PIPPITT & PIPPITT
[2010] FMCAfam 697
•24 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PIPPITT & PIPPITT | [2010] FMCAfam 697 |
| FAMILY LAW – Parenting – interim – whether children’s time with their father should remain under suspence – family consultant’s recommendations. |
| Family Law Act 1975, ss.60CA, 60CC |
| Goode v Goode (2006) FLC 93-286 |
| Applicant: | MR PIPPITT |
| Respondent: | MRS PIPPITT |
| File Number: | SYC 7624 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 24 June 2010 |
| Date of Last Submission: | 24 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2010 |
PRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Dom Velcic & Co |
| Counsel for the Respondent: | Mr Gould |
| Solicitors for the Respondent: | Russell Mclelland Brown With Kearns & Garside |
| Independent Children’s Lawyer: | Mr Adamson |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Commencing 26 June 2010 or 27 June 2010, the Applicant spend time with [X] born [in] 2003 and [Y] born [in] 2006 (“the children”), weather permitting, in a public place supervised for up to five (5) hours on two (2) consecutive Saturdays or Sundays, whichever convenient to the Applicant.
Commencing 10 July 2010 and ceasing 25 July 2010, the Applicant spend unsupervised time with the children each alternate weekend from 10:00am Saturday to 10:00am Sunday at the Applicant’s residence.
Commencing 17 July 2010 and ceasing 1 August 2010, the Applicant spend time with the children from 9:00am to 5:00pm on either Saturday or Sunday each alternate weekend, whichever is more convenient for the Applicant.
Commencing 7 August 2010, the Applicant spend time with the children each alternate weekend from 10:00am Saturday until 5:00pm Sunday.
In the event the Applicant desires and is capable to, commencing 9 August 2010 the Applicant spend time with the children each alternate week on a date midweek that is convenient and fits with the children’s schedule from the conclusion of school or kindergarten until the commencement of school or kindergarten.
The Applicant collect the children at the commencement of any time spent with the children pursuant to paragraphs 1 to 5 herein and return the children at the conclusion of any time spent with the children pursuant to paragraphs 1 to 5.
[Z] born [in] 1995 (“[Z]”) be permitted to attend any or all of time the Applicant spends with the children pursuant to paragraphs 1 to 5 herein and the Respondent forthwith notify [Z] of this Order.
The Respondent be permitted to telephone the children at least once during any time the children spend with the father pursuant to paragraphs 1 to 5 herein.
For a period of three (3) months commencing 26 June 2010 or 27 June 2010, the Applicant’s partner MS K be present during all time the Applicant spends with the children pursuant to paragraphs 1 to 5 herein.
AND THE COURT NOTES THAT:
(A)Paragraphs 1 to 9 herein reflects a Minute of Orders handed to the Court by the Independent Children’s Lawyer.
(B)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
(C)The matter remains listed for listed for defended hearing on 1 November 2010 at 10:00am with an estimated hearing length of three (3) days.
IT IS NOTED that publication of this judgment under the pseudonym Pippitt & Pippitt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7624 of 2009
| MR PIPPITT |
Applicant
And
| MRS PIPPITT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by MR PIPPITT (“the father”), filed on 14 December 2009, seeking various property and parenting orders. The parenting orders are in relation to [X] born [in] 2003 (“[X]”) and [Y] born [in] 2006 (“[Y]”) (collectively “the children”).
In relation to parenting matters, the father is seeking orders, among other orders, that:
·the parties have equal shared parental responsibility;
·the children live with the mother;
·the children spend time with the father each alternate week from 5:00pm Friday until 5:00pm the following Friday; and
·changeovers occur at the parties’ residences.
The father’s application is supported by his three affidavits filed in these proceedings:
a)his first affidavit sworn on 10 December 2009;
b)his second affidavit sworn on 26 March 2010; and
c)his third affidavit sworn today, 24 June 2010.
The father also relies on the affidavit of his partner, Ms K [omitted], sworn and filed on 26 March 2010.
The respondent is MRS PIPPITT (“the mother”) who, in her response filed on 26 February 2010, opposes the property and parenting orders sought by the father and seeks different orders.
In relation to parenting matters, the mother is seeking orders to the effect that:
·the children live with her; and
·the children spend supervised time with the father for two hours each week.
The mother relies on her affidavit sworn on 25 February 2010 and filed on 26 February 2010.
On 1 March 2010 Sexton FM made an order seeking the appointment of an Independent Children’s Lawyer (“the ICL”). Mr Adamson was subsequently appointed and appears in that capacity today.
Background
The parties’ respective affidavits outline their background, as does the family report by Dr H and Mr Givney’s case outline submitted today.
The parties commenced cohabitation upon their marriage [in] 2002, and they separated [in] 2007. They were divorced [in] November 2009. The father has re-partnered and the mother has not re-partnered. There are two children of the marriage: [X], who will be seven in August, and [Y], who turns four in September. The mother also has a child of a previous relationship, [Z], who was born [in] 1995, and who would be now 15 years of age.
Sexton FM also made orders by consent on 1 March 2010 which provided for the father to spend time with the children as follows:
·On four different dates during March from 2:30pm to 4:30pm; and
·for that time to be supervised by Ms S.
On 1 April 2010, her Honour made further parenting orders, again by consent (“the consent orders”), order 1 being that commencing 10 April 2010 and each Saturday, or Sunday thereafter, the children spend time with the father as agreed, but in the event of no agreement:
“a. For not less than two hours each Saturday or Sunday commencing 10 April 2010;
b. Such contact to be supervised by a person agreed to in writing by each of the parties and the independent children’s lawyer, shall include Ms S and except for order (1)(c) below;
c. Upon payment of costs associated with the child [X], shall participate in [sport], and the father shall be permitted to attend his training and game fixtures; and
d. In the event that a vacancy arises, that the parties enrol and do all things necessary to be included in the Centacare Contact Program [I], for such times and dates as are available not to exceed two hours per week. The father shall pay all costs associated with same.”
Paragraph 4 of the consent orders provided for the appointment of Dr H, a Regulation 7 Family Consultant, to prepare a family report. Paragraph 6 of the consent orders also provided that the Independent Children’s Lawyer draft a letter to Dr B seeking his opinion as to:
“ a. The child [Y]’s presentation to him in the past;
b. What might be the cause/explanation of the genital redness/soreness; and
c. Whether a physical examination of [Y] should be carried out by Dr B in light of the mother’s allegations and the child’s best interests and the likely assistance to the Court of such an examination and so forth.”
Dr H subsequently prepared a family report dated 10 May 2010 (“the Family Report”).
The matter came before me on 24 May 2010. On that occasion, I set the matter down for an interim hearing today with respect to parenting matters.
Issues
The dispute today focuses solely on the parenting issues, and more particularly, whether the children’s time with the father should continue on a supervised basis or whether it should transition to unsupervised contact as proposed by the ICL and also supported by the father.
Agreed and disagreed facts
The parties appear to agree that there is no evidence to support the allegation by the child that she was the victim of vaginal penetration by knives and forks inserted by the father, or by somebody whilst the children were in the father’s care in early 2010. That is not to suggest that the child did not make the allegation to the mother as that is yet to be established. They also agree that the ICL had indeed written to the solicitors on 24 May this year proposing a transition towards unsupervised time.
The parties are in disagreement as to whether the children’s best interests would be served by a continuation of the supervised time until the matter can be heard on a final basis in November 2010.
Family report
The Family Report of Dr H is quite extensive, and it is really Dr H’s recommendations that would appear to have lead to the interim hearing today. Her recommendations are contained in paragraphs 70 to 74 of the Family Report which state:
“70.Until all financial matters in dispute between the parents are settled, supervised visits should continue between the subject children and the father.
71.Thereafter, [Y] and [X] should live with their mother and spend alternate weekends and holiday time with their father. Liberal telephone contact is also recommended.
72.Handover should entail no requirement for the parties to meet or co-operate (eg, to or from school/pre-school). Mr Pippitt should arrange the transport.
73.I cannot recommend separations from her mother of longer than seven nights for [Y] until she has successfully completed her first year at school. In fact, more than three nights away from home may stress her unduly at this stage.
74.I do not recommend separating the siblings, [Y] and [X], for weekend stays with the father; they should always go together.”
The reasons for these recommendations flowed from her conclusion which appears in paragraph 69 of the Family Report which states:
“While I cannot exclude the possibility that someone initiated inappropriate genital contact with [Y] which led her to make the disclosures her mother alleges, attachment-related distress in children of divorced parents also causes emotional behavioural disturbance. Assuming that Mr Pippitt’s proposal to change custodial and financial arrangements would have thwarted Mrs Pippitt, it is feasible that she misconstrued [Y]’s behaviour and comments, either inadvertently as an excess of maternal protectiveness under emotionally threatening circumstances, or deliberately as a negotiating ploy in this dispute.
In either case, Mrs Pippitt could be expected to closely monitor [Y] for signs of sexual abuse and to act swiftly if any concerns arose again after the overnight visit to Mr Pippitt. At three years of age, [Y] may not be ready for more than a few days separation from her mother. [Y]’s interests will be best served if her attachment security to her mother is safeguarded. Increasing nights per fortnight spent away from [Y]’s home base are therefore contraindicated at this stage. Separating the siblings are also contra-indicators that would increase the possibility that the child parent alignments become more polarised.
If financial motives play any part in the dispute over parenting plans, then sooner the property settlement occurs the better it will be for the children. If the children’s overnight visits to their father recommence before the property settlement is finalised, allegations of abuse may arise again fuelled by resentment and suspicion on Mrs Pippitt’s side and the attachment anxiety on [Y]’s side. When [X] and [Y] are older, ideally both older than 10, these parents will know that a more substantially shared care could work in their children’s best interests if they can negotiate such a co-operative parenting arrangement without the need to litigate again.”
At this point, I would also make the comment that Dr H extensively addresses the allegations made by [Y] in the body of the Family Report.
Parties’ submissions
Apart from relying on their affidavit material filed in these proceedings, each of the parties tendered documentation for consideration by the Court. The ICL’s proposal letter to the parties dated 24 May 2010 was admitted into evidence as exhibit “ICL1” (“the letter”). The ICL proposes in paragraph 4 of the letter:
“We would propose that the following be considered as an interim measure:
a) That for a period of 2 consecutive Saturday or Sunday, whichever is convenient to the father, contact should occur with [X] and [Y], weather permitting, in a public place supervised for up to five hours; and
b) Then for a period of 2 alternating weekends from Saturday 10am to Sunday 10am, unsupervised at the father’s house and in the alternative weekend Saturday or Sunday, whichever is more convenient, from 9 am to 5 pm;
c) Thereafter alternate weekends from Saturday 10 to Sunday 5 pm;
d) Should the father desire and be capable from in the alternating week, midweek, on a date that is convenient and fits with the children’s schedule, from after school/kindergarten to the following morning at the commencement of school/ kindergarten;
e) The father to pick up and return the children at all times;
f) It is to be conveyed to the child, [Z], that he be permitted to attend any or all of the contact;
g) The mother be permitted to telephone the child at least once during overnight contact periods;
h) For a period of 3 months an undertaking from the father’s partner, Ms K, to be present during all such periods of contact.”
The ICL then states:
“We do not see, at this point, the benefit of the father exercising block contact until such time as either the property proceedings are completed or a period of 4 months have passed.”
The mother tendered a marked entry in relation to the father that was provided under subpoena from the New South Wales Police. The entry relates to a masturbation incident that allegedly occurred [in] 1996, and the notation that the father was a suspect only, or in the police vocabulary, a “POI”, or “person of interest”. There is no evidence that he was ever charged with any offence relating to this.
The father tendered some tagged entries in the file produced under subpoena from the Department of Community Services. The tagged parts relate to an investigation by the [W] Joint Investigative Response Team (“the JIRT”) that investigated the alleged sexual assault of [Y]. The tagged parts disclose that the investigation conducted included interviews with [Y], the mother and the father. On page 3 of the secondary assessment (“the assessment”) under the heading ‘Brief Overview of Presenting Information and Critical Case Facts’ it states:
“Ms E was secondary interviewer. [Y] presents as having very basic verbal skills for her age of 3.5 years. She is of average build and was pushed into the JIRT office in a stroller. [Y] presented as unwilling to engage with JIRT officers and refused to answer some questions at times or said, “No”, to anything asked of her. [Y] and her mother were shown to the JIRT suite. She then refused to separate from her mother. [Y] did not give permission for the interview to be recorded or agree that her mother would wait in the next room. It was not possible to get an undertaking to tell the truth from her due to her young age and stage of development. Mrs Pippitt remained in the interview room throughout the attempt to formally interview [Y]. Mrs Pippitt was advised beforehand that she could not answer any question on [Y]’s behalf or prompt her in any way, and her role was purely to provide support.”
Under the heading ‘Further Information Relating to Presenting Information’ there is a comment as follows:
“[Y] was extremely difficult to engage throughout the interview. She did not respond when asked her name or how old she is. [Y] was asked, “Who was in her family?” and she talked about her brothers, [X] (6) and [Z] (14), and her cat [R]. [Y] said she likes to play with her friend [J], and they play dolls together. She also likes to play with her brothers but could not nominate anything that she likes to do with them. There was also nothing that she does not like to do. [Y] was asked about her dad and she said that his name is Mr Pippitt. She could not say who else lives with her dad but says that she likes to go there and enjoys playing [games]. [Y] then sang the alphabet song and said that is what [she enjoys]. [Y] could not think of anything else that she does not like about going to her dad’s.”
Under the heading ‘Vulnerability to Risk of Harm’ there is the following comment:
“At the age of 3.5 years, [Y] remains completely dependent on her primary care giver in the case of her mother to ensure that her needs are met and she is kept safe from harm. As such, she can be considered to be extremely vulnerable to harm from sources within and external to the family. [Y] only has basic verbal skills which may further increase her vulnerability as her vocabulary is limited, and she may struggle to articulate her feelings if threatened in any way. [Y] and her siblings are also vulnerable to the psychological harm that contentious family Court dispute can cause. It would appear that there is a level of conflict between the parents that would serve to increase [Y]’s vulnerability to emotional harm, particularly if prevented from seeing one of her parents or questioned at length after each contact.”
Under the heading ‘Likelihood of Harm or Risk Continuing’ there is the following comment:
“Likelihood of [Y] being placed at risk of future harm is remote as no abuse has been identified. As outlined above, the children are vulnerable to psychological harm that can arise from parental conflict and family Court proceedings where the children are, unfortunately, sometimes viewed as pawns by parents who are unable to place the needs of the children first. Both parents will seek legal advice and may attend mediation to develop a parenting plan that will meet the needs of the children. N/mother of [Y] was unsatisfied with the outcome of the JIRT interview and insists that her daughter said that she was abused by the father and his partner and does not want to send her for contact. Mrs Pippitt was advised that there was nothing in the interview with [Y] that warrants any further action being taken by the department regarding n/father’s contact.”
Under the heading ‘Safety of Children/Young Persons’ there is this entry:
“[Y]’s mother presents as protective of her daughter and states that she took her to both family GP and paediatrician to discuss her concerns. It is noted that no child protection reports were received from either doctor.”
Under the heading ‘Target Issues’ there is this following comment:
“Reported issue of sexual harm is not substantiated. No additional risk of significant harm has been identified. Recommendation: close JIRT plan for additional harm. csc for filing.”
Under the heading ‘Judgments and Decisions for [Y]’ it states:
“[Y] has been assessed as being safe in their current circumstances in the immediate assessment period.”
Under the heading ‘Harm Consequence’ there is the entry “Nil”.
Under the entry ‘Harm Probability’ there is the entry “unlikely” and the following comment:
“Risk of harm to [Y] has not been substantiated. Future risk low. The person associated with causing the risk has not been identified. A person causing harm has not been identified. No other persons causing harm have been identified. [Y] is not in need of care and protection. The legal action has or to be taken in this matter is the Family Court.”
The ICL submits the children’s best interests would be served, pending resolution of the final hearing, for there to be a transition to unsupervised time. He submitted that given the available evidence, there was no basis for any suggestion that [Y] was at any higher risk of harm.
Mr Gould, for the mother, asked the Court to err on the side of caution, given the proximity of today’s interim hearing to the final hearing listed in early November 2010. He submitted the final hearing would be the proper forum to test the strength of the evidence being presented. He asked the Court to accept that the JIRT finding was perhaps inevitable given [Y]’s failure to engage with the process. He submitted that the father is yet to respond to the alleged masturbation incident in 1996, and clearly the evidence suggests that the father did come to the attention of the police. He submitted that the current orders are being complied with, and the children are seeing and engaging with their father. There was no evidence before the Court that the children are, in Mr Gould’s words, “fretting” in not spending additional time with their father.
Mr Gould also asked the Court to caution against accepting the father’s partner’s undertaking, given that she was the subject of the allegation made by [Y].
Mr Givney, in addition to his oral submissions, provided the Court with a lengthy outline of case document in support of the father’s submissions for supervised time with the children to end.
Mr Givney asked the Court to consider the factual matrix of the allegations made by [Y]:
·they occurred following a holiday where the child was away from the mother for two weeks; and
·they also occurred following the commencement of these substantive proceedings.
In this respect, Mr Givney asked the Court to note that the parties separated in 2007, and that the father had spent time with the children regularly since that separation. He also asked the Court to note the allegations of [Y]’s vaginal area having redness were not made to the father until after these proceedings commenced, but that his client concedes that the mother requested the father not to shower with the children via a conversation in 2009.
Overall, Mr Givney submitted the evidence of the alleged abuse is before the Court and, despite there being no cross-examination of the parties, it is clear that the evidence does not meet the standard of unacceptable risk. He said that was the view that the JIRT took.
Mr Givney also referred to Dr H’s report. He pointed out that Dr H made enquiries of [Y]’s pre-school and that there were no concerns.
Law
The Full Court of the Family Court decision of Goode v Goode (2006) FLC 93-286 guides the Court’s approach in making interim decisions and interim orders in relation to parenting disputes. In paragraph 81, the Full Court stated:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
More specifically, it raises the reality that the Court cannot fully determine issues of credit today as the evidence being presented by the parties has not been tested by cross-examination. That having been said, the Full Court, also in paragraph 81 of the Goode case, said:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act 1975 (“the Act”), post the 2006 shared parenting amendments, must be followed in an interim hearing.
It would appear there is considerable animosity between the parties in this case and no doubt the history of the parties will be the subject of evidence at cross-examination at the final hearing.
There is no issue today of equal shared parental responsibility to determine. The dispute is simply limited to the issue of the children’s time with their father and under what circumstances that time will be spent.
The Full Court, at paragraph 82 of the Goode decision, sets out the approach this Court must take in determining interim decisions. Clearly, I am required to identify the competing proposals, identify the areas of dispute, and identify any agreed and uncontested relevant facts, and I have referred to them previously this afternoon. At this point, let me note s.60CA of the Act which states:
“In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.”
To determine the children’s best interests, the Court must consider the primary considerations or factors set out in subsection (2) of s.60CC of the Act and the additional considerations in subsection (3) of s.60CC, where relevant.
Primary Considerations: s.60CC(2)
The Court is required under s.60CC(2)(a) of the Act to consider:
“The benefit of the child having a meaningful relationship with both the children’s parents.”
At this point, let me note that meaningful does not mean equal, but it clearly signifies that both parties should be involved with their children and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is clearly a right that the child has.
Consequently, the Court will, in all likelihood, need to give considerable weight to this factor at the final hearing should it be needed.
The Court is also required under s.60CC(2)(b) to consider the need to protect the child, or children in this case, from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence. This is a major issue in this case. There is no doubt that it would be in the children’s best interests to develop a meaningful relationship, not just with their mother, but with their father. That, however, needs to be balanced in respect of protecting the children from any physical or psychological harm and the like.
Given the nature of the allegations here, the Court is satisfied there is a need to test the issues as to whether the children, and [Y] in particular, have in any way been physically or psychologically harmed by whoever and whether the comments made by [Y] can be innocently explained or whether they were ever made at all. There are issues here warranting investigation, and consequently, the Court will need to tread cautiously in the interim arrangements that will be necessary as a result.
The issue of children spending time with their mother or father in a supervised setting is also a major issue in this case. Can I say at this point that contact centres play a crucial role in facilitating children spending time with a parent in circumstances where there is a risk of harm proven or yet to be determined in relation to a child. The contact centres are also subject to competing demands on the public purse with the consequence that, unless the parties can afford a privately run contact service or alternative, they may have to wait considerable lengths of time to secure a place or be prepared to travel great distances to obtain one.
The issue of abuse, and child abuse allegations in particular, in family law proceedings is, unfortunately, an issue which arises all too regularly in this Court. In considering the risks of harm the Court should be satisfied that the risk to the child is unacceptable, and consequently, restrictions should be placed on the child spending time when the Court forms that view.
Additional Considerations: s.60CC(3)
With respect to the “views of the child”, whilst significant, it will be difficult given their very young years. Nevertheless, the Family Report has, to some extent, provided the parties and the Court with some assistance as to the child’s views.
As to the “nature of the relationship between the children and each of the parties”, again we have different stories here and this evidence will need to be tested as well.
The “willingness of each party to encourage a continuing and close relationship between the other party and the children” is clearly a crucial factor here and will also need to be tested.
The Court is obviously also required to consider the “likely effect of any change in the child’s circumstances.” On the evidence before the Court, it is unlikely that supervision would feature in the final orders.
Indeed, Dr H’s recommendations seem to be based on a caution that would protect this process and the father, in particular, from any further allegations being made by the child. The recommendation, in that sense, is logical because it would reduce or eliminate the argument. However, whether such a result is in the best interests of these children is questionable.
Conclusion
After considering the submissions made in light of the evidence and the Family Report, I am satisfied that the children’s best interests would be served by a cautious result today that would transition the children spending time with the father on an unsupervised basis.
Accordingly, there will be orders today as proposed by the ICL.
I reserve the right to settle the reasons for this interim decision.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate
Date: 22 September 2010
0
0
1