McElroy and Trowbridges

[2010] FamCA 166

FAMILY COURT OF AUSTRALIA

MCELROY & TROWBRIDGES [2010] FamCA 166

FAMILY LAW – CHILDREN – interim orders – application by the father for continuation of orders for him to spend time with the children – where the mother alleges that one of the children has made disclosures of being sexually abused – CPS investigation underway – best interests – child has already spent time with father since allegations were made with no concern – proceedings have been discussed in the presence of the child – orders made for the father to have supervised time with both children subject to various protective injunctions

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr McElroy

RESPONDENT: Ms Trowbridges

INDEPENDENT CHILDREN’S LAWYER: J Richard Croft

FILE NUMBER: ADC 2881 of 2007

DATE DELIVERED: 23 February 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dibden

SOLICITOR FOR THE APPLICANT: Aboriginal Legal Rights Movement Inc

COUNSEL FOR THE RESPONDENT: Ms McCappin

SOLICITOR FOR THE RESPONDENT: D’Angelo Kavanagh

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Horvat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER J Richard Croft

Orders

1. During the period of the adjournment the father spend time with both children A and S each alternate Sunday from 10.00 am until 4.00 pm commencing on Sunday 28 February 2010 PROVIDED THAT such time is supervised by either MR D MCELROY or MRS V MCELROY at all times.

2. Paragraph 3 of the order made on 31 August 2009 is continued, being,

   Each parent is restrained and an injunction is granted restraining them from:

   (a)hitting or otherwise physically disciplining either of the children or allowing any other person to do so;

   (b)denigrating each other in the presence of the children or permitting anyone else to do so in the presence of the children;

   (c)consuming alcohol or illicit drugs and from over-consumption of prescribed drugs when the children are in his or her care.

3. All handovers to take place at the home of the supervisors Mr D MCELROY and MRS V MCELROY at … PROVIDED THAT the handovers take place between the mother and one or both of the supervisors in the absence of the father.

4. The Department for Families and Communities – Families SA is requested to prepare a report as to the allegations of the mother contained in the mother’s affidavits filed on 29 January 2010 and 23 February 2010 and as to the allegations of the father contained in the father’s affidavit filed 23 February 2010 and the general circumstances of the children A and S and that such report be filed at the Court by no later than 9 April 2010 and that a copy of the report be provided forthwith to each of the parties and the Independent Children’s Lawyer.

5. The Independent Children’s Lawyer to provide the Flinders Medical Centre Child Protection Unit with copies of the Family Assessment Reports of Dr D dated 24 April 2008 and Dr Q dated 3 August 2009 and copies of all Court Orders made in the Court from the 22 June 2009 and such other affidavits or documents on the Court file as the Independent Children’s Lawyer may be advised.

6. Leave is given to the father to issue a subpoena to the South Australian Police and made returnable before a Registrar.

7. Before the time spent commences the father’s solicitors are to file and serve the affidavit of both proposed supervisors in the usual form indicating their understanding of their role and accepting of their conditions.

8. Each parent is restrained and an injunction is granted restraining them and any of the supervisors from discussing the allegations concerning sexual abuse of A with either of the children or with anyone else in the presence or hearing of the children and they are restrained from permitting any other person to do so in the presence of the children other than the investigators of the CPS Families SA or the South Australian Police.

9. The time is extended for the parties to comply with the orders for preparing the matter for a First Day of Trial to 13 April 2010.

10. The matter is adjourned to 15 April 2010 at 9.15 am before the Honourable Justice Dawe for a First Day Trial directions and further consideration of the interim orders.

IT IS NOTED that publication of this judgment under the pseudonym McElroy & Trowbridges is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2881 of 2007

MR MCELROY

Applicant

And

MS TROWBRIDGES

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter that comes before me today in the anticipation that there would be a first day of the trial in the Less Adversarial Trial process.  The matter was originally placed in the Magellan list of this Court due to allegations which arose sometime ago, as a result of which certain Child Protection Service reports were obtained and family reports concluded. 

2. When the matter came on before me at the end of August 2009 the allegations in relation to the question of the children being at risk of sexual abuse were not proceeded with.  However, in view of the matters referred in Dr Q’s report (concerning the extreme risk to the children if there continues to be the ongoing dispute between the parties) I did not remove the matter from the Magellan project.  The matter then went through the process of being prepared for the first day of trial in the Less Adversarial Trial process with orders being made in November 2009, December 2009, and February 2010 by a Registrar with a view to preparing it for the trial.

3. The affidavit and the application in the case file by the mother on 29 January this year sought orders that the father’s time be suspended.  The affidavit of the mother (which I am told was filed when she ceased to be represented by her solicitor and was unrepresented) is three paragraphs in which the mother refers to A making disclosures regarding allegations of sexual abuse, speaks of the attendance at the police station on 22 January 2010, and says: 

   “The officer on duty stated the children still had to go with their father for their weekend visit as it would be a breach of the current Court order.”

   The affidavit then refers to advice from the Women’s Legal Service and further conversations with the police station on 28 January 2010.  The affidavit then requested an urgent hearing to suspend the current orders pending the completion of the investigation.

4. The affidavit filed by the father today sets out what he says is the sequence of events which involved the mother arriving at the police station later than the expected handover time on 22 January 2010 (when allegations were made by the mother).  There is some dispute about who was present at particular times when discussion took place between the adults, the parties, and some of the children.  However, it is agreed that, following that process and various discussions at the police station, both A and S went for the weekend with their father on 22 January 2010.  They have however, not attended since. 

5. The Court is now informed that the Child Protection Service (“CPS”), Flinders Medical Centre are carrying out an investigation into the allegation that A told the mother (when asked why her vagina was sore) “Daddy sticks his fingers in there.”  The father denies any such inappropriate behaviour.

6. The CPS are now investigating.  I have been told from the bar table by counsel for the Independent Children’s Lawyer that investigations will commence by the Flinders Medical Centre (and the mother has apparently an appointment with the Flinders Medical Centre) in the near future.  I therefore propose to ensure that the matter proceeds on the basis that the Court will request the urgent cooperation of the various authorities in preparing the report so that this matter can proceed to trial at the earliest opportunity, it being clearly in the children’s best interests that all matters are investigated and resolved as soon as possible, not the least of which is the concern expressed by the experts who have had recent dealings with the family.

7. I am being asked today to continue the order that the father spend time with the children.  The father offers his sister-in-law and brothers as appropriate supervisors.  Obviously he doesn’t concede the necessity for the supervision, but it is conceded through his counsel that concerns would be expressed by the CPS, and indeed the Court, if the question of any investigation were to be at risk by the inappropriate influence of the father during periods that he spends time with the children. 

8. This is a difficult matter, particularly because of its ongoing history and the context in which the allegations arose. 

9. The Court is required by the provisions of the Family Law Act, in particular Part VII, to make the order the Court considers to be in the best interests of the children. The provisions of Goode & Goode (2006) FLC 93-286, the Full Court decision, set out the necessity to consider all of those provisions where appropriate. I give consideration to those provisions, and in particular in relation to the presumptions which may apply.

10. However, in this case the significant factors are those which are the primary considerations, namely the benefit for the children to have a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

11. There are serious considerations to be given to many factors involved in this matter, raised to a large extent in the previous reports before the Court which will require to be investigated, including whether the best interests of the children will be promoted by the current arrangements or other arrangements. 

12. I take into account in particular the ages of the children:  A, who is only five, A having been born in January 2005;  and S, who was born in March 2006;  he is now approaching four.  These children are young and however, have for most of their lives been the subject of litigation between their parents. 

13. The report of Dr Q prepared in August 2009 emphasised significant matters including the relationship observed between the children and the father.  I considered many of the matters in dispute at the time when I made the orders of 31 August 2009 which provided for a gradual increase in the time their father spent with the children, such that from October last year the time has been from 6.00 pm on the Friday until 4.00 pm on the Sunday each alternate weekend.  Such time spent was subject to certain conditions.

14. In view of the serious allegation made by the mother it would be normal for the Court to suspend any time spent between the father and the children pending the completion of an investigation.  This however, is not a matter which would fall into the normal category.  Notwithstanding the allegations which the mother says the child, A, made, the children have spent a weekend with the father.  There is nothing on file currently which would indicate there is any specific concern arising out of that weekend.  The parties also appear to have discussed the allegations in the presence of the child at least briefly.  Therefore any risk to the quality of the investigation has already occurred. 

15. The risk to the child being influenced by the mother remains whilst both children remain in her care. 

16. Whilst the parties are in dispute it is not possible to simply remove the children from any influence.  I take into account the availability of a supervisor who has been in Court today and is well aware of the nature of the problem before the Court and the need for the protection of the children from any influence.  I would direct that, before the father spends any time with the children, the supervisors file the usual affidavits in relation to their commitment to supervision and their understanding of the duties of a supervisor. 

17. I have carefully weighed up all of the material before the Court.  In particular I place emphasis upon the need to ensure that the children benefit from an ongoing relationship with their father, and at the same time are protected from any inappropriate sexual, physical, or emotional abuse.  

18. In view of the history of this matter I am satisfied that the best interests of the children suggest that the time spent should continue as sought by the father for a limited period of six hours each alternate Sunday, provided that the time spent is supervised by the father’s brother, D McElroy, or the father’s sister-in-law, V McElroy. 

19. I therefore propose to make orders permitting that to take place and will continue the injunctions made on the previous occasion, together with injunctions restraining the parties and the supervisors from discussing the allegations or these proceedings in any way with the children or in the presence of the children.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  6 April 2010