TUPPAHIGE & LEATON

[2015] FamCA 314

FAMILY COURT OF AUSTRALIA

TUPPAHIGE & LEATON [2015] FamCA 314

FAMILY LAW – CHILDREN – Interim Orders – where previous consent order provided for shared care arrangement – acrimonious relationship – mother’s time with children previously suspended pending investigation of sexual abuse – where allegations unsubstantiated – ICL supports a return to shared care arrangement – consideration of Family Report –best interests of the children – orders made for a return to shared care arrangement.

Family Law Act 1975 (Cth) s 60CC

Andrew & Delaine [2009] FamCAFC 182
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Tuppahige

RESPONDENT: Ms Leaton

INDEPENDENT CHILDREN’S LAWYER: Southern Vales Legal

FILE NUMBER: ADC 865 of 2010

DATE DELIVERED: 30 April 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stokes

SOLICITOR FOR THE APPLICANT: Marie Stokes

COUNSEL FOR THE RESPONDENT: Ms Poetsch

SOLICITOR FOR THE RESPONDENT: Southern Community Justice Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Southern Vales Legal

Orders

1. That the order of 4 December 2014 be discharged NOTING that the orders of 28 August 2013 now represent the operative parenting provisions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tuppahige & Leaton 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 865  of 2010

Mr Tuppahige

Applicant

And

Ms Leaton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 28 August 2013 Ms Leaton (“the mother”) and Mr Tuppahige (“the father”) agreed to final orders in respect of the parenting arrangements for the children C born in 2007 and R born in 2009 (“the children”).  The orders are both comprehensive and complex.  An inadequate summary however is that the children live with each of the parties on an alternate week basis.

2. On 23 September 2013 the father filed the first of a number of initiating applications seeking that he have sole parental responsibility for the children and that  they remain in his primary care.

3. The parties have remained in litigation in respect of the appropriateness of the parenting orders to the present date.

4. Following an extensive history of notifications by the father that the children were at risk and allegations of sexual abuse, the proceedings came before me on 12 September 2014 at short notice. On that occasion, the orders reflect that leave was given for a representative of Families SA to intervene in the proceedings. Upon the basis that a report would be requested pursuant to s 69ZW (1) of the Family Law Act 1975 (Cth) (“the Act”) and the appointment of an Independent Children’s Lawyer (“ICL”), I adjourned the proceedings to 1 October 2014 and ordered that paragraph 2 of the final orders made 28 August 2013 be suspended. The consequence of that order was that during the interim period the children lived with the father and spent no time with the mother.

5. On 11 November 2014 following consideration of further affidavit material an order was made that the parties do all things necessary to register with a children’s contact service to at least enable a speedy resumption of supervised time if considered appropriate.

6. Following an extensive hearing on 4 December 2014 paragraphs 2.1, 2.2, 2.3, 2.5 and 2.6 of the orders of 28 August 2013 were suspended but orders were made that enabled the children to resume spending some time with the mother.

7. Importantly, the Court considered that it would gain assistance from a further family report to be prepared by Dr N who had previously been involved in earlier assessments.

8. The proceedings were then adjourned to 23 April 2015 for further argument with the assistance of the anticipated report.

9. It is that hearing that underpins these reasons.

THE APPLICATION

1. Neither party has filed any further affidavit material.  The ICL by affidavit filed 10 April 2015 annexes the Family Assessment Report of Dr N dated 6 April 2015.

2. Whilst I intend to give the report closer regard, the recommendations of the family consultant are important in respect of the submissions by counsel appearing for the parties:-

   (1)That the presumption of shared parental responsibility be set aside on the basis of the inability of the parties to cooperate in achieving a stable, conflict free climate of care.

   (2)That the matter proceed to trial as soon as possible.

   (3)That in any event, subject to any findings that would preclude it, the other party be given substantial regular time with the children, in the order of at least four days per fortnight.

3. Counsel for the father did not speak against the recommendations.  The equivocal nature of the recommendations present a difficulty in understanding the position of  the father.

4. Whilst it was his position that he should have sole parental responsibility for the children and that they should live primarily with him, given that outcome he did not speak against the children living with the mother for “at least four days per fortnight”.

