Littlefield & Pemble
[2023] FedCFamC1F 355
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Littlefield & Pemble [2023] FedCFamC1F 355
File number(s): HBC 275 of 2017 Judgment of: MCGUIRE J Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – PARENTING – Interim application – Where the father has been charged with offences relating to the child – Where the father denies all of the charges – Where final consent orders provide for the father to spend time with the child – Where the mother and ICL seek time be suspended between the father and child – Ordered supervised time between the father and child. Legislation: Family Law Act 1975 (Cth) ss 60B and 60CC Cases cited: Eaby & Speelman (2015) FLC 93-654
Goode v Goode (2006) FLC93-286
Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 5 April 2023 Place: Hobart Solicitor for the Applicant: Litigant in Person Counsel for the Respondent: Ms Dwyer Solicitor for the Respondent: Butler McIntyre & Butler Counsel for the Independent Children's Lawyer: Ms Pagett Solicitor for the Independent Children's Lawyer: Pagett & Associates ORDERS
HBC 275 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PEMBLE
Applicant
AND: MR LITTLEFIELD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
5 APRIL 2023
THE COURT ORDERS THAT:
1.Time for the child X born 2015 pursuant to final orders of 4 October 2021 be suspended.
UNTIL FURTHER ORDER
2.X spend time with the father at the City B Children's Contact Centre or such other Contact Centre that may be immediately available on two (2) hours per fortnight or one (1) hour per week at the discretion of the Contact Centre.
3.Each party shall contact and attend at the Contact Centre within forty eight (48) hours of the date of these orders and:
(a)arrange an appointment for assessment for suitability for supervised time;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre; and
(e)comply with all reasonable requests and direction of the staff of the Contact Centre.
4.If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children's Lawyer has leave to restore the matter to the list on the giving of fourteen days written notice to the other party and to the Court. (liberty to relist the matter to apply twelve months from the date of this order)
5.The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three (3) days notice to the other party and to the Court (liberty to relist the matter to apply twelve months from the date of this order).
6.If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to spend time with X as set out in this order at times nominated by the Contact Centre.
7.In the event that the Contact Centre offers supervised times only at times which are less regular than specified in this order then times will be spent at the times which are offered by the Contact Centre.
8.The father shall not attend the Contact Centre or its vicinity before the time with X is to start and shall promptly leave the Contact Centre and the vicinity when the time with X is to end.
9.The periods of times to be spent provided in these orders may vary by reason of the closure of the Contact Centre's services during holiday periods and in such event, time will be spent at times which the services can be provided by the Contact Centre.
10.The parties shall contribute equally to the cost of the Contact Centre.
11.The Independent Children's Lawyer forthwith liaise with Dr C so as to arrange appointments for X to continue with such frequency being at the direction of Dr C and effectively within the terms of the consent orders of 4 October 2021.
12.UNTIL FURTHER ORDER each of the parents be and are hereby restrained from making appointments for X or allowing other persons to make appointments for X to be seen by any social worker, psychologist or behavioural scientist including school counsellors without the express consent of the parents and the Independent Children's Lawyer.
13.The father be and is hereby restrained from attending X's school.
14.Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
15.Pursuant to s.91B of the Family Law Act 1975 (Cth), the Secretary of the Department of Communities Services is requested to intervene in these proceedings.
16.The father make, file and serve an initiating application in proper form within fourteen (14) days of the date of this order but be relieved from filing a further affidavit in support together with a notice of risk.
17.The mother make, file and serve a response in the proper form within twenty one (21) days of receipt of the father's application but be relieved from filing a further affidavit.
18.The parties or either of them or the Independent Children's Lawyer have liberty to relist the matter on short notice before a Judicial Registrar of this Court for directions for trial or otherwise.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Littlefield & Pemble has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCGUIRE J
BACKGROUND
In the matter of Pemble & Littlefield these are parenting proceedings in respect of the parties’ one child, X born 2015, X is just seven years of age. With some convoluted filing process, the applicant today in an interim application is the mother. She seeks an order that time for X with the father be effectively suspended, in circumstances where in early October 2021 there was a trial of this matter, with the major issue being allegations through the mother, that the child had made statements consistent with being sexually abused by the father.
The trial did not proceed to its logical conclusion. It resulted in consent orders before the evidence had been concluded, whereby the mother consented to orders, against that background, that the father spend time with X. Since then there have been according to the mother further statements made by the child consistent with sexual abuse by the father, statements had been repeated to a school teacher and within the investigation by Police, resulting in the father being charged with four counts of sexual assault. That is the essence of the mother’s application, that the father presents as an unacceptable risk, including I assume emotionally, by reason of any form of contact with the father, as well as physically, obviously.
The father’s position, as I understand it, is that firstly, he disputes the allegations, and further suggests that any statements that have been made by the child are manipulated, fabricated, coerced or induced by the mother, thereby making his own allegations of child abuse on an emotional sense by the mother, and where the mother presents as an unacceptable risk. Nevertheless, in facing the charges that he has, and obviously with the benefit of some learned legal advice, the father takes the position in the interim, without any admissions, that he would submit himself to supervised time with X. He proposes a lay supervisor who is his friend. That person has provided an affidavit[1], a Mr D.
[1] On 20 March 2023.
The Court has the assistance of an Independent Children’s Lawyer, who was not the Independent Children’s Lawyer at the original trial. Ms Pagett, the Independent Children’s Lawyer, supports the mother’s case as I understand it, primarily on the basis that the child is a complainant in the criminal matters and may be obliged to give evidence against the father, and any form of contact with the father in the interim does not sit comfortably with that status. It was mentioned the testimony of the child being hindered or tampered with, but that has not been pursued. That is a situation that confronts the Court in respect of X. The alternative I should say, on the father’s case, is that his time be supervised professionally by a contact centre, which has happened previously with various amounts of success.
THE RELEVANT LAW
The orders that the Court are to make are parenting orders and that being the case the Court is to have X’s best interests as its paramount consideration. In determining those best interests, I am mandated to reference the probative evidence such as it is at an interim stage of proceedings, to the numerous factors set out at section 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) against the background of the objects and principles of the legislation set out at section 60B.
The primary position that the Court faces, is a conflict between the primary considerations at section 60CC(2), which at subsection (a) provides that the Court is to make orders which benefit children having meaningful relationships with each of their parents, and at subsection (b), where the Court is to make orders which protect children from abuse or family violence. Hence, the direct conflict of what are often called the twin pillars of that part of the legislation. Relatively recent amendments to the Act at subsection (2A) of 60CC(2) provide that the Court is to:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I acknowledge those amendments. I should say for the benefit of the parties who have endured a trial before, at least to an aborted stage, that this is an interim hearing. It is an entirely different creature. As indicated to the mother, who appears without legal representation this morning, an interim hearing is an abridged truncated form of process, necessary often to stabilise a child’s parenting and living circumstances prior to a full-blown trial, which would then have the forensic advantages of preparation, where witnesses are tested by cross-examination. That process is not available to the Court today.
As I said, it is truncated, the hearing is conducted on the face of the documents, but still subject to the legislation and the process well-articulated in the decision of the Full Court of the Family Court, as it then was, in Goode & Goode [2006] FLC 93-286, but effectively, a judge is not able to make findings of disputed fact and credit where the evidence is not tested by cross-examination. Nevertheless, the authorities such as Eaby & Speelman [2015] FLC 93-654, provide that a court, perhaps often, should be less than cautious given the limitations, and might be required to make determinations so far as they can, in circumstances such as those that present the Court today.
