Pelham & Jupp
[2021] FamCA 324
•21 May 2021
FAMILY COURT OF AUSTRALIA
Pelham & Jupp [2021] FamCA 324
File number(s): ADC 1987 of 2020 Judgment of: BERMAN J Date of judgment: 21 May 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of a child – Interim parenting – Where both parties agree the children should live with the mother –Where the father seeks to spend significant and substantial time with the children – Where the mother opposes any time spending – Where the father has spent no time with the children for eight months – Where there are allegations of sexual abuse – Where Child Protection Services were unable to clarify the concerns raised – Where there is uncertainty with respect to the status of any current or ongoing police investigations involving the father – Where a cautious approach should be adopted where evidence has not been tested – Where some sort of relationship should be maintained between the father and the children – Where any risk can be managed by visits being supervised by a family consultant – Orders. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65L Cases cited: Marvel v Marvel (2010) 43 Fam LR 348
Starr & Duggan [2009] FamCAFC 115
Number of paragraphs: 51 Date of hearing: 13 May 2021 Place: Adelaide Counsel for the Applicant Ms Hume Solicitor for the Applicant: Tessa Hume Counsel for the Respondent: Ms Pyke, QC Solicitor for the Respondent: Jordan & Fowler Family Lawyers Counsel for the Independent Children's Lawyer: Mr Dillon Solicitor for the Independent Children's Lawyer: Legal Services Commission ORDERS
ADC 1987 of 2020 BETWEEN: MS PELHAM
Applicant
AND: MR JUPP
Respondent
LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA
Independent Children’s Lawyer
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
21 MAY 2021
THE COURT ORDERS THAT:
1.Further consideration of the interim parenting arrangements be adjourned to 9.00 am on 10 June 2021.
2.Pursuant to s 65L of the Family Law Act 1975 (Cth) the children X born … 2015 and Y born … 2018 spend time with the father from 3.00 pm to 5.00 pm on 26 May 2021 and 2 June 2021 with such time spent to be supervised by a family consultant appointed by the Director of Child Dispute Services of the Adelaide Registry.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pelham & Jupp has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Pelham (“the mother”) and Mr Jupp (“the father”) are unable to agree the future parenting arrangements for X born in 2015 (“X”) and Y born in 2018 (“Y”) (collectively “the children”).
By her Amended Initiating Application filed 8 October 2020, the mother seeks that the children live with her and spend no time with the father. In particular, the mother seeks that the father be restrained and an injunction granted restraining him from attending at the mother’s residence, the children’s childcare or school or any other place where the children may be and collecting or removing the children.
By Amended Response to Initiating Application filed 25 November 2020, the father seeks interim orders summarised as follows:
(a)That the parties have equal shared parental responsibility for the children;
(b)That the children live with the mother; and
(c)That until further order the children spend time with the father, gradually increasing to each weekend from 12.00 pm Saturday until 3.30pm Monday and each Wednesday from 8.30 am to 3.30 pm.
The father recognises that his time with the children may be subject to an order for supervision and if so then it should be supervised initially by Ms B, his sister or such other person as the parties may agree.
Following extensive submissions before Judge Heffernan on 16 December 2020, his Honour delivered extensive settled reasons, dismissing the father’s application to spend time with the children but allowing the father to send cards and presents if relevant.
His Honour adjourned the proceedings to allow for the appointment of an independent children’s lawyer (“ICL”) pursuant to section 68L of the Family Law Act 1975 (Cth) (“the Act”).
His Honour specifically noted that the Department for Child Protection were yet to interview the father in respect of a raft of allegations made by the mother following purported disclosures by the children but in particular X, that raised the issue of whether the father would present as an unacceptable risk to the children.
His Honour’s reasons are summarised by reference to the following paragraphs from the judgment:[1]
46.In the end, I am, with some reservation, persuaded by the submissions of Ms Hume. I have reservation not because any of the principles in the authorities cited by her, or her application of them to the facts of this matter, are inappropriate or misconceived. To the contrary, her argument and the reasoning behind it was forceful. I say I have some reservation because of the matter that I have referred to moments ago, that to disrupt, at an interim stage, the relationship between a parent and a child, with whom that parent has previously had, by all accounts until now, a close and seemingly functional relationship, is always a significant step, and one which is not to be taken lightly.
47.I stress that the fact that I have made this assessment at this stage is not a finding of fact, that the father is a sexual threat to the children, or that the father has sexually assaulted either of the children. It is not a finding as to the father’s character. It is a cautious assessment of risk, putting the matters referred to in section 60CC(2)(b) ahead of the right of the children to have a meaningful relationship with the father, and the fact of their previously close relationship with him.
