Sims and Bond

[2012] FamCA 92

FAMILY COURT OF AUSTRALIA

SIMS & BOND [2012] FamCA 92

FAMILY LAW - CHILDREN – final orders – where the mother alleges that the children have been sexually abused by the father – where the father alleges that the mother has emotionally abused the children – where the mother intends to withdraw from the proceedings – best interests – consent orders made in terms of the minutes prepared by the father – orders that the children reside with the father and that he have sole parental responsibility for them.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Sims

RESPONDENT: Ms Bond

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1276 of 2009

DATE DELIVERED: 17 January 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 17 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Pyke QC
SOLICITOR FOR THE APPLICANT:	Barnes Brinsley Shaw

COUNSEL FOR THE RESPONDENT:	Ms Tucker
SOLICITOR FOR THE RESPONDENT:	Kudra & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Winter
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

UPON NOTING that the Orders hereunder are not with the consent of the parties but bear the approval of the Independent Children’s Lawyer

AND UPON FURTHER NOTING:-

A.That there are two (2) children of the marriage, namely E born on … August 2000 and D born on … September 2003 (hereinafter collectively referred to as “the children”).

B.That the mother has alleged that she believes the father sexually abused D and/or E.

C.That a Child Protection Services forensic report dated 15 October 2010 concluded that D had not been subject to abuse by her father and that she did not report information to suggest that she had experienced abuse from any other party.

D.That the father has alleged in these proceedings that the mother has emotionally abused D and E by discussing her allegations of sexual abuse with them, coaching D to make disclosures of abuse against the father and discussing inappropriate matters with them.

E.That the father’s allegation that the mother has emotionally abused the children has not been tested by way of forensic investigation, cross-examination or Family Court Trial.

F.That the mother has made a decision to return to Sweden to live on a permanent basis and vacate the proceedings notwithstanding that the allegations of emotional abuse against her remain a live issue that has not been concluded by way of Trial.

G.That by way of history in this matter:-

(a)In late January 2009, the mother retained the children in Sweden with the intention of staying permanently, without the father’s consent.  

(b)The father commenced urgent Hague Convention proceedings to return the children to Australia.

(c)The mother subsequently consented to the children returning to Australia, as their habitual place of residence. 

(d)The children returned to Australia in May 2009. 

(e)In April 2009, the father commenced Federal Magistrates Court proceedings in Adelaide seeking Orders in relation to the care arrangements for the children in Australia.

(f)The mother returned to Australia in about June 2009 and filed responding documents seeking Orders for the relocation of the children to Sweden. 

(g)In about September 2009, the mother decided to return to Sweden to live on a permanent basis without the children. 

(h)On 19 October 2009 an Order was made by Consent whereby the parties had the equal shared parental responsibility for the children, the children lived with the father in Australia and the mother spent time with the children in Australia for six (6) weeks each year (in addition to telephone and Skype communication).

(i)In May 2010, the mother returned to Australia with the intention of remaining on a permanent basis and she sought time with the children on a week about basis.

(j)The parties filed an Application for Consent Orders and a Consent Minute of Order in the Family Court (Order dated 19 August 2010) allowing for the parties to have the equal shared parental responsibility for the children and Orders for the children to live with each party on a week about basis (in Australia).  The father was not aware that the mother had alleged to various agencies that he had/was sexually abusing D.

(k)In April 2011, the father was advised by SA Police not to hand the children over to the mother notwithstanding the Family Court Order that was in place as a result of their concerns that the mother was emotionally abusing the children and coaching D to make disclosures of abuse.

(l)That the father re-issued Federal Magistrates Court proceedings on 9 May 2011.  The proceedings were subsequently transferred to the Family Court of Australia. 

(m)That in about June 2011, the mother was charged by the South Australia Police with making a false report to the Police and making a false report to Families SA with the charges relating to the mother’s allegations of sexual abuse against the father.

(n)The criminal charges against the mother were ultimately withdrawn by the Police on about 18 September 2011.

(o)The children have lived in the father’s full-time care since April 2011. 

(p)The mother commenced spending time with the children on a supervised basis (by consent) for two (2) hours each week from early October 2011.

(q)A Family Assessment Report was prepared by Ms H dated 17 December 2011 and has been made available to the mother and father and it stated inter alia:-

i)As the issue of D’s emotional wellbeing in her mother’s care remains unresolved, there is a need for any future contact by the mother to continue to be supervised and for any visits to occur in Australia.

ii)That the father have the sole parental responsibility for the children;

iii)That E and D continuing living with the father.

H.That it is contemplated that the mother is likely to change her mind and return to Australia to live in the future.

1. That it is the parties’ intention that this Order is a final Order and will continue notwithstanding that the mother may return to Australia on a temporary or permanent basis at any time in the future, in particular that the mother’s time with the children will be supervised.

IT IS ORDERED:-

1. That the father have the sole parental responsibility for the children E born on … August 2000 and D born on … September 2003 (hereinafter collectively referred to as “the children”).

2. That the children live with the father.

3. That in the event that the mother returns to Australia on a temporary or permanent basis, she shall spend time with the children:-

   3.1.On a supervised basis by a Children’s Contact Service or in the presence of such supervisor as may be nominated by the father; and

   3.2.For a period of two hours per week; and

   3.3.Otherwise upon such terms and conditions as may be agreed by the father and mother in writing.

4. That the mother be permitted to telephone the children and communicate with the children via Skype at her cost in all respects with such communications to be supervised by the father and/or his nominated supervisor:-

   4.1.Each alternate Sunday at 7.00pm (South Australia time);

   4.2.On Christmas Eve each year at 7:00pm (South Australia time);

   4.3.On Easter Sunday each year at 7:00pm (South Australia time);

   4.4.On E’s birthday each year on … August at 7:00pm (South Australia time);

   4.5.On D’s birthday each year on … September at 7:00pm (South Australia time);

   4.6.On the mother’s birthday each year on … June at 7:00pm (South Australia time);

   4.7.At such other times as the children may request;

   4.8.At such other times as may be agreed between the parties.

5. That the father be at liberty to terminate the mother’s telephone or Skype communication with the children in the event that the mother speaks to the children in an inappropriate manner including but not limited to raising matters of an inappropriate nature, denigrating the father to the children or blaming the father for her restricted time with the children.

6. That the mother be at liberty to send the children presents, cards and letters and communicate with the children via email PROVIDED THAT the father shall be permitted to read the content of all communications from the mother prior to providing same to the children AND shall be at liberty not to provide such communications to the children if it contains inappropriate content.

7. That the father provide the mother with copies of the children’s school reports.

8. That the father do communicate with the mother via email once every three months to advise her of the children’s developmental progress including but not limited to their progress at school, in counselling (if applicable), extra-curricular activities and any medical issues affecting the children.

9. That the children do continue to attend counselling with Ms J / Ms C at P Psychologists for such time as may be recommended by Ms J / Ms C, with the father to meet the relevant costs.

10. That the children attend upon their school counsellor if so recommended by the school counsellor in consultation with the father and the children.

11. That the mother and the father are restrained and an injunction is hereby granted restraining each of them from denigrating the other to the children or in the children’s presence or allowing any other party to do so.

12. That the mother be restrained and an injunction is hereby granted restraining her from allowing the maternal grandfather to communicate with either of the children.

13. That the mother be restrained and an injunction is hereby granted restraining her from removing the children from the state of South Australia.

14. That the mother be restrained and an injunction is hereby granted restraining her from removing the children from the Commonwealth of Australia.

15. That paragraphs 4 and 5 of the Order dated 4 June 2009 placing the children E born on … August 2000 and D born on … September 2003 upon the Airport Watch List be discharged.

16. That the Australian Federal Police do place the names of the children, E born on … August 2000 and D born on … September 2003 on the Airport Watch List in respect of any and all travel in the company of their mother, Ms Bond born on … June 1972 and/or any agent or assign acting on behalf of the mother.

17. That the Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain the mother or any agent or assign acting on behalf of the mother from removing or attempting to remove the said children from the Commonwealth of Australia.

18. That the father be permitted to remove the children from the Commonwealth of Australia and travel with the children overseas notwithstanding the Airport Watch List Orders in place.

19. That the mother be restrained and an injunction is hereby granted restraining her from applying for new Australian and/or Swedish passports for the said children.

20. That a copy of this Order shall be provided to the Swedish Embassy in Australia.

21. That all interim and final applications before this Honourable Court be dismissed.

22. That the appointment of the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sims & Bond 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 1276  of 2009

Mr Sims

Applicant

And

Ms Bond

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me proceedings relating to two young children E who was born in August 2000 and hence is 11 years of age and D who was born in September 2003 and is thus 8 years of age.  A lengthy history of proceedings can be gleaned from the Court file and from the documents on the Court file, but initially proceedings between the parties were conducted in the Federal Magistrates Court until they were transferred to the Family Court on 1 June 2011. 

2. Thereafter the matter fell within the Court’s Magellan Program as a consequence of allegations made by the mother that the father had sexually abused D and possibly E.  Such allegations by the mother were not sustained by the Child Protection Service (“CPS”) in their report dated 15 October 2010 and indeed CPS expressed a greater concern as to the mother’s possible emotional conditioning and coaching of the children and encouragement of them to make disclosures of abuse by the father. 

3. Thereafter a number of interim orders and processes were put in place but in particular the ordering of the preparation of a Family Report by Ms H, a highly experienced clinical psychologist who has practised in this State for a long time now.  Her report is annexed to an affidavit of the Independent Children’s Lawyer filed on 20 December 2011 and her conclusions and recommendations, which commence at page 19, provide a great deal of assistance to the Court and clearly to the Independent Children’s Lawyer in framing a position in this matter.  Ms H also makes mention of her concerns about the mother’s emotional conditioning of the children and her inability to recognise the children’s emotional needs in her conduct and attitude towards them and towards their father. 

4. The mother’s attitude and approach in that regard is a matter of even greater regret when the reports of the mother’s supervised periods of contact with the children are read.  Those reports are annexed to an affidavit of the Independent Children’s Lawyer filed on 25 November 2011.  They clearly demonstrate a very close relationship between the mother and the children and more pointedly, a dependency by the children upon their mother for emotional support, love and care. 

5. Despite all of this, for reasons of her own, the mother has determined that she will no longer continue to participate in these proceedings and that she will return to live in Sweden without the children.  This clearly imposes greater additional burdens upon the children and it is a matter of some regret that she has taken that decision.  However, it would appear that the mother is a conflicted woman and has a number of conflicts in her personal life which have prompted her to make this decision.

6. Ms Tucker, for the mother, indicated that she now had instructions that the mother was intending to withdraw from the proceedings and, on that basis, she had no instructions as to any specific orders the Court might make.  She did indicate, though, that she understood as no doubt her client understands the only orders that the Court could possibly make, given her withdrawal from the proceedings.  Counsel for the father has tendered to me some very comprehensive minutes which, in my view, appropriately record a number of notations reflecting the history of the matter and which quite rightly point to the only orders that I can make in these proceedings. 

7. I am satisfied, having considered all of the relevant provisions of Part VII of the Act, but in particular the specific matters raised by section 60CC, that the only orders I can make are those orders reflected in the minutes tendered to me today.  Those minutes bear the support of the Independent Children’s Lawyer.

I certify that the preceding seven (7) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 17 January 2012.

Associate: 

Date: