Meinhardt and Santos (No 2)

[2012] FamCA 722

FAMILY COURT OF AUSTRALIA

MEINHARDT & SANTOS (NO. 2) [2012] FamCA 722

FAMILY LAW – CHILDREN – application by the father seeking variation of final parenting orders – where the mother seeks dismissal of the father’s application pursuant to the rule in Rice & Asplund (1979) FLC 90-725 – consideration of whether there is a likelihood of orders being varied in a significant way as a result of rehearing – whether the nature of the likely changes outweighs the potential detriment to the child of the litigation itself – best interests – where the Court was not satisfied that it was in the best interests of the child to dismiss the proceedings on a Rice & Asplund basis.

FAMILY LAW – CHILDREN – interim orders – application by the father seeking a change in the care arrangements for the child – where final orders were made for the parties to have equal shared parental responsibility and the for the child to live week about with each parent – where the mother alleges that the child has been sexually abused by the father and has instigated investigations – where the father alleges that the child is being emotionally and psychologically abused by the mother – where the Court was not satisfied that it was in the best interests for the parenting arrangements to be changed at this stage of the proceedings.

Family Law Act 1975 (Cth)

Marsden & Winch [2009] FamCAFC 152
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Mr Meinhardt

RESPONDENT: Ms Santos

FILE NUMBER: DNC 165 of 2007

DATE DELIVERED: 7 August 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 7 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Powell

SOLICITOR FOR THE APPLICANT: Ward Keller Lawyers

COUNSEL FOR THE RESPONDENT: Mr Norrington

SOLICITOR FOR THE RESPONDENT: DS Family Law

Orders

1. That pursuant to Section 68L of the Family Law Act 1975 as amended the child Y, born … August 2004 be independently represented and that such representation be arranged by the Legal Services Commission of the Northern Territory and that to expedite the appointment of the Independent Children’s Lawyer within 14 days of the date hereof each party do cause to be furnished to the said Commission of the Northern Territory a copy of all documents filed herein by that party since the judgment delivered on 23 April 2012 NOTING that a new appointment be made (other than Ms Bowen).

1. That pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for the Northern Territory Department of Children and Families be invited to intervene in these proceedings.

1. That the Northern Territory Department of Children and Families be requested to prepare a report as to the allegations of the mother contained in her affidavit and as to the allegations of the father contained in his affidavit and the general circumstances of the child and that such report be filed at this Court by no later than 4.00 pm on 4 September 2012 UPON NOTING that in the event that Department intends to rely on any report prepared by Child Protection Services (“CPS”) that they do also at that time provide a copy of such CPS Report and that a copy of the report(s) be provided forthwith to each of the parties and the Independent Children’s Lawyer.

1. That leave is granted to the Independent Children’s Lawyer to issue subpoenas directed to the Northern Territory Department of Children and Families and the Northern Territory Police for the production of their files in relation to investigations, allegations and any such matters made since the judgment was delivered on 23 April 2012 for the production of their files with such subpoenas to be made returnable before a Registrar of the Court.

1. The Parties request Mr R provide a report to the court dealing with all matters in relation to counselling that the child has been receiving, his progress, the allegations made in relation to the alleged sexual assault by the father, the allegations made in relation to the emotional and psychological abuse by the mother and any matter the counsellor considers relevant to the best interests of the child and the child’s future care with such report to be available within 4 weeks from today’s date with the costs of the report to be shared by the parties.

1. Further consideration of the matter is listed for mention and further directions to 24 September 2012 at 2.15 pm in Darwin.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meinhardt & Santos (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: DNC 165 of 2007

Mr Meinhardt

Applicant

And

Ms Santos

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application brought before the Court by way of Initiating Application recently filed by the father.  The matter before me today is the interim hearing of the matter pursuant to the Initiating Application.  I have before me the Initiating Application, the Affidavit of the father, the Notice of Child Abuse, the Response filed by the mother, and the mother’s Affidavit.  These proceedings concern the welfare of the child of the parties, Y, who was born in  August 2004 (“the child”) and is, therefore, just eight years of age.  The matter before me this morning has to be seen in the context of the previous proceedings which are summarised in the judgment which I delivered on 23 April 2012 after a long hearing in September 2011. 

2. The issues concerning the best interests of the child which were then to be determined related to allegations made by the mother concerning the risk of abuse of the child in the care of the father, and the allegations made by the father about the emotional abuse and psychological abuse of the child by the mother.  Findings were made at that time and final orders made which provided for the parents to have equal shared parental responsibility for the child, and for the child to live week about with each parent during the school term and with specific arrangements for special occasions and school holidays.

3. The orders made on that occasion included that both parties were restrained from taking the child to any professional counsellor without the written consent of the other, save and except in relation to the orders concerning Mr R.  An order was also made to provide for Mr R, subject to his recommendations, to attend to counselling for the child over a period of not less than two years.  The orders also provided for the appointment of the Independent Children's Lawyer to be discharged one month from that date.  As I said, the judgment was delivered on 23 April this year.

4. The proceedings that come before me today now relate to the behaviour of the parents following an allegation which was apparently made to the mother in early July of this year.  The mother’s Affidavit in paragraph 4 says:

   On an evening in early July 2012 [the child] disclosed to me that his father had been sucking his penis.  [The child] and I were just talking and [the child] said that, “Naughty stuff still happens in the bed with papa.”  I asked him what and he said, “Daddy sucks my penis.”  I was surprised that he used the word “penis” because he used to always say “leeluou” for penis.”

