Short & Trevilian (No. 6)

[2008] FamCA 543

FAMILY COURT OF AUSTRALIA

SHORT & TREVILIAN (NO. 6) [2008] FamCA 543

FAMILY LAW – CHILDREN – interim proceedings – with whom a child lives and spends time – final orders made by consent in 2006 – serious allegations of inappropriate sexual conduct between father and eldest child – consideration of s 60CC factors – allegations strongly denied by child – no meaningful relationship between child and mother – inability of father to abide orders of Court to date – risk to child remaining in father’s household weighed against risk of emotional harm from being removed from current environment – inappropriate for child to reside with father – during period of adjournment, child to be enrolled in boarding college of school child attends.

FAMILY LAW – INJUNCTIONS – father restrained from having contact with child except under supervision of school staff and from spending overnight time where child sleeps or resides. 

FAMILY LAW – PRACTICE AND PROCEDURE – hearing of evidence by court in interim proceedings – no absolute findings made as to credit or whether unacceptable risk to children – evidence to be fully tested at trial.

Family Law Act 1975 (Cth) ss 60CA & 60CC

Director General, Department of Community Services & C and Ors [2006] FamCA 361

APPLICANT: Ms Short

RESPONDENT: Mr Trevilian

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 1855 of 2003

DATE DELIVERED: 12 February 2008

PLACE DELIVERED: Adelaide

EX TEMPORE REASONSOF: Burr J

HEARING DATE: 12 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.M. Berman

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Tindall Gask Bentley

INDEPENDENT CHILDREN’S COUNSEL: Mr J.G. McGinn

INDEPENDENT CHILDREN'S SOLICITOR:

COUNSEL FOR THE MINISTER:

Judith Cocks

Michael A J Figwer

Orders

1. Further consideration of the proceedings generally, and the other issues which have previously been raised by the parties and considered by the Court, be adjourned to Tuesday 25 March 2008 at 2.15 pm before the Honourable Justice Dawe (Reserve Magellan Judge) (1/2 day allowed).

2. The Independent Children’s Lawyer and the representative of the Minister for the Department of Families and Communities – Families SA do everything within their power to ensure that the assessment and evaluation being conducted by the Department be made available to the parties and to the Court at the earliest possible opportunity.

3. A copy of the transcript of today’s proceedings be obtained by the Court and provided to each of the parties represented at the bar table and to the person(s) undertaking the assessment and evaluation by or on behalf of Families SA.

4. Leave is granted to the Independent Children’s Lawyer to provide the person(s) undertaking the assessment and evaluation by or on behalf of Families SA with copies of the relevant applications, affidavits and other materials (in the nature of evidentiary materials) filed on and since 20 December 2007.

5. Each of the parties represented at the bar table today are restrained and an injunction is hereby granted restraining each of them from:-

   (a)providing copies of any of the materials filed in these proceedings to R College SAVE AND EXCEPT for a copy of this Order; and

   (b)reporting to or affording to the father’s professional association’s Disciplinary Board or like body any of the matters that have been aired in Court this day or are contained in the documents filed in these proceedings on and since 20 December 2007.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The child S (“[S]”) born … July 1992 be enrolled as a boarder at, reside at and be accommodated by R College.

2. The parties each pay one-half of the fees associated with S’s boarding arrangements at R College.

3. The father take all such reasonable action as is necessary to ensure S’s attendance at R College.

4. Paragraph 6 of the Orders made herein on 26 March 2006 be suspended.

5. The father be entitled to participate in any formal role he has with the youth organisation for any organised functions UPON CONDITION that S is transported to and from such events by either of Dr A or the husband’s father.

6. For any music lessons to be undertaken by S she be transported to and from those occasions by taxi.

7. In the event that arrangements cannot be made for S’s transportation to and from any youth organisation functions (in accordance with paragraph 10 hereof) or S’s  transportation  to  and  from  any music lessons  (in accordance with paragraph 11 hereof), then S is not to attend those functions or lessons.

