Leaton and Tuppahige

[2014] FamCA 342

FAMILY COURT OF AUSTRALIA

LEATON & TUPPAHIGE [2014] FamCA 342

FAMILY LAW – CHILDREN – Interim Orders – previous orders provided for a shared care arrangement – applicant father retained children and sought orders suspending any time children spend with mother – father alleged mother sexually abused the infant children – father repeatedly took children to medical practitioners – orders made for father to deliver up children to mother or a recovery order do issue – children to live with mother until further order.

Family Law Act 1975 (Cth) s 60CC, 61DA

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Tuppahige

RESPONDENT: Ms Leaton

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Reynolds

FILE NUMBER: ADC 865 of 2010

DATE DELIVERED: 16 May 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 16 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Father in Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Read

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Helen McCance

Mr Reynolds

Southern Vales Legal

Orders

1. Interim orders sought in father’s Application filed 2 May 2014 be dismissed.

2. Further consideration of the matter be adjourned to 3.30pm on 5 June 2014.

3. During period of adjournment:-

   a.Order 2 of the Orders made 28 August 2013 be suspended.

   b.The children C born … 2007 and R born … 2009 live with the mother.

4. On or before 10am on 17 May 2014 the father do deliver up the said children to the mother at a place to be agreed upon AND in default of agreement at the Suburb B Police Station.

5. If by 10am on 19 May 2014 there has not been compliance with Order 4 hereof  and the father has failed/refused to deliver up children to care of mother THEN and in such circumstance and upon proof by affidavit of the mother that the father has failed to deliver up the said children as ordered THEN pursuant to Section67Q and Section 67U of the Family Law Act 1975 (Cth) a Recovery Order do issue authorising the Marshalls or Officers of the Australian Federal Police and all Officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia requiring them to:-

   a.Find and recover the children C born … 2007 and R born … 2009;

   b.Return and deliver the said children to the mother at the Suburb B Police Station, D Street, Suburb B in the State of South Australia or at such other place as the applicant mother and the persons affecting such recovery order agree to be appropriate;

   c.Stop and search any vehicle, vessel or aircraft and to enter into any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

6. During period of adjournment and following the delivery up or recovery of the said children the father be restrained and an injunction is hereby granted restraining him from removing the said children from the care of the mother or from the State of South Australia.

7. The mother do file an answering affidavit or affidavits in response to those filed by the father with such documents to be filed by 4pm 28 May 2014.

8. That within 7 days of today’s date the father do file a Notice of Address for Service confirming the father’s residential address at E Street, Suburb F, together with telephone details and email address.

9. The affidavit of the father filed 2 May 2014 be uplifted from the Court File.

10. The costs of the mother and of the Independent Children’s Lawyer be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leaton & Tuppahige 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 865 of 2010

Mr Tuppahige

Applicant

And

Ms Leaton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter of Leaton & Tuppahige comes before me following the filing of an Initiating Application by Mr Tuppahige, (“the father”) on 2 May 2014.  That application seeks both final orders and interim orders, and I will come to those matters shortly.  Unfortunately, the Initiating Application, and some of the Affidavits in support, were not filed on the respondent mother Ms Leaton, (“the mother”) until 12 May 2014.  There may be a good reason as to why that has happened, but the consequence of it is that the mother filed her Response and an Affidavit in support, in anticipation of the generality of the issues that the mother thought the father was raising.  Mrs Read seeks that the mother have an opportunity to provide a more comprehensive affidavit response to the allegations, and whilst to some extent that may or may not be necessary, I am persuaded to give the mother that opportunity.

2. It may be the case that if I find favour with the orders that the Independent Children’s Lawyer (“ICL”) seeks, which is that the children should be immediately delivered up to the mother, the current orders that regulate the arrangements in respect of the infant children of 28 August 2013 should be suspended, or at least the operative parts of that order should be suspended.  It may be that I need to properly see the affidavit response of the mother in order to give proper consideration to the competing interim applications of the mother and the father, wherein they each seek sole parental responsibility, and they each seek a suspension of time as against the other.

3. It may also be, as is urged upon me by the ICL, that there may be the need for the Court to consider orders that would better regulate which of the parties has the responsibility for the children’s health, with a view to resolving, or at least minimising, the opportunity that each of the parties have for these children to be taken to multiple visits upon multiple health professionals.  The infant children involved are C, born in 2007, and C is six years.  R was born in 2009 and is five years of age.  As have been the subject of submissions, the parties resolved, to what was then considered finality, their parenting issues by final orders on 28 August 2013 made by Faulks DCJ.

4. The short summary of those orders is that they are, firstly, comprehensive, but provide for what might be considered a shared care arrangement in respect of the children.  Importantly, there were detailed orders as to what each of the parties could and could not do, to the extent that there has been reference made to health issues, and there were orders that provided for the strict compliance by each of the parties in terms of any issue that affected the health of the children.  The orders provide that the parties both use G Medical Practice, and that the parties are restrained from taking any or both of the children for any medical treatment to any other general medical practice, subject to certain exceptions, namely Professor A, Ms H, Ms I and Ms S.  If there is an absolute emergency then it is permissible under the orders for the parties to take the children to J Hospital.

5. In respect of this application, the father relies upon a number of documents, being, an affidavit of himself filed on 2 May 2014, an affidavit of himself filed on 12 November 2013 of short compass, and an affidavit of a Mr K filed on 5 May 2014.  The father also seeks that the Court have consideration to written submissions which he has tendered this day with the consent of the parties, and I can indicate that I have had regard to those documents.  The mother, as I have said, has only been able to respond in relatively short compass, simply because she had no notice of the affidavits that the father wanted to rely upon, but to the extent that she has, I take into account the matters raised in the affidavit of the mother filed 9 May 2014.

6. Notwithstanding that the matter was dealt with to finality, further proceedings were filed and it is fair to say, without going into the detail of the matter, that there were allegations made of sexual abuse, inappropriate administering of medication and the physical abuse of the children, as alleged by the father, and perpetrated either by the mother or by the mother’s partner, Mr L.  Unfortunately, the father brings these matters to the fore with a document that I can only describe as wholly inappropriate, being the short affidavit filed on 12 May 2014.  This document is unsubstantiated as to the allegations, the matters raised are scandalous, and they are completely disconnected from any matter that the Court needs to consider arising out of the current applications.

7. The summary is that in relation to the mother, the father alleges that she was the subject of abuse, and the implication is, that having been allegedly an abused person, namely a victim, she is then capable of becoming the perpetrator.  The same is said in respect of Mr L, only there the issues are raised as to Mr L’s extended family and a range of inappropriate conduct.  Even were the matters to be substantiated, they would, frankly, not satisfy any test of similar fact, and it is unlikely that they would be of assistance in determining whether or not these children have been the subject of sexual abuse and ongoing abuse as alleged by the father.  The document is scandalous and apart from any other order that I make, I propose to make an order that it be uplifted and returned to the father.  It frankly does the father no credit that he would seek to present such a document to the Court and ask, in all seriousness that those matters be brought to account.

8. The orders that were made which finalised the proceedings on 28 August 2013, were made, as I understand it, after some litigation and a trial.  The second round of proceedings, which were excited by the father’s Initiating Application , were ultimately resolved on 6 December 2013. It is of concern that the proceedings are back before the Court so soon.  That does not mean that the Court is relieved of any obligation to give proper consideration to the allegations that the father makes, and whether, at this stage, they create such a heightened risk that the Court needs to act out of an abundance of caution and in circumstances where the interests of the children must be the paramount consideration.

