MILLER & COOPER
[2015] FamCA 997
•13 November 2015
FAMILY COURT OF AUSTRALIA
| MILLER & COOPER | [2015] FamCA 997 |
| FAMILY LAW – CHILDREN – interim orders – where the proceedings are part heard – where the father seeks a recovery order and that the child live with him – where the mother seeks that all contact between the father and the child be suspended pending the outcome of police investigation of the father – where the mother alleges the father poses an unacceptable risk to the child – where the father remains steadfast in his denial of any inappropriate conduct – where both applications are dismissed – where the mother is restrained from allowing the child to attend any forensic interview without leave of the court – where consideration is given to leave to adduce evidence – where regard is had to the interests of justice in exercising the discretion to grant leave to re-open – where leave it given to the mother to reopen her case and reply upon her affidavit that she may be cross examined as to its contents and matters arising. |
Family Law Act 1975 (Cth)
EB v CT (No 2) [2008] QSC 306
Summitt & Summitt & Ors (Re-Opening) (2009) FamCA 365
| APPLICANT: | Mr Miller |
| RESPONDENT: | Ms Cooper |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 4728 | of | 2012 |
| DATE DELIVERED: | 13 November 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 5 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lindsay |
| SOLICITOR FOR THE APPLICANT: | Paul Doube Lawyers |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Tinning |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
UPON NOTING that Order 2 of Orders made 3 September 2015 continue in operation until further Order:
Orders
That the Applications in a Case of the father filed 30 October 2015 and of the mother filed 30 October 2015 be dismissed.
That subject to the giving of fourteen (14) days’ notice, the mother be restrained from allowing the child B born … 2009 to attend or to facilitate any forensic interview without first obtaining leave of the Court.
That leave is given to the mother to reopen her case and to rely upon her affidavit filed 30 October 2015 (document 71) NOTING that she may be cross examined as to its contents and matters arising therefrom.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller & Cooper 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: ADC 4728 of 2012
| Mr Miller |
Applicant
And
| Ms Cooper |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Cooper (“the mother”) seeks orders in the substantive proceedings as set out her Fifth Amended Initiating Application filed 3 September 2015.
Mr Miller (“the father”) seeks orders as set out in his Amended Response filed 1 June 2015.
The parties are in dispute over the parenting arrangements that should apply to the time that B born in 2009 (“the child”) spends with each of the parties.
The proceedings have an extensive history in this Court which has culminated in the final orders being sought by each of the parties being listed for trial on 29 June 2015.
The mother is a self-represented litigant. The father is represented by solicitor and counsel. Counsel also appears for the Independent Children’s Lawyer (“ICL”).
On 2 July 2015 the proceedings were adjourned part-heard to 5 August 2015 at which time the part-heard trial was adjourned to 21 December 2015 as a three day matter.
The parties were not able to agree the arrangements for the child to spend time with the father during the period of the adjournment and further consideration of that aspect of the proceedings was adjourned to 31 August 2015.
On that occasion a solicitor attended on behalf of the mother, but whilst it was initially hopeful that the mother had secured legal representation, ultimately that did not eventuate and a consideration of the interim arrangements was again the subject of adjournment to 3 September 2015. Orders were made that required the parties to file affidavit material in support of the interim orders sought and for the mother to provide either a document or a Fifth Amended Initiating Application setting out the orders she sought by way of final relief.
On 3 September 2015 orders were made in the following terms:-
(1) Paragraph 2 of orders made on 7 February 2014 be discharged.
(2) The said child B, … 2009 shall spend time with the father as follows:
(a) during the school term as follows:
(i) each alternate weekend from 3.30 pm (or the conclusion of school) on Friday until 6.30 pm on the following Sunday commencing 4 September 2015, with such time to recommence on the first Friday of each school term;
(ii) each alternate Monday from 3.30 pm (or the conclusion of school) until 6.30 pm commencing 14 September 2015 with such time to recommence on the Monday prior to the alternate weekend time with the father,
(b)during the short term school holidays from 3.30 pm being the conclusion of school on the last day of school until 4 pm 8 days later noting time during school term as outlined in paragraph 2.a hereof is suspended during the September/October school holidays;
(c)for the said child’s birthday from 3.30 pm (or the conclusion of school) if a school day on 1 December 2015 until 7.30 pm on the same day.
(3) All handovers for the purposes of contact to occur at the commencement or conclusion of school if a school day and at McDonald’s Restaurant at Victor Harbor at all other times.
(4) Leave is given to the applicant mother to file and rely upon a proposed Fifth Amended Initiating Application (subject to minor date amendments) containing orders as set out in the document now marked Exhibit “6”.
As discussed, the mother filed her Fifth Amended Initiating Application on 3 September 2015.
The mother had concluded the evidence that she proposed to rely upon. She had the opportunity during the period of adjournment to secure legal representation. It was anticipated that upon the resumption of trial, the father would lead his evidence and either the mother or if she was represented, her counsel would undertake the cross examination of the father and his witnesses and to conduct the case on her behalf to its conclusion.
INTERIM PROCEEDINGS
The parties each filed an Application in a Case on 30 October 2015. Whilst both filed on the same day, the application of the father was filed first in time and is document 68 on the Court record. He seeks extensive orders but summarised by a recovery order pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”) and upon recovery and a suspension of orders made on 3 September 2015, the child would thereafter live with the father pending the final disposal of the proceedings. The application is supported by a short affidavit.
The contents allege that on 26 October 2015 he received a text message from the mother advising him that the child would not be available “for contact today as I have had to collect her from school today”. It is conceded, although not central to the orders sought by each of the parties, that the child should have been spending time with him.
It seems that the father tried to phone the mother to ascertain the basis upon which the child had been removed from school. Apparently the father was not provided with any further information by the mother nor were any enquiries made by him of the principal of the child’s school, namely C School, answered.
As part of the ongoing substantive proceedings, the family consultant was tasked to prepare an update report in preparation for a resumption of trial. On 30 October 2015 the father attended upon the family consultant as part of the anticipated assessment. The family consultant apparently told him that the non-biological child of the parties namely, [Z] had made allegations that during the time the parties were together the father had raped her. Whilst presumably acting on information provided by the mother, the family consultant relayed that there may be some investigation by either South Australian Police and/or Queensland Police.
The father asserts that he has not been contacted by any police or any other authority.
The father alleges that he was not aware of the current living arrangements of the child and that there was some suggesting from things said by her during the observed interaction that for some little time she had been living in the home of the maternal grandmother.
Expecting to resume time with the child, the father sought confirmation from the mother as to whether she would facilitate the child’s attendance. The mother responded again by text message that the child would not be available for contact.
By her application, the mother seeks the following orders:-
(1) That all contact between the respondent and [the child] be suspended pending the outcome of pending police investigation pertaining to rapes/sexual assault of [the child’s]sister [Z] allegedly perpetrated by the respondent.
(2) If deemed preferable by the Court that monitored supervised contact between the respondent and [the child] occur in a professionally Court approved contact centre until the police investigation is completed.
(3) That [the child] be granted leave from the Court to attend a forensic interview with Child Protection Services if requested by Families SA or Police.
(4) That the respondent not be permitted to discuss the subject of the Police investigation or forensic interview involving him, with any persons (excluding his legal representation) and including members of his family in Queensland and [the child].
The application is supported by a detailed affidavit.
The mother also sought orders that if the order providing for time between the father and the child to be suspended is made, then a further consequential order should be made that would restrain the father from attending at the child’s school. The mother argued that such an order would be necessary so that there would not be any incident at school and the school administration would have a clear understanding of their rights and obligations should the father attend.
It is likely that in order to give effect to the current circumstances, the mother has directed the school that if the father attends the child should not be placed in his care.
It is the mother’s position that during the period of the recent adjournment, further relevant information relating to the child and [Z] has arisen. The mother repeats much of the information contained in earlier affidavits in respect of an assertion that following trial [Z] self-harmed and was suicidal. She repeats that [Z] “attributed 70 per cent of her reason for wishing to commit suicide to the respondent”.
The child [Z] continues to attend a psychologist at CAMHS. The psychologist has had significant involvement with [Z] and according to the mother has “resumed questioning [Z] in relation to a chronological account of her life”.
The mother relies significantly upon the alleged disclosures by [Z] to the psychologist as support for her contention that the father was physically, sexually and psychologically abusive to [Z] and therefore poses an unacceptable risk to the child.
On 24 September 2015 [Z] allegedly disclosed to the psychologist that the father had repeatedly raped her. At 8.50 pm on 15 October 2015, [Z] apparently repeated the disclosure to the mother. The mother contacted the Child Abuse Report Line following each disclosure.
At 3.47 pm on 1 September 2015 [Z] had made a further disclosure to the mother about an incident at a religious school, Queensland that:
involved him assaulting her, unlawfully detailing her and depriving her of her liberty, endangering her life, making unlawful threats to kill her and causing serious psychological harm by swinging [Z’s] skipping rope really hard at her whipping her with it on the legs, tying her legs to the chair legs with a skipping rope, barring the door detaining [Z] in the bedroom with her still tied to the chair, putting his hand over her mouth and nose and she could not breathe, grabbing a knife and holding it to her neck, taking scissors and pushing them into her shoulder and further, putting tape over her mouth. The respondent then threw a glass of water over [Z].
These alleged disclosures according to the mother are “consistent with other disclosures [Z] made in 2011” and with the evidence of witnesses that the mother called at trial. They are also matters raised in the mother’s trial affidavit at paragraph 124 to 150.
The mother further confirms in paragraph 23 of her affidavit that:
Over the past four years [Z] has made disclosures to [Ms D], [Ms E], [Dr F], [Ms G], [Ms H], my mother, [Ms I], school teachers and myself, that I am aware of about the respondent’s abuse of her.
The additional matters which is the gravamen of this application is the new disclosure that [Z] had been raped repeatedly by the father when she was under the age of 14 years.
It is significant that the matters raised by the mother according to [Z] that the father raped her can take the current state of evidence very much further.
There are no allegations in respect of alleged inappropriate conduct by the father to the child that have occurred during the adjourned period.
At paragraphs 29 to 43, the mother repeats allegations raised as an integral part of her case.
In summary, it is her position that the respondent poses an unacceptable risk to the child. The father remains steadfast in his denial of any inappropriate conduct with either [Z] or the child.
ORDER OF 29 AUGUST 2014
On this date Judge Kelly made the following order:
(1)Until further order the mother is restrained from:
(a)allowing the [child] to attend upon any psychologist, counsellor or any other mental health practitioner or social worker without first obtaining leave of the Court;
(b)facilitating any genital examination of [the child] by any health professional; and
(c)attending upon any health care professional where the purpose is to investigate or provide therapeutic intervention in relation to allegations that the child has been sexually abused without first obtaining leave of the Court.
That order has remained unchallenged to the present.
The mother seeks relief from that order because she says that it is stopping an investigation by both Child Protection Services and SAPOL in respect of the allegations of abuse purportedly perpetrated by the father on the child. Whilst the order would not apparently stop a police investigation, the mother says that they are reluctant to become involved and interview the child whilst the order remains in case.
This issue was confronted by the family consultant in her report dated 29 August 2014.
She states:
On the issue of [Ms Cooper’s] reports of [the child’s] concerning behaviour, I cannot see anything warranting the level of concern expressed by [Ms Cooper]. I think that all the things [Ms Cooper] has identified can be explained either in terms of [the child’s age] appropriate curiosity about her body, adjusting to a new regime of spending time with her father, being constipated, or as reported by him, opening the door when he was in the toilet and seeing his genitals. I note that my view is consistent with the responses of other agencies she has contacted where no investigations by Families SA or CPS have occurred…I note also that in the report provided by the psychologist seeing [the child] (see [Dr F’s] affidavit filed 1 August 2014) there is nothing emerging from the four sessions she reports on, which suggests any serious concern about [Mr Miller] in relation to [the child]. On the contrary, [the child] says that she likes going to Dad’s. Further and noted above, in her interview with me and during this assessment, [the child] spoke positively about her father, related well and comfortably with him, seemed happy in his company and gave the impression of being well connected with him. I also noted that [the father] gave the impression of being child focussed and responded well and appropriately to [the child].
On the topic, the family consultant also opined was that the mother gave the impression “of working extremely hard to create a case against [Mr Miller] in regard to her concerns regarding him being sexually inappropriate with [the child]”.
It was her very clear view that the child should no longer see any counsellor or psychologist unless both parties considered that it was appropriate and necessary.
CONCLUSION
Ultimately, I do not consider that the affidavit of the mother raises any new issues which would suggest that the basis upon which the continuation of the current interim parenting order was made, is now unsustainable.
In relation to the suggestion the father repeatedly raped [Z] prior to the parties separation in May 2011, I consider that the alleged disclosures lack any sufficient detail that would enable me to consider that the temperature of the conflict between the parties is now raised to a level which either poses a significantly greater risk for the child than was apparently present when I determined that the father should continue to spend time with the child pursuant to the orders of 3 September 2015. The allegations are not determined by me. The mother will be able to lead the evidence and subject the father to cross examination.
I do not propose to suspend the order as sought by the mother.
I am also not persuaded that the order of 29 August 2014 restraining the mother from involving the child with health and other professionals no longer has any utility.
The mother’s affidavit has not made out any case to suggest that the orders are not in the child’s best interests.
Counsel for the father seeks that there be an additional order which would restrain the mother from allowing the child to be interviewed by Child Protection Services or the Police subject to notice being provided.
The proceedings are part-heard and at this stage it is the intention of the Court that the trial will conclude in the week commencing 23 November 2015.
It is important to the child that this litigation be concluded. The parties may well wish to pursue their dispute but the interests of the child demand some certainty to her future parenting arrangements.
The order is promoted by the father to enable the parties to be involved in the child’s welfare and to assess the genuine needs of the child and determine whether any proposed process of interview, assessment or observation is not outweighed by the potential for detrimental impact of unnecessary investigation involving the child.
Accordingly, I propose to leave in place the orders of 29 August 2014, but to impose a further order that the mother is restrained from facilitating any forensic interview of the child subject to the mother giving the father fourteen days’ notice.
LEAVE TO ADDUCE EVIDENCE
The mother seeks leave to rely upon her affidavit filed 30 October 2015 in the final hearing. The mother’s evidence and those of the witnesses has concluded, but the father has not yet opened his case.
There is no opposition by the father or the ICL to the mother relying upon her affidavit provided that leave is given for her to be cross examined on matters arising from it.
Notwithstanding the consent of all parties, the granting of leave to re-open is discretionary. The exercise of that discretion is to be considered by having regard to the interests of justice. As was held by Murphy J in Summitt & Summitt & Ors (Re-Opening) (2009) FamCA 365 his Honour considered:
The essential question is, is the court more able to do justice in the facts and circumstances of a particular case if the application is granted . (see e.g Smith v NSW Bar Association (1992) 176 CLR 256: Urban Transport Authority v Nseiser (1992) 28 NSW LR 471 at [478] and EB v CT (No 2) [2008] QSC 306).
In EB v CT (No 2) [2008] QSC 306 Applegarth J summarised the relevant common law principles:
[2]The guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application. Reference is made in Finborough Investments Pty Ltd v Airlie Beach Pty Ltd and in the cases referred to in it to the need for finality of litigation.
[3]In Smith v New South Wales Bar Association, the High Court stated that different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgment had been delivered. As to the former situation, the Court said it was difficult to see why the primary consideration should not be that of embarrassment or prejudice to the other side.
[4]In Reid v Brett, the criteria governing the exercise of the discretionary power to reopen a case to admit further evidence where the hearing has concluded but judgment has not been delivered was said to be as follows:
(a)the further evidence is so material that the evidence of justice requires its admission;
(b)further evidence if accepted would most probably affect the results of the case;
(c)the further evidence could not by reasonable diligence been discovered earlier; and
(d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.
Importantly, at paragraph 5 his Honour said:
Reference by the High Court to prejudice to the other party and the guiding principle of the interests of justice, require account to be taken of the strain that litigation imposes on personal litigants. The prejudice caused by the delay in the delivery of an unacceptable judgment at the end of a stressful litigation cannot always be measured in terms of money or cured by an order for costs. The interests of justice is served by finality in litigation, particularly where prolonged litigation imposed a strain on personal litigants.
Obviously this is a more acute consideration in a parenting case.
There is no doubt that the admission of the proposed evidence by the mother may well extend the proceedings. The allegations raised by her however are serious and there may well be advantage to all parties, but in particular the child, by the proceedings ultimately concluding with a comprehensive consideration of all outstanding matters.
The mother does not speak against her further cross examination in respect of the issues raised in the affidavit that she now seeks to rely upon and counsel for the father and the ICL are aware that I propose to limit their further cross examination to matters that are relevant to the orders that each of the parties seek.
Accordingly, I propose to give leave to the mother to reopen her case and to rely upon her affidavit filed 30 October 2015.
I make orders as appear at the commencement of these reasons.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 November 2015.
Associate:
Date: 13 November 2015
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