Pearce and Arthurson

[2016] FamCA 673

FAMILY COURT OF AUSTRALIA

PEARCE & ARTHURSON [2016] FamCA 673

FAMILY LAW – CHILDREN – interim orders – where there is a forensic psychosocial assessment report – where orders are made for the father to spend time with the child each alternate weekend.

Family Law Act 1975 (Cth)

APPLICANT: Ms Pearce

RESPONDENT: Mr Arthurson

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

FILE NUMBER: ADC 3849 of 2013

DATE DELIVERED: 11 August 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O’Connor

SOLICITOR FOR THE APPLICANT: Joanna Richardson & Associates

COUNSEL FOR THE RESPONDENT: Mr Bowler

SOLICITOR FOR THE RESPONDENT: Adelaide Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Schirripa

SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. Leave is given to the parties to inspect (and in due course) copy the records produced by the Suburb B Medical Clinic pursuant to Schedule 8.

IT IS FURTHER ORDERED THAT

1. The child C born … 2010 spend time with the father commencing on Saturday 13 August 2016 from 9.00 am Saturday to 6.00 pm Sunday each alternate weekend with handovers to take place at D Cafe on E Street.

2. The orders are continued in relation to the child living with the mother and in the care of the mother.

3. The mother's Application in a Case filed on 29 March 2016 is dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearce & Arthurson 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 3849 of 2013

Ms Pearce

Applicant

And

Mr Arthurson

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has been before the Court for a considerable time and, as indicated, has been placed in the list awaiting an allocation of the trial date. 

2. What the Court has to consider on an interim basis is clearly what is in the best interests of the child.  The child C, was born in 2010 and is, therefore, aged six. 

3. The parties’ ongoing litigation is of considerable concern in particular the allegations which are made in relation to the welfare of the child, including the allegations made by the mother that the child has been sexually abused and seriously abused when in the father’s care.  This is denied by the father.  The matter has been subject of detailed investigation by the Child Protection Services (“CPS”), as set out in the forensic psychosocial assessment report from the CPS, dated the 26 July 2016.

4. As is clear from that report and the affidavit material filed by each of the parties, there is considerable disagreement about the child’s welfare, what she has said, and what has happened to her.  The mother’s allegations are specifically made in her affidavit.  These include allegations as reported to the doctor, when the child was taken by the mother to the doctor, and subsequently reported by the mother in the CPS interviews with her. 

5. The substance of the allegations of abuse is strenuously denied by the father. 

6. I heard detailed submissions from counsel for both the mother and the father and for the Independent Children’s Lawyer.  This is an interim hearing.  All I have before me at the moment are the documents in which certain allegations are made by the mother about the father, allegations were made by the father about the mother.  The significant matters relating to the welfare of their child are in dispute.  The Court is not able to determine, even after detailed submissions, which allegations are correct and which allegations are not correct. 

7. The significant material that is before me now, however, is the detailed forensic psychosocial assessment report carried out after interviewing the child and each of the parties and considering the psychological report that has been provided to the assessor and to the Court by Ms F. 

8. Without going into all of the detail referred to by each of the counsel I have carefully considered the CPS report.  In particular I consider the conclusions, which commence on page 12 going through to page 13 and 14.  It is of serious concern to this Court that the assessment was that the parties have had considerable difficulty in carrying out their duties as parents of the child. 

9. The report says (in relation to interviews with the parents) at the middle of page 13:

   In interview, [Ms Pearce] and [Mr Arthurson] each raised concerns regarding the other parent’s parenting and general behaviour, but did not identify any areas of required development in relation to their own parenting.

10. The report then refers to the concerns about the mother using the opportunities to discredit the father and allegations that were made.  There were allegations made by the father about the mother. 

11. It is also stated in the report that further concerns did arise in relation to the father, specifically, the clinician was concerned by the mother’s allegations that the father had been manipulative in his actions with the child, particularly the reports that the father had told the child that her mother had hit her as an infant. 

12. There were additional concerns of the father’s comments during his interview regarding the mother’s sexuality, in which he referred to her “as a predator in the context of reported internet and sexual contact with a woman.” 

13. The clinician then continues, in that part of the report, to express concern about the father’s attitude and the reports by Ms F that the father may have a personality disorder and that his behaviour may reflect narcissistic personality traits.  The concern raised related to his capacity to empathise with the child, emotional availability to the child and the ability to identify and prioritise the child’s needs above his own. 

14. Page 14 concludes, in relation to the overall report, that despite both parents’ expressed desire to act in the child’s best interests, the clinician was concerned about the likely impact of the acrimonious relationship and the adversarial nature of the Family Court proceedings on the child’s emotional wellbeing and her relationship with brother, mother and father. 

15. Specifically, the clinician was concerned that the child may have been embroiled in her parents’ dispute when she was allegedly exposed to the denigration of one parent by another, exposed to the use of violence by her mother towards her father, and was not permitted to speak about one parent in the other parent’s care. 

16. Furthermore, the clinician was highly concerned that the conflict had manifested in an incident at the child’s school, where she was reportedly caused emotional distress and was then subsequently withdrawn from school for a period of time. 

    Young children do not have the cognitive capacity to cope with conflict or tension between significant adults in their lives.  Children of the child’s age tend to engage in ego-centric thinking and therefore may blame themselves for conflict between their parents, which would be damaging to the emotional and psychological well-being and could cause difficulties in maintaining positive and trusting relationships with either parent.

17. Lastly, it was noted that at times during their interviews, both parents provided information that was inconsistent with one another and the clinician considered the possibility that misleading or incorrect information was provided in the context of the ongoing Family Court proceedings. 

18. The clinician understood, from Ms F that the father had previously acknowledged lying to professionals in the past and this information further contributed to the clinician’s concern about the veracity of the information obtained (that is the material contained in page 14).

19. The recommendations of the clinician are as follows: 

    Based on the outcome of this assessment, it is recommended that:

    (1)      The mother and father prioritise [the child’s] needs and best interests.

    (2)      The mother and father consider the impact of their acrimonious relationship on [the child’s] emotional and psychological wellbeing and avoid embroiling her in their discord.

    (3)      If deemed necessary, for [the child] to receive therapeutic intervention to support her ongoing emotional development and to overcome any difficulties associated with her experiences.

    (4)      [The child] is afforded the opportunity to continue the development of safe and healthy relationships with her mother and father.

    (that is signed off by the CPS social worker).

20. I did not receive any clear indications from any submissions today as to the steps the parties might be taking, or might have even considered taking, to consider the impact of their acrimonious relationship on the child’s emotional and psychological wellbeing and to avoid embroiling her in their discord. 

21. Contrary to that they are here in Court again today with no ability to move the matter forward, save and except to say that the matter must be left in the trial list and allocated a date for final determination.

22. What it is necessary for me to consider are the provisions of the Family Law Act 1975 (Cth) which require the best interests of the child to be paramount consideration and to protect the child from harm, being not only physical harm and sexual harm, but also psychological and emotional harm. That is being the main factor which I must consider, taking into account, however, the other primary factor which is the benefit to the child of being able to have a meaningful relationship with both of the child’s parents.

23. Taking into account that the material is disputed by the mother, I am not satisfied that it is in the best interests to arrange for the time the child spends with the father to resume on the basis of the orders which provided for the child to spend considerable overnight time with the child each alternate weekend and then again on the intervening week, one night.  I consider it to be in the best interests of the child (taking into account the history of the matter and the time which has passed since the orders were first suspended) to spend some time now, pending trial, each alternate weekend with the father. 

I certify that the preceding twenty-three(23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 August 2016.

Associate: 

Date:  16 August 2016