Vincent and Foreman

[2011] FamCA 816

FAMILY COURT OF AUSTRALIA

VINCENT & FOREMAN [2011] FamCA 816

FAMILY LAW – CHILDREN – interim orders – application by the father seeking orders that the children live with him and that he have sole parental responsibility for them – where there are concerns that a child of the mother’s partner has sexually interfered with the children – best interests – where the mother has been the primary carer for the children – where the Court is satisfied that the combination of undertakings and injunctions will be sufficient to safeguard the children from further abuse – orders that the children live with the mother.

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

APPLICANT: Mr Vincent

RESPONDENT: Ms Foreman

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 3603 of 2011

DATE DELIVERED: 14 October 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 14 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Manickam
SOLICITOR FOR THE APPLICANT:	Aboriginal Legal Rights Movement Inc

COUNSEL FOR THE RESPONDENT:	Ms Horvat
SOLICITOR FOR THE RESPONDENT:	Andersons

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Tydeman
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	legal Services Commission

Orders

1. Further consideration of the proceedings be adjourned to 11.30 am on Monday 28 November 2011 before the Honourable Justice Burr.

2. The father deliver up the children B (“B”) born … 1999 and C (“C”) born … 2007 into the care of the mother on or before 5.00 pm today, Friday 14 October 2011, by delivering the said children to the mother’s residential premises.

3. The mother is restrained and an injunction is hereby granted restraining the mother from permitting the children B and C to have:-

   (a)    any physical, verbal or other form of contact with D and from permitting any other person to do so;

   (b)    any physical contact with Mr E and from permitting any other person to do so.

4. The mother ensure that the children engage in counselling and therapy with an appropriately qualified professional recommended to her by the Independent Children’s Lawyer and that information be forthwith provided to the father as to the identity and qualification of the counsellor.

5. Pursuant to Section 62G(2) of the Family Law Act 1975 as amended a family consultant provide to the Court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the children B and C to include:-

   (a)    interviews with each of the parties and with Mr E;

   (b)    observed interaction between the children B and C and each of their parents and Mr E;

   (c)    observed interaction between the children B and C and their siblings F and G;

   (d)    the recommendations of the Family Consultant as to appropriate interim and long term arrangements for the children

   and that such report be released to the parties and to the Independent Children’s Lawyer on or before 4.00 pm on Friday 18 November 2011.

6. On or before 4.00 pm on Friday 21 October 2011 the mother do provide to the Independent Children’s Lawyer authorities to communicate with and secure information from:-

   (a)    the H School at J Town; and

   (b)    Mr K of the J Town Health Service.

7. On or before 4.00 pm on Friday 28 October 2011 the mother do secure, file and serve affidavits from:-

   (a)    Mr K of the J Town Health Service;

   (b)    Ms L of Marriage Counselling in J Town; and

   (c)    Ms M of the H School in J Town

   detailing the advice they provided to the mother when she attended upon them in September 2011 concerning the issues of sexual abuse of B by D.

8. Leave is granted to the Independent Children’s Lawyer to issue and serve on or before 4.00 pm on Friday 21 October 2011 subpoenas to produce documents directed to Families SA and the South Australian Police, such documents to be produced at this Court on or before 10.00 am on Monday 14 November 2011.

AND BY CONSENT, IT IS FURTHER ORDERED THAT:-

1. The Orders made on 28 July 2006 be varied to include, wherever relevant and appropriate the child C born … 2007.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3603 of 2011

Mr Vincent

Applicant

And

Ms Foreman

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today the application by the father of two young children B (“B”) born in 1999 and C (“C”) born in 2007.  In his application, particularly on an interim basis, he is seeking urgent orders that those children live with him and that he have sole parental responsibility for them.  He also seeks various injunctions in the matter.

2. The father’s application is quite rightly prompted by some concerns that he had for the health and wellbeing of the children in the mother’s household.  There is some compelling evidence contained in the materials filed by the parties but particularly at this early stage of the proceedings in the letter to the Court dated 10 October 2011 from the Magellan Project Officer at Families SA.  Essentially the allegations, which from the perspective of the South Australian Police and Families SA have been substantiated, are that a 14 year old boy D has sexually interfered with and acted inappropriately towards at least the child B and potentially other children in the mother’s household.  D is the son of Mr E who was and is the some time partner of the mother and in fact the mother has two children by Mr E namely F born in 2003 and G born in 2009. 

3. There are issues yet to be determined by the Court as to whether or not the mother acted appropriately and in a timely fashion in relation to the substantiated allegations of abuse by D of B.  If her evidence is to be accepted, then she was counselled against taking immediate prompt action by a number of people whom she consulted including a Mr K who is B’s Indigenous Counsellor at the N Club in J Town and who is employed by the J Town Health Services, Ms L the mother’s support person at Marriage Counselling in J Town and Ms M, the children’s school counsellor and advisor at the H School in J Town.  According to the mother it was their advice that she should let Mr E attend to the reporting of the allegations and incidents before she took any action herself.  Whether or not that was an appropriate course of action will emerge later in the conduct of these proceedings.

4. The father, once he became aware of these concerns acted immediately in the sense of declining to return the children to the mother after ordered periods of time that he was to spend with them. 

5. The parties enjoyed only a very brief relationship in that they commenced a relationship in May 1998 and separated in May 2000.  Whilst C was born many years later, according to the parties’ materials he was conceived after a very brief resumption of a personal relationship between the mother and the father.    The relevance of that though is that certainly B has been in the mother’s constant and consistent care since May 2000, a period now of some 11 ½ years.  C has been in the mother’s care for the whole of his life.  Thus whilst I deem it appropriate that the father responded instantly and took action that he thought necessary to safeguard the interests of the children, in so doing he has removed two very young children from their primary carer.

6. There are a number of matters that the Court has to consider when making parenting orders but those decisions must reflect what in the Court’s view represents the best interests of those children. Section 60CA of the Act obliges the Court to treat the children’s best interests as the paramount consideration. In doing that the Court is directed to Section 60CC of the Act and that is divided into two primary considerations and a number of additional considerations. The first of the two primary considerations in Section 60CC(2)(a) is:-

(a)the benefit to the children of having a meaningful relationship with both of the children’s parents;

1. The parties have, for a long time now, been able to agree appropriate parenting arrangements between themselves and for a long time now, the father has taken regular contact to them.  Thus each has worked cooperatively to maintain a meaningful relationship between the children and both of their parents.

2. The second of the primary considerations is the most relevant for my consideration this morning and that is expressed as being:-

(b)the need to protect the children from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

1. That is clearly an issue for the Court’s determination in the future but on the preliminary materials available to the Court, there seems to be a very strong case to suggest that the two children have been abused whilst in the mother’s care.  However the evidence is also quite clearly that the children have not been abused by the mother or by her previous partner Mr E.  The allegations of abuse stand very firmly at the feet of Mr E’s young 14 year old son D. 

2. The Magellan Report letter of 10 October 2011 records at page 3 as follows under the heading “Investigation Outcome Rationale”:-

   Families SA determined sexual abuse was substantiated following interviews with the mother and the father by Families SA and the SAPOL CIB interviews with the child [B] who confirmed the allegations reported.   Families SA noted in their investigation that both parents appeared to be ensuring that the children had no further contact with the alleged perpetrator.  It was also noted that the mother had stated that she had finished the relationship with the father of the alleged perpetrator and that her children do not see their father.

   By that, I assume that she was referring to F and G. 

3. Whilst Families SA were satisfied that the parents were acting protectively they nonetheless expressed concern if the mother resumed her relationship with Mr E.  They note, as I note, the father’s very legitimate concerns as to the safety and well being of the children in the event that such a relationship resumed, not because it is suggested in any of the documents filed to date that Mr E is of any danger or risk to the children at all but rather his son and his capacity to keep his son away from the children.

4. Because of those residual concerns I asked the mother if she would provide to the Court an Undertaking that she would ensure that the children had no contact at all with D, the alleged perpetrator of abuse or with her former partner and the father of D, Mr E.  She gave that Undertaking to the Court today on oath and I ensured that she understood the seriousness of that undertaking and the serious consequences for her if she breached that Undertaking.

5. Present in Court today also is Mr E, the father of D and the mother’s former partner.  He had no obligation to do so as he is not a party to the proceedings, but he voluntarily took an oath in the witness box and again provided to the Court an Undertaking that he would ensure that his son D did not have any contact at all with B, C, F and G.  Further to that though, he gave an Undertaking that he himself would not have any contact with those four children during the period of the adjournment that I am about to grant whilst a Family Report is pursued.  I commend him in that regard because of course that Undertaking he has given is in relation to his own two children from his relationship with the mother.

6. Thus I am satisfied that with those Undertakings given to the Court, to be coupled with the injunctions that I will also make, then the children are indeed safe from abuse and neglect in the mother’s household.

7. The additional considerations required of the Court in making a determination on children’s issues include firstly:-

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. The way in which I will establish the children’s views will be through the process of the Family Assessment and Family Report that I am to order.  This Court needs to know particularly what B’s attitudes are.  B is 12 years of age and his views will have some significance to the Court and the future arrangements to be made for the children.  C is only 4 years of age but nonetheless it will be relevant to have before the Court the observation of the Family Consultant of interaction between both children and the mother, both children and the father and both children and Mr E who again has volunteered to participate in the assessment process.

2. Sub-paragraph (b) of the additional considerations requires me to have regard to:-

(b)the nature of the relationship of the child with:

(i)     each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child);

1. That again is a matter for the Family Report but is one of the weightiest considerations for me in terms of ordering that the children be returned to their mother.  Whilst the father has had a consistent relationship with the children, in B’s case since May 2000 and in C’s case since birth, that relationship with the children has been confined by reasons of distance and other factors to alternate weekends and school holidays.  I am concerned that it will have been a significant emotional and psychological wrench for B and C to have been removed from the care of their mother who has in B’s case been the primary carer for 11 years and in C’s case, since birth.

2. Given that the aspects of physical danger to the children are confined to probable sexual abuse by D, then I am satisfied that appropriate protective orders can be made to safeguard them from the abuse which at this preliminary stage is the only identifiable reason why the children would be removed from the mother’s care.

3. The balance of the additional considerations, in my view, have greater relevance in the later determination and final determination of the proceedings than for now.  However, I have had regard to each of them in framing my decision today.

I certify that the preceding twenty (20) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 14 October 2011.

Associate: 

Date: