Temple and Dobrovic (No 3)

[2010] FamCA 768

FAMILY COURT OF AUSTRALIA

TEMPLE & DOBROVIC (NO. 3) [2010] FamCA 768

FAMILY LAW – CHILDREN – where a lengthy trial and final orders were made a short time ago – where the mother continues to make serious allegations of abuse against the father – where allegations of a similar nature were not established at trial – where the mother has continuously failed to encourage the relationship between the father and the child – where there is a possibility of the child suffering from emotional abuse by the mother – procedural orders directing further investigation of the mother’s allegations

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

APPLICANT: Ms Temple

RESPONDENT: Mr Dobrovic

INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

FILE NUMBER: ADC 2920 of 2010

DATE DELIVERED: 23 AUGUST 2010

PLACE DELIVERED: BRISBANE by telephone link with Adelaide

PLACE HEARD: BRISBANE by telephone link with Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 23 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MOTHER APPEARING IN PERSON
SOLICITOR FOR THE APPLICANT:	NOT APPLICABLE

COUNSEL FOR THE RESPONDENT:	MS O'CONNOR
SOLICITOR FOR THE RESPONDENT:	MELLOR OLSSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR HEMSLEY
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

UPON NOTING:-

(a)that the mother informs the Court that:-

(i)     Senior Constable MR of the E Police Station is the police officer to whom it is alleged by the mother that the child made disclosures; and

(ii)    the mother has also had contact with somebody by the name of Z from the Family and Child Investigation Unit through the South Australian Police (“SAPOL”);

(b)that the Magellan Registrar is to make enquiries of SAPOL;

(c)the Court’s view that in the event that SAPOL are either unable or unwilling to provide the information in their possession as to their ongoing enquiry and investigation with respect to the child C, then it would be appropriate for the Court to make an Order in Chambers granting leave to the Independent Children’s Lawyer to issue and serve a subpoena directed to SAPOL for the production of documents;

IT IS ORDERED THAT:-

1. This matter be forthwith reinstated into the Court’s Magellan project.

2. Further consideration of the proceedings be adjourned to the previously adjourned date at 2.45 pm on Tuesday 7 September 2010 before the Honourable Justice Burr.

3. The Department for Families and Communities – Families SA be requested to prepare an urgent report as to the allegations of the mother contained in the documentation filed in these proceedings and the general circumstances of the child C (“the child”) born … September 2003 since the decision of the Honourable Justice Strickland was reserved on 27 March 2009 in Family Court proceedings numbered ADF1736 of 2006 and that such report be filed at this Court by no later than 4.00 pm on Friday 3 September 2010 UPON NOTING that in the event that Families SA intend to rely / refer to any report prepared by Child Protection Services (“CPS”) that they do also at that time provide a copy of such CPS Report and that a copy of the report(s) be provided forthwith to each of the parties and the Independent Children’s Lawyer.

4. The time for the mother to file and serve her further affidavit(s) pursuant to paragraph 4 of the orders made on 12 August 2010 be extended to on or before 4.00 pm on Tuesday 31 August 2010.

5. The Magellan Registrar forthwith make enquiries of SAPOL as to:-

   (a)the allegations made by the mother;

   (b)any preliminary views they may have formed;

   (c)any investigations which they are still pursuing; and

   (d)any further action proposed by them

   with such information to be made available to the Court prior to the adjourned date for hearing (2.45 pm on Tuesday 7 September 2010).

6. At the earliest opportunity the parties attend a Child Inclusive Conference with a Family Consultant of this Court on a date and at a time to be fixed by the Court and to include:-

   (a)brief interviews with the parties;

   (b)observed interaction between the child C and the father; and

   (c)observed interaction between the child C and the mother

   and that the Family Consultant be in personal attendance at the adjourned hearing before the Honourable Justice Burr at 2.45 pm on Tuesday 7 September 2010 to provide oral evidence to the Court as to the periods of observed interaction and brief interviews with the parties AND IT IS DIRECTED that prior to conducting the Child Inclusive Conference the Family Consultant is to:-

   (d)read the detailed Reasons for Judgment of the Honourable Justice Strickland delivered on 22 April 2010 in Family Court proceedings numbered ADF1736 of 2006; and

   (e)read the affidavits filed by the parties since 4 August 2010 in Family Court proceedings numbered ADC2920 of 2010.

7. The Independent Children’s Lawyer:-

   (a)make contact with Mr L in an endeavour to secure from Mr L his recommendations as to:-

   (i)what, in his view, might represent the child’s best interests in terms of his relationships with each of his parents;

   (ii)whether or not it would be appropriate and a matter which the child could handle emotionally for the Court to issue a Recovery Order on the adjourned date;

   (iii)his view as to Dr BL’s continuing role in the treatment and therapy administered by her to the child;

   (b)secure reports from the B Children’s Contact Service as to:-

   (i)any observed periods of time spent by the father with the child since the date upon which the Honourable Justice Strickland reserved his decision on 27 March 2009 in Family Court proceedings numbered ADF1736 of 2006; and

   (ii)the recent events alleged by the mother to have occurred on 14 August 2010 and subsequently in the attempted delivery up of the child to the father.

   (c)secure any academic school reports and other information that the school is able to provide from the principal, teachers and school counsellors and to include details of the child’s attendance record at school since March 2009.

8. The principal, teachers and school counsellors at the child’s school release such information to the Independent Children’s Lawyer as is requested by him.

9. On or before 4.00 pm on Tuesday 31 August 2010 the mother file and serve a detailed report from the child’s doctor as to the alleged recent disclosures made by the child to his doctor.

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

1. Unless advised to the contrary by Mr L in his discussions with the Independent Children’s Lawyer, the mother ensure that the child recommences his attendance at school as and from Wednesday 25 August 2010.

2. The father is restrained and an injunction is hereby granted restraining him from attending at the child’s school or within 100 metres of the child’s school.

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

1. Paragraphs (4) and (5) of the Orders made by the Honourable Justice Strickland in Family Court proceedings numbered ADF1736 of 2006 be suspended.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2920 of 2010

MS TEMPLE

Applicant

And

MR DOBROVIC 

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today a continuation of proceedings that are long standing in this Court.  There was a lengthy trial before Strickland J of some 11 days which resulted in his Honour delivering very lengthy reasons on 22 April 2010, only some four months ago.

2. The proceedings were last before me on 12 August 2010.  I will not restate the reasons that appear as published then but suffice to say that I was extremely concerned about the mother’s role in relation to the child’s alleged unwillingness to spend time with his father and return to his father’s care.  In fact I was so convinced at that time of the negative role undertaken by the mother that I ordered that she should deliver the child up to the father on the 14 August 2010 and I indicated to her that the only reason that I was not making a Recovery Order at that time was because of her assurance that she would nonetheless deliver the child to the father.  That seems to have been a mistaken placement of faith by me in the mother at that time.  She did not abide her undertaking to the Court and indeed the child was not returned to the care of the father on 14 August 2010.

3. It is the mother’s case that she made every effort to deliver up the child and that the B Children’s Contact Service was indeed a witness to the distress that the child was exhibiting at the prospect of being placed in his father’s care.  Whether or not the events of that day and subsequent days would afford to the mother a reasonable excuse for failing to comply with my Orders is yet to be tested.

4. Ms O’Connor for the father makes today a quite impassioned and accurate plea on the father’s behalf.  She points to the mother’s long history of a failure to encourage the relationship between the father and the child and a long history of making quite serious allegations against the father which were found not only to be not substantiated by Strickland J, but earlier by Families SA.  She points too to the likely possibility of any abuse of the child presently being abuse at the hands of the mother in the form of some quite severe emotional abuse.

5. If I was to rely only upon the reasons of Strickland J quite recently delivered and upon what would represent the father’s clear interests in the matter, the child would be placed in the father’s care today and orders would be made that the mother have no contact with the child at all for a lengthy period of time.  That is still a possible outcome once there has been further exploration of what the mother alleges to be very recent serious events that impact upon the child’s wellbeing.

6. As I said earlier in discussion between bench and the bar table, the prima facie evidence as to what is creating problems for the child is directed, very fairly and squarely, at the feet of the mother.  The material that she now places before the Court, and I might add not yet in any sworn documentation but only from the bar table, has a certain ring of familiarity about it and suggests that she has not yet abandoned the path that Strickland J identified she had crafted for herself which was alienation of the father from the child’s life.

7. There were a handful of quite dramatic and positive findings made by Strickland J in his Judgment and I quoted those passages in my reasons of 12 August 2010.  I will not repeat them again here but they do suggest that the focus of any enquiries henceforth will be very sharply upon the mother.

8. However the Court has quite serious obligations imposed upon it under Part VII of the Family Law Act and specifically by Section 60CA and Section 60CC.  One of the two primary considerations under Section 60CC is an obligation imposed upon the Court to ensure that the child is not placed at the risk of harm.  If the mother’s allegations have any element of truth to them then it is a matter which requires the Court’s exploration. 

9. It is regrettable that it has come to this on so many levels.  However, the most regrettable of all is the fact that C, shortly to be 7 years of age, has spent most of his life in an outrageous tug of war between his parents. The prospects for the child achieving optimum development and securing all of the advantages that life might otherwise hold for him appear more and more remote as these proceedings continue on their course. 

10. As I said, the Court is on hyper-alert that this is again the actions of the mother, specifically that not only is she not being protective of the child but that she is being appallingly abusive of the child.

11. The matter has for some time been listed before me for lengthy argument on the afternoon of Tuesday 7 September 2010.  I will use that listing to further explore relevant matters in what is now again, regrettably, interlocutory and interim proceedings clearly leading potentially to another lengthy and bitterly contested trial.  Perhaps, somewhat optimistically, I trust that there might still be a manner of resolution without the need for further lengthy trial proceedings.  

12. I intend today to make orders that are directed to better informing the Court and in that process the Independent Children’s Lawyer, in order that appropriate orders may be made for the child on 7 September 2010.  The mother’s allegations which do cause the Court some concern are as to alleged threats of physical abuse of the child by the father, actual physical abuse of the child by the father, threats made in the child’s presence by the father to kill the mother, threats made by the father in the child’s presence to send the mother to gaol and similar allegations. 

13. If the father is in fact responsible for such actions and guilty of such behaviour, then it would raise concerns as to his capacity to continue in a meaningful role for the child.  If though, and this is again the prima facie view of the Court given the lengthy reasons of Strickland J, it is the mother who has encouraged these views in the child, has promoted these views in the child and is guilty of emotional abuse of the child, then her role in the care of the child into the future is likely to be extremely limited, if not non-existent.

14. I note that indeed Strickland J contemplated in his reasons the prospect of a change of the primary care of the child and making an order that the child live with the father.  In the end, after some issues of concern expressed by him, he determined that the child should remain living with the mother but that the mother was effectively on her last chance and that unless she altered her view of the father and demonstrated a capacity to support the father’s relationship with the child, then a change of the living arrangements would likely be warranted.    

15. For today there is just this residual element of concern about the father’s treatment of the child that requires further explanation before the Court can make a comfortable finding of what, in the interim, represents the child’s best interests and I now propose to make orders to try and assist the investigative process and provide further information to the Court.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr delivered on 23 August 2010.

Associate: 

Date:  23 August 2010