SYMS & SYMS

[2018] FamCA 793

FAMILY COURT OF AUSTRALIA

SYMS & SYMS [2018] FamCA 793

FAMILY LAW – CHILDREN – interim orders - with whom the children live – where the father concedes interim residence for children with the mother – where the children spend supervised time with the father – where the matter is being heard in the Magellan list – where there are competing parenting applications – where there are allegations made by the children that the father sexually abused them - where there has been involvement with the Department of Family and Community Services – where the father strongly denies the allegations of sexual assault – where the court has  to balance the need to protect the children from risk and promote a relationship between the children and the father – where the relationship between the children and father could be irreparable if they continue to  spend no time with him – where the allegations of sexual assault have not been substantiated – where there is disagreement in relation to the counselling that the children are receiving – where the court must weigh up the benefit of the counselling with the  impact the counselling may have

Family Law Act 1975 (Cth) 1975

APPLICANT: Mr Syms

RESPONDENT: Ms Syms

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW – C Town Family Law

FILE NUMBER: NCC 1457 of 2018

DATE DELIVERED: 21 September 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 21 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Gillard Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: Warwick Hill Lawyer

ORDERS

Pending Further Order

1. The children, X, born … 2008, Y, born … 2010 and Z, born … 2012 live with the mother.

2. The children to spend time with the father supervised by the paternal aunt, Ms B Syms, or such other person(s) as the parties may from time to time agree as follows:

   2.1Commencing on Sunday 23 September 2018, and thereafter on each alternate weekend from 9.00 am to 4.00 pm Saturday and 9.00 am to 4.00 pm on Sunday, in the C Town and surrounding area;

   2.2Such other times or variations of the above times and locations as the parties may from time to time agree.

3. Unless otherwise agreed between the parties, the parties shall effect changeover for the children in the car park at the McDonald’s Restaurant in D Town.

4. The above spend time with orders, pursuant to paragraph 2, are conditional upon the paternal aunt or such other person as agreed by the parties, being present at all times that the children are spending time with the Respondent father pursuant to these orders.

5. The parties will do all acts necessary to facilitate the children communicating with the father each Tuesday and Thursday, between 4.30 pm and 5.30 pm, by Facetime, Messenger or such other social network application as the parties may agree.

6. The parents must not discuss these proceedings or denigrate the other party or the other party’s family in the presence or hearing of the children, nor allow the children to be present if any third party is discussing such things or denigrating those person(s).

7. The mother cause the counselling and therapy with the C Town Sexual Assault Service and E Psychology to be brought to conclusion.

8. The mother may engage a psychologist for the children on condition that each party is able to provide information to the psychologist as required and that contact details for each party are provided to that psychologist by the mother.

9. That neither party will facilitate the children’s attendance on any psychologist, psychiatrist, counsellor or therapist without consent of the other party or order of the Court.

10. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

11. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to any of the children.

12. This matter is adjourned to the Magellan List at 9.30 am on Monday 1 April 2019 for case management.

The Court Notes That

(A)The parties have agreed that the Saturday contact for the father with the children will be from 8.30 am – 4.00 pm commencing at the Broadmeadow Basketball Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Syms & Syms has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1457 of 2018

MR SYMS

Applicant

And

MS SYMS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX-TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These are parenting applications in respect of three boys, X nine, Y eight and Z almost six.  The parties, the parents of the children, are in their mid-forties.

2. This application is an interim application where the father seeks some time and communication with the three children, conceding the need for that time to be supervised, not because he concedes any wrongdoing, but because of an understanding of the cautious and conservative nature of the way the Court approaches a case such as this where there are allegations raised on behalf of the children that their father has been sexually abusive of them.

3. The application of the mother, on an interim basis, is that she would prefer to see the father restrained from spending any time or having any communication with the children. 

4. She properly concedes that the presence of the paternal aunt would be a protective factor for the children so that there would be no risk of sexual abuse during any time between the children and their father.  She is, however, concerned about possible psychological harm to the children of being confronted by their father, whom they love, but who the mother, I am confident, is certain has abused them.

Brief History of Relevant Events

1. The parties have a relationship which goes back approximately 13 or 14 years.  They married in 2006 and the children were born over the six following years.  The parties moved around.  In 2009 they lived in Asia.  In 2013 they moved back to Canberra.  At the end of that year the mother returned to some part-time work after a period of about five years out of the paid workforce, although no doubt fully engaged with the care of the children.  In 2016 the parties moved to live in Country J for an appointment of three years, although that period was not fulfilled.

2. In April 2017 the mother began to be concerned that the behaviour of the children was out of control.  The father says he began to be concerned about the mother's mental health and wellbeing, which he saw starting to decline.

3. In July 2017 the family returned to Australia for a holiday.  Later that year, in about October, Z and Y made disclosures to the mother about X's conduct of trying to touch them on their genitals.  Such disclosures were made again by Z about X in the following month.  By the end of that year the mother had raised with the father her fear that he may be abusing the children.

4. In paragraphs 52 to 60 of his affidavit[1] the father sets out the mother raising those allegations which, unsurprisingly, he interpreted as accusations, that the mother had then withdrawn and apologised, but then had become despairing about the possibility of him having abused the children. 

   [1] Affidavit of the father filed 14/05/2018, pars 52-60

5. In November 2017 the parties attended upon a developmental paediatrician regarding X's behaviours, particularly bedwetting, a preoccupation with bottoms and penises, tantrums and defiance, occasional nightmares.  X was referred to an autism specialist for further assessment.

6. In December 2017 the parties returned to Australia for a Christmas holiday.  The mother took the opportunity to attend on a psychologist and was prescribed some medication, it seems, for depression.

7. Early in 2018 the father returned to Country J in Asia for work whilst the mother and children remained in Australia in the home of the maternal grandparent in G Town. 

8. In February 2018 the mother took the children to see a psychologist, Dr F, to whom Y disclosed that someone, presumably a child but perhaps not, called H, had “done something to him at school”.

9. In February of 2018 the mother telephoned the father in Country J and advised that she and the children would not be coming back to Country J to live with him.  In that same month, and probably on that account, the parties considered themselves as separated.  The father returned to Australia from Country J, but since then there has been no contact between the father and the children. 

10. The father made a commitment to return to Australia to live and now lives with his mother in Queensland in K Town. 

11. On 24 July there was a JIRT home visit for the children and at that time, X handed a handwritten note by himself to the JIRT workers describing that his father had touched him on his penis and as each of his two brothers had been born that that had happened to them too.

12. In May 2018 the father filed an Initiating Application.  He proposed that the parents have equal shared parental responsibility, that the children live with him, that they spend time and communicate with the mother at times determined by the Court.  He also proposed orders in the alternative if the children remained living with their mother, which might be described as standard type of contact orders for alternate weekends, holidays and special times.

13. The children began having sexual assault counselling and into evidence has come a confidential medical report dated 29 May 2018 from the C Town Sexual Assault Service.[2]  The report details a wealth of information provided by the mother, her mother and the children about what has been discussed and revealed in those sessions.

    [2] Exhibit 8

14. On 6 June 2018 this matter was allocated into the Magellan Protocol, being the special protocol for cases where there are allegations of sexual assault.  The direction was given for the preparation of a Magellan report, which is a report back to the Court from the joint investigation of police and the Department of Family and Community Services (‘the Department”) into such allegations.  The Magellan Report was produced in due course and came to the following conclusion:[3]

    C Town JIRT's current investigation and assessment does not substantiate sexual abuse of [X], [Y] and [Z] by [Mr Syms].  [C Town] JIRT identifies concerns in relation to suspicious indicators of abuse and risk of sexual harm.

    [3] Magellan Report dated 6/07/2018, page 7

15. Such a statement leaves open the possibility of there having been no sexual abuse of the children by anyone, or there having been sexual abuse of the children by unknown persons.  The Magellan report also stated:

    [C Town] JIRT determines [X], [Y] and [Z] Syms are not in need of care and protection.  The level of future risk for [X], [Y] and [Z] is assessed as low.

16. I infer, although it may not be correct, that the level of risk being assessed as low is in response to the fact that the Department considered the children safe in the mother's care. 

17. On 3 August 2018 the mother filed an Amended Response in which she proposed her orders that the father be restrained from spending any time or communicating with the children. 

18. On 20 June 2018, I was advised today, that the Independent Children's Lawyer (“ICL”) was contacted by the Australian Federal Police and advised that the police would not be continuing any investigation in respect of the children, no charges would be laid against the father and that a further report - indications being that it would be confirmatory of that - will be provided next week.

Interim Applications – 21 September 2018

1. The contested applications being heard today are as follows:

2. The ICL proposed a set of orders that would see the children living with the mother and spending time with the father, supervised by their paternal aunt, Ms B Syms, or other people as agreed, commencing immediately for periods of seven hours on both days of alternate weekends and at such other times as agreed. 

3. The orders also propose that there be communication between the children and the father each Tuesday and Thursday by Facetime, Messenger or such other social network application as the parties agreed; that the parties were not to discuss the proceedings or denigrate the other party or their families; that the mother be restrained from facilitating the children's further counselling with the C Town Sexual Assault Service; that neither party would facilitate attendance on psychologists or other therapists without the consent of the other party; that each parent would notify the other of medical emergencies; and that the mother would authorise the principal of the children's schools to provide to the father copies of school reports and other matters related to their progress and welfare at school. 

4. The father's position moved such that he largely, or almost entirely, agreed with the proposal of the ICL, with the additional proposition that the father should have unrestricted access to the school app known as Seesaw which would enable him to see what the children were doing and to have direct contact with them.

5. The orders proposed by the mother are that she have sole parental responsibility for the children; that they live with her; that the father be restrained from spending any time or having communication with the children; and a range of prohibitions and restraints on the father in relation to his conduct and approaching or attempting to communicate with the children.

6. The documents in support of those orders are the affidavit of the father of 14 May 2018, the affidavit of the paternal aunt filed 10 September 2018 and the affidavit of the mother filed 5 June 2018.  There was filed an affidavit of the maternal grandmother, who is the recipient of matters she has raised on behalf of the children, suggesting abuse of the children by the father, but that, sensibly for these proceedings, has not been particularly relied on. 

7. The difficulty in such a case is that it seems to me highly likely that the mother, and perhaps her mother, are entirely and genuinely convinced that the children have been abused by their father and the possibility exists that they have been. 

8. The father is vehement in his denial of any wrongdoing and his great wish to restore what is agreed between the parties to have been an excellent, loving, affectionate relationship between the father and the children.

9. For the Court the exercise is in a balance of risk.  Whenever a court makes orders about children the best interests of the children must be paramount and there are considerations that the Court takes into account on a mandatory basis. 

10. The primary considerations, and they are entirely central here, are the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

11. The children have their most meaningful relationships with each of their parents and there is, again to the credit of the mother, she readily concedes that the father was “a lovely father” and that she had enjoyed family life until she began to fear, and then, in her view, to have confirmed that the father was abusive. 

12. So there is a need to protect the children from the harm that comes from being exposed to abuse.  Is there an unacceptable risk for the children if the father spends time with them?  That becomes the issue at this interim level. 

13. Of those additional considerations I take these into account:

14. The children have their, in addition to their parents, most important relationship with each other and there is no suggestion they should be treated differently.

15. The ICL saw them yesterday and advises the Court that, having spoken to the children, what is put forward as representing their best interests is not inconsistent with their presentation.  The children, whatever has happened to them, must be feeling extremely confused and puzzled about why their family, which had been a source of great happiness and security, is now split and they do not see their father at all.

Conclusion

1. There is no doubt, on the evidence of either party, that they miss their father and enjoy the experiences that they used to have with him.  The parents have clearly been responsible and committed parents, but lack of trust has broken the relationship between them such that the father considers that the mother's mental health might be responsible for the allegations she raises on behalf of the children, and the mother considers that the father has concealed an abusive nature from her and feels betrayed.  The children are being counselled on the basis that they are children who have been abused and that is also an issue in these proceedings.

2. The proposal is that counselling about abuse should cease and there is a risk, again a balancing risk, that if the children have not been abused by their father then counselling on the basis that they have been could be detrimental.  If they have been abused by their father then counselling could be of assistance to them.  However, I consider that it would be a better outcome for the children if, as the ICL advocate suggests, there is a move now after four or five months to an appropriately qualified psychologist who can be chosen by the mother, who can see the children and receive information from both parents so that the children are in a position to disclose whatever they want to to a psychologist who fully understands the perspective of both parents, and an order will be made to that effect. 

3. Otherwise, the children, until these events began to unfold in 2017, were healthy children.  Some reservations about conduct perhaps of X, but nothing that would have otherwise brought these parties to a court about their children.  There is no history of family violence. 

4. I consider that of all those matters, the factor that most matters is the balance of the meaningful relationship that the children have with their father against the need to protect them and to keep them safe.  I do consider that there is a risk if no contact whatsoever goes on, not so much that the relationship of the children with their father will disappear, but, rather, that they will be confirmed in their view that their father is a risky person and they should no longer see him. 

5. It does seem appropriate that some carefully constructed time for them in the presence of a known relative, such that the experience is a fairly natural one, will enable them to see their father and to remember those things that they like about him, but to be completely safe.

6. I accept the submission on behalf of the mother that there is some risk that it could be confronting for the children if their father has abused them, but in balancing the two risks I have come to the conclusion that the proposal is sufficiently safe that that element of risk is outweighed by the potential loss to the children of their important relationship with one of their parents. 

7. Accordingly, I have made orders largely in accordance with that proposed by the ICL with this reservation:  I do not consider that there is any reason to undermine the mother's confidence that she knows what is being said and done around the children by adding the access to the school app and I have not made that order. 

1. I also take into account that the mother was concerned that after a period of more then six months the children would need a little bit of notice that they were going to start seeing their father again.  It is likely that they will be quite enthusiastic about seeing him, but it is reasonable for them to know in advance.

2. I also take into account that the father is here from Queensland now and, of course, would like to be able to see the children. 

3. For that reason the time between the children and their father should start not on Saturday but on Sunday, 23 September from 9 am to 4 pm as proposed in the orders.

4. The other variation to the orders proposed by the ICL is, as referred to, the ceasing of the children's current sexual assault counselling. 

5. Orders are made accordingly.

I certify that the preceding forty nine (49) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 21 September 2018.

Associate: 

Date:  21 September 2018