48.The Act concerns itself with the rights of children, not with the rights of parents, and it place a very high emphasis on the protection of children from harm and the risk of harm. In that context, interim decisions will often be made on a risk assessment basis, which are necessarily cautious, but which it must be recognised, nonetheless, create a hiatus in the relationship between children and a parent, which is both distressing and offensive to the affected parent. That is regrettable. Where it occurs, it is a hardship which must be borne by the affected parent in the best interests of the child or children until such time as the identified risk can be better or finally assessed on the basis of more complete information. This is such a case.
49.Information which might assist the Court in making a better assessment of risk and unacceptable risk is likely to be forthcoming in this matter. It includes the results of the DCP investigation, any materials which may be returned by police in response to the outstanding subpoena in Victoria, and information which might be obtained by SAPOL after the forensic examination of the father’s electronic devices. I am satisfied, regrettably, that at this time it is not in the best interests of the children that I permit the father to have any time on a supervised or unsupervised basis with them.
[1] Pelham & Jupp [2020] FCCA 3582
MOTHER’S AFFIDAVIT FILED 3 FEBRUARY 2021
Even though the father’s affidavit filed 25 November 2020 was considered by Judge Heffernan, the mother filed a responding affidavit on 3 February 2021.
An important consideration for the mother was that at the commencement of the proceedings she did not seek parenting orders because she was confident that the parties would be able to reach ready agreement. The mother’s stated intention was “to have a positive co-parenting relationship for the benefit of our children…”[2]
[2] Affidavit of the mother filed 3 February 2021, paragraph 2
In his affidavit the father alleges that the mother abused him, stalked him and was jealous. The mother’s response is that during their relationship the father engaged in many sexual relationships with different women and his conduct and uncertain sexuality caused her to develop significant anxiety.
The mother further alleges that the father perpetrated family violence evident by physically aggressive conduct towards her. She had also observed the father engage in a road rage incident which involved a physical fight.
The mother further emphasises the potential relevance of the child pornography charges faced by the father in Victoria in 1998.
The father explains the context in which the child exploitation incident arose as being the unintentional downloading of pornographic files whilst the father was downloading music. Some images were retained by the father and the court and prosecution accepted the father’s explanation, hence no conviction was recorded and the professional association issued a caution but did not suspend the father’s ability to practice his profession.
It is an important concession of the mother that but for the alleged disclosures made by X, and notwithstanding what appears to be an unfortunate and highly dysfunctional relationship as between the parties, the mother expressly recognises that if the father poses no risk to the children, then their interests are best served by maintaining a meaningful relationship with him.
The unfortunate reality is that the children have spent no time with the father since September 2020. Eight months have now elapsed and the breakdown in the relationship has the potential to remain unresolved for a significant period of time.
CRIMINAL PROCEEDINGS IN VICTORIA
In June 1998 the father entered a plea of guilty to the following charges:
·That the father knowingly possessed child pornography
·That the father transmitted objectionable material
Consequent upon the plea of guilty, the father without conviction was placed on a bond of two years to be of good behaviour.
Significant efforts have been made to obtain a copy of the file held by the Magistrates Court of Victoria in respect of the father’s offending. Despite the father’s best efforts, the court files and possibly the files of Victoria Police have been destroyed.
CHILD PROTECTION SERVICES REPORT
As a result of information being provided to the South Australian Police Department (“SAPOL”), X was referred to Child Protection Services (“CPS”) to investigate and explore concerns that he had disclosed to the mother on 23 and 24 September 2020. The Child Protection Service Report dated 7 January 2021[3] details the following:
(a)Whilst the mother was changing Y’s nappy, the child talked about “daddy’s hole”[4] at which time the mother questioned the child as to what he meant and X pointed to his bottom and stated “daddy’s bottom”.[5]
(b)Following a further discussion between the mother and the children about the father, X described how “daddy hits and smacks his penis”[6] and “replicated a masturbation action with an open hand in front of his groin area”.[7] When asked where this had occurred X replied that he and Y were in “daddy’s bed”.[8] When asked what the father was doing when he was hitting and smacking his penis, X responded that the father “was watching his phone…watching a man hitting his penis”[9] which then prompted the father to leave the bed and go to the bathroom.
[3] Affidavit of Mr C filed 7 May 2021, annexure “A”.
[4] Child Protection Service Report dated 7 January 2021, page 2.
[5] Ibid.
[6] Ibid.
[7] Ibid
[8] Ibid.
[9] Ibid.
The report is a comprehensive document and included interviews with each of the parties.
Exhibit “4” contains the forensic interview of X on 3 November 2020. No disclosures were made by X. The forensic interview provides no assistance.
CPS was not able to find that either of the children had been exposed to inappropriate sexual material or had been the subject of sexual abuse or assault by the father.
It is apparent that X has delayed speech, language and or cognitive functioning.
Of significant concern to CPS was their observation that the children may be adversely impacted by “the extensive chaotic and fragmented relationship [the mother] and [the father] had shared, underpinned by their own personal functioning struggles, and that both X and Y had been exposed to this throughout the entirety of their lives.”[10]
[10] Child Protection Service Report dated 7 January 2021, page 13.
A significant concern to the mother and observed by the father was the observation that X engages in “humping” behaviour. CPS considered that it may be sexualised behaviour. The mother considers that it is indicative of X having been exposed to inappropriate sexual conduct and to that end X has received regular therapeutic intervention.
It is a matter for future consideration as to whether the humping behaviour of X is sexualised behaviour or has a different cause.
I am satisfied that other than the recommendation that X may benefit from ongoing therapeutic intervention in order to provide him with psychological support, no further investigation is either warranted or being considered at this stage.
STATUS OF CURRENT POLICE INVESTIGATIONS
Neither party were able to assist the Court in a better understanding of the nature and extent of any current or ongoing police investigation. It appears that SAPOL, having been made aware of the Victorian conviction in 1998 were prompted to explore whether the electronic devices of the father contain inappropriate images.
The father has not been charged with any relevant offence. As I understand the matter, the police may have requested the father’s assistance in providing various passwords that would enable the father’s electronic devices to be examined. I am not able to say whether the father has not yet decided to provide the information to the police or whether his position, on legal advice, is to refuse the request.
At present, there does not appear to be any current evidence which implicates the use by the father of electronic devices in the commission of a relevant offence.
I am not able to draw an adverse inference in circumstances where the father is entitled to maintain his opposition to providing the relevant passwords.
The issue of the father’s purported refusal to provide the passwords sought by the police was a more significant issue when there was an ongoing CPS investigation.
The CPS report has now been published and what remains is the mother’s concern following the purported disclosures by X and what appears to be a standoff between SAPOL and the father.
INTERIM PARENTING
In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.
I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order. Whilst a Court should generally be risk adverse and cautious, that does not mean I am obliged to only make orders consistent with the current arrangements.
The competing applications of the parties must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which outlines the objects and principles underlying Pt VII of the Act.
Section 60CA of the Act requires that in deciding whether to make a particular order the best interests of the child is the paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).
In Starr & Duggan [2009] FamCAFC 115 the Full Court gave clear direction as to the co-existent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38.… it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:-
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
PARENTING CONSIDERATIONS
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act 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;
(5)Have regard to additional considerations under s 60CC(3) of the Act; and
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.
The consideration of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence at an interim hearing and as such the evidence and issues raised by each of the parties is to be approached with caution.
The mother is opposed to there being any resumption of physical time between the father and the children.
The father proposes that time spent should not be the subject of supervision but if the Court is concerned then professional and potentially paid supervision is also proposed.
The mother contends that it is too early for there to be any resumption of time spending in circumstances where there may be a risk to the children, but in particular X if he comes into contact with the father who may have sexually abused him.
I am cognisant of the need to promote the benefit of a child of having a meaningful relationship with his or her parents tempered by the overarching obligation to ensure that a child is protected from abuse, neglect or harm.
On an interim basis, the Court should act with caution even if the outcome may be a disappointment to a party, in this case the father who seeks a resumption of significant and substantial time with the children.
I bring to account the concession by the mother that whatever her personal feelings are towards the father, absent him presenting as a significant or unacceptable risk to the children, it would have been her preference that there be an ongoing relationship.
I am not able to ignore or overlook the extent to which the mother’s anxiety about the father may impact on the children. Equally, I am concerned as to the damage that may be done to the children if they are not able to maintain some semblance of a relationship with the father providing it is safe to do so.
At this stage, I consider that the risk to the children can be properly managed by the involvement of a family consultant appointed pursuant to s 65L of the Act to supervise two observed occasions between the children and their father.
The skill and expertise that a family consultant would bring to the observed interaction would provide an appropriate counterfoil to the mother’s concerns of psychological harm being experienced by X in particular. The family consultant would have at his or her discretion the ability to terminate the session were there to be any observations of distress or upset. Equally, the Court would benefit from a brief observational report at the conclusion of two sessions to determine a future pathway.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 21 May 2021
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