SCOTT & SCOTT

FAMILY COURT OF AUSTRALIA

SCOTT & SCOTT

[2010] FamCA 224

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – best interests – allegations of sexual abuse by the father not confirmed – concerns of mother’s capacity to parent – orders made for increased supervised contact with father – orders for child to be enrolled in counselling and mentoring programs
Family Law Act 1975 (Cth) ss 60CA & 60CC

APPLICANT:

MR SCOTT

RESPONDENT:

MS SCOTT

INDEPENDENT CHILDREN’S LAWYER:

NELSON & CO

FILE NUMBER:

ADC

3646

2007

DATE DELIVERED:

1 FEBRUARY 2010

PLACE DELIVERED:

ADELAIDE

PLACE HEARD:

ADELAIDE

EX TEMPORE REASONS OF:

BURR J

HEARING DATE:

1 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MRS LINDSAY
SOLICITOR FOR THE APPLICANT:	CALDERWOOD ATKINSON

COUNSEL FOR THE RESPONDENT:	MR CHILDS
SOLICITOR FOR THE RESPONDENT:	DIXON GALLASCH PTY LTD

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR BOWLER
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	NELSON & CO

Orders

The proceedings be listed for Directions before the Docket Registrar (Registrar Paxton) at 10.30 am on Tuesday 16 February 2010 to ready the matter for a 1^st Day Less Adversarial Trial before the Honourable Justice Burr at the earliest opportunity.
The representative of the Minister for the Department for Families and Communities – Families SA be excused from further attendance at Court subject to any further Order of the Court.
The mother do forthwith enroll the child K born … September 1995 in a counselling and mentoring programme at S Organisation as recommended in the Family Report dated 7 January 2010 and that:-
(a) she do ensure that the child attends all such counselling and mentoring sessions and completes that programme as advised by S Organisation; and
(b) she provides evidence of such completion of that counseling and mentoring by the child in affidavit form to be filed and served in these proceedings.
The mother and the father, through the child’s school, do arrange for the child to be referred to the DECS Flexible Learning Options (“FLO”) programme and do all such things and follow all such direction as flows from the co-ordinators of that programme or the child’s Case Manager.
The father be the principal contact parent in relation to the DECS FLO programme.
Copies of the Family Reports dated 19 January 2009 and 7 January 2010 be provided by the Independent Children’s Lawyer to S Organisation, DECS and the principal of the F High School.
The father spend time with K as follows:-
(a)    on the Sunday of each week from 10.00 am until 5.00 pm, with the handovers at the commencement and conclusion of each period to be conducted at the B Railway Station;
(b)    on each of the Monday, Tuesday, Thursday and Friday school days from 8.00 am until no later than 4.30 pm, with handovers at the commencement and conclusion of each period to be conducted by:-
(i)Ms T (“Ms T) collecting the child at the front gate of the mother’s premises at 8.00 am;
(ii)Ms T then returning to collect the father from the house shared by them to enable him to accompany her and the child to school;
(iii)Ms T and the father collecting the child from school at the conclusion of the school day;
(iv)Ms T returning the father to the house shared by them prior to returning the child to the front gate of the mother's premises by no later than 4.30 pm.
(c)    on each Wednesday school day from 8.00 am until 7.30 pm, with handovers at the commencement and conclusion of each period to be conducted by:-
(i)Ms T collecting the child at the front gate of the mother’s premises at 8.00 am;
(ii)Ms T then returning to collect the father from the house shared by them to enable him to accompany her and the child to school;
(iii)Ms T and the father collecting the child from school at the conclusion of the school day;
(iv)Ms T returning the father to the house shared by them prior to returning the child to the front gate of the mother's premises by no later than 7.30 pm
UPON CONDITION that:-
(A)all time spent by the father with the child is supervised at all times by Ms T to the intent that Ms T is never to leave K and the father alone together unsupervised or out of sight or out of hearing;
(B)if for whatever reason Ms T deems it appropriate to terminate K’s time with the father then she do so forthwith and make immediate contact with the mother on the mother’s mobile telephone number 04….

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3646 of 2007

MR SCOTT

Applicant

And

MS SCOTT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

I have before me today a continuing dispute between the parties in relation to 14 year old K Scott (“K”). She was born in September 1995. The allegations that prompted the matter to be brought to the attention of the Court of most recent times are allegations of sexual abuse of K by the father.
There have now been a couple of Family Reports. One was prepared on 19 January 2009 and in that report the Family Consultant expressed some concerns which were directed at the father. At that time the Family Consultant did not indicate any significant concerns in relation to the mother. However, almost exactly a year later a second Family Report was prepared and in that period of 12 months things altered dramatically such that the principal concerns that the same Family Consultant now has in relation to K is as to the mother’s capacity to properly parent her and not as to the allegations of sexual abuse.
Those allegations of sexual abuse are of course still matters of serious concern for the Court and will need to be tested on evidence as soon as possible. The more pressing needs now being exhibited by the child though arise from the seeming inability of the mother to ensure that she attends school regularly and to protect her from destructive and dangerous practices and conduct.
Those concerns, which include not just the issues of truancy but also K’s drug taking, frequenting hotels, visiting the home of an alleged paedophile and some personal emotional difficulties being encountered by the mother, prompted me on the last occasion to invite the intervention of the Minister for Families SA. Ms Olsson has attended today appearing for the Minister. She has indicated that the Minister has declined to intervene and in doing so, she has indicated that at present the Minister does not have sufficient concern with the parenting of K that it is considered appropriate for the Minister to take any formal role in these proceedings. She relies upon the Department’s finding at an earlier stage that abuse of K by the father was not confirmed. Ms Olsson then indicated that the Minister supported the recommendations contained in the second Family Report.
The problem for the Court is that in the recommendations contained in paragraph 38 of the second report a number of the proposals were prefaced on a finding by the Court that the father had not sexually abused K. It is, of course, in the interim stages, not possible to make any such determination and accordingly it became imperative, in my view, that if the father was to spend time with K and to become more involved in her life, then that time needed to be strictly supervised. Whilst there may be some occasions when it is inappropriate to contemplate contact between a father and a daughter whom he is alleged to have abused, being concerns as to any detrimental emotional impact such contact might have even though supervised, in these circumstances the concerns about the mother’s care of K are so serious as to justify spreading the risk and taking the path which presently is indicated as being the one that would best serve K’s interests. There is no suggestion, and nor would it be appropriate, for there to be any change of residence at an interim stage whilst the allegations and counter allegations are fully explored on evidence. However, it is quite clear that the father needs to take a greater parental role in K’s life in order to try and reverse the destructive behaviours now being exhibited by that child in the mother’s care.
On the last occasion this matter was before the Court I ordered that in the event that it was deemed appropriate for there to be supervision of K in having time with the father, then proposed supervisors be advanced for the Court’s consideration. That has happened. The father has proposed the young woman with whom he is in a relationship, namely Ms T. She has filed an Affidavit and she has met with the Independent Children’s Lawyer. She attended Court today. The Independent Children’s Lawyer independently made the assessment that Ms T would be an appropriate supervisor of any time spent between K and her father.
The Court has now had a similar opportunity. Ms T gave evidence under affirmation today and was questioned by three of the four Counsel at the bar table. At the conclusion of her evidence she was supported as a supervisor by the Independent Children’s Lawyer and whilst perhaps the term “support” is not one which Ms Olsson was inclined to use, I am satisfied that the Minister’s representative also takes the view that Ms T could appropriately exercise that role. Certainly the Minister’s representative did not oppose Ms T undertaking the task of supervising time between the father and K.
I too have formed a very favourable impression of Ms T. In my view she was mature beyond her years. Her responses were genuine and well considered. She understands the importance and the significance of the role that she is offering to undertake. I am satisfied that she would be able to protect K from any unfavourable circumstance that might arise. I am also satisfied that she would immediately make contact with the mother and arrange to return K to the mother’s care if such circumstances did arise.
That determination is made without ignoring some of the more obvious concerns that emerge in the Court’s consideration of whether or not somebody should be approved to act as a supervisor. There are a number of contra indicators here. One is that the father and Ms T are in a relationship and have been since she was 16 years of age, such that she is currently pregnant with the father’s child. Another is that there is a significant age differential between the father and Ms T which I estimate at being approximately 32 years. Ms Olsson though questioned Ms T in relation to the usual concerns that arise in such a situation namely as to whether or not there was any concerning power imbalance and any potential situation for Ms T not to be able to resist the will and influence of the father. However each of Ms Olsson, the Independent Children’s Lawyer and I am satisfied that she indeed would be able to stand up for herself in those situations and has, and would have, K as her principal focus and concern.
The Court is encouraged by her demonstrated record in relation to assisting young people avoid destructive behaviours and redirect their lives. In that regard I refer to her 16 year old brother M. She gave evidence that M had encountered similar difficulties in his life as K now experiences. Her evidence was that he came to live with her at a time when he was not going to school and was on a path to destruction, being involved in the abuse of alcohol and drugs. Her evidence is that now he is a regular attendee at F High School and is doing well. He is now in Year 11. His reports are good. She further indicated that he no longer abused alcohol or drugs and had career plans in mind and hoped in the future to become a plumber. That gives the Court comfort that she could exercise a similar influence and provide similar assistance for K.
Another factor of convenience and benefit to K is that Ms T’s brother M frequents the same high school as does K, namely F High School. Clearly as M is in Year 11 there will likely be at least another 1 – 2 years when he will be at the same school and be in a position also to provide a point of contact for K and any assistance that she might seek. The evidence of Ms T is that they know each other, that they see each other at school and that they get on well together. The mother is opposed to Ms T being approved as a supervisor.
Apart from the factors that I have already mentioned which exercise the Court’s concern but in respect of which the Court is satisfied on hearing the evidence from Ms T, is the indication that K has now returned to school and that she spent the first three days of Term 1 in 2010 at school. However 3 days is a long way short of providing any reassurance that the mother has been able to address the serious concerns raised in the second Family Report.
On all of the preliminary indicators, it is seemingly in the best interests of K that she remain living with her mother but that the father exercise a greater role and responsibility in K’s life and particularly in relation to her schooling, but in circumstances where K will be safe in a supervised environment.
I have considered all of the relevant factors in the Family Law Act but which include, particularly, Sections 60CA and 60CC, both as to the “primary” and “additional” considerations. That said, it is my view, that in the reasons given thus far, I have covered the various relevant aspects of the legislation and it does not require me to trawl through each and every individual sub-section. I have had each of them in mind when making my determination.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr

Associate:

Date:

[2010] FamCA 224

1 FEBRUARY 2010

Key Legal Topics

Areas of Law

Family Law