit the child is reported as saying, and I quote:
Granny and Gramps say "Stop that Stuart" -
And the mother asks him:
Then what does he do?
And the child says:
He still does it.
Now, looking at that description on paper and I note of course that that is entirely untested I would have to say that it is perhaps an astonishing description and indeed it is a matter that would need to be tested by the proper process of the Court before a Court could be satisfied on the applicable evidentiary standard that what appears to be the meaning of that statement were in fact true. Of course we do not have the facilities to do that and we are not going to have the facilities to do that, not in this Court in the next three weeks. That does not mean that such a thing could not take place but at this stage that remains an allegation which on the face of it would certainly require some proof in the appropriate way.
That is probably small comfort I would have thought to the paternal grandparents at this stage. I understand that they are present in Court and waiting outside and could give evidence if required.
The view that I have reached after considering the evidence and I can assure the parties that I read through the material quite thoroughly before I left here yesterday evening and I have reminded myself of it this morning, is that whilst it will be painful for the father, at this stage the decision that I have come to is that I should suspend contact until further order. I note that it is proposed that investigations will take place between now and when this matter next comes before the Court and I have provided that the matter can come back before me at short notice.
I would indicate that once there is material available from the Department of Community Services that I will most certainly revisit that situation and I doubt if the applicant would think otherwise, but at this stage taking a conservative view and perhaps erring on the side of caution I am of a view that at this stage I should make an order suspending the contact orders until further order and the matter will be back before me on 13 June.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 13 June 2003