ROWLAND & CRITCHLEY

[2011] FamCA 794

FAMILY COURT OF AUSTRALIA

ROWLAND & CRITCHLEY [2011] FamCA 794

FAMILY LAW – CHILDREN – interim orders – where final consent orders were previously made providing that the children be cared for in a shared care arrangement – where the father has refused to return the children to the mother – where the father alleges that the children have been subject to sexual abuse in the mother’s household – where the mother was prepared to give undertakings and agree to various protective injunctions – best interests – orders that the children continue to be cared for in a shared care arrangement.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Rowland

RESPONDENT: Ms Critchley

INDEPENDENT CHILDREN’S LAWYER: Mr I. Charman

FILE NUMBER: ADC 4403 of 2010

DATE DELIVERED: 13 October 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Read

SOLICITOR FOR THE APPLICANT: Voumard Lawyers

COUNSEL FOR THE RESPONDENT: Ms Horvat

SOLICITOR FOR THE RESPONDENT: Johnston Withers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

Orders

UPON NOTING that the parties agree that paragraph 26 of the Orders of Registrar Paxton on 26 July 2011 indicates that the minutes of orders sought, list of proposed witnesses and a brief chronology are to be exchanged and lodged with the Court by 22 November 2011.

1. The mother to make contact within seven [7] days to Families SA and request their assistance in following up the recommendations in their report.

2. Pursuant to s 69ZW the Court requests that Families SA provide a report specifically dealing with the welfare issues concerning the children B born on … 2006 and C born on … 2008 and steps taken by the Department following upon the recommendations made in the report dated 26 August 2011 and the future assistance they propose to provide to the children in this family.

3. Without any admission by the mother:

   (a)the mother ensure that no male adult is present overnight in the home where the children are residing with her and therefore is not in the home between the hours of 10.00 pm and 7.00 am;

   (b)the mother take all steps to ensure that the children B and D do not sleep in the same bedroom at night;

   (c)the mother is also directed to supervise the children B and D at all times when they are together and in her care.

4. The orders dated 21 December 2011 are reinstated from Midday on Saturday 15 October 2011.

5. The matter is currently listed for a compliance check on 29 November 2011 at 9.15 am and for a seven [7] day trial commencing on 5 December 2011 before the Honourable Justice Dawe.

6. The time is extended for the applicant mother to pay the hearing fee on or before 21 October 2011.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 4403 of 2010

Mr Rowland

Applicant

And

Ms Critchley

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have considered the affidavits of the parties relating to issues which arose and resulted in the father retaining the children rather than returning them to live with the mother pursuant to the Consent Orders made on 21 December 2010 (which provides for the children to live with the father for one fortnight and then with the mother another fortnight).  The children are B, who was born in 2006 and has therefore now turned five (although she was four at the time of the alleged incidents and comments made to her father) and the child C, who was born in 2008.

2. The mother denies that there is any basis whatsoever for the allegations made by the child B.  The Child Protection Services (the “CPS”) report of 26 August 2011 contains details of two sessions with the CPS and B, being a preliminary assessment and then a forensic assessment.  Certainly, in the assessments and interviews, B referred to activities taking place both in relation to a person called Mr E and in relation to her half-sister D which raised concern.  They were somewhat consistent with the allegations the child made to the father which brought about the interviews.

3. In the summary and conclusions the report refers to the forensic examination and indicates that B had made a number of comments about sexual touching by her half-sister D and engaging in sexual behaviours.  B also provided information in relation to a man named Mr E.  I will not recite the actual allegations but these allegations would be of concern if she was reporting facts which actually took place.

4. The report concludes, however:

   On the basis of the information obtained during this assessment, no firm conclusion can be drawn about whether B experienced sexual abuse by [Mr E].

   That is no firm conclusion as to whether B has experienced sexual abuse but there is neither a rejection of the allegation or a positive finding of the allegation.  The next sentence says:

   However, it appears likely that [B] had engaged in sexualised behaviour with her half-sibling [D].

   It then notes that the mother had not been spoken to and says:

   ...as Families SA and SA Police indicated that they may need to further discuss the matter with the mother.

5. The recommendations are then set out.  Those recommendations are that the mother be advised about the sexualised behaviours between D and B and that a safety plan be discussed and implemented.

6. I am told from the bar table today that the mother has spoken to the Department since she has received this report, but there is no proposal for the Department to provide her with any further assistance.  I am therefore concerned that there has not been a follow-up of the recommendations that a safety plan be discussed and implemented. 

7. The report continues further suggesting that the mother be advised of supports for D in relation to her sexualised behaviours.  That again has apparently not been followed up by the Department.  I am concerned for the welfare of the children the subject of these proceedings, B and C, that the steps be taken to advise the mother of appropriate support. 

8. The next recommendation is that Families SA discuss with the mother the concern that arose from the assessment in relation to B reporting that she had witnessed Ms Critchley and Mr E engaging in sexual acts.  It is not clear from the evidence before me today whether Families SA have attempted to discuss that with the mother.  What is clear from the mother’s affidavit is that she knows no person called Mr E and that there has not been an opportunity for anybody either of the name of Mr E or any other name to carry out the activities of which B has complained. 

9. Families SA recommendations continue to say that Families SA want to discuss with the mother concerns raised in relation to Mr E, seek to establish his identity and the mother’s relationship with him in order to protect any children in the mother’s care from possible harm.  It is not clear from any information before me whether Families SA have attempted to discuss that with the mother, albeit it is clear that the mother denies that there is any such person and therefore would not be able to assist in establishing his identity. 

10. The recommendations then conclude:

    That when the matter is heard by the Family Court, that consideration be given to a family assessment to assist in understanding the complexities of the family dynamics and each parent’s capacity to parent in a safe manner.

11. The Family Report has already been ordered and was in fact already ordered before this report was concluded.  The father has attended upon the Family Consultant for the preparation of the report with the children.  The mother did not attend the appointment because of her illness but says that she is prepared to travel again to Adelaide with D to ensure that the full terms of the Family Consultant’s report can be implemented.  That will of course require the father to return to Adelaide with the children if they are in his care to complete the report.

12. The Child Protection Services report then concludes “that [B] receives therapy in relation to sexualised behaviour”.  There is no recommendation about who is to carry out that therapy or how the mother is to access that therapy, bearing in mind the difficulties of her location and B’s location moving between Town F and Town G if the orders of December are reinstated.  I therefore direct that the mother contact Families SA within seven days to follow up the recommendations made in the report and order that pursuant to section 69ZW, that the Department provide a report to the Court as to the steps that have been taken and are to be taken by them following upon their recommendations.

13. The issue that now needs to be determined on an interim basis is the orders to be made in relation to B and C pending the final hearing of this matter, which is listed before me to commence in early December for seven days.  

14. The main considerations are the primary considerations set out in section 60CC which emphasise the need to protect the children from harm and the need to maintain meaningful relationships with both of the parents. 

15. It has been indicated to me this morning that the mother is prepared to give undertakings to the Court and therefore would not resist injunctions (being made on the basis that she denies the factual basis that might establish the need for any undertaking or injunction).  She is prepared to agree to those terms in order that she can renew her relationship with the children.  The mother is prepared to be restrained from allowing any male person to sleep overnight at the home where the children are sleeping at any time the children are there, for B and D not to share a bedroom at any time and for the mother to supervise B and D at all times when they are together. 

16. Bearing in mind the allegations made in the father’s affidavit and to a certain extent supported by B’s comments to the CPS, the main concern appears to be the capacity of the mother to provide suitable care for the children in protecting them from any alleged abuse from other persons and ensuring that they do not engage in inappropriate sexual behaviour with each other (when I say “each other”, I include in that the mother’s daughter D). 

17. Bearing in mind the factors which relate to the meaningful relationship between the children and the mother and the father’s indication that he also supports the children maintaining a meaningful relationship with the mother, I am satisfied that the other factors relevant to the best interests of the children will permit the children to spend time with the mother provided the injunctions are obeyed.  They will then have the benefit of both being protected from harm and the benefit of having a meaningful relationship with each of their parents and relevant other persons.

18. It is not appropriate, bearing in mind the relationship the children have with the mother and the father, for there to be significant make-up time.  This which would deprive the children of the regular routine of the shared time but also deprive them of regular contact with the father. 

19. I am satisfied, therefore, that it is in the best interests of the children for orders to be made by way of injunction that the mother ensure that no male person spend overnight time in the home where the children are residing, and therefore is not in the home between the hours of 10.00 pm and 7.00 am (that “male person” does not include the young brother, C).  That the mother take all steps to ensure that B and D do not sleep in the same bedroom at night and that the mother is also ordered to supervise B and D at all times when they are together in her care.  It is noted that it is without any admission by the mother or finding by the Court.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 October 2011.

Associate: 

Date:  26 October 2011