Roberts and Thomas

[2011] FamCA 5

FAMILY COURT OF AUSTRALIA

ROBERTS & THOMAS [2011] FamCA 5

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the mother makes allegations of sexual abuse against the father – where investigations by the Child Protection Service have been inconclusive – best interests – consent orders that the father spend supervised time with the children

Family Law Act 1975 (Cth)

APPLICANT: MR ROBERTS

RESPONDENT: MS THOMAS

INDEPENDENT CHILDREN’S LAWYER: IAN CHARMAN

FILE NUMBER: ADC 2499 of 2010

DATE DELIVERED: 6 JANUARY 2011

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE JUDGMENT OF: BURR J

HEARING DATE: 6 JANUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS LEWIS
SOLICITOR FOR THE APPLICANT:	CHRISTOPHER GANZIS & CO

COUNSEL FOR THE RESPONDENT:	MR BOWLER
SOLICITOR FOR THE RESPONDENT:	ADEY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR CHARMAN
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	IAN CHARMAN & ASSOCIATES

Orders

UPON NOTING that paragraph 2 of the Minutes of Order tendered to the Court this day as to the commencement date of the father’s time with the children to be supervised by Ms A Roberts IS NOT BY CONSENT

IT IS ORDERED:-

1. By consent, in terms of the Minutes this day signed by me SAVE AND EXCEPT for the commencement date in paragraph 2 thereof.

2. That the father’s time to be spent with the children and supervised by Ms A Roberts pursuant to paragraph 2 of the tendered Minutes of Order is to commence on Sunday 16 January 2011.

3. That the trial of these proceedings be included in the Magellan Special Sittings of this Court during the fortnight commencing Monday 7 March 2011.

4. That the parties file and serve their Rule 15 Affidavits of evidence on or before 4.00 pm on Friday 18 February 2011.

IT IS NOTED that publication of this judgment under the pseudonym Roberts & Thomas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2499  of 2010

MR ROBERTS

Applicant

And

MS THOMAS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me on an adjourned basis contested proceedings between the parents of two young girls S (“S”) born in July 2002 and who is therefore aged 8 ½ years and T (“T”) born in February 2006 and who is thus aged almost 5 years.  The allegations raised by the mother amount to the most severe that can be raised as against a father of children in that she reported events and conversations which concerned her in July last year that the children may have been sexually abused at the hands of the father.  This appropriately prompted a response from those in authority charged with investigating such allegations and it resulted in a detailed process being undertaken by the Child Protection Service (“CPS”) at the Flinders Medical Centre.  That process concluded with a report provided by CPS dated 8 November 2010.

2. I do a disservice to the CPS by endeavouring to briefly summarise their report as it is a comprehensive and very thorough report.  However, the summary of their findings is to the effect that sexual abuse cannot be confirmed.  CPS took the view that the evidence was inconclusive.

3. In anticipation of the receipt of the CPS report I ordered that a family assessment report be prepared by a Family Consultant of this Court.   That exercise too has been concluded and a Family Report dated 16 December 2010 is now before the Court.  In both the CPS report and the Family Report it was noted that indications in the mother’s presentation suggested a level of over-anxiety and a negative view taken by her of the father.  If she genuinely holds the view that the children have been abused by the father, it is not difficult to understand why she would have a negative view of him.  Conversely, both the CPS and the Family Consultant observed that the father did not express similar negative views of the mother and concentrated his efforts and attention in the interview process on his relationship with the children and theirs with him.  The observations of both report writers but particularly the Family Consultant, were to the effect that the children delighted in the father’s company and excellent interaction was observed.  

4. It is my view, supported by the Independent Children’s Lawyer, that the relationship between the father and the children ought to be encouraged but in circumstances where they would be safe pending the final outcome of these proceedings between the parties.

5. The father promoted two supervisors of his time to be spent with the children, namely his mother and his brother’s partner.  The mother had serious concerns about the paternal grandmother acting in a supervisory role but remained open minded in relation to the partner of the father’s brother, Ms A Roberts.  Having noted that the father withdrew his application that the paternal grandmother act as a supervisor I then took evidence from Ms A Roberts and at the conclusion of that exercise, no objection was raised by the mother and the appointment of Ms A Roberts as a supervisor of the father’s time with the children was consented to by the Independent Children’s Lawyer.  I too am satisfied that Ms A Roberts would be a suitable supervisor of the father’s time.  She impressed me as understanding the critical importance of her role in that regard and that her sole aim and objective was for the protection of the children from any physical or emotional harm.  I am satisfied that she would swiftly remove the children from any concerning situation and arrange for their return to the mother.   I am informed that the mother has no objection to Ms Roberts having her telephone number in order that contact can be made in circumstances where it is appropriate to do so.

6. There are a number of other recommendations made by both CPS and by the Family Consultant and at my urging the parties have now had some discussions about those recommendations and each agrees to adopt in large part the recommendations made.  That resulted in them presenting to me Minutes of Order which reflect all of the areas where they have reached agreement.  It is a credit to them that they have at last both been able to put aside their differences and concentrate on a process that might be appropriate in furthering the best interests of their children.  There was only one small area in which they were unable to agree. 

7. Understandably the father wanted his time with the children to commence at the earliest possible opportunity.  I am satisfied that the mother has, to her credit, altered her stance such that she now supports the father spending time with the children in a supervised environment.  I am satisfied that her objection to the commencement of the father’s time with the children on Sunday next, 9 January 2011, does not relate to any desire by her to obstruct his relationship with them.  It is her evidence, through her Counsel, that it is simply a very difficult physical exercise that would be entailed in ensuring that the father can commence his time with the children next Sunday.  That relates to the fact that S is not in South Australia at the moment.  She left on 29 December 2010 for an extended holiday through country Victoria with the paternal grandfather.  I am advised that the holiday is comprised of a camping / four wheel drive exercise and that it would be difficult to arrange the return of S in the very short time that is now left. 

8. I accept that it would not necessarily be in S’s best interests to terminate her holiday as dramatically as is proposed by the father.   I understand his concern about seeking to pursue a relationship with his daughters as soon as possible but I am sure that he will also understand that children ought to be able to enjoy their school holiday periods and not be caught up in the difficult relationship that their parents presently suffer.

9. I am aware too that it was the recommendation of the Family Consultant that any time the father spends with the children at first be supervised at a Children’s Contact Service (“CCS”).  Again, to her credit, the mother has shifted ground today and agreed to the father spending time with the children not only at the CCS but also as supervised by Ms A Roberts.  That also affords to the father the opportunity to spend more time with the children than would be the case at the CCS which historically affords only two hours per fortnight.

10. In all of the circumstances I am satisfied that it is in S’s best interests that she be entitled to conclude her holiday and then resume her relationship with the father as soon as reasonably possible thereafter. 

11. I enquired of the father’s Counsel whether he would like to resume his relationship with his daughter T (who is not on holiday interstate) this coming Sunday in the absence of S but he declined this proposal on the basis that he thought it was appropriate that the two children spend their time with him together and not separately.

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr delivered on 6 January 2011.

Associate: 

Date:  7 January 2011