Pelham & Jupp (No. 2)
[2021] FamCA 558
•2 August 2021
FAMILY COURT OF AUSTRALIA
Pelham & Jupp (No. 2) [2021] FamCA 558
File number(s): ADC 1987 of 2020 Judgment of: BERMAN J Date of judgment: 2 August 2021 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time with – Best interests of child – Where the father seeks to resume spending time with the children – Where the mother opposes any time sending – Where there are allegations of sexual abuse – Where there are criminal investigations involving the father – Where a report was prepared pursuant to s 65L of the Family Law Act 1975 (Cth) – Where the children maintaining a relationship with the father needs to be balanced against the risk to the children – Where a cautious approach needs to be adopted – Where time is to be supervised – Orders.
FAMILY LAW – CHILDREN – Best interests – Injunctions – Where the parties agree to injunctions preventing them from taking the children to health professionals without the other’s consent – Where the mother seeks that one of the children continue to receive therapeutic support – Where the evidence does establish an ongoing advantage – Orders.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 65L Number of paragraphs: 64 Date of hearing: 2 July 2021 Place: Adelaide Counsel for the Applicant: Ms Boyle 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 of South Australia ORDERS
ADC 1987 of 2020 BETWEEN: MR JUPP
Applicant
AND: MS PELHAM
Respondent
LEGAL SERVICES COMMISSION OF SOUTH AUSTRALIA
Independent Children’s Lawyer
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
2 AUGUST 2021
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1.That the father do spend time with the children X born … 2015 and Y born … 2018 (collectively “the children”) as follows:
(a)On Wednesday and Saturday of each week between the hours of 1.00 pm and 3.30 pm for three (3) consecutive weeks; and
(b)Thereafter, between the hours of 11.00 am and 5.30 pm on each Wednesday and Saturday.
2.That in the event X is at school then his time shall commence with the father at 3.30 pm from the Early Learning Centre.
3.That all time between the children and the father be supervised by Ms D.
4.That all handovers that do not occur at X’s Early Learning Centre do take place at the home of the maternal parents at F Street, Suburb G or at the home of Ms D at H Street, Suburb J at the election of the mother provided that the mother shall not be present during the handover.
5.That the parties be restrained and an injunction granted restraining each of them from taking the children or either of them to any counsellor, psychologist, psychiatrist or any other health professional, including Mr K, save and except for:
(a)Any general practitioner treating the children in relation to their physical health;
(b)Speech therapist, Ms L;
(c)Any occupational therapist currently engaged;
(d)In the case of a medical emergency; and
(e)Child Protection Services without the written consent of each of the parties.
6.That by 4.00 pm on 17 September 2021 the mother file and serve upon all other parties:-
(a)An amended application setting out with precision the orders to be sought;
(b)The affidavits of evidence in chief of all witnesses including the mother relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and
(c)A financial statement that complies with chapter 13 of the Family Law Rules 2004 (Cth).
7.That the mother and the father each pay one half of all setting down and trial fees by 4.00 pm on 10 January 2022.
8.That by 4.00 pm on 17 December 2021 the father file and serve upon all other parties:-
(a)An amended response setting out with precision what orders are being sought;
(b)The affidavits of evidence in chief of all witnesses including the father relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);
(c)A financial statement that complies with chapter 13 of the Family Law Rules.
9.That by 4.00 pm on 14 January 2022 the mother file and serve any affidavit in reply to that of the affidavits of the father.
10.That by 4.00 pm on 14 January 2022 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.
11.That no party file any further material other than as provided by these orders without leave of the Court.
12.That all parties have liberty to approach the registrar responsible for the management of the Court file to vary the obligations under these orders to ensure readiness for trial.
13.Liberty is granted to each party and the Independent Children’s Lawyer to relist the matter at short notice in relation to trial directions or any application for leave for subpoena to issue.
14.That the practitioners for the parties file and serve electronically to … by 4.00 pm on 16 February 2022 the following:
(a)A concise set of orders to be sought if different from those already filed;
(b)A list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;
(c)A list of assets and liabilities;
(d)A list of objections to evidence upon which rulings are required; and
(e)A bullet-point summary of argument in relation to the issues in dispute.
15.That each party provide to the Court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.
16.Liberty is granted to each party and the Independent Children’s Lawyer to relist any application for a change in the interim parenting arrangements after a determination has been made by the South Australian Police to discontinue the current criminal investigation or charge the father with a criminal offence.
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
On 21 May 2021, orders were made which adjourned consideration of the interim parenting arrangements to 10 June 2021 to consider the assistance that may be provided to the Court following an order made pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) that provided for X born in 2015 and Y born in 2018 (collectively “the children”) to spend two periods with the father, supervised by a family consultant.
