Miels and Moulden & Anor

[2010] FamCA 875

FAMILY COURT OF AUSTRALIA

MIELS & MOULDEN AND ANOR

[2010] FamCA 875

FAMILY LAW – CHILDREN – interim orders – with whom a child lives – application by the maternal grandparents that the children reside with them – where it is alleged that the father has sexually abused the mother’s daughter – where there are serious concerns about the parents’ capacity to care for the children – where the children have been in the primary care of the mother – best interests – orders that the children reside with the maternal grandparents and spend time with each parent – time spent with the father to be supervised.

FAMILY LAW – CHILDREN – interim orders – parental responsibility – best interests – orders that the maternal grandparents, the mother and the father have equal shared parental responsibility.

Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANTS:

Mr and Mrs Miels

RESPONDENT FATHER: Mr Moulden

RESPONDENT MOTHER:  Ms Tan

INDEPENDENT CHILDREN’S LAWYER: WARD KELLER

FILE NUMBER: DNC 652 of 2007

DATE DELIVERED: 22 SEPTEMBER 2010

PLACE DELIVERED: ADELAIDE by video link with Darwin

PLACE HEARD: ADELAIDE by video link with Darwin

EX TEMPORE JUDGMENT OF: BURR J

HEARING DATE: 22 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANTS:	MARGARET ORWIN
SOLICITOR FOR THE APPLICANT:	MARGARET ORWIN

COUNSEL FOR THE RESPONDENT

FATHER:

MS MORGAN

SOLICITOR FOR THE RESPONDENT

FATHER:

MALEYS

SOLICITOR FOR THE RESPONDENT

MOTHER  MOTHER IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MS GIACOMO
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	WARD KELLER

Orders

1. Paragraph 2 of the Orders made on 8 September 2010 be varied to record that the hearing of the father’s Contravention Application filed on 27 May 2010 commence at 2.15 pm on Monday 4 October 2010 before the Honourable Justice Dawe during the Darwin Judicial Sittings of this Court UPON NOTING that the Independent Children’s Lawyer and the maternal grandparents are excused from attendance at that hearing.

2. At the earliest opportunity but by no later than 4.00 pm on Thursday 30 September 2010 the mother do file and serve an Affidavit responding to the allegations of the father contained in his Affidavit filed on 27 May 2010 in support of his aforesaid Contravention Application.

3. Counsel for the parties confer and prepare a draft Trial Plan to enable an accurate estimate of the number of days required for the hearing of the trial of these proceedings to be conducted during the Darwin Judicial Sittings of the Court in February 2011, including the identity of the witnesses to be called and a summary of their evidence together with an estimate of the time required for the examination in chief, cross-examination and re-examination of each witness.

4. The subpoena issued by the Independent Children’s Lawyer on 7 June 2010 directed to Catholic Care be discharged.

5. If there is no objection and subject to any privilege claimed, leave is granted to the legal representatives for the parties and the Independent Children’s Lawyer to inspect and copy the documents produced pursuant to the subpoenas directed to the Northern Territory Police and the Northern Territory Family and Children Services.

6. The question of whether or not the parties themselves are entitled to inspect and receive copies of the aforesaid subpoenaed documents produced by the Northern Territory Police and the Northern Territory Family and Children Services be adjourned for further consideration before the Honourable Justice Dawe at 2.15 pm on Monday 4 October 2010 during the Darwin Judicial Sittings of this Court.

7. Leave is granted to the Independent Children’s Lawyer to file and serve on or before 4.00 pm on Friday 29 October 2010 an affidavit from the counsellor of the child T.

8. Further consideration of the mother’s Initiating Application filed on 23 November 2009 and the father’s Response to Initiating Application filed on 27 November 2009 be adjourned to 10.00 am on Tuesday 23 November 2010 before the Honourable Justice Burr by video link between the Adelaide and Darwin Registries of this Court.

9. Liberty is granted to the parties and the Independent Children’s Lawyer to relist the matter at an earlier date on the giving of three [3] working days notice to the others in the event that serious issues arise which may impact upon the best interests of the children S (“S”) born … June 2006 and H (“H”) born … February 2009.

10. The maternal grandparents do file and serve a Response to Initiating Application indicating the Orders that they seek by way of final orders, including any application for relocation.

11. Leave is granted to the mother and the father to file and serve any Amended Initiating Application, Amended Response to Initiating Application or Affidavits after receipt of the aforesaid  Response to be filed by the maternal grandparents.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT TO 23 NOVEMBER 2009, THAT:-

1. Paragraph 1 and 2 of the Orders made on 30 November 2007 and paragraph 3 of the Orders made on 12 February 2010 be discharged.

2. The children S and H live with the maternal grandparents.

3. The maternal grandparents, the mother and the father have equal shared parental responsibility for the said children.

4. The father spend time with S and H for such periods of time and on such dates as are made available to him by Catholic Care (formerly Centacare) with all such times to be supervised at all times by Catholic Care but if at all possible, for two [2] hours each week on at least six [6] occasions.

5. At the conclusion of at least four [4] periods of supervised time spent by the father with S and H at Catholic Care and pursuant to Section 62G(2) of the Family Law Act 1975 as amended Mr V prepare an updated Family Report on such matters as are relevant to these proceedings with respect to the care, welfare and development of the said children, with such assessment by him to include:-

   (a)interviews with each of the mother, the father and the maternal grandparents; and

   (b)observed interaction of the said children with each of the mother, the father and the maternal grandparents

   and that such report be released to the parties and the Independent Children’s Lawyer on or before 4.00 pm on Friday 12 November 2010.

6. The father have telephone communication with S for a period between 6.00 pm and 6.30 pm on the Tuesday and Thursday of each week, with such telephone communication to be effected by the father telephoning the maternal grandparents’ landline telephone number … or mobile number … PROVIDED THAT such telephone communication does not coincide with times that the mother or the father are otherwise spending with the said children.

7. The maternal grandparents do ensure that S is available to receive the aforesaid telephone calls from the father and do ensure that the mobile telephone is switched on and charged at all such times.

8. The mother have telephone communication with S for a period between 6.00 pm and 6.30 pm on the Monday, Friday and Sunday of each week, with such telephone communication to be effected by the mother telephoning the maternal grandparents’ landline telephone number … or mobile number … PROVIDED THAT such telephone communication does not coincide with times that the mother or the father are otherwise spending with the said children.

9. The father spend such additional time with S and H on dates and at times as may be agreed between himself and the maternal grandparents PROVIDED THAT all such time is supervised at all times by either one or both of the maternal grandparents.

10. The mother spend such time with S and H, including overnight periods, on dates and at times as may be agreed between herself and the maternal grandparents UPON NOTING that in the event that no agreement can be reached, liberty is granted to the mother to apply to the Court on the giving of three [3] working days notice to the others to pursue further orders to spend time with the children.

11. The mother and the father undertake random chain of custody drug testing within twenty-four [24] hours of a request being made of them by the Independent Children’s Lawyer but at no greater frequency than one [1] occasion every four [4] weeks.

12. The mother and the father do each file and serve an Affidavit annexing the results of such drug testing immediately upon receipt of same.

AND IT IS FURTHER ORDERED, IN CHAMBERS, THAT:-

1. The trial of these proceedings be listed before the Honourable Justice Burr during the Darwin Judicial Sittings of this Court to commence at 2.15 pm on Wednesday 2 February 2011.

AND on the oral application of the Independent Children’s Lawyer THE COURT DECLARES the father Mr Moulden to be the biological father of the child H born … February 2009.

IT IS NOTED that publication of this judgment under the pseudonym Miels & Moulden and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 652  of 2007

MR AND MRS MIELS

Applicant maternal grandparents

And

MR MOULDEN

Respondent father

And

MS TAN
Respondent mother

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me proceedings initiated by the father on 22 November 2007.  Consent orders were then made on 30 November 2007 but again the matter required the Court’s attention when further proceedings were filed on 13 August 2009. 

2. The matter has had a troubled history.  It concerns two very young children, namely S born in June 2006 and who is hence some 4 years of age and H born in February 2009 and who is hence 1 ½ years of age.  The dispute originally was as between the mother and the father of the children.   The dispute now, as a consequence of Orders made by me on 8 September 2010 giving them leave to intervene, is one as between the mother, the father and the maternal grandparents.  The maternal grandparents have filed an Application in a Case dated 3 September 2010 with a supporting Affidavit.  In that Application they seek orders that the two children live with them.  They have also flagged in the materials already filed and through their Counsel today, that it is their intention next year to move to reside in Queensland.  If it is their intention that the children accompany them, then they will need to amend their proceedings before the Court and seek orders for relocation.

3. The matter has had a chequered history and the lives of these two young children have been particularly troubled.  The difficulty of their existence is recited in considerable detail in the report from the Northern Territory Department of Health and Families dated 18 January 2010.  It covers a full range of allegations of abuse including physical abuse, sexual abuse and neglect.  It also raises issues of concern in relation to drug taking by the parents and of abuse of the children by the parents.  They are significant issues still to be resolved and the matter requires a trial on those issues as early as possible.

4. The concerns that continue to emerge for the children also include concerns in relation to the mother’s daughter T.  There are allegations that the father has sexually abused T.  I note however, from the report letter of the Northern Territory Department of Health and Families dated 19 July 2010, that there is no evidence that the father has sexually harmed T. However, the mother pursues those allegations and indeed the maternal grandparents also raise their concerns in that regard and so the issue is very much a live issue for the trial of these proceedings.

5. A Family Report was also ordered in these proceedings and that report is dated 3 June 2010.  However, the report was significantly limited in terms of the assessment it could provide and the range of options and recommendations it could proffer because there were no observations of the children undertaken with either parent.  It was further the case that the father had not spent any time with the children for quite some period, not even the supervised time that had been previously ordered by the Court on 12 February 2010.  The words of Mr V in that Family Report at paragraphs 40 to 44 inclusive summarise the seriousness of the issues confronting the Court and the concerns for these young children as follows:-

   “40.Multi-layered sadness, pungent bitterness and deeply rooted anger pervade these adults and their efforts at achieving parenting arrangements in the best interests of the children.  [The mother] reports a traumatic personal history of sexual abuse which has sharpened the cutting edge of her reaction to her belief about [S] being sexually abused by the father.  [The father] has a whetted blade of emotional sharpness about his belief in relation to her having a drug lifestyle which necessarily leads her to acute neglect of the children.

   41.Although the emotion charged presentation of [the mother] gives considerable credibility to her claims about [S’s] disclosure, I am not convinced by her reporting of ‘someone’ in the Police saying its substance was accurate, but it could not be substantiated because of [S’s] inability to distinguish lies from truths.  The report on the medical examination’s conclusions suggests the latter would not have been the critical determinative factor and that the physical signs on [S] could be explained by other factors.  [The mother] acknowledges that NT FACS report conclusions, but seems willing to elaborate on them rather too freely.  She also makes no comment about the report’s final paragraph mention of ‘ongoing’ investigation into her alleged neglect of the children due to her supposed involvement with drugs.

   42.Essentially, the accuracy of the sexual abuse allegations seems to turn on both the reliability of [the mother’s] report of disclosure from [S] and also the reliability of [the mother’s] report of [T’s] account of [S’s] supposed earlier disclosure in her presence, which [T] apparently passed onto to [sic] [the mother].  It is puzzling, based on information in the conclusions of the NT FACS report, that [the mother] did not appear to have any revulsion after the first indirectly reported disclosure, if one can safely draw such a conclusion from her apparent willingness to let [S] continue to spend time with the father.

   43.The accuracy of [the father’s] allegations about [the mother’s] filthy households and drug lifestyle seems a little more confident, given the concreteness of his accounts and also those of his mother.  NT FACS ongoing investigation into her possible involvement with drugs and consequent child neglect belies her commentary about now supposedly being drug free because NT FACS has not got back to her with any adverse results from testing.  If there has been such testing, it would be useful for the court to have the results and NT FACS assessment made available.

   44.It would have been of assistance for this report if observation information could have been available from the father’s supervised time with [S] and [H].  While the mother’s evident revulsion at the sexual abuse leading to her reporting panic attacks preventing her approach to the CCC might be very understandable in her circumstances, she appears to downplay completely the nature and structure of supervised contact in order to bolster her own emotional response.  Her thought that her mother, against whom she has a DVO and who might be on track to seek full custody of the children (if [the father’s] information about that is accurate) doing the necessary assessments on her behalf seems to indicate further her downplaying of the CCC process.”

   As a consequence Mr V was not able to make any specific recommendations to the Court about any adjustment to the parenting arrangements.

6. It is the father’s allegation that the mother failed to comply with earlier orders of the Court enabling him to spend supervised time with the children and as a consequence he also issued Contravention proceedings on 27 May 2010.  Those proceedings have been listed for hearing before Dawe J during the Darwin Judicial Sittings of the Court on Monday 4 October 2010.

7. Further separate concerns about the wellbeing of the children emerge from the maternal grandparents’ affidavit filed on 3 September 2010.  I accept that it was a difficult thing for them to have to do.  They have effectively raised for the Court’s consideration a number of very serious concerns, not only about the father but more specifically and particularly, about their own daughter.  I appreciate how difficult it is for parents to have to wrestle with what they might consider to be a display of disloyalty but I congratulate them and commend them for taking that step in order to do what they believe is appropriate to protect two very young children.  I, of course, am in no position to say whether what they indicate in their affidavit is correct.  That will be a matter for evidence.  However the allegations raised in the previously mentioned reports from the Northern Territory Department of Health and Families and in the maternal grandparents’ affidavit of 3 September 2010 are sufficient for me to err on the side of caution and propose that for the time being, the children reside with the maternal grandparents. 

8. There is also some limited support for the Court’s position in that regard in relation to the allegations that have been made in the father’s affidavit filed on 16 September 2010.  His evidence though I need to be somewhat reserved about as they will also be issues for determination at the trial.

9. The decision I make today is nonetheless a difficult one.  The mother has been the primary carer for the children, although quite clearly with significant assistance from her parents.  The mother recently suffered a very bad accident and on 5 September 2010 was admitted to the Royal Darwin Hospital for the treatment of burns.  She informed the Court this morning that during her time in hospital her parents cared for the children.  Thus it is an arrangement that the children are used to to a degree and it is obvious from the materials so far on the Court file that the maternal grandparents have played a significant role in the care of these two very young children.

10. The mother needs to be afforded the opportunity of putting her case before the Court and thus these orders that I make today may well be orders that are reversed or modified to a degree once her position is known and her case advanced before the Court.

11. I make the decision that in the interim the children are to live with the maternal grandparents, having considered all of the relevant provisions of part VII of the Family Law Act.   Section 60CA requires me to make my determination, even on an interim basis, as to what is best for these two young children in accord with what represents their best interests as being the paramount consideration.  In that regard I am then directed to the provisions of Section 60CC of the Act which are divided into primary considerations and additional considerations.  The two primary considerations are in conflict and always present a difficulty for any presiding Judge.  They require the Judge to balance the need to preserve meaningful relationships between the children and their parents with the need to protect the children from harm. 

12. In the circumstances, I am satisfied that on an interim basis at least, these children’s best interests would be served by them residing with the maternal grandparents but by each of the parents having the opportunity to spend time with them and communicate with them.

13. It is imperative, given the allegations made against the father, that the time the children spend with him be in a supervised environment until all allegations are explored in detail. 

14. The parties have reached a level of agreement in relation to the supervised time that the father will spend, although it is his application before the Court that he be afforded the opportunity of some unsupervised time after some supervised periods have been concluded.  I am not satisfied that it is appropriate to make such orders, certainly not today, and it may well be that it is inappropriate to make such orders on an interim basis at all.   It may be a matter that needs to be left for the final trial of the proceedings when the Court has had an opportunity to explore in detail the very serious allegations made against him and indeed, made against both parents.

I certify that the preceding fourteen (14) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 22 September 2010.

Associate: 

Date: