Leaton and Tuppahige (No. 2)

[2014] FamCA 820

FAMILY COURT OF AUSTRALIA

LEATON & TUPPAHIGE (NO. 2) [2014] FamCA 820

FAMILY LAW – CHILDREN – Interim Orders – where Families SA sought to intervene at the commencement of a contravention hearing – history of notifications and allegations of sexual abuse – where father has retained children contrary to current parenting orders – where mother seeks to enforce existing orders – nature of allegations against mother and/or mother’s partner are unknown – children and parents to be interviewed by Families SA – best interests of the children – need to protect the children from harm – orders made suspending the mother’s time with the children during the adjourned period – orders made for the re-appointment of an Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 69ZW, 70NBA

APPLICANT: Ms Leaton

RESPONDENT: Mr Tuppahige

FILE NUMBER: ADC 865 of 2010

DATE DELIVERED: 12 September 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 12 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Stokes

SOLICITOR FOR THE RESPONDENT: Marie Stokes Family Lawyers

Orders

1. Leave is given for the father to proceed today on an oral application seeking orders that orders made 28 August 2013 be suspended.

2. Leave is granted to Ms F who appears for and on behalf of Families SA to intervene in these proceedings NOTING that she may seek on behalf of the Department to withdraw from the proceedings on the next occasion.

3. NOTING the submissions made by counsel for the father and counsel for the Department, the operation of paragraph 2 of the orders made 28 August 2013 is suspended.

4. During the period of the adjournment the children C born … 2007 and R born … 2009 do live with the father.

5. By 4pm on 24 September 2014 the father do file and serve an Initiating Application.

6. By 4pm on 29 September 2014 the mother do file and serve any Response and Affidavit in support NOTING that the mother may have difficulty in complying with this order.

7. Pursuant to Section 69ZW (1) the Court requests that Families SA provide to the Court documents, information or a report in respect of the following matters:-

   (a)Any notifications to the agency of suspected abuse to the child or children to whom the proceedings relate or of suspected family violence affecting the child or children;

   (b)Any assessment by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)Any reports commissioned by the agency in the course of investigating a notification;

   (d)In respect of any investigation of suspected abuse to the child or children, the date upon which such investigation is likely to be concluded.

8. The consideration of the Court pursuant to Section 69ZW (6) namely the question of whether the identity of the person or persons who made the Notification is to be disclosed is a matter for further consideration on the adjourned date.

9. That pursuant to Section 68L of the Family Law Act 1975 (Cth) and on the basis that it appears the interests of the subject children would be properly served by their independent representation, the Legal Services Commission do as a matter of urgency cause the re-appointment of an Independent Children’s Lawyer to these proceedings to represent the interests of the said infant children C and R and to give better effect to the expeditious appointment the father via his solicitor do cause a copy of all relevant documents to be forwarded to Mr P at the Legal Services Commission by 4pm on 17 September 2014.

10. Further consideration of these proceedings be adjourned to Wednesday 1 October 2014 at 9am (1 hour allowed).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leaton & Tuppahige (No. 2) 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

Ms Leaton

Applicant

And

Mr Tuppahige

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 28 August 2013 by consent the parties resolved parenting orders in respect of the infant children, namely, C born in 2007, and R born in 2009.  The tenor and substance of the orders was that the parties had equal shared parental responsibility in respect of the children and that the children spent equal time with the parties.

2. The court file reflects that there has been significant agitation in respect of those orders by a number of applications seeking to change, vary or suspend the parenting orders.  Predominantly those applications have been at the instigation of the father.  I have delivered extensive ex tempore reasons in respect of the manner in which those proceedings have been heard and determined by me.

3. The last such hearing occurred on 16 May 2014 in respect of the application and subsequent dismissal of the father’s application, filed 2 May 2014.  It has some potential relevance to this matter that as part of the orders that were made by me on that occasion the father was required to deliver up the children at a place to be agreed and in default of agreement at the Suburb B Police Station.

4. The matter again came back before me on 5 June 2014, and on that occasion the father’s affidavit filed 29 May 2014 was uplifted from the court file on the basis that it was scandalous.  The Initiating Application of the father filed 2 May 2014 was dismissed, as was the mother’s Response filed 9 May 2014.  The order for the Independent Children’s Lawyer was discharged on that date and all matters were removed from the active pending list of cases.  It was hoped and there appeared to have been some accord by the parties that that would represent a conclusion, at least into the foreseeable future, of the dispute between them.  That has not, however, come to pass.

5. The mother, by contravention application filed 18 August 2014, alleges that the father has breached the order in that he failed to provide the children for handover at the appointed time and place, namely, the M Contact Centre.  That application was supported by an affidavit of the mother and even looking at the application at its most pessimistic, it was suggestive that if a problem has arisen, and irrespective of whether ultimately a contravention was made out, the matter might have been capable of simple resolution by exercising my power under section 70NBA to give effect to an alteration of the parenting orders to clarify the arrangements for handover if indeed the orders provided some level of uncertainty.

6. The matter has come on at short notice, as is, in my view, a proper response by the Court to parenting issues, but in particular a contravention application where the matter involves young children and the assertion or the consequence or the allegation is that one party is now not spending time with a child or children.  The Family Law Act 1975 (Cth) (“the Act”) makes it a requirement that subject to a proper focus in respect of allegations of abuse and the need to protect a child or children from abuse in whatever form that might take, it is an important tenet of the Act that children maintain and have a meaningful relationship with their parents.

7. Any circumstance or situation that sees that relationship disrupted, frankly, requires the court, in my view, to intervene at the earliest circumstance and to ensure that the necessary caution that the court must exercise in terms of the protection of children does not in fact backfire by ultimately rendering a fatal blow to the relationship between a party and their child or children. 

8. At the hearing of the contravention application the father was represented by Ms Stokes and it is her position that she was ready for me to determine the application.  The mother appears self‑represented, but at the commencement of her submissions suggested that her preference was to be represented and that she had made some tentative inquiries as to how that might be achieved.  I think it’s the mother’s position that she is not at this stage eligible for legal aid, or indeed if she has made an application, it has been refused, but she is seeking representation via an appropriate pro bono scheme.  Given what has happened this morning, I can say is that it would be significantly in the mother’s interests to seek representation. 

9. Somewhat unusually, Ms F appears representing Families SA and seeks the permission of the court to intervene in the proceedings, at least for the purposes of this morning’s hearing.  It is unusual for such an application to be made, but obviously the Court welcomes the involvement by the Department and/or by the relevant Minister in circumstances where the Department considers that there are matters relating to the care of children that the Court needs to know and understand.  There should be no suggestion by the Court that Ms F’s involvement on behalf of her client is anything other than entirely welcome and well regarded, if not appreciated, by the court. 

10. Ms F, however, is the harbinger of unhappy news in that she reports to the court – and I accept what she says – that there has been a notification in respect of one or both of these children, that as a result of that notification, she is aware, or at least her client is aware, that the South Australian Police are considering an investigation, that Families SA are also considering an investigation and that they intend to undertake an assessment which will comprise a number of interviews, possibly four in number.

11. I can only assume that all of that investigation is directed towards a significant and serious allegation that these children have been the subject of abuse in the mother’s household, either by the mother, or by the mother’s partner or in some combination.  In stating that, it is not to be understood that I accept the allegation as being true or correct.  I cannot do so.  It is simply an allegation and the very uncertainty in which I make these remarks highlights that all of this is at a very preliminary stage and there is a long way to go before the particularity and detail of these matters is better understood by the parties and the court.

12. But I must accept at first instance there is a live and proper interest that the relevant authorities have taken in the matter, and that they will undertake their investigations in good faith and that there is a genuine concern that these children may be at risk and that there needs to be some further exploration before the magnitude and extent of that risk, if any, can be assessed.

13. The father has not filed any initiating application as yet.  There may be reason why that has not happened, understanding as I do that the allegations have been extant since August of 2014, but clearly the issues have now overtaken what might be considered at first instance to have been a relatively simple and straightforward contravention application, and this matter is now something more significant than that.

14. There has to be some rigour brought back into the proceedings, and obviously the father will need to file his initiating application, and his solicitor indicates that that can be done within the next 14 days.  I propose to make such an order requiring that application to be filed.  The mother’s position is a little different.  I suspect that she will have difficulty, at least in the short term, in obtaining legal representation.

15. And in any event, even if she does, it may be, depending upon when the father’s application can be filed, whether or not she will be able to file an appropriate response and an affidavit in support.  But I will try and craft orders in what will be a relatively short period of an adjournment to see if there cannot be some opportunity for the father to file his application and the mother to properly respond.

16. The mother seeks that there should be the reinstatement of the Independent Children’s Lawyer.  It seems to me, even without knowing the matters raised by Ms F, that such an appointment would be warranted and will be of assistance.  The assistance will cover a number of areas.  The first, obviously, is that the Court is always assisted by the helpful involvement and submissions of an Independent Children’s Lawyer.  That person falls into the unique category of being able to deal with each of the parties, to arrange what needs to be done in terms of reports and other assessment, and ultimately to form a view and make a proper submission to the Court not based upon any bias that either of the parties have towards their own case but, rather, directed towards that which the Court is focused on, namely, the best interests of the children.  The second is that the advent of an Independent Children’s Lawyer may see the Court dispensing with the requirement of Ms F’s client to continue their intervention.

17. I appreciate that whilst Families SA are keen to provide assistance, and that involvement today is welcome, I intend to require Families SA to remain in the proceedings at least until there is a chronology as to the manner in which the investigations are going to go forward.  Once I have that, it would seem to me then that the matters will continue from there and can be dealt with appropriately by the Independent Children’s Lawyer.  So, for the moment, I intend to request that Families SA retain or maintain their current intervention.

18. Ms F also helpfully suggests that it would be appropriate to order that Families SA provide a report pursuant to section 69ZW.  That seems to me to be a very sensible submission, and importantly, Ms F considers that it can be done within the relatively short and truncated adjourned period, that is, between now and 1 October 2014.  I intend to do that.  Without wanting to upset the sensitivities and sensibilities of all involved in the process, I propose to frame the order as a request rather than an order, but the import of it is well understood.

19. There is, however, presently in place an order which is not being complied with.  Ms F makes a submission on behalf of Families SA that they consider that until the investigation that they intend to conduct has concluded, or at least until they have formed a better view of matters, that the children should not spend time with the mother and/or her current partner.  Obviously, at this stage I have no idea of the allegations or against who they are directed, whether they involve the mother, whether they involve the mother’s partner, whether it is a combination of the two or whether the issue is one of failing to protect the children by the mother.  I do not know and I do not think that I am going to know until at least we come back on 1 October.

20. The mother is demonstrably upset and significantly aggrieved by the position that she finds herself in.  Without necessarily knowing what it is about, the mother’s position is that she apprehends this is a further attempt by the father to change the consent parenting orders to the effect that the children would live either primarily or entirely with him and spend little or no time with the mother.  The father’s position is obviously to the contrary and he would say that there needs to be all steps taken to ensure that these children are protected until at least the Court is better apprised of where this is going.  In an ideal world, everybody’s issues and circumstances would be catered for, but that cannot happen in this case.  I must adopt the default position, which is that the interests of the children have to be protected and if that means for the moment that the mother’s time with the children will be suspended until such time as the Court can gain a better and clearer picture, then, tragically, that must be the position that the Court will adopt.

21. The only counterfoil that I can put in place to assist the mother is that I can give her and the parties an undertaking that I will attend to the matter as expeditiously as I can to ensure that the significant concerns that I have already raised are not exacerbated.  That is, if the allegations have substance and are supportive of a finding of unacceptable risk, then that is a matter that needs to be determined sooner rather than later.  If, however, the allegations are not supportive of that contention, then, equally, it is as important that that is understood at the earliest opportunity so that there can be a proper resumption of the relationship between the mother and the children that these proceedings necessarily affect.

22. A difficulty that I have is the manner in which I make a parenting order in circumstances where there is no formal application.  I think I must take the matter either on the basis that I have power under section 70NBA based upon the filing of an application for contravention to consider changes to a parenting order, although that is problematic in the sense of a clear reading of section 70NBA contemplates an interference with a parenting order in circumstances where I might find an application either proved or not, but an application for contravention that is unresolved - it may be problematic as to whether the jurisdiction to consider the parenting orders arises or not.

23. I do, however, have the ability to receive an oral application in respect of the matter and I think it is reasonable from the matters raised by Ms Stokes that I assume her client makes an oral application that sees the operative parts of the order that enable the children to spend time with the mother to be suspended and that the children reside with him during the period of the adjournment.

24. Then, upon noting that there is no objection by counsel for the father, I propose to adopt that approach, that is, for the matter to proceed on an oral application by the father rather than try and manipulate any jurisdiction or power that I may have by the application of section 70NBA based upon the filing of an Application for Contravention.  So, for those reasons, I make the following orders.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on Friday, 12 September 2014.

Associate: 

Date:  29 September 2014