8. The father is restrained and an injunction is hereby granted restraining him from:-

   (a)having any contact with S SAVE AND EXCEPT under the supervision of R College staff;

   (b)spending overnight occasions in any premises where S is sleeping or residing.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1855 of 2003

MS SHORT

Applicant

And

MR TREVILIAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me for continuing determination on an interim basis, the mother's Form 2 Application filed on 20 December 2007 (document 170 on the Family Court file).  The application pertains to the three children of the marriage between the parties and they are S who was born in July 1992 and hence is some 15 and a half years of age, V who was born in June 1995 and is therefore 12 and a half, and E who was born in June 1998 and is therefore nine and a half years of age.

2. The principal matters of concentration though in these proceedings before the Court since that application was filed and certainly today, have been concentrated on the child S. 

3. It is a matter of regret that issues concerning the children arise again for the Court's determination so soon after Final Orders were made in these proceedings.  On 21 March 2006 consent Orders were made effectively providing that henceforth S was to reside with the father and the other two children were to reside with the mother.  As a matter of fact, though, S has been with her father since August 2005.

4. In previous interim proceedings before the Court the concern was certainly flagged, and it is a matter which has now prompted today's hearing, that there may have been inappropriate sexual conduct between the father and S.  It is unusual for this Court to embark, in interim stages, upon a hearing involving the giving and taking of evidence.  It is certainly not unknown and is a practice that has been adopted in other Registries of the Court on a more regular basis, and it is not completely unknown in this Registry either.  In my view the circumstances which prompted such action were very different.  In particular, the allegations, ultimately, could well be sustained or otherwise on issues of credit alone.

5. I thought it important to afford to each of the parties and, of course hence indirectly but very importantly to the children, an opportunity to try and establish whether or not the veracity or otherwise of the allegations could be determined in the short-term.  That would have required the evidence of one or other of the parties to be reduced to a point of unbelievability.  That has not been the outcome of the proceedings today.  That is not to say that there are not concerns that I have about the evidence given by the two principal witnesses as to the nature of these allegations: namely, Ms Q and the father in these proceedings.

6. Counsel agree with me and in fact urge upon me the importance of not making any absolute findings of credit and most certainly not making any absolute findings, even on an interim basis, as to whether or not abuse has occurred or whether or not, based on appropriate burdens of proof, there is an unacceptable risk to S and to the other two children emerging from the evidence before the Court.

7. I am mindful, not just of the decision of Strickland J, sitting on Appeal from a Federal Magistrate in the matter of Director General, Department of Community Services v C and Ors [2006] Fam CA 361 of the dangers of embarking on such a process, but also my broad and general experience in the jurisdiction. 

8. It is important that the evidence, given the extreme seriousness of the allegations that have been made, be tested properly and fully at a trial when all other inquiries and assessments have been concluded.  Thus I will not be making any such findings today.  However, as I said, there are issues of concern with respect to the credit of both of those who gave evidence today. 

9. Ms Q, in a number of respects, was inconsistent in some of the evidence she gave.  Without detailing all of those, some of the concerns that emerged were as to whether or not she had made an observation of the father caressing S’s breast from a position behind or in front of S and her father.  Her evidence in her affidavit and her oral evidence today was in conflict in some respects.

10. Exhibit 2 is a birthday card that she forwarded to the father and the words of that birthday card make it not yet possible to determine whether or not she may have engaged in a relationship beyond that which she admitted.

11. Exhibit 6 is a record of the police interview of Ms Q when she was in hospital.  There are inconsistencies in that statement when compared to her affidavit filed on 22 January 2008.  Also there were some, to put it as politely as I can, fairly confused evidence that she gave about whether or not she may have been subjected to some sexual activity by the father without her knowledge.

12. From the father's perspective there was significant prevarication about his evidence as to whether or not Ms Q fell within the definition of a professional relationship and as to the nature of their relationship.  There was a sense of unreality about some of his explanations on a number of topics.  However, as I said, it is not appropriate for me to make any particular or emphatic finding on those issues of credit.

13. The matters which must guide me, particularly on an interim basis, are those which also need to guide the Court on a final basis, and in particular it is the raft of amended legislation introduced on 1 July 2007.

14. Section 60CA does not change anything in relation to the way these matters need be approached, in that it requires the Court to have regard to the best interests of the children as the paramount consideration. To do that it guides the Court's attention to section 60CC of the Act. That in itself is divided into primary considerations and additional considerations. The first of the primary considerations is:

(a)The benefit to the child of having a meaningful relationship with both of the child's parents.

1. This is a matter which emerges as being of considerable concern.  The evidence today and contained in the affidavits quite clearly points to the fact that the relationship that S has with her mother could not be described in any way or in any sense as being meaningful.  Counsel for each of the parties has stressed the role of the other party in producing that outcome.  Counsel for the mother suggests that there have been a number of actions taken by the father, and indeed inaction on behalf of the father, which has produced the situation where S does not have a meaningful relationship with her mother.  For the father's part, Counsel on his behalf indicated that nor had the mother particularly agitated appropriate action and activity in relation to maintaining that relationship.  I will deal with it a little later when dealing with the additional considerations.

2. The second primary consideration is:

(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. This primary consideration clearly emerges for very serious consideration by the Court.  Ultimately, on a final basis but certainly also on this interim basis, the allegation is serious and it is to the effect that the father is engaged in inappropriate sexual activity with his eldest daughter and, if that proves to be the case, that clearly constitutes a most serious form of abuse.

2. The additional considerations are, firstly:

(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. S has made her views very plain.  There is no dispute between any of the parties or from the Independent Children's Lawyer that S views this suggestion and these allegations as being horrific, offensive and untrue.  She has consistently denied any impropriety in the relationship between herself and her father, to police, to Families SA and through other evidence conveyed to the Court in these proceedings.

2. I am therefore left in no doubt that there is only one view that S holds; that is, she ought to be living with her father and that there ought to be no inhibition, no matter whether temporary or permanent, to prevent her from maintaining that relationship with her father and living with him.

3. Questions must arise as to the weight that I should attach to S’s expressed views in that regard.  There is negativity, acknowledged by the father, within his household towards the mother.  He proffered to the Court an explanation to the effect that he allowed S to make negative remarks about the mother so that he could then seek to manage it in an efficient and sensitive way.  However, his acknowledged response to some quite blatant negative words used in relation to the mother remains a matter of concern and requires further exploration within these proceedings.

4. Given that clear negativity, given the fact of there being no meaningful relationship between the mother and S, given the quite clear role the father has had to play in that lack of meaningful relationship between S and the mother, and given there is general evidence that the Court needs to be concerned about as to whether the father and indeed S, at her age, are able to establish appropriate boundaries in their relationship, all mean to me, at this interim stage, that I ought to be very cautious about giving any real weight to S’s views at this time.

5. That does present problems to the Court in that S has indicated a significant will and sense of independence in abiding the arrangements that the Court has endeavoured to make for her care. That though should not be a reason why the Court should resile from its responsibility under section 60CA of the Act.

6. Subsection (b) requires me to consider:

(b)The nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child).

1. I need only be brief there.  The evidence is quite clear that there are a number of concerns about S’s relationships with both of her parents.  The evidence of Ms Q, whilst it was evidence in respect of which I had some concerns, nonetheless also, at points, had a substantial ring of truth about it and there was a sense of consistency in it.  She was cross-examined by Counsel for the father and maintained that level of consistency in most respects throughout her evidence.  Undisputed, in a sense, is the poor relationship that S presently has with her mother, generated certainly in part by the negative atmosphere that pervades the father's household. 

2. The child's relationships with both of the parents are troubled relationships and are matters that will require some urgent attention in the future conduct of these proceedings. 

3. I should not ignore either, the relationship of the two younger girls with each of their parents.  The issues in relation to those two children are not as severe as those in relation to S.  There is no allegation made of any inappropriate conduct between those two girls and their father.

4. Whilst the serious allegations in relation to S remain to be ultimately tested, caution also needs to be exercised in relation to the other children’s exposure to the negativity in the father's household and also to the possibility of some form of inappropriate behaviour, either witnessed or experienced, until an appropriate resolution of the allegations in relation to S have been attended to.

5. Subsection (c) raises similar concerns; namely:

(c)The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

1. Nothing new emerges from my comment in addition to those matters I have indicated under the heading of “the nature of the relationship”.  Suffice to say, there are concerns about the willingness and ability of each of the parents to facilitate the relationship between the mother and S, but the clearest evidence to emerge so far is that of the negative atmosphere within the father's household.

2. Subsection (d) is another concerning subsection in that it requires the Court to consider:

(d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. Clearly, any Order that I make which is contrary to what S wants would effect a change in her circumstances.  It would mean that she would no longer be living with her father, she would no longer be in a position to attend to her own needs at home, be surrounded by all creature comforts that she enjoys at the home and attend at her school in a normal fashion.

2. The father gave evidence about the problems that have emerged for S by being removed from her normal routine and being obliged to undertake the role of a boarder at R College. All of this is as against the backdrop of S performing wonderfully well, at all levels, at her school.  Her academic achievements appear to be excellent and her socialisation at the school, with her peers and with her teachers, has also been indicated as at the highest level.

3. Thus any change in S’s circumstances, certainly from S’s own perspective, will be difficult to live with and potentially detrimental.  Again that must be against the backdrop of comparing that with the potential risk to S if any of the allegations, or the more serious of them at least, can be ultimately sustained. 

4. In my view I must weigh up the risk to S of engaging in an inappropriate relationship with her father as against the risk to her of emotional harm in being removed from what she perceives to be a safe and secure environment.

5. Subsection (e) does not require my consideration.  Subsection (f) I believe has already been adequately canvassed in that it requires me to consider:

(f)The capacity of:

(i)each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs.

1. Certainly there are issues as to S’s emotional needs.  If she is in an inappropriate relationship with her father, then clearly her emotional needs are not only not being met by her father but are being appallingly abused and abused in one of the worst ways that it is possible to imagine in terms of a father‑daughter relationship.  If indeed the allegations are false and have the effect of removing S from a relationship which is appropriately functional and fully supportive, then there will be some emotional issues that she will suffer as a consequence.

2. Subsections (g) and (h) do not require any consideration by me today.  Subsection (i) in my view has been canvassed adequately in that it requires me to consider:

1. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

1. They raise for my consideration similar issues to that which I considered pursuant to subsections (b), (c) and (f).  They do not require further comment.

2. Subsections (j), (k) and (l) are not relevant for my consideration.  Subsection (m) requires me to consider:

(m)Any other fact or circumstance that the court thinks is relevant.

1. One of the biggest concerns here is the father's inability to date to abide fully the Orders made by this Court.  He acknowledges in an affidavit filed in this Court on 8 February 2008 that he was in breach of the Orders I made on 8 January 2008, in that, at paragraph 9(a), I injuncted him from having any contact with S save and except under the supervision of his father. 

2. Not recognising boundaries set so clearly by the Court could lead to an interpretation of the father's general demeanour and disposition as being one who is not able to abide boundaries full stop.  That is a conclusion that is inappropriate for me to draw at the moment but nonetheless is a matter that needs to agitate some caution in the Court until at least the further assessment, undertaken by Families SA, has been concluded.

3. It is therefore appropriate, under this sub-section also, for me to consider what indeed is the next step.  A critical piece of information has yet to be provided to the Court.  That is, the outcome of the assessment and psychological report presently being undertaken by Families SA.  Counsel for the Department, and indeed the Minister, has indicated that it is in the order of weeks away; maybe something in the order of four weeks away. 

4. I have concerns about the father's inability to maintain appropriate boundaries in a number of senses until I receive further enlightenment and hopefully comfort, from that assessment.

5. The findings of this Court even on an interim basis can in the end result prove to be particularly unfair to the father, and I am conscious of that in making these Orders.  More importantly the consequences of these interim decisions can be, at the very least, difficult for S. 

6. In my view the choice is a relatively clear one and whilst these issues are complex and not easy, it is nonetheless an easy decision to make in the context of this next few weeks.  That is, in my view, it is appropriate that I heavily weight the issues of risk to S by remaining in her father's household for the various reasons mentioned (not just the allegations of inappropriate sexual behaviour) more heavily than I would the risk to S of being deprived of her comfortable level of living within her household and her comfortable schooling and achievement over a period of some few weeks.

7. The risks to a child of having experienced inappropriate sexual or other behaviour, in my view, would linger far longer than the impact to a child of her schooling and accommodation being less than desired for a period of some four weeks.  I cannot dismiss the possibility it would extend beyond four weeks but the Court, I am certain, will  be far better informed in some four weeks' time when the detailed assessment, evaluation and recommendations from Families SA will be known.

8. The Act also requires me to consider the provisions in sub-section (4).  Again I believe I have adequately canvassed the relevant provisions of that sub-section, in that I have referred to the concerns the Court has about both parents in terms of their demonstrated record and their capacity to support and maintain relationships between S and the other parent.

9. All Counsel agree that it is neither appropriate nor relevant to deal with other provisions of the Act on an interim basis, specifically as to section 61DA and hence section 65DAA.

10. For all of those reasons I believe it inappropriate, during the period of the adjournment, for S to return to reside with her father in his household.  That of course does not mean that the balance of the Court's decision is an easy one. 

11. The mother filed this day an affidavit detailing a number of possible optional carers for S, pending the further report from Families SA.  There are 10 of them and they range from returning to the mother's household through to relations, friends - when I say "relations", including the maternal grandparents - and R College.  The mother urges me to adopt any of those as being preferable to sending S back into the care of the father. 

12. It is easy to say; hard to do.  S’s independence of will and spirit are likely to make the next few weeks difficult for the adults in her life but also for herself and given the Order I am going to make, potentially for her school.  It will say much of the parents over the next four weeks, but I have to say rather more of the father, if S’s secure accommodation in R College can be achieved.

13. It is appropriate in my view to spell it out bluntly.  That is, the father's influence over his daughter S is quite obviously such that the best prospect this interim arrangement has of succeeding is if the father encourages S to accept the decision of the Court and explains to her that it is not likely to be long‑term, but would require some further attention by the Court shortly.

14. If the father's relationship with S is as strong as he professes and is as close as he professes, but in an appropriately close way, and that she respects his wishes and views, then I am certain that he will be able to convince her despite his own apprehensions and indeed severe disappointment about this interim decision and S’s own concerns and disappointments and that he will do it.

15. Whether or not it provides a further window into the father's disposition and strength of character and general demeanour on the next occasion, the Court can only wait and see.  In short, if S does not spend this time during the period of the adjournment accommodated at R College, then the father is likely to face the suggestion and the allegation that it is principally his fault.  As against that, the Court will nonetheless need to accommodate the real possibility that nobody can tell S what to do.  However, I at least understand the father's evidence to be to the effect that she is a daughter who loves her father and, in important aspects, would comply not necessarily with his wishes but with his direction, being that that direction comes from another source; namely, this Court.

I certify that the preceding  fifty-five [55] paragraphs are a true copy of the reasons for Judgment of the Honourable Justice Burr

Associate: 

Date:  12 February 2008