9. As I will come to shortly, these issues will resonate in terms of a consideration of section 60CC(2) of the Family Law Act 1975 (Cth), where there is a balancing act between the need to promote a meaningful relationship, as opposed and as weighed up against, the need to protect the children in circumstances of violence, neglect or abuse. That, therefore, in terms of this new round of proceedings requires at least some proper consideration of the matters raised by the father and as set out and contained in his affidavit material. The first issue that arises is the circumstances by which the children were not returned to the mother. The father in his principal affidavit of 2 May 2014, refers to the events that occurred on 27 April 2014 at the M Contact Centre, being the handover place as per the final orders.

10. A short summary is that as a result of an attendance by the children on a doctor and a disclosure, the father was concerned that the children may have been the subject of interference by the mother and/or her partner.  It is reasonable to assume that the father relayed some of this information to M Contact Centre and in paragraph 8 the father says this:

    The Contact Centre then advised that they will not be able to facilitate the handover as they felt that the children’s safety was at risk, therefore, they advised me to retain the children in my care and apply for an injunction.  The contact centre have stated that they will be willing to provide their detailed observations of the children’s interaction and behaviour towards the mother during the handovers that have been taking place over past two and a half months upon an order for subpoena.

11. The implication being, that whilst the father may have had his own concerns, it was at the prompting of the officers of the handover centre based on their assessment that the children’s safety was at risk, that they advised him to retain the children in his care.  The mother, in her affidavit at annexure B, sets out a letter from Relationships Australia which is to the contrary.  It refers to the father giving confirmation to the centre that he would not be handing the children over at the contact centre until further notice due to ongoing safety concerns.  The mother was advised of the cancellation and it was the mother who requested that this issue be reduced to writing.

12. When that matter was highlighted to him, the father recognised the difficulty and the inconsistency with the position that he adopts in his affidavit, namely that he was urged and advised to withhold the children from their mother, whereas the letter would suggest something entirely to the contrary.  I am not going to be able to get to the bottom of the matter today, but I am satisfied that the position is not as the father necessarily would have the Court accept, that is, the situation might be different if there was a unanimity of approach by the contact centre and the father’s allegation, but there is not.

13. The problem that this raises, however, is that this is not the only area where the father’s affidavit, when seeking support from other health professionals, is found significantly lacking.  The father caused the children to be taken to J Hospital on what must be considered to be, given the relatively short period of time, a disturbingly regular basis.  A report of 10 January 2014 records a presentation by the father of the children, but in particular C. It was alleged and recorded that the child had engaged in “other sexual play whilst in bath, father concerned”.  There is then a reference to a grievous and serious genetic condition that C has sustained, namely Cri Du Chat syndrome.  The diagnosis was “no illness detected despite patient parent concern”.

14. The focus of the father, as it has been now for a significant period of time, is on the children’s genitalia and the allegation of irritation.  The father alleged to J Hospital that the mother was applying cream to the girls’ genitals inappropriately.  There was no support in the report for the contention of the father, and it is unfortunate that the continued assertion by the father of the inappropriate use of an anti-fungal cream has been a constant and repeated theme by the father, notwithstanding denials and there being no support for the contention of inappropriate application of medication.

15. On 11 January C was again at J Hospital.  This time she was diagnosed with fever.  She was discharged and advised to see the GP early.  I am uncertain why the father would seek to rely upon that attendance but in the affidavit there is reference to it, and I am assuming it is there to establish, firstly, why the child was at J Hospital, secondly, that the mother was called, and thirdly, to support the contention by the father that when the mother attended, the child was in a state of distress.  The child was again taken to J Hospital on 13 March 2014 and the presenting problem was “female pelvis-other pain on micturition”.  The diagnosis was “child at risk”, and that diagnosis was based following a swab that was taken of the child, where there was a presentation by the father that he had noted “white vaginal discharge and pain on urination after visit with the mother”.

16. The father reported that he was concerned regarding abuse by the mother’s partner, previous abuse allegation and that the children were previously removed from mother for two and a half months for similar accusations.  As the history shows that whatever the allegations historically may have been, they did not resonate to a final hearing, the father did not seek to press any advantage that he thought he may have and the evidence to date certainly does not support any contention of trauma to the genitalia.  Indeed, on this occasion, in the same way that there has been the same finding on every other occasion, there was a clear discharge noted that was likely to be physiological, no evidence of trauma, no other evidence of injury.  But in all of this the children have been the subject of repeated inspection, investigation and body sample collection.