5. I think it is reasonable in the absence of any further affidavit material and the ready acceptance of the tenor of the recommendations of the family consultant that there has been no adverse incident or event arising from the interim arrangements pursuant to orders made.

6. For her part, whilst the mother considers that the children should reside with her she is also broadly supportive of the recommendations.

7. Whether underpinned by omission or properly reflective of the current attitude of the parties, it seems that each of them have come to the position that the problem is not now necessarily that the children are at risk in the care of the father or in the mother but that the dispute between the parties has reached a level of distrust and dysfunction that they are simply unable to co-parent at even the most basic level.  Their inability to achieve that status is likely to impact adversely on the children particularly given the medical needs of C.

8. It must be highlighted that neither party sought to rely upon further affidavit material.

9. The focus therefore centres upon the submissions of the ICL.

10. It is his position that the interests of the children are best served by discharging the order of 4 December 2014 thereby reinstating the operative provisions of paragraph 2 in the orders of 28 August 2013.

11. The important considerations of the ICL are based upon his submission that the mother has undergone an extraordinary level of investigation and assessment and that the Court can have some real confidence that notwithstanding the trenchant allegations of the father they have not been substantiated even at the most basis level.  In short, it is the position of the ICL that the mother (taking into account her family and personal arrangements including her partner) presents no risk to the children.

12. Of course, that is a different issue to the risk that might be occasioned to the children arising out of the ongoing conflict and mistrust that is clearly self-evident as between the parties.

REPORT OF FAMILY CONSULTANT

1. The family consultant was well placed to provide an overview of the relationship between the parties and the children.  He notes in his report that he has provided three earlier reports dated 22 August 2010, 14 March 2012 and 23 August 2013.

2. He accurately sets out the history of the dispute and conflict between the parties and notes that the children did not spend time with the mother between August and December 2014 because of the allegations of abuse directed towards her and her partner.  It is the assessment of the family consultant that there was no conclusive finding of abuse notwithstanding the high level of investigation and assessment.  Somewhat unusually, Families SA were involved in the process which added an extra layer of caution but also a greater level of confidence in the outcome.

3. The interview with the father did not reveal that he has in any way adopted a more conciliatory approach towards the mother.  When asked about his concerns it is recorded as follows:-

   The father recapitulated the key elements of the previous consent order, noting that my reports and [Mr O], in his opinion showed an “inability to see the dangers or neglect and the previous allegations against [Mr L] against his step-daughter; you give him and her the benefit of the doubt.  However, I studied his criminal history.  I decided that if the children make disclosures similar then I will take action”.  He then noted that “the first time was immediately after the trial”.  When asked about the CPS process, the father said “they were thorough but there was no clear finding but outlined concerns.  They regret their process.  The recommendations are reasonable”.

4. The father did concede that whilst happy with the children spending unsupervised time with the mother he was generally content for the current orders to continue into the future.

5. The mother was also interviewed and complained that the father was constantly difficult and arrangements in respect of the children but in particular as to medical and other issues was almost impossible.  She argues that the father is incapable of treating her with any respect.

6. Her principal concern are the efforts she tries to make to put in place a comprehensive assessment, treatment and management plan for C.  Such an approach requires a consensus and there is clearly none between the parties.

7. Under the heading of “Current Key Issues”, the family consultant says:-

   In relation to the mother, I am somewhat perplexed as I was at the time of the Families SA Parenting Assessment of the mother, at the very low regard that these authorities seem to have for her capacity to parent and protect.  Whilst she is not the most responsive parent in her emotional affect, and has been assessed as having some cognitive limitations, in my interviews with her there have been many signs in her behaviour and presentation that she has taken considerable time and effort to understand and attend the complex needs of her children especially [C].  For example, she speaks cogently about the children’s medical and educational issues, she has made efforts to learn Auslan to assist [C] in her development (important in giving [C] the ability to communicate her concerns), she has taken initiative to have the girls experience various other activities of interest and benefit to them, has attended with [Mr O] in order to assist with the work he has been doing with [Mr L], and has also sought her own assistance through counselling and church connections.

8. In relation to the father he says:-

   I have also affirmed the positive qualities he brings to these children, including his obvious dedication to their health and wellbeing and his strong work ethic in maintaining employment whilst addressing their complex needs.  However, despite negotiations during the trial process, the expressed directions and implicit spirit of the subsequent Court orders of 28 August 2013 and the opportunity to make positive changes provided by parenting counselling, there is, in my opinion, no evidence that the father has altered his fundamental and un-budging distrust of the mother and her new partner.  This has resulted in his unilateral actions to recruit authorities into his negative view of the mother; he has also effectively acted as his own arbiter of possible abuse, making no ostensible effort to find more constructive and cooperative ways of resolving issues with the mother.

9. In summary, the family consultant is pessimistic that the father will ever be able to adopt a more conciliatory or collaborative approach with the mother and on that basis he opines that the children are likely to be the subject of further conflict.  Regrettably he concludes that because of the mistrust and dysfunction in the relationship between the parties, there is good basis to reconsider shared care and parental responsibility.  He says that it is no longer a viable option.

10. In doing so however, the family consultant does not suggest that the children’s care will be compromised or enhanced in one party’s care of the other.  The issue is not their separate ability to care for the children and provide appropriately but rather, their inability to deal with each other.  Accordingly it is the position of the family consultant that a judicial decision is required as to which of the parties is the most suited to parental responsibility.

VIEW OF THE ICL

1. It is recorded that the ICL strongly supports a resumption of the parenting arrangements pursuant to the order of 28 August 2013. He is satisfied that the children are not at risk in the care of the mother but remains critical of the inability of the father to put aside his concerns and have regard to the needs of the children.  Equally, whilst the mother has remained stoic notwithstanding the allegations made against her and the significant suspension of time with the children that she endured, nonetheless the father has much to offer in terms of his demonstrable care of the children.

CONCLUSION

1. I am mindful of the weight that should be given to the considered recommendations of a family consultant.  I regard to the decision of Andrew & Delaine [2009] FamCAFC 182 where the Full Court considered the treatment and weight to be given to the recommendations by a family consultant at paragraph [72]:-

   It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight.  Departure from an expert report in such circumstances requires careful consideration by a trial Judge.  However, the ultimate decision still must be that of the trial Judge.  The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90 -713 at 78,819 as follows:-

   In view of the comments of this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature:-

   (a)There is no magic in a Family Report.  A Judge is not bound to accept and there should never be any suggestion that the counsellor us usurping the role of the court or that the Judge is abdicating his responsibilities.  In Wood (1976) FLC 90-098 at p 75,447; Harris & Harris (1977) FLC 90-276; (1977) 29 FLR 285;

   (b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in informing his ultimate conclusions.  When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because a Judge has found them consistent, with the rest of the body of evidence before him;

   (c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witness in court under examination and cross examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.

   (d)…

2. Clearly, the ICL does not support the recommendations of the family consultant.  That must be seen against the position of the family consultant that a judicial assessment is required in order to assess which of the parties is better suited to exercise sole parental responsibility. That is not a task that is able to be undertaken at this stage.  What is self-evident from the report is that both parties are appropriately skilled to protect and look after the interests of the children whilst in their separate care. Again, the risk to the children arises from the dispute between the parties and their relationship rather than a lack in their parenting skills in terms of providing for the physical needs of the children.

3. It could be said that by acceding to the submissions of the ICL support can be derived from the views expressed by the family consultant but with the issue of parental responsibility a matter only likely to be determined upon the rigor of a trial process.

4. In any consideration of interim parenting issues I have regard to the legislative pathway as set out in Goode & Goode (2006) FLC 93-286. I am cognisant of and significantly focussed upon the matters raised in [82] of the judgment and whilst in the circumstances of this case namely, whether to reinstate the extensive parenting provisions provided for in a final order, I nonetheless consider the matters in s 60CC and consider that I have identified the competing proposals of the parties, looked at the issues in dispute and to the extent that I am able to do so have identified the agreed and uncontested relevant facts.

5. In all the circumstances I am of the view that the interests of the children will be best served by restoring the obligations created by the order of 28 August 2013.

6. I propose to discharge the orders of 4 December 2014.

7. Accordingly, I make orders as appear at the commencement of this judgment.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 30 April 2015.

Associate: 

Date:  30 April 2015