Toby and Toby and Anor

[2010] FamCA 1215

FAMILY COURT OF AUSTRALIA

TOBY & TOBY AND ANOR [2010] FamCA 1215

FAMILY LAW – CHILDREN – interim orders – where the father seeks to spend time with the children – where the mother makes allegations of sexual abuse against the father – best interests – where it was held appropriate to exercise caution at the preliminary stages of the proceedings where limited evidence was available – orders that the father have regular telephone communication with the children

Family Law Act 1975 (Cth)

APPLICANT: Mr Toby

1^ST RESPONDENT: Ms Toby

2^ND RESPONDENT: Mr Cay

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 3995 of 2010

DATE DELIVERED: 22 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 22 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Taylor

SOLICITOR FOR THE APPLICANT: Mellor Olsson

COUNSEL FOR THE RESPONDENT: Mr Hemsley

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

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

Orders

1. I adjourn the matter for further consideration to 10.30 am on Monday 28 February 2011.

2. I order during the period of the adjournment that the father have telephone communication with the children for a brief period of time at 5.30 pm on the Monday, Wednesday and Friday of each week commencing Friday, 24 December 2010, by the father telephoning the mother on 04….

3. I order that the parties do all such things, sign all such documents, pay all such fees, and attend all such intake interviews as are necessary to enrol to use the services of the D Children’s Contact Service for any possible supervised time between the father and the children.

4. If in the event that the Court approves of the father spending supervised time with the children that Mr S of …, South Australia, be approved as a supervisor of that time.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3995 of 2010

MR TOBY

Applicant

And

MS TOBY

1^st Respondent

And

MR CAY
2^nd Respondent

REASONS FOR JUDGMENT

1. I have before me today disputed proceedings between the parents of three young boys, namely, N who was born in October 2001, and who is hence nine years of age who is not a biological child of the father’s, and two children of their own, T born in May 2004 who is hence then approaching seven years of age and J who was born in December 2007 and just turned three years of age.

2. The dispute between the parties centres around very serious allegations made by the mother as against the father in documents filed by her in these proceedings but summarised in the Form 4 Notice of Child Abuse filed on 16 November 2010 being allegations of sexual abuse of the children, but particularly T, by the father.  The allegations that she makes are not supported by any evidence from medical practitioners or others but nonetheless, if the behaviours described by the mother were proved to be correct, would legitimately give rise to some cause for concern and, indeed, alarm. 

3. The father recognises that matters need to be further investigated by the Court and by various relevant departments before a clearer picture can emerge, thus his application before the Court is for some very limited time with his sons.  He sets out the times that he does seek in the affidavit which was faxed to the Court and bears the date of 14 December 2010.  In it he seeks a couple of hours on Christmas Day and Boxing Day of this year and also for a couple of hours each alternate Saturday commencing 8 January 2011, and each alternate Sunday commencing 9 January 2011. 

4. I have before me, as provided by the Independent Children’s Lawyer, a comprehensive statement taken by the ICL from Mr S.  Mr S has also filed an affidavit in these proceedings which he swore on 13 December 2010.  The Independent Children’s Lawyer is satisfied that Mr S would be an appropriate supervisor of any time that the father spends with the children. 

5. I have now had an opportunity today of taking evidence from Mr S as to his understanding of the role and responsibility of a supervisor of a parent’s time with children.  He also signed and provided to the Court the statement taken from him by Mr Winter, who stood in for the Independent Children’s Lawyer for the purposes of that interview.  That signed statement is now on the Court file.  Having read that statement and heard the oral evidence of Mr S today, and with the support of the Independent Children’s Lawyer, I am satisfied that Mr S is an appropriate person to undertake the role of supervising any time the Court may order that the father spend with these three young children.

6. I am satisfied that Mr S would keep the boys safe, physically, from any abuse that may be perpetrated against them.  The lingering concern that I have, which I expressed rather more fulsomely on the last occasion the matter was before the Court on 16 December 2010, is as to the protection of the children from any emotional or psychological harm that may have arisen in the event that they were abused by the father.  There are some preliminarily concerning aspects about the case which the mother raises before the Court and there are a number of reasons why the Court will explore very closely the allegations that she makes.  However, the Court is not entitled to proceed on the basis of suspicion or inference when the health and safety of very young children is involved.

7. Thus, harsh as it may ultimately be to the father in the event that he has not abused his children, the Court needs to exercise a great deal of caution and therefore errs on the side of ensuring the children’s safety as against maintaining, for the time being, any relationship between the children and the father.  As I expressed rather more fully on the last occasion (and I will not bother to do so again in great detail) the matters which come before the Court in its Magellan program can produce results at either extremes of the scale.  The one extreme is that a father has committed the most heinous of offences by sexual abusing his own children.

8. At the other end of the scale is the mother who might well be determined to ruin a relationship between a father and children by promoting totally unfounded and outrageous allegations.  In between those two extremes are a number of other possible outcomes and, indeed, are the outcomes more often seen by the Court than the two extremes.  Families SA have provided a comprehensive report to the Court which is dated 6 December 2010.  Whilst elements of the detail in that report begin to give rise to concern as to the legitimacy of the allegations, nonetheless they are of such a serious import that caution is required.  That is the view taken by Families SA and, indeed, they say in the said letter to the Magellan Registrar that they do not support there being any contact at all with the father pending the outcome of an investigation by the Child Protection Services.

9. I am informed by the ICL today that Child Protection Services will likely assign a worker to the case in late January 2011 and it is hoped that a report will be available shortly thereafter.  Until that report is available to the Court I deem it inappropriate to risk the physical, emotional or psychological health of the children.  I therefore decline the father’s application for him to spend time with the children even on a supervised basis.  I therefore adjourn further consideration of the proceedings before me to 10.30am on Monday 28 February 2011.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: