McElroy and Trowbridges (No 2)

[2010] FamCA 427

FAMILY COURT OF AUSTRALIA

MCELROY & TROWBRIDGES (NO. 2) [2010] FamCA 427

FAMILY LAW – CHILDREN – interim orders – application by the father seeking an increase in the time spent with the children – where there are allegations of sexual abuse – best interests – orders made increasing the time that the father is to spend with the children subject to continuing supervision

Family Law Act 1975 (Cth) ss 60CC

Goode & Goode (2006) FLC 93-286
MRR & GR [2010] HCA 4

APPLICANT: Mr McElroy

RESPONDENT: Ms Trowbridges

INDEPENDENT CHILDREN’S LAWYER: J. Rirchard Croft

FILE NUMBER: ADC 2881 of 2007

DATE DELIVERED: 19 May 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D. R. Dibden

SOLICITOR FOR THE APPLICANT: Aboriginal Legal Rights Movement Inc.

COUNSEL FOR THE RESPONDENT: Ms C. O’Connor

SOLICITOR FOR THE RESPONDENT: D’Angelo Kavanagh

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms A. Horvat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER J Richard Croft

Orders

BY CONSENT IT IS ORDERED THAT

1. Leave is given to the mother’s solicitors to issue subpoenas to Families SA in relation to the children of the parties A and S and noting the consent of the mother’s daughter N her records in relation to Families SA and subject to the written consent of the father’s daughter H to include records in relation to Families SA PROVIDED THAT the subpoena is issued within fourteen [14] days and made returnable in the ordinary course of events before a Registrar.

IT IS FURTHER ORDERED THAT

1. Within fourteen [14] days the father’s solicitor to notify the Independent Children’s Lawyer whether the father is consenting to Dr C’s report being received by the Court without the necessity to call him.

2. The mother and father file and serve affidavits of evidence-in-chief of themselves and designated witnesses by 4.00 pm on 5 October 2010.

3. All parties to file and serve final case outlines in particular setting out the final orders they seek by 4.00 pm on 12 October.

4. The matter is adjourned to Thursday 14 October 2010 at 9.15 am before the Honourable Justice Dawe for a compliance check.

5. Matter is already listed for a conclusion of trial for eight [8] days commencing on 25 October 2010 before the Honourable Justice Dawe.

6. Pending the trial in this matter the father spend time with the children A and S from 9.30 am to 6.30 pm each Sunday PROVIDED THAT the father’s time spent is supervised by either Mr D McElroy, Mrs V McElroy, Mr B McElroy or Ms Y McElroy at all times.

7. The time spent to be supervised by the father’s parents not commence until such time as the father’s parents have filed the proposed supervisors’ affidavit in the usual form indicating their understanding of their role and accepting of the conditions of supervisors.

8. All handovers are to take place at the home of the father PROVIDED THAT handover take place between the mother and one of the supervisors in the absence of the father.

9. Paragraph 3 of the orders of 31 August 2009 are continued, being:

   “3.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.”

10. Paragraph 8 of the orders of 23 February 2010 are continued, being:

    “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.”

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. The parties have obviously gathered, from the discussion which has been taking place about the detail with counsel, that I am proposing to make an order in relation to the children spending time with the father, but that the time be increased and continue to be supervised. 

2. This is an interim matter, pending the determination of all of the issues by way of final trial when all of the evidence is tested.  This is a matter which was in the Magellan list, and then removed from the Magellan list, and should, obviously, if it has not been, be put back in the Magellan list, but, in any event, involves serious allegations about the parents' behaviour. 

3. On the mother's side, she is maintaining an allegation that the children are at risk of sexual, physical and emotional abuse in the unsupervised care of the father.  The father is alleging that the children are at risk from emotional and psychological abuse in the care of the mother due to the allegations which have arisen, he says unfounded, about his behaviour towards them.  There have been a substantial number of reports prepared initially in relation to the matter, and, more recently, concerning the allegations the children have made, and the capacity of the parents to provide for the children. 

4. In August of last year, the Court made orders on the basis of the Court's understanding then that the mother was not maintaining the allegations in relation to the risk of sexual abuse by the father.  Those orders provided for, the father's time with the children should be increased over an extended period to such that he was having alternate weekends from 6.00 pm Friday, until 4.00 pm Sunday, with the children. 

5. Further allegations made by the mother again raised concerns about the child making further allegations of abuse by the father.  In particular, the Court has the affidavits of the mother and father about what occurred on proposed handover of the children to the father at the Police Station in January this year. 

6. There is considerable dispute about not only the allegations the child is alleged to have made, but the circumstances which occurred at the Police Station which resulted in the children spending time with the father on that occasion, notwithstanding fresh allegations being raised by the mother. 

7. The Court has also had available to it now the detailed, lengthy report of the Child Protection Service, Flinders Medical Centre from April 2010, following upon further interviews in relation to the allegations, particularly in relation to sexual abuse.  I have been referred by all counsel to the 21 page report of the Children's Protection Service.  It is correct to say that reading certain paragraphs would seem to support the father's case;  other paragraphs would support the mother's case. 

8. At the conclusion of the assessment under the heading of “Opinions and Recommendations” it states on page 18: 

   “At the conclusion of the current assessment, the CPS was of the view that it was difficult to clarify the concerns pertaining to [A’s] experiences, safety and well‑being, but that, altogether, there was little support for the allegations that she may have experienced sexual abuse by [the father].  The acrimony characterising the family dynamics, and the uncontained manner in which [the mother] and [the father] appeared to interact with one another, alongside the significant difficulties [A] experienced in engaging in the assessment process, which were hypothesised to be closely linked with her struggle to manage her difficult family situation, were considered to be the most prominent influences on this assessment and [A’s] predicament.”

9. The report continues, and makes strong remarks about the difficulties that A, in particular, is facing because of what can clearly be interpreted as the behaviour of her parents.  These are matters which can be interpreted both to support the father's case, and, to a certain extent, support the mother's case.  The Court is, however, left with no evidence which would make it easy, on an interim basis, to reach a finding as to the risk to the children, whether in the care of the mother, if she is encouraging false allegations, or in the care of the father. 

10. The authority of Goode & Goode (2006) FLC 93-286 requires the Court to take into account the best interests of the children and the criteria established in section 60CC, notwithstanding the difficulty of making determinations based upon the evidence which is yet to be tested.

11. The primary considerations in relation to the decision about paramount interests of the child are section 60CC(2), namely, the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

12. In this case, it is not necessary to place any emphasis upon the recent High Court decision of MRR v GR [2010] HCA 4, in which reference is made to section 65DAA, because the significant issues in this matter are the need to make a decision which clearly protects the child. There are special circumstances which would not require the Court to consider the reasonable practicality of significant or substantial time, or equal shared time.

13. Taking into account the provisions of section 60CC(2), the Court is of the opinion that, until the evidence is tested in relation to the allegations made concerning the welfare of the children, it is appropriate of the Court to err on the side of caution and make arrangements such that the children continue to have the benefit of having some time with the father, whilst, at the same time, providing some protection, if that were to be deemed necessary, for the children.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  31 May 2010