Phitzner and Hollas (No 2)

[2013] FamCA 881

FAMILY COURT OF AUSTRALIA

PHITZNER & HOLLAS (NO. 2) [2013] FamCA 881

FAMILY LAW – CHILDREN – Interim Orders – with whom a child should spend time – best interests – orders made for the children to spend time with the father under the supervision of the paternal grandmother.

Family Law Act 1975 (Cth) s 60CC; 68L; 69ZW

APPLICANT: Mr Phitzner

RESPONDENT: Ms Hollas

FILE NUMBER: ADC 4259 of 2012

DATE DELIVERED: 13 November 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 4 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Tindall Gask Bentley

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Harry Alevizos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

INDEPENDENT CHILDREN’S LAWYER

Mr Childs

Legal Services Commission of SA

Orders

1. That paragraph 1(a) of the orders made 19 September 2013 be amended by the deletion of the words “and the applicant”.

2. That the applicant father spend time with the children W PHITZNER born … 2004, J PHITZNER born … 2006, Y PHITZNER born … 2007 and Z PHITZNER born … 2009 under the supervision of the paternal grandmother Mrs P as follows:-

   (a)       As to the children W, J and Y:-

   (i)each Saturday from 9am to 12 noon commencing 16 November 2013.

   (ii)as and from 4 January 2014, each Saturday from 9am until 3pm;

   (iii)on 25 December 2013 (Christmas Day) from 10am to 1pm;

   (iv)at such other times as may be agreed between the parties and the Independent Children's Lawyer in writing.

   (b)       As to the child Z:-

   (i)from 16 November 2013 to 3 January 2014 subject to her wishes;

   (ii)from 4 January 2014 in terms of paragraph 2 (a) hereof.

3. That unless as otherwise agreed handover for the purposes of the children spending time with their father shall be at the Wakefield Street Police Station.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phitzner & Hollas 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 4259 of 2012

Mr Phitzner

Applicant

And

Ms Hollas

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed before me for a hearing in respect of an application in a case filed on behalf of the father on 16 September 2013 (“the application”).  The focus of the application are parenting orders in respect of the infant children W born in 2004, J born in 2006, Y born in 2007 and Z born in 2009 (“the children”).  Whilst there are other orders sought, the significance of the application would see the children spending time with their father on a regular basis and in the following terms namely:-

   4.That the applicant spend time with the children under the supervision of his mother [Mrs P] at the following times:-

   4.1Every Saturday from 9am to 5pm with handovers occurring at the applicant mother’s premises;

   4.2On Christmas Day 2013 from 9am to 5pm with handover occurring at the applicant mother’s premises; and

   4.3At such other times as agreed between the parties.

2. It is not controversial that the father last saw any of the children on 27 June 2012.  Subject to a change in the position hitherto adopted by the mother at the hearing on 4 November 2013, she has been trenchant in her resistance and opposition to the children spending time with their father.

3. The proceedings are both complex and protracted.  They were commenced by the father filing an initiating application on 9 November 2012.  Extensive parenting orders were sought but essentially the relief sought by him was that he and the mother would have equal shared parental responsibility of the children and that he would enjoy significant and substantial time with them.  The mother filed a response on 11 December 2012 and sought orders that she have the sole parental responsibility for the said children and that the father’s application as it related to parenting orders should be dismissed.  The implication is that the mother was not receptive and was opposed to the children spending any time with their father.

BACKGROUND

1. I do not propose to go through the court history of the matter, a convenient starting point that by way of orders made on 4 December 2012, an Independent Children’s Lawyer was appointed pursuant to Section 68L of Family Law Act 1975 (Cth) (“the Act”). Further, pursuant to Section 69ZW of the Act, Families SA were required to provide documents summarised as follows:-

   ·Copies of any notifications regarding child abuse of the said children;

   ·Details of any investigations into such abuse allegations;

   ·The outcome or findings of any such investigations; and

   ·Copies of any reports received by Families SA in respect of the investigations of notifications generally.

2. No order was made that the children would spend any time with the father, but there was an obligation on the parties to register with the Children’s Contact Centre at Town LA. The children were to live with the mother.

3. On 19 March 2013 Federal Magistrate Kelly (as she then was) transferred the proceedings to the Family Court of Australia for consideration within the Magellan Protocols.

4. The notations to the said order are important and are repeated as follows:-

   UPON NOTING THAT:-

   A.The independent children’s lawyer has been advised by the Child Protection Services that fresh allegations have been made by the mother and the subject children are to be re-interviewed;

   B.The subject children have not spent time with the father since May 2012;

   C.The father confirms his willingness to be interviewed by the Child Protection Services in relation to the mother’s allegations.

1. There were further appearances to enable the legal representatives of the parties and the Independent Children's Lawyer to inspect certain documents that had been produced by subpoena.  The clear intention was that there would be a Families SA Report (as ordered on 28 March 2013) made available and that the matter would be the subject of extensive preparation in anticipation of a hearing before Dawe J on 21 June 2013 to consider the future conduct of the matter but in particular whether there should be any resumption of time spent between the father and the children.

2. I bring to account the matters raised in Her Honour’s ex-tempore reasons for judgment and note Her Honour’s acknowledgement of the “huge disparity between the case being put by the mother and the case being put by the father in relation to very significant matters which would enable me to determine, even on an interim basis, what is in the best interest of the children”.

3. Her Honour accepted that the mother’s allegations fell into the category of “extremely serious.” The allegations were in relation to abuse, not just in respect of the children by way of physical and sexual abuse but also in relation to the mother personally.  There are also allegations of physical abuse of the child W.

4. It was not possible for Her Honour and neither is it possible for me to make any finding as to the accuracy of the matters raised by the mother and the steadfast denials of the father.

5. There has been raised on behalf of the mother the spectre of criminal charges being formulated and the father being charged arising out of acts of physical and sexual abuse involving the children and the mother.  Those matters are recorded in paragraph 13 of Her Honour’s judgment.

6. Her Honour was placed in a difficult position.  Even on a generous reading of the Child Protection Services Report dated 16 June 2013, it would appear to provide little support for any allegation that the father has sexually abused the children, in particular Y and Z.  Again, it is not possible to make a clear finding in this regard in circumstances where the author of the report may well be called at the final hearing and be the subject of cross examination, but it is worthwhile repeating dot point three of the report in its full terms:-

   While no conclusions could be made in relation to allegations of sexual abuse experienced by [Z] and [Y] as a result of this assessment, [Z] expressed a negative perception of [the father], and [Y] reported that she experienced fear while living with [the father].  Further, both children indicated that they had been “smacked” by [the father].  Any contact between [Y], [Z] and [the father] should be monitored for any signs of emotional or behaviour distress on behalf of [Y] or [Z].

7. Her Honour noted those matters and grappled with the issue of whether, if supervised time with the father was orders, whether the children would be sufficiently protected from any risk.

8. I am satisfied that what weighed heavily on Her Honour was the uncertainty that arose from the lack of progress of the laying of any criminal charges.  Put simply, if the father was charged with significant offenses that involved the children (and to some extent the mother) then that would be a factor that would speak against a resumption of time supervised or otherwise with the children.

9. As will be seen, that state of affairs has not advanced significantly or at all.

CURRENT ORDERS

1. Following the hearing and the orders made by Dawe J on 21 June 2013, the matter came on before me on 4 September 2013.  I was sufficiently concerned with the time that had elapsed since the father had spent any time with the children that I considered that it was necessary to list the matter for a trial at an early date.  Accordingly, all applications for final orders have been adjourned for hearing before me on 17 February 2014.

2. I have had the opportunity to consider not just the CPS Report previously referred to, but also the Project Magellan Report of 12 April 2013.

3. I am not satisfied that the matters raised in the latter report take matters much beyond a historical recitation of the various notifications and the allegations made therein.  There is no suggestion that the Project Magellan Report author had undertaken any detailed consideration or forensic investigation as to the accuracy of the matters raised by the unidentified notifiers.  In any event, the allegations do not appear to significantly go beyond the matters raised by the mother in her opposition to the father spending significant and substantial time with the children.

4. It had also become apparent, that the mother’s personal circumstances had changed and there had now been a relocation of the mother to Adelaide.  This saw the father in Town LA, with the mother and the children living in Adelaide.  This presented a substantial logistical and geographical difficulty for the parties, but in particular for the father in circumstances where the mother’s position at the hearing before me was that there could be a resumption of time between the father and the children provided it was supervised at a Contact Centre in terms of the recommendation by Dr C.

5. I also considered it appropriate that there be an injunction put in place and specifically directed to the mother that she be restrained from taking the children to any counselling, therapy or other intervention save with the express consent in writing of the Independent Children’s Lawyer.

6. The matter next came before me on 19 September 2013 and the order of restraint and injunction previously made was the subject of amendment which required the consent of both the Independent Children's Lawyer and the applicant father should the mother wish to engage any of the children in any further counselling or therapeutic intervention and restrain the mother from changing the principal place of residence of the children from the Adelaide metropolitan area “noting that it is the husband’s intention to relocate to Adelaide from [Town U] after securing a transfer through his employer”.

7. Importantly, the parties were to attend upon Dr C for the purpose of a Family Assessment Report.

8. I adjourned the matter for further consideration to 17 October 2013 but for various reasons the matter was finally argued on 4 November 2013.

9. On that occasion I had the advantage of the following further documents:-

   ·Affidavit of the respondent setting out the current status of Police investigations involving the father;

   ·Affidavit of the father’s solicitor annexing correspondence from the father’s criminal solicitor;

   ·Affidavit of Mr SR filed 6 November 2013 annexing a report from Dr C dated 2 November 2013.

10. The principal issue before me is whether the children should spent time with their father, albeit on a supervised basis in circumstances where the matter is listed for trial on 17 February 2014, against a background of the serious allegations made by the mother directed against the father as referred to in the judgment of Dawe J delivered 21 June 2013 and referred to (but not exclusively so) in an affidavit of the mother filed 7 March 2013.

REPORT OF DR C

1. Notwithstanding the earlier order made by me that Dr C be tasked to prepare a Family Assessment Report in preparation of the final hearing in February 2014, I requested of the Independent Children's Lawyer whether it would be possible to receive a preliminary report detailing the interaction of the father with the said children.

2. As part of the assessment process, Dr C undertook interviews and observations on 28 October 2013.  A report was prepared and dated 2 November 2013.

3. Dr C reports as follows:-

   On 28 October 2013, each of the three older children indicated during individual interview a willingness to engage with the father during a period of observed interaction.  The youngest child, [Z] (aged 4 years 8 months) did not agree to such a meeting.

   The three older children were reassured that there would be no emotional pressure placed on them and that I would be there to keep them safe and comfortable.  They each indicated a preference to meet with the father without the other children being present.

Each of the ensuing interactions went very well, and there were no signs of distress in any of the children during or immediately after these periods.  I conducted a brief interview with each child immediately following upon their resumption of connection with their father, to assess their attitude to ongoing contact.  Each indicated pleasure at having seen their father after such a long time, and all three indicated a clear desire to see him again.

1. There were obvious difficulties with the child Z agreeing to see her father.  She was apprehensive and it may be the case that the significant time that has elapsed since any physical contact between the children, but in particular Z taking into account her age, in seeing their father can be explained.  It might also be the case that the further observations of Dr C namely:-

   In this regard, I also note that it was made quite plain by the maternal grandmother and the mother that they were not pleased at the resumption of contact with the father achieved during the assessment.

   may also provide an explanation for her apprehension and reluctance.

2. It would appear obvious that notwithstanding the preconceived fear and apprehension that the children had in respect of their father, they were nonetheless pleased to see him and were “seemingly surprised at their lack of fear of the father”.

3. The next stage according to Dr C is to assist in the “transition back to a more normalised connection with the father” which by necessary implication provides some confidence that the relationship between the father and the children is to be maintained.  Moreover, there appears to be some good purpose in putting in place orders that would enable the relationship between the father and the children to be supported, providing it is the subject of supervision.

4. The recommendation of Dr C was that the parties involve a Children’s Contact Service to enable supervised interaction to take place involving the three older children, with Z to attend if she is comfortable.

5. Counsel for the mother, albeit with stated reluctance, was prepared to support the recommendations of Dr C.  A difficultly however is that both counsel recognised that it would not be possible for the parties and the children to be accepted into a Children’s Contact Centre effectively prior to the hearing in February 2014.

6. Accordingly, if I were to accede to the mother’s proposal this would have the effect of the children spending no time with their father in the short term.

7. The focus then turns to a consideration of the orders sought by the father that the time spent with the children, if it is to be supervised, should be supervised by the paternal grandmother.

EVIDENCE OF THE PATERNAL GRANDMOTHER

1. Mrs P is the mother of the applicant father.  Her evidence is contained in her affidavit filed 17 September 2013.  She sets out her previous relationship with the children, her personal circumstances, her capacity to provide appropriate accommodation for the supervision of the children and importantly, an assertion that she has read a document titled “Should I Supervise Contact”, which document is annexure “A” to her affidavit.

2. The mother was opposed to the paternal grandmother performing the role as a supervisor.  There was an assertion that her age and health may provide an impediment to her proper discharge of her obligations to supervise the father’s time with the children.