THE MOTHER’S CASE
As I have said, the mother’s case is that her daughter has made statements consistent, which may be where it is consistent with acts of sexual abuse, to her, a schoolteacher and an investigating police officer, resulting in charges for the father. Those charges are at an early stage. There has not been a committal to the Supreme Court, if indeed that would happen. I can perhaps take judicial notice of the fact that the proceedings in the State Court will occupy some considerable time, and if I accede to the mother's case that would cause a cessation of X’s relationship with her father for that considerable time. X is seven years of age, the Court recognises the importance of frequency of contact for young children with their parents, but nevertheless, I have to take into account the protective concerns aired by the mother.
THE FATHER’S CASE
The father’s position, not surprisingly, is perhaps more adventurous in the seeking of supervised time - not supervised time itself, that is a conservative approach - but to seek that a layperson be the supervisor. As I indicated to the father’s counsel, particularly where that person is not at court but I have read the person’s affidavit, that person’s altruism is respectfully accepted as being a person willing to assist his good friend in the supervision of his child, but frankly, naïve in its application to this Court, where the position of a supervisor is an onerous one requiring undertakings, at least by me, to the Court, where the ramifications for breach can be serious, including the imposition of a term of imprisonment, and I would not consider making an order for a lay supervisor in the terms suggested in the context of the issues before this Court.
The backup position of the father is that his time with X be supervised. The implication that I take from that position is that, that would serve to protect the child against the allegations made through the mother. It may also serve to protect the father from any further allegations made, where he suggests that the applications are without any basis and in fact, goes on to say that the allegations may have been manipulated or fabricated through the auspices of a seven year old child. As I said earlier, the father quite candidly puts the position himself of unacceptable risk by way of a false allegation of child abuse.
It is a given and well recognised by the authorities, that the Court has the benefit of tools such as supervision, and professional supervision by well-established bodies such as contact centres, which can serve to both maintain a relationship for a child and protect a child from further instances of the allegations that might yet be untested.
THE ICL’S CASE
The Independent Children’s Lawyer urges the Court to suspend the orders which provide the father with ongoing contact for X. The Independent Children’s Lawyer has spoken with X, whose immediate response upon meeting the Independent Children’s Lawyer was to say that she did not wish to have contact with her father. I make no findings in respect of that statement by the child, except to say that it may well serve to assist the case of the father as well as the mother, when fully investigated.
Similarly, I am given a chronology which I must take into account, and that is Ms Pagett, the Independent Children’s Lawyer, made an appointment to see X at her school with approximately seven days’ notice, and the chronology that I am given is that with the parents having notice of that pending appointment, X apparently made a statement to the teachers consistent with her being sexually abused, two days before the appointment and five days after the notice had been given of the appointment. Again, that is a matter that I cannot follow to reach any conclusions this day, but it is a matter that may well be of assistance to the father when this matter is forensically investigated.
I can understand the concerns of the mother and of Ms Pagett in respect of the child’s statements that she is fearful of the father and does not wish to see him, as grounding their positions that X should not see her father. Nevertheless, X is just seven years of age, she resides with her mother, and despite the statements made by Ms Pagett as to the child’s maturity, the fact remains that at seven years of age, I can place little weight on the asserted preferences and views of a seven year old child, within the context of the adult dispute that not only confronts the Court now, but has effectively been ongoing for a number of years. Nevertheless, the views of the child are something I need to take into account.
FINDINGS AND CONCLUSION
The ultimate decision for me rests, as is common in an interim hearing, with the balancing of the primary considerations at subsections (a) and (b) of section 60CC(2) of the Act, again with reference that I am to place greater weight on the protective considerations at subsection (b). I repeat, this is a matter where there has been consistent allegations through the mother that her daughter has been sexually abused, those allegations were given the opportunity for a full forensic trial in 2021. For reasons best known to herself, and I do not need to know the reasons, the mother chose to effectively end that trial without completion of the evidence, and consented to orders which would give time for the child with the father.
It is unfortunate and remains to be tested why those allegations have been resurrected, but I do have the benefit of some evidence of a more objective forum in the nature of a letter or report from Dr C of 13 December 2022. As I say, this is evidence objectively from an expert in his field appointed by way of the consent orders of 2021, and where I can reasonably, on consideration, assume that the letter is penned with Dr C’s knowledge of the current allegations, where he says at the last paragraph:
Whilst I cannot make comment about the allegations, I can note that there are strong positive elements in the relationship between [X] and her father. It is important that the allegations be investigated, but I believe -
Having been told, and I accept from the bar table, that Dr C was provided with notice of the current allegations by a letter of some four or five days prior to his report, I can comfortably conclude that Dr C penned this report with full knowledge of the current allegations.
There is material in this report that is independent and objective which assists me in my determination today. Dr C says that he has the reports of Dr E, a well-known psychologist, Dr F, a psychiatrist well experienced in giving evidence to these Courts, and the Court orders of October 2021. Dr C says:
In my sessions with [X] she has not disclosed any inappropriate behaviours by either parent, and… gave detailed descriptions of positive events she had experienced with each parent. I decided to have each parent do a structured task with [X] whilst I observed. This appointment was 28 February 2022.
As I had observed previously, with [X] on her own, I noted that [X] felt comfortable with each parent. She appeared relaxed in their company and was able to speak about general matters, such as school and friends… My conclusion was that the source of [X’s] discomfort was the tension between her parents.
I am cherry-picking pieces of Dr C’s report:
After my return, I was advised by both parents about current allegations.
When I met with [X] and her mother [X] expressed the view that she did not want to talk about her father. Given our previous discussions, I was happy to comply. In the company of her mother, she seemed somewhat more nervous than previously, but was able to give a positive description of herself and her current circumstances and maintained a positive focus.
It eventuated that there was to be a further appointment, or appointments, for X with Dr C. The mother again, for reasons best known to herself, cancelled those appointments or effectively ended the relationship with Dr C, and the mother now makes an application for a substitute counsellor or psychologist to attend with X. I give some considerable weight to the independence and objectivity of Dr C’s reports, and his observations in circumstances where the mother and the Independent Children’s Lawyer say that they have observed or heard statements consistent with fear and reluctance in this child.
I repeat that I have some concerns as to the chronology reported to me by Ms Pagett, which if I have got it right, was that Ms Pagett had made an appointment with seven days’ notice to see X at her school, and two days before that appointment and five days after the notice, X apparently made a statement to the school consistent with what she had told her mother. That is a matter for forensic investigation. In all of the circumstances and where the consent orders of 4 October 2021 served to establish and hopefully maintain a relationship for X with her father, and where I am certainly aware of the nature of the allegations, and that the continuation of a relationship for the father with the child might have some potential emotional ramifications for the child, I place greater weight on the fact of the continuation of X’s relationship with her father.
I am satisfied that X can be protected by the imposition of supervised time at a suitably qualified contact centre, and I will order accordingly. In respect of the issue with Dr C, Dr C was the practitioner agreed by the parties by way of the consent orders of October 2021. I have some doubt as to the voracity of the mother’s application now to replace Dr C with another practitioner, in circumstances where Dr C’s report may not be seen as assisting the mother in her case, and in any event, it would not be in the best interests of a seven year old child to be shopped around various practitioners of that type, and where it is important for relationships to be developed between a practitioner and a child, but where a child should not be interviewed unnecessarily by a plethora of practitioners.
In respect of the issue as to whether X should be seen by the Sexual Assault Support Service I am of the view, consistent with that of the Independent Children’s Lawyer, that should not take place. Firstly, where X will already have the benefit of a very experienced practitioner in Dr C where she has an established relationship, and secondly in circumstances where the father, albeit charged with serious offences, denies those offences and where the effective postmodernist methodology of the Sexual Assault Support Service would be to assume his guilt in the sense that the child has been sexually abused, that can be potentially false and entrench views in the child. I am not of the view at this stage at least, that would be an appropriate service for X to be engaged with, so I will make the following orders.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 5 April 2023
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