17. There is also the very real risk that the father has developed what might be considered an unhealthy obsession about matters relating to the allegations of abuse and the application, as he would see it, inappropriately, of an anti-fungal genital medication. Given their ages and certain linguistic and other difficulties, particularly in respect of the child C, it may very well be the case that the father simply has ignored the emotional fragility of these children and has attempted to engage them in his continued investigation and hunt to find support for his view of allegations of sexual abuse, in circumstances where the father today appears in a state of frustration that he has not been able to find what I describe as, the smoking gun.

18. It is also the case that this issue has been raised by the mother, she has  provided appropriate information.  To be fair to the father, he annexes correspondence and communication between the mother and the father, and in particular at exhibit H of the father’s affidavit, where the mother responds that the child hasn’t had any cream applied to her genitalia since August and there’s no current need, and the child was seen by Professor A.  Everything was fine.  C had a sore.  Mercurochrome was applied.  The father had already been told and there were appointments at the Doctor’s tomorrow.  But the father, with respect, persists, and has persisted, and when that communication is overlayed upon the father’s attendance at J Hospital it is, frankly, a situation where concern must be raised as to whether indeed the father’s behaviour is not the behaviour that is significantly abusive in respect of these children.

19. Indeed, the father seeks to re-litigate and reconsider some old matters, and again, I note further attendances on J Hospital on 29 August 2013, being annexure I, where once again, notwithstanding the history given by the father, there was a diagnosis of “acute vaginitis”, where the child had a mild inflammation of the genital area, “which is probably irritation rather than infection”.  It is, in all the circumstances, a benign issue that affects these children, and not one of sexual abuse.

20. When considering any interim parenting application, I am obliged to have regard to Part VII of the Family Law Act 1975 (Cth), and in particular, in coming to my decision this evening, I am mindful of that which was determined by the Full Court in Goode & Goode (2006) FLC 93-286. I am obliged, although truncated, in interim proceedings to consider the following matters:

    a)I should identify the competing proposal of the parties.

    b)I should identify the issues in dispute.

    c)I should identify any agreed or uncontested relevant facts.

    d)I should consider matters under section 60CC.

    This is not a case where I need to be concerned in respect of any finding of equal shared parental responsibility, or otherwise, in terms of the implementation of section 61DA, because, of course, the mother’s position is that she should have sole parental responsibility and the father’s time should be suspended. The father adopts the same approach. There are current orders in place, in any event, which provide and regulate the arrangements, and the Independent Children’s Lawyer, at this stage, is seeking that I do no more than in effect make orders that would see the children to be delivered up to the mother, but then the father’s time be suspended during the period of an adjournment, in order to normalise and reset, if I can put it that way, the relationship between the children and their mother.

1. So as is always the case in interim parenting issues, I need to consider section 60CC, and I have already made remarks as to the applicability of section 60CC(2) which are the primary considerations. This case, like many cases, involves a balancing of (2)(a) being:

   The benefits to the child of having a meaningful relationship with both of the parents.

   And (2)(b):

   The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   And if I were to find favour in respect of matters arising under (2)(b) then I am to give that greater weight than (2)(a), namely the meaningful relationship provision.  It is therefore a balance.

2. There is clearly a relationship between these children and each of the parties, but that relationship is complicated by the difficult presentation of the children, and what I would now, unfortunately, consider is likely, which is a significantly distorted view of reality by the children, promoted by the father in circumstances where the children have been inculcated in what might be considered his continued search for evidence that supports his contention of sexual abuse by either the mother and/or her partner.  Accordingly, the views of the children are, unfortunately, views that I can give little weight to.

3. One of the issues in circumstances where the children are the subject of multiple investigation and assessment, is that their views become distorted, and that then affects the weight that I can give any such views. These children are very young in any event.  But perhaps the great problem is that if there were to be, in a particular case, any veracity in the matters raised by a child or children, the behaviour that the father has embarked upon has a very real risk of making those assertions, even if there is underlying truthfulness about them, unreliable.

4. The relationship between the children and the mother has, in the current circumstances, been disrupted.  The father has retained the children.  The mother has not seen the children now since 27 April and that is regrettable, and it is difficult to know what the children’s state of mind currently is, but I am satisfied that unless I find that there is something in the father’s allegations which would manifest a finding of unacceptable risk, or that there is something about which I consider there needs to be further exploration in order for the court to be satisfied that such a risk doesn’t exist, understanding as the parties do that the Court takes the most cautious approach when a notice of risk is filed and the allegations of sexual interference and abuse are made.

5. The difficulty is that the longer, in a case that is unmeritorious, that children do not spend time with a parent, especially when the children are young, the more likely it is that the meaningful relationship that once existed is going to be under significant attack and stress.  Indeed, in circumstances where I’m not able to find any favour with the allegations of the father, that means that the real focus must be upon the meaningful relationship between the mother and the children and at the moment there is no relationship.  Again, I consider the father has taken inappropriate steps in relation to the children.  The children have had little communication with the mother and I am at this stage not satisfied that the father has an understanding, willingness or a desire, to respect clearly or entirely, either the orders of this Court or indeed the need for the children to maintain an appropriate relationship with the mother.

6. Ultimately this matter comes down to one of insight, but at this stage I consider that to be absent from the father’s presentation, but it is hoped that he will re-establish an understanding of how his children will benefit from having a meaningful relationship with both of the children’s parents.  I consider that each of the parties, consistent with the previous orders, have the capacity to look after the children in terms of their physical needs, but I am concerned that the father lacks the capacity to understand the emotional needs of the children in terms of their continued involvement in matters of assessment, medical examination and interrogation.  There are no orders in respect of family violence and in any event I have already addressed and have proper regard to issues arising out of the allegations of sexual abuse.

7. So for those reasons, I do not propose to make orders in terms of the interim orders sought by the father in his application of 2 May 2014, which would see the orders of 28 August 2013 be suspended and with the mother spending no time with children and with no order or provision in respect of communication.  I am then left with the current orders and I consider that there is significant sense in the submissions raised by the Independent Children’s Lawyer, that what should now happen is that the proceedings should be the subject of an adjournment, during which time the mother can have an opportunity, if so advised, to file answering material, but that during the period of the adjournment and subject to the delivery up of the children, that the father’s time with the children should be suspended.

8. I consider that there is good and proper basis for that.  The father may well consider that it is a punitive measure.  It is far from a punitive measure.  It is intended to support, sustain and give nourishment to the meaningful relationship that the parties considered was appropriate when the final orders were made, as recently as August 2013, when the father’s last application was dismissed, as recently as December 2013, and in terms of my findings arising out of these interim proceedings, that there is insufficient weight that I can give to the allegations of the father that would disrupt the obligation under the Act to have proper regard to the meaningful relationship between the children and their mother.  That needs to be restored and it needs to be restored as a matter of urgency.

9. So for those reasons I am going to make orders that will see the father deliver up the children to the mother forthwith.  That if the father does not deliver up the children, forthwith, I propose to make orders of recovery that will have effect as and from Monday of next week.  And I then propose to find time in the next three weeks, or so, when this matter can come back before me following the mother filing her answering materials.  During that period I will suspend the operative orders of 28 August 2013.  That the children will live with the mother, and they will spend no time with the father pending further order.

10. I am going to bring this matter back on 5 June which is a fraction less than three weeks.  I have a matter in the morning.  I do not know if it is going to run in the afternoon, but I’m proposing to start this matter at 3.30.pm

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 16 May 2014.

Associate: 

Date:  27 May 2014