3. It is not to be forgotten that the mother makes serious allegations against the father.  It is already a suggestion by Dr C that the mother holds “deep concerns about the father’s capacity to manage himself and his parenting of the children in a safe and appropriate manner”.  Whilst it is important that the court be seen to foster and maintain a relationship between the children and their father if it is appropriate to do so, that process may be better undertaken if proper regard is had to the fears and concerns of the mother, whilst not yet the subject of evidence, are nonetheless genuinely held by her.  Accordingly, I considered it necessary that the paternal grandmother should give some oral evidence and be the subject of cross examination.  As matters transpired, I considered that the paternal grandmother needed to be directed to a consideration of the matters raised in the Contact document and also to reinforce to her that undertaking the role of a supervisor means that her undertaking to the court is that the protection of the children will be at the forefront of her mind and that there is no room for favour or bias towards the father.  Logistically, the paternal grandmother needed to be aware that supervision requires her constant attention and presence at all times and in respect of all of the children.

4. At the conclusion of the evidence of the paternal grandmother I was satisfied that she had an appropriate understanding of her obligations to supervise the time spent between the father and the children, but I was not satisfied that she would necessary be able to discharge that duty over the extended time that the father seeks in his application.

Criminal Proceedings

1. As was the subject of comment by Dawe J on 21 June 2013, unfortunately the progress, if any, in respect of the father being charged with the foreshadowed serious criminal matters is still uncertain.

2. The affidavit of the mother filed 15 October 2013 reports that as at 4 October 2013 the father had been reported but not yet charged with the following offences:-

   ·4 counts aggravated assault on the child W;

   ·2 counts aggravated assault of the mother’s son MH;

   ·2 Counts indecent assault of the mother’s daughter PP;

   ·20 Counts rape and 5 counts aggravated assault of the mother.

   As at 4 November 2013, there was no further information as to whether the father would be charged and if so when, and importantly, the nature of those charges.

3. In relation to the child W, the particulars of the alleged offending go back some years.

1. It is obviously a concern that the delay in the resolution of any pending criminal matters has the real ability to impact upon the interest of the children, the manner in which their relationship with their father should go forward, if at all, and may impact on whether the trial date of 17 February 2014 should be maintained.

2. In all the circumstances I am of the view that provided that the time spent with their father is the subject of supervision, then orders should be put in place that would see the children (at least the three oldest children) spend time with their father between now and the resolution of the proceedings.

Continuing Injunction

1. I have referred to the order made on 19 September 2013 restraining the respondent engaging in, undertaking or enrolling the children or each of them in any counselling or therapeutic intervention. The order is expressed to be conditional upon the express consent in writing of the Independent Children's Lawyer and the applicant.  An issue has arisen in respect of some aggressive and worrying behaviour on the part of the child W.  The mother asserts that W needs to resume some form of therapy to address his behaviour.  The father is not convinced that it is required.  The purpose of the injunction was to ensure that the children would undergo the Family Assessment process with the Family Consultant in an open and transparent fashion and not be the subject of any potential influence and/or distraction that might arise from unplanned therapeutic intervention or counselling.  To some extent the issue has abated in a sense that the Family Assessment process has concluded and a report is pending.

2. It may well be the case however that W does need some proper and targeted intervention.  Accordingly, I propose to amend the order to allow the order to engage in counselling or therapy as may be considered appropriate by the Independent Children's Lawyer, but such consent not to include the applicant father.

CONCLUSION

1. There remains considerable uncertainty both in terms of the current circumstances of the parties and the children but also the future conduct of the matter.  Whilst there is a trial date set, this may be disrupted should the Police that are currently the subject of report advance to a charge.  Substantial time has however elapsed without the children spending any meaningful time with their father.  Whilst there were initial fears and concerns as to how the children would react to their father, to a large degree and perhaps somewhat surprisingly their relationship appears to be strong and there is a strong desire on the part of the children to spend time with their father. This is highlighted by their separate requests to Dr C that there be one on one time.

2. Nonetheless, the serious allegations made by the mother cannot be overlooked and all of the competing interests must be balanced by having proper regard to the parenting provisions under the Act, but in particular s 60CC. I have had detailed and proper regard to those matters, have considered the overlay of allegations of sexual misconduct by the father towards the children, domestic violence as between the parties and physical abuse of the children.

3. I consider that taking all matters into account, it would not be in the interest of the children that they be denied a relationship with the father and there is on the report of Dr C a clear and overarching need by each of the children, in particular the three oldest, to resume some time with their father albeit under supervision.

4. Accordingly, I propose to make orders as provided for herein.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 November 2013.

Associate: 

Date:  13 November 2013