Seaver and Seaver (No 2)

[2015] FamCA 324

FAMILY COURT OF AUSTRALIA

SEAVER & SEAVER (NO 2) [2015] FamCA 324

FAMILY LAW – CHILDREN – Interlocutory Application – Change of residence – where interim orders are made as a holding pattern until final orders – children to live with the father and spend no time or communicate with the mother – where the break between the mother and the children will allow them to both recover their relationship with the father and to protect them from the mother’s unfounded beliefs about the danger to them in the care of the father and his partner

APPLICANT: Mr Seaver

RESPONDENT: Ms Seaver

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 3220 of 2013

DATE DELIVERED: 13 February 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Richardson Legal

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Catalyst Family Lawyers

Mr Mooney

Legal Aid NSW

Orders

1. Judgment is reserved.

2. That copies of the following documents are released to the maternal grandparents:  

   (a)The Family Report of Ms H dated 24 September 2014;

   (b)Addendum to Family Report of Ms H dated 11 December 2014; and

   (c)The Magellan Report dated 2 September 2014.

3. That the children B born … 2005 and C born … 2010 “the children” live with the father

4. That the children shall not spend time with nor communicate with the mother.

5. That the mother is restrained by injunction from contacting and attempting to contact the children.

6. That the Independent Children’s Lawyer provide a copy of these Interim Orders to the school and preschool which the children respectively attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaver & Seaver (No 2) 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 NEWCASTLE

FILE NUMBER: NCC 3220 of 2013

Mr Seaver

Applicant

And

Ms Seaver

Respondent

And

Legal Aid NSW
Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Over the past four days I heard the evidence of both parents, the father’s partner, the maternal grandparents, and the family consultant who were cross-examined on the evidence in their affidavit’s and Reports. 

2. This was a matter which was accepted into the Magellan Protocol due to allegations of abuse of the two children, B and C.  Beyond that, within the Magellan Protocol, it was expedited.  It is an urgent matter.

3. Between 25 July 2014 and 18 November 2014, four Notices of Child Abuse were filed on behalf of the mother, alleging abuse of the children by the father and his partner.  Psychological abuse including allegations of interrogation of the children by the father, intimidation and belittling them, exposing them to abuse of their dog.  Physical abuse including smacking, punching, pushing, and dragging the children or either of them.  Sexual abuse including the allegation that the father digitally penetrated C’s vagina while his partner watched on, that he also used a needle to penetrate her vagina, and an allegation that there had been touching by the father’s partner of C’s genital area in a sexually inappropriate manner.

4. Having heard all of the evidence I am satisfied, and Counsel for the mother very properly conceded this, that there is no prospect of a positive finding of abuse to any extent of the children or either of them by the father or his partner. 

5. I am also satisfied that the actions of the mother in relation to the allegations have caused harm to the children; that was not her intention.  In her focus on protecting them, she has put them under damaging pressure.  There are complexities in this case which require a careful analysis of oral evidence and documents tendered into evidence.  It may take some weeks. 

6. Two of those complexities are:

   (a)The disparity between the mother’s observations and beliefs about the children, and that of others such as teachers, supervisors of contact, the family consultant and Joint Investigation Response Team officers;  and

   (b)The credit of the mother, which has been put in issue.  Her truthfulness in particular.

7. These matters require time and attention to detail in order to do justice to the parties and to the children.  For that reason I am making interim orders today as a holding pattern until final orders, when detailed Reasons and findings can be delivered. 

Conclusion

1. These interim orders provide for the children to live with the father and not to spend time or communicate with the mother, and for the Independent Children’s Lawyer to provide a copy of these Orders to the school and preschool which the children respectively attend.

2. I have also made the order to which the mother gave consent; that is that copies of the documents, namely the two Family Reports of the Family Consultant and the Magellan Report be made available to the maternal grandparents.

3. The interim orders will, in my view, give the maternal grandparents an opportunity to read the material released to them with the consent of the mother already given.  Further, it will create the break between the mother and the children so strongly recommended by the family consultant, both to recover their relationship with the father and to protect them from the mother’s unfounded beliefs about the danger to them in the care of the father and his partner. 

4. I accept that the mother will likely be intensely distressed by the Orders and may find them incomprehensible given her love for her children.

5. However, the Orders will also afford an opportunity for open discussion in the absence of the children between herself and the maternal grandparents, and with any professional person such as a clinical psychologist or psychiatrist who the mother may or may not choose to consult. 

6. I make orders accordingly.

7. I dismiss the application for contravention by the father, filed on 7 July 2014.

I certify that the preceding fourteen (14) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 13 February 2015.

Associate:

Date:  31 March 2015