On 8 June 2021, orders were made listing all applications for final orders to a primary hearing to commence on 21 February 2022.
On 10 June 2021, further consideration of the interim parenting arrangements were adjourned to 2 July 2010 to enable the parties to file any further applications.
By Application in a Case filed 25 June 2021, Mr Jupp (“the father”) seeks orders summarised as follows:
(1)That until further order the father spend time with the children as follows:
(a)On Monday, Wednesday and Saturday of each week between the hours of 1.00 pm and 3.30 pm for two consecutive weeks;
(b)Thereafter on each Monday, Wednesday and Saturday between the hours of 9.00 am and 5.30 pm;
(c)On X’s birthday in 2021 from 9.00 am to 5.30 pm;
(d)From 1 September 2021, on each Monday and Wednesday between the hours of 9.00 am and 5.30 pm and Saturday from 9.00 am until 9.00 am on the following Sunday.
(2)That in the event that X is at school then his time commence with the father at 3.30 pm from the Early Learning Centre.
(3)That the father’s time with the children be supervised by the father’s sister Ms D and that in respect of any overnight period, the time be spent at the home of the supervisor.
(4)That all handovers that do not occur at X’s Early Learning Centre do take place at the home of the maternal grandparents or the supervisor at the election of the mother but in any event in her absence.
(5)That the mother be restrained and an injunction be granted restraining her from taking the children to any counsellor, psychologist, psychiatrist or any other health professional (including psychologist Mr K) save and except for:
(a)Any general practitioner treating the children in relation to their physical health;
(b)Speech therapist, Ms L;
(c)Any occupational therapist currently engaged; and
(d)In the case of a medical emergency.
The mother opposes the orders sought by the father but is prepared to consent to the order of restraint except with Mr K being able to provide ongoing therapeutic assistance to X.
If orders are made that provide for the children to spend time with the father then the mother opposes supervision by Ms D and promotes a professional supervisor being involved at the sole expense of the father.
Given that a trial date has been set, trial directions need to be made noting that on 8 June 2021 an order was made pursuant to s 62G(2) of the Act for the preparation of a family report.
I do not propose to repeat the matters addressed in my judgment delivered on 21 May 2021[1] but intend to bring to account the following matters:
(1)The s 65L report dated 9 June 2021;
(2)The father’s affidavit filed 25 June 2021;
(3)The mother’s affidavit filed 28 June 2021 that highlights the mother’s allegation that the children have made further disclosures of abuse; and
(4)The likelihood but at this stage not the certainty of the South Australian Police (“SAPOL”) making an application pursuant to s 74BR of the Summary Offences Act1953 (SA) that would compel the father to provide passwords to his electronic devices.
[1] See Pelham & Jupp [2021] FamCA 324
SECTION 65L REPORT
Family consultant Dr M conducted two supervised observations on 2 and 8 June 2021.
The family consultant noted that at the time of observation the children had not spent time with the father for several months. The family consultant was aware that the suspension of time was related to allegations that the children had disclosed sexual abuse by their father.
Relevant to the supervised visits was a consideration that during X’s interview by Child Protection Services (“CPS”) in January 2021, no disclosures were made regarding sexual abuse.
It must be remembered that the appointment of the family consultant pursuant to s 65L of the Act was to ameliorate the concern of the mother that the children might suffer psychological harm by being brought into contact with a potential abuser.
The evaluation of the family consultant is set out in paragraphs 18 and 19 of the report:
18.The four hours that the children spent with the father over the two supervised sessions raised no concerns about the father’s ability to emotionally attune to the children, and support their development. Of the two boys, X was immediately positive and affectionate towards the father. Y took longer to relax into spending time with the [father], and there was an overall sense that Y was still processing this relationship, in the context of the father’s lengthy absence in his life, the unfamiliar physical environment in which he has recommenced spending time with his father (the court child care), and the mother’s apparent concerns about the nature of the father’s relationship with the boys. Y’s need for his mother towards the end of the session suggests that he is emotionally dependent on her, as is consistent with his age, and is suggestive of a close emotional relationship. His capacity [to] spend extended time away from his mother in unfamiliar environments may need to be taken into account.
19.The father’s ability to support the children’s development was noted throughout the supervised time. He appears to be able to understand the world from the children’s perspective, and to connect emotionally and cognitively with them at their level of interest. These skills are considered important in building good quality, secure, parent-child relationships.
A relevant consideration is that the s 65L appointment was to specifically consider the potential for X to experience distress when introduced to his father.
FURTHER DISCLOSURES OF ABUSE
The mother’s affidavit filed 28 June 2021 summarises the history of her concerns for the children and focuses on the propensity of X to engage in “humping” behaviour.
Without seeking to dismiss or minimise the genuine concerns of the mother, she considers that X’s humping stopped when he ceased spending time with the father in September 2020 but that it recommenced shortly prior to the CPS interview and again when the children recommenced time with the father supervised by the family consultant.
At paragraph 41 of her affidavit, the mother sets out the following further disclosures:
41.On 20 June 2021 at 3.40pm I was changing Y’s nappy. He started to touch his penis and his bottom and giggled. I said, ‘What are you doing Y?’. He said ‘touching my penis and my bottom like Daddy did. I got angry and I hit him and he got cross with me’. On the same night, I was getting Y changed and ready for bed. He put both hands over his penis giggling. I said, ‘What are you doing?’. He said, ‘touching my penis like Daddy did’. My friend was visiting and heard Y say this. Those matters have been reported to the CARL line.
Whilst the further alleged disclosure was made by Y, the mother notes that following spending time with the father, X has commenced to hold his penis, wiggle his body around and laugh. The mother considers that X’s actions are odd.
HEALTH PROFESSIONALS ENGAGED WITH THE CHILDREN
Except as to Mr K, psychologist, the parties are agreed as to the terms of an injunction that would restrict or restrain the children being taken to any health professional without the consent of the other.
The mother seeks that X continue to receive therapeutic support from a psychologist but in particular Mr K.
Mr K has not provided a report which would assist in better understanding the therapeutic goals that forms the basis of Mr K’s professional relationship with X.
Mr K’s handwritten notes of the therapeutic sessions with X were tendered without objection and comprise Exhibit “7” in the proceedings.
There must always be a cautious approach adopted when considering the forensic value of the notes of a health professional. The notes are not made for the benefit of a patient or client but rather are to assist the health professional in the conduct of their practice.
It could not be said that the notes are intended to be comprehensive of all that may have passed between a health professional and a client or patient and in any event in the absence of cross-examination it is not necessarily the case that the notes speak for themselves.
The father’s queens counsel sought that the Court place significant reliance on the notes of Mr K to support her contention that the mother was keen for X to continue in the therapeutic sessions so that there would be an opportunity for the child to make further unsubstantiated disclosures against the father.
The mother’s counsel highlighted the handwritten notes of the therapeutic session conducted on 23 February 2021. The notes record the following:
INT - General supporting counselling play based session
- X mostly non-verbal and would not stay on any one activity for long. Does play in a reciprocal way
…
Mr K – “Your mum told me that one day soon you … would like to talk to me about your Dad. Would you like to do that today?”
X shook head.
I do not consider that much assistance is gained from the notes of Mr K except that the child does not appear to make any further disclosures and that “play therapy” appears to be the therapeutic vehicle used by Mr K.
Of more assistance is the email from Ms N, occupational therapist, to Mr K dated 22 January 2021.
Ms N sought to introduce herself to Mr K and provided the following assessment of her interaction with X:[2]
Hi Mr K,
I’m Ms N, X’s OT. I thought I’d introduce myself and see if there is anything in particular I can do to be consistent with what you are currently working on or with the language I use with him. X is a delightful young boy and we have mostly been working on his fine motor skills, his communication, social skills and general school readiness skills.
In terms of the area in Psych in particular, X is becoming increasingly confident with expressing if he would like to do something or not, which I am glad about! He is easily distracted though and will something (sic) mimic the behaviours or even activities of the other children, even if it’s just parallel play. He doesn’t talk to me much about emotions, the most he really does is name simple emotions, but I am unsure if this is due to his speech and cognitive difficulties that he doesn’t usually explain why people feel emotions etc. He mentions his father every now and then, and will often say something along the lines of “That’s Daddy (points to picture), I make Dad card” or “I saw Dad” or “I want hugs from my family”.
I haven’t personally seen any self-soothing behaviours from him or sensory inappropriate touching, but I do see him at ELC where he feels safe.
Thanks
Ms N
…
[2] Exhibit “7”, page 3.
FATHER’S OUTSTANDING CRIMINAL PROCEEDINGS
As discussed, SAPOL seized twelve electronic devices from the father.
According to his most recent affidavit, four devices have been analysed and the father understands that no offences have been detected and that they will soon be returned to him.
The status of the remaining eight devices is likely to be the subject of an application by SAPOL that would require the father to provide his passwords.
The father has not yet been charged with any criminal offence and he has engaged solicitors seeking to resolve matters with the police.
There is some uncertainty as to the father’s position with respect to the electronic devices.
At this stage it seems that the father is not prepared to volunteer his passwords but has sought to negotiate with SAPOL such that the devices would be delivered up to this Court with a jointly instructed expert to interrogate the devices and provide a report as to content.
The father has not made any application that might require SAPOL to deliver up the devices to this Court but the proposal of the father may well be moot if the police intend to proceed with an application that would compel the disclosure of the passwords by the father.
It is not proper to draw an adverse inference against the father that his opposition to disclosing the passwords raises an inference that there is content on one or more of the electronic devices which would support the laying of a criminal charge.
The existence of the criminal investigation centring on the father’s electronic devices is a matter of concern to the mother. The mother’s concerns have relevance to these proceedings.
The likelihood that the police will take separate action and make an application requiring the father to disclose the passwords suggests that the current uncertainty may well resolve well before the anticipated final hearing in February 2022.
The father seeks orders in terms of his application which would be until further order.
I consider that any orders made should be able to be reconsidered by the Court if and when the criminal investigation is concluded.
BEST INTERESTS OF THE CHILDREN
The evaluation of the family consultant highlights the father’s ability to be emotionally attuned to the children and to support their development.
There was nothing in the interaction between the children and the father which suggested that they were anxious, distressed or reluctant to engage with him.
A difference was noted in terms of X’s positive and affectionate reaction to the father as opposed to Y being more reticent but the likely explanation is the period of several months separation has had more impact on Y given his age.
Absent any other information, the s 65L report supports the father’s application however, it is tempered by the mother’s concerns and the evidence that she may well rely upon to support and substantiate her allegations that the children have made credible disclosures against the father and that he presents as an unacceptable risk.
At this stage there needs to be a balance between the potential importance of the children maintaining a relationship with the father, particularly given the favourable observation of the family consultant, and the overarching requirement that the children need to be protected from harm or overt risk.
The father recognises that supervision is a likely requirement of any order that has the children resume time with him and whilst he proposes his sister, the mother considers professional supervision should be required.
The issue of supervision the children is to ensure they are safe. The assistance provided by the s 65L report is the clear assessment of the family consultant that the father has the ability to support the children’s development and is emotionally attuned to their needs.
Ms D has filed an affidavit. No application was made for Ms D to give evidence and be cross-examined as to any concerns that may be held by the mother. Ms D was present during the proceedings and was available for cross-examination if required.
I have given careful consideration to the orders sought by the father and the mother’s opposition and as previously discussed, apply the provisions of s 60CC of the Act.
It is apparent from the evaluation of the family consultant that providing it is safe to do so it is important for the children to reconnect with the father in circumstances that are familiar.
Initially the father seeks that the children spend time with him on three occasions per week and from 1 September 2021 the time on Saturday is to include an overnight until the following Sunday.
The focus in respect of any parenting order must be that it is in the best interests of the children. At this point in the proceedings I have determined that there will be an advantage to the children in maintaining a relationship with the father but in circumstances where it is safe to do so.
The father would wish to spend as much time as is possible with the children whereas the mother remains concerned that the children may be at risk.
Given that the father’s time is to be supervised, I propose that the children will spend time with the father for a period of three weeks on each Wednesday and Saturday between the hours of 1.00 pm and 3.30pm. I am mindful of the observations of the family consultant as to Y’s presentation following each of the two hours of supervised time.
Thereafter, the father’s time on Wednesday and Saturday of each week should be extended from 11.00 am to 5.30pm.
I do not propose to order the father’s time on Saturday to extend overnight to the following Sunday morning. Whilst I am certain that Ms D is keen to be of assistance in supervising the children’s time with the father, at this stage I do not consider there is any evidence to suggest that the proposed overnight time will add anything to the maintenance of the children’s relationship with the father. The overnight time would occur in the home of Ms D and I suspect that will only serve to heighten the mother’s anxiety.
The Court needs to take a cautious approach and whilst the parties may well be disappointed, the focus must be on what outcome is most likely to benefit the children at this stage.
There is no advantage to the children if the mother is unnecessarily distressed, anxious or upset.
The balance of the orders sought by the father as to handover arrangements appear to be sensible and leave the place of handover at the discretion of the mother.
The parties currently share parental responsibility. Whilst the children currently remain in the primary care of the mother, that does not abrogate from the ability of the parties to consult each other and if necessary make decisions as to major issues that impact upon the children. In this case, the continued involvement of X in therapy is a matter which the parties are unable to agree.
It could not be said that evidence presented establishes that there is an ongoing advantage to X arising from his continued involvement with Mr K. The next appointment is in August 2021. There is a level of uncertainty as to the focus of the therapeutic intervention and in circumstances where the parties are able to agree other aspects of necessary intervention such as speech and occupational therapy, there is no good reason why the parties should not be able to agree whether X needs further therapeutic assistance.
Where the parties are currently not able to agree, I consider that X’s attendance on Mr K should cease and that the parties should be required to agree if further psychological or therapeutic input is required but in the absence of agreement then each of the parties are entitled to bring an application which sets out the basis upon which X should receive further assistance.
I make orders as appear at the commencement of these reasons.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 2 August 2021
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