5. The Affidavit then refers to the previous disclosures which the child had made to police and the children’s authorities in the Northern Territory.  The mother’s Affidavit sets out the ongoing investigations which were initiated, the mother saying that these came about in accordance with her obligation to report such a disclosure to the police or the Child Welfare department.

6. In submissions before me today, I have questioned counsel for the mother as to the basis upon which the mother has a reasonable belief that the allegations made by the child were true, which was the basis upon which she made the reports to the Child Welfare department.  As a result of that information being provided by the mother, the Child Welfare department and the police carried out investigations.  Mr R also interviewed the child on 7 July as part of his ongoing counselling.

7. The interviews with the child took place but notwithstanding those interviews no criminal charges were laid.

8. Notwithstanding the disclosures made to the mother and other persons, the child was returned by the mother to the father’s care on 19 July.  Since that time the father has failed to return the child to the mother, notwithstanding that his week in accordance with the Court orders has expired.

9. The father brings the Application based upon his concern, (as set out in his Affidavit) about the mother’s alleged ongoing emotional abuse of the child.

10. The father’s Affidavit, filed in support of this Application, sets out in brief the history of the matter and refers to the allegations commencing in paragraph 15 of that Affidavit.  The investigations by the police Child Abuse Taskforce and the Department of Children and Families are also referred to in that Affidavit.  The father says that he is concerned that this conduct by the mother has the effect of emotionally and psychologically abusing the child. 

11. The difficulty which the Court faces now is the evidence being presented by way of reports by the mother and reports by the father of what other people have done, the investigations that other people have made, and the conclusions which other people have apparently reached.  The Notice of Child Abuse, filed by the father, sets out as the basis of the abuse in paragraph 6 that the previous allegations have been unsubstantiated but have served to seriously damage the relationship between the father and child, and have caused the child to suffer serious psychological harm in combination with continuous exposure to Family Court proceedings and excessive interviewing by police, child protection personnel and psychologists.

12. The criticism on behalf of the mother is that it is the father who has brought these current Family Court proceedings and not the mother.  The criticism, however, has to be seen on the basis that the mother is the one who instigated the investigations which involved the Police department and Family and Children services based upon what she then alleged to be a reasonable belief of the truth of the child’s allegations.

13. The Court has some difficulty in understanding the basis upon which the mother had, and still has, a reasonable belief that the child has been sexually abused by the father but is now proposing to revert to the orders of the Court which provide that the child live with the father on a week about basis.

14. This is an interim hearing and determination of the truth of the facts is difficult based upon the material before the Court notwithstanding the findings which have already been made by the Court, as set out in the judgment of April 2012.  The significant factor in determining the interim issue is always what is in the best interests of the child.

15. Insofar as the argument for Rice & Asplund is concerned, the mother seeks the dismissal of the proceedings on a Rice & Asplund basis.  The material that is before the Court now is an allegation either that the father has been guilty of serious sexual abuse upon the child or that the mother has been guilty of serious psychological and emotional abuse of the child.  The principles of Rice & Asplund (1979) FLC 90-725 which have been summarised by the Full Court in Marsden & Winch [2009] FamCAFC 152 and in the judgment of Warnick J in SPS & PLS (2008) FLC 93-363 make it clear that the determination in relation to Rice & Asplund, on either an interim basis or on a final basis, must be seen to be measuring the evidence with the principles of the Part VII of the Family Law Act 1975 (Cth) (‘the Act’), under which the best interests of the child are the paramount consideration.

16. The paragraphs of Marsden & Winch (supra), which I will not read out in detail but which I consider to be significant, are those in paragraphs 48 through to 50 inclusive of the Full Court’s decision in Marsden & Winch (supra).  In particular, I refer to the reasons for the previous decision, the evidence upon which it was based, whether there is a likelihood of orders being varied in a significant way as a result of any new hearing and, if there is such a likelihood, the nature of likely changes to be weighed against the potential detriment to the child of the litigation itself.

17. On an interim basis, therefore, I am satisfied that it is not in the best interests of the child to simply dismiss the proceedings brought by the father on a Rice & Asplund basis.  Therefore, I refuse to do so on an interim basis.  There is much material that is yet to be put before the Court to determine whether there is an appropriate basis for the father’s proceedings and the significant change in circumstances which he seeks. 

18. The question must be, therefore, what on an interim basis is the order which would be in the best interests of the child.  On the understanding of the material before me today, I am not satisfied that it is in the best interests for the child, nor is it necessary to ensure the protection of the child for there to be a significant change in the orders of the Court which were made following the determination of the matters by me resulting in the judgment of 23 April 2012.

19. In relation to the child’s school arrangements, the father seeks an order that the child’s school be changed on the basis that at the hearing before me the mother agreed to that change.  The Court does not have before it the transcript.  On an interim basis, it must be said that I understood that the parties had agreed to change the child’s school and, therefore, such a court order would not be necessary.  However, I am not able to confirm that because I do not have the transcript of the matter that was heard now nearly a year ago.

20. On the basis that the child has been attending the school which the child is currently attending, it is also not appropriate, on an interim basis, to make an order changing the child’s school.  On an interim basis, therefore, I do not propose to change the orders of the Court which provided for the child to live with the mother on one week and with the father on the other week, and with specific arrangements in relation to the special occasions and school holidays.

21. In relation to the steps that need to be taken to preparing the matter for final hearing, it would appear, on my reading of the matter, to be essential that a report be obtained from Mr R, that there be a further appointment of an Independent Children's Lawyer, and that reports be obtained from the Department of Children and Families, that subpoenas be issued in relation to police and other matters.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 7 August 2012.

Associate: 

Date:  27 August 2012