PHITZNER & HOLLAS

[2013] FamCA 786

FAMILY COURT OF AUSTRALIA

PHITZNER & HOLLAS [2013] FamCA 786

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the mother has made serious allegations in relation to the abuse of the mother and the children by the father – best interests – consideration of Child Protection Services report – no orders made for the children to spend any time with the father pending final hearing.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Phitzner

RESPONDENT: Ms Hollas

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4259 of 2012

DATE DELIVERED: 21 June 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 21 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hemsley

SOLICITOR FOR THE APPLICANT: Tindall Gask Bentley

COUNSEL FOR THE RESPONDENT: Mr Alevizos

SOLICITOR FOR THE RESPONDENT: Harry Alevizos

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Seymour

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

1. The final application proceedings are referred to the Docket Registrar for trial directions on a date to be fixed AND UPON NOTING the matter is to be given a priority listing as a Magellan matter.

2. The matter is adjourned to Monday 14 October 2013 at 9.15 am before the Honourable Justice Dawe.

3. Any further affidavits to be relied upon are to be filed and served by 4.00 pm on Tuesday 8 October 2013.

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

EX TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes before me this morning on an interim basis, dealing with the issues concerning the welfare of the children of the parties.  The history of the relationship is set out in the affidavit material now before the Court.  The concern the Court has is that the matters in dispute are significant.  There is a 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 interests of the children of the parties.

2. The mother makes extremely serious allegations in relation to the abuse of herself and the children which if her evidence was accepted, raise serious concerns in relation to the physical and sexual abuse of the mother and the children.  There are also difficulties in relation to allegations which are made concerning physical abuse of the child, W, by the father and allegations of sexual abuse of the two daughters, Y and Z. 

3. The Court now has before it the Child Protection Services report.  That report is dated 6 June 2013, arising out of interviews carried out in February 2013 and an interview which is described as “Caregiver Interview with [Mr Phitzner] on 10 May 2013” and reference to certain documents.  The report is 14 pages long.  On the thirteenth page, there is “Summary and Conclusions” and the fourteenth page “Recommendations”.  There is no categorical finding in relation to the general allegations of abuse, save and except that it is clear that during the forensic interview, the child Y did not make any disclosures regarding sexual touching or being engaged in sexual behaviour by another person.

4. The child Z provided information during her forensic interview that she had received a touch to her private parts but was unable or unwilling to provide any further information in relation to this.  The report then concludes that there may be multiple reasons why children do not disclose abuse during formal assessment but it was not possible to draw any conclusion as to whether they had been exposed to any sexual behaviour or have experienced sexual abuse.  The report writer then expressed concerns about the child Z.  The report continues and concludes on the second last paragraph on page 13:

   … While the clinician does not condone any form of physical          discipline with children, it remains of particular concern that [the       father] may have used this type of aggressive physical discipline with          [Z].

5. It then continues to note that the numerous allegations about domestic violence and the multiple allegations have been made and referring to the high degree of animosity which exists between the parents:

   … and it is possible that the children have been exposed to conflict    and acrimony between them.

6. It then says:

   … This is considered of strong concern, particularly given the anxious         presentation of [Z], [Y] during the present assessment.

7. It then refers to Z possessing a negative perception of the father and Y presenting with a sense of feeling fearful while living with the father.  The report then continues to discuss whether this was as a result of experience of abuse or whether being exposed to the negative perception arising out of the behaviour of the mother or in the mother’s household.  Under the heading of “Recommendations”, it says there should be further forensic interviews if either Y or Z should make any further significant statements.

8. It then says:

   Given the history of concerns raised regarding alleged domestic         violence, and the allegations of physical and sexual abuse of the children that have arisen, a broader assessment, such as a family         assessment, should be considered to explore the context of these   allegations and ensure the safety of the children.

9. It then says:

   It may be appropriate for a Family Court clinician to conduct this       assessment.

10. The third dot point:

    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].

11. It then refers to the possibility of referring the children for therapeutic support:

    …for their noted experiences of anxiety, and in relation to assisting   them to mitigate any negative consequences of their exposure to          conflict and animosity between [the father] and [the mother].

12. Before me today I have the affidavit of the Independent Children’s Lawyer, to which is annexed the report, and the affidavit of the solicitors for the father, to which is annexed material relating to the CAMHS treatment and other annexures relating to the history of the matter, to which counsel for the father drew the Court’s attention, to suggest that this raises serious questions about the inconsistency of the mother’s evidence. 

13. The mother’s counsel today opposes any resumption of the children spending any time with the father suggesting that to do so would be premature, taking into account that there are still police investigations and the issues concerning the children’s treatment is not conclusive.

14. Counsel for the father suggested that because of the difficulties and the lack of conclusion of any form of abuse in relation to Y and Z, that at least some supervised time with the children, other than W, should be commenced. 

15. The Independent Children’s Lawyer’s counsel supports the introduction of the children spending some time with the father, provided it is supervised.  The most recent reports and material before the Court do not deal specifically with the youngest child, J.  There is significant material before the Court in the previous material concerning the eldest child, W, and the difficulties he has experienced.

16. I am told by the Independent Children’s Lawyer’s counsel that the police investigations concerning the serious allegations about physical abuse of the child, W, by the father are still underway and may take six to 12 months to be concluded.  It is of concern that these allegations have arisen some time ago and yet are still the subject of police investigation.  It would not be appropriate for W to be required to spend time with the father, whether it is supervised or not, whilst there is ongoing police investigation in relation to the allegations that are made concerning the possible abuse of W by the father.

17. When I am making a decision in relation to an interim order concerning the father spending time with the children I am bound by section 60CC and the provisions of the Family Law Act 1975 (Cth) which indicate that the welfare of the children is the paramount consideration.

18. The primary factors to be taken into account are the need to protect the children from harm.  That includes not simply the risk of physical harm but the risk of emotional and psychological harm.  Those matters take priority over the other primary consideration, which is the benefit of the child having a meaningful relationship with each of the children’s parents.

19. The authority of Goode & Goode (2006) FLC 93-286 and subsequent decisions approving that authority require me to apply those provisions, even where the matter is an interim matter and there are some matters in dispute.

20. The matters that are not in dispute or which would appear difficult to dispute include that there is a history of allegations being made by the mother concerning the behaviour of the father.  The current allegations made by the mother are extremely serious indications of physical and sexual abuse of her and of the children, in particular physical abuse of the child, W.

21. The father’s case is that these allegations are strongly denied and support the father’s case that the mother is thus inflicting psychological and emotional harm upon the children, by making false allegations and encouraging the children to participate in a scheme of false allegations to prevent the children having a proper relationship with the father. 

22. The Court is unable to, at this stage, make a determination of the significant facts being raised.  However, it is difficult to do other than express concern for the wellbeing of the children, in particular the physical, psychological and emotional wellbeing of the children, if they were to be exposed to any unsupervised time with the father.

23. The question remains whether the supervised time with the father would sufficiently protect the children from any risk of emotional or psychological harm.  The Court can only rely upon the independent material thus far supported by the material from the Child Protection Services and Families SA.  Taking into account all of that material, I am not satisfied that, at this stage, it is in the best interests of the children for the children to spend even supervised time with the father because of the risk that that may arise for the emotional and psychological wellbeing of the children.

24. Obviously that would apply directly to W, who is being the subject of police investigations but it also applies to the other three children, including J, because of the risk of emotional trauma which might be caused by the need to be taken and told that they are visiting the father, notwithstanding the mother’s allegations of serious risk to the children and the emotional risk and psychological risk that that carries.

25. I therefore propose to adjourn the matter to allow the Independent Children’s Lawyer and the parties to make significant submissions to the South Australian Police Department for the investigations concerning W to be given priority and for the for the treatment for the children, referred to as therapeutic support for the children, to also be maintained, both in relation to Y and Z but I would also recommend in relation to W, if that is considered appropriate by the police once their investigations have been completed.

26. I appreciate that this means that if the father’s case is correct, the children are being denied the benefit of a relationship with the father and he is being denied the benefit of time with his children.  I am, therefore, proposing to direct that the matter be referred to the Docket Registrar for listing as a priority Magellan matter for trial but also propose to bring the matter back before me for updated reports in relation to the plans of the police to prosecute the father in relation to the allegations concerning the child, W, or if there are any in relation to the children, Y and Z.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 June 2013.

Associate: 

Date:  18 September 2013