Rowling and Plunkett

[2011] FamCA 977

FAMILY COURT OF AUSTRALIA

ROWLING & PLUNKETT [2011] FamCA 977

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the mother has made allegations of sexual abuse against the father – where numerous agencies have concluded that abuse has not been substantiated – where the mother has now withdrawn her allegations – best interests – where it is appropriate for the father’s time with the child to be increased – orders for the father to spend increased periods of time with the child with such time to be on a graduated basis.

Family Law Act 1975 (Cth)

APPLICANT: Ms Rowling

RESPONDENT: Mr Plunkett

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1820 of 2008

DATE DELIVERED: 12 December 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 12 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Jordan
SOLICITOR FOR THE APPLICANT:	Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT:	Ms Dixon
SOLICITOR FOR THE RESPONDENT:	AK Reeves & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Tydeman
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

In addition to the orders made this day by consent,

1. Paragraphs 3, 5, 6, 7, 11 and 12 of the Orders made on 4 June 2009 be suspended.

2. The father spend time with B from the conclusion of school (or 5.00 pm if a non-school day) on Thursday until the commencement of school (or 9.00 am if a non-school day) on Friday, commencing on Thursday 5 January 2012 and each alternate week thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Rowling & Plunkett  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 1820  of 2008

Ms Rowling

Applicant

And

Mr Plunkett

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me today competing applications between the parties in relation to a very young girl, B (“the child”) who is a child of the parties.   She was born in 2006 and hence has just turned 5 years of age and as a consequence, has just completed her first term of primary schooling.

2. The allegations made by the mother as against the father are among the worst that can be levelled at the father of a child and they were that the father had sexually abused the child. 

3. After a long process now and after the involvement of a number of agencies, including Child Protection Services (“CPS”) and Families SA, the point has been reached where no Departmental authority or expert who has had anything to do with the matter takes the view that abuse is substantiated.  In fact CPS, their views being mirrored by Families SA, take the view that the conflict between the parents is the main issue for the child.

4. The Court required some psychological assessments of the parties, including personality assessments and a parenting assessment, from Mr C, a highly qualified and long experienced psychologist who has provided to the Court expert reports on many occasions.   It is Mr C’s view that neither parent suffers from any major psychopathology and importantly, he proffers the view that the father has no paedophilic tendencies. 

5. In reponse to a comprehensive list of questions provided to him by the Independent Children’s Lawyer, Mr C again responded with some very helpful observations, views and opinions in a letter to the Independent Children’s Lawyer dated 6 November 2011.  I will not detail all of his views, opinions and findings but suffice to say that not only did he take the view that the child would be safe in the care of the father, but that the father presented as the better parenting option than did the mother on all present indications.

6. If the mother was genuine in the matters that she put before the Court in suggesting that there were concerns that the child had been sexually abused by her father, then she has had to make a difficult adjustment once all of the expert reviews and Departmental reports were received.  If in fact the allegations promulgated by her were deliberately false, then there are likely to be some significant consequences in the ultimate trial of the proceedings, if the matter does get to trial.  However for now, I accept that she has shifted in her position significantly, has acknowledged in consent Minutes of Order which I have just made that there is no evidence to support any finding of sexual abuse of the child by the father and indeed, has withdrawn all of her allegations of sexual abuse made against him.   She is now accepting of it being appropriate that the child resume a rather more fulsome relationship with her father. 

7. The Orders to which the parties have consented encompass alternate weekends from the conclusion of school on Friday until 4.00 pm on the Sunday.  That arrangement commenced on 2 December 2011.  The parties though are not able to agree as to whether or not there ought to be any additional time in the intervening week.   In Orders that I made on 5 July 2011 a regime of interim week time spent by the father with the child was established but it was for a very limited period of a few hours.  He now seeks orders that he also spend time with the child during those intervening weeks from the conclusion of school, or 5.00 pm on the Thursday in the event that Thursday is not a school day, until the commencement of school on the Friday being the following day or 9.00 am in the event that it is not a school day.

8. In my view all of the evidence currently before the Court suggests that the child ought appropriately spend some significant time with her father and in my view, “alternate weekends” does not represent significant time.  I accede to the father’s request that he have some intervening week time with the child. 

9. However, in my view, it is also appropriate to allow the child to make some rather more gradual adjustments as she has undergone a number of significant changes in her very short life.  The child has had to face the loss of her father for a period of time whilst sexual abuse allegations against him were explored and her time with him has been restored in only the relatively recent past.  To expand her time dramatically and in a hurry may well not do the father’s relationship with the child any good but more significantly, from the perspective from which I must approach it, will not do the child any good and will not represent her best interests. 

10. In my view therefore, it would be appropriate for the child to be able to adjust to the intervening week time prior to her commencing school, but equally she should have a period of adjustment to the agreed regime between the parties prior to installing an intervening week period of the duration proposed by the father.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr delivered on 12 December 2011.

Associate: 

Date: