Walters and Bennett

[2010] FamCA 227

FAMILY COURT OF AUSTRALIA

WALTERS & BENNETT [2010] FamCA 227

FAMILY LAW – CHILDREN – interim proceedings – with whom a child spends time – consent orders – allegations of sexual abuse by the father – high level of conflict between parties – best interests – father to spend unsupervised time with children by consent – mother to undergo neuropsychological testing

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

Gould and Gould (2007) FLC 93-333

APPLICANT: Ms Walters

RESPONDENT: Mr Bennett

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 3130 of 2008

DATE DELIVERED: 2 FEBRUARY 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 2 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS LEE
SOLICITOR FOR THE APPLICANT:	JOHNSTON WITHERS

COUNSEL FOR THE RESPONDENT:	MR ALEVIZOS
SOLICITOR FOR THE RESPONDENT:	LACHLAN McAULIFFE

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

Orders

1. All previous current Orders of this Court and the Federal Magistrates Court be discharged.

2. A directions hearing be conducted by the Magellan Registrar at 10.30 am on Wednesday 3 March 2010 with a view to progressing this matter to a 1^st Day Less Adversarial Trial hearing.

3. The father do indicate to the Magellan Registrar at the directions hearing on 3 March 2010 whether or not he wishes to make any application in respect of the children A Walters and M Walters both born … January 2009 and if so, to identify with particularity the orders sought by him.

4. The mother do indicate to the Magellan Registrar at the directions hearing on 3 March 2010 whether or not she requires any paternity testing to be undertaken by the father and if so, to identify with particularity the orders sought by her.

5. The mother do undergo a neuropsychological assessment and do provide a report to the Court by a relevantly qualified expert as agreed between the parties or in default of agreement, as nominated by the Independent Children’s Lawyer, with such report to be filed and served prior to the date to be set for the 1^st Day Less Adversarial trial hearing.

6. At the earliest opportunity the mother do undergo therapy to:-

   (a)assist her in managing her anxiety in relation to the children being in the care of the father and the paternal grandfather;

   (b)educate her on the negative impact parental conflict has on children; and

   (c)assist her in developing new skills in communicating with the father

   such therapy to be undertaken by a relevant practitioner identified to her by the expert to undertake the neuropsychological assessment pursuant to paragraph 5 hereof, or as otherwise identified to her by the Independent Children’s Lawyer.

7. Leave is granted to the Independent Children’s Lawyer to release:-

   (a)to the expert tasked with the preparation of the neuropsychological assessment of the mother, copies of the Family Report dated 18 January 2010, the Child Protection Services Report dated 30 October 2009, the report summary from Ms L to the Independent Children’s Lawyer dated 28 January 2010 and a copy of the Ex Tempore Reasons delivered this day by the Honourable Justice Burr;

   (b)to Child Protection Services, a copy of the Family Report dated 18 January 2010;

   (c)to Families SA, copies of the Child Protection Services report dated 30 October 2009, the report summary from Ms L to the Independent Children’s Lawyer dated 28 January 2010 and the Family Report dated 18 January 2010;

   (d)to Child and Adolescent Mental Health Services (“CAMHS”), copies of the Child Protection Services report dated 30 October 2009, the report summary from Ms L to the Independent Children’s Lawyer dated 28 January 2010 and the Family Report dated 18 January 2010.

8. The father complete a KidsAreFirst post orders parenting programme and do file and serve an Affidavit annexing a copy of the Certificate of completion of same.

9. The mother be restrained and an injunction is hereby granted restraining her from:-

   (a)enabling CAMHS to undertake any forensic investigative exercise or process in any dealings with either of the said children;

   (b)permitting anything other than therapeutic intervention for the children with CAMHS.

AND IT IS FURTHER ORDERED, PENDING THE DETERMINATION OF THESE PROCEEDINGS, THAT:-

1. The children T Bennett (“T”) born … April 2005 and S Bennett (“S”) born … September 2006 live with the mother.

2. The parties have equal shared parental responsibility for the said children.

3. The father spend time with the said children as follows:-

   (a)from 10.00 am on Saturday 6 February 2010 until 6.00 pm on Sunday 7 February 2010 and each alternate weekend thereafter until the conclusion of the period on Sunday 14 March 2010;

   (b)from 5.00 pm on Friday 26 March 2010 until 6.00 pm on Sunday 28 March 2010;

   (c)for the first week of the April 2010 school holidays commencing at 4.00 pm on Friday 2 April 2010 until 6.00 pm on Saturday 10 April 2010;

   (d)from 5.00 pm on Friday 23 April 2010 until 6.00 pm on Monday 26 April 2010;

   (e)from 4.00 pm on Friday 14 May 2010 until 6.00 pm on Sunday 16 May 2010 and each alternate weekend thereafter

   with:-

   (f)handovers to be effected at the M Hotel at R;

   (g)each party to be at liberty to use other adults to conduct the handovers;

   (h)the mother to pay the sum of $12.50 per round trip payable fortnightly to the father (or his agent) as a contribution towards the travelling expenses of the father (or his agent).

4. The father have telephone communication with the said children T and S for a period of time commencing at 10.00 am on the Tuesday of each week to be facilitated by the father telephoning the mother’s telephone number on each occasion.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3130  of 2008

MS WALTERS

Applicant

And

MR BENNETT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me continuing applications in a long standing dispute between the parties.  That dispute relates to their two very young children T born in April 2005 and who is almost 5 years of age and S who was born in September 2006 and who is some 3 ½ years of age.  These children have had to experience more of what we call in this jurisdiction “institutional abuse” than most children in that they have had to undergo many interviews by experts, including Family Report writers.  At one stage it appeared that their young lives were headed in the right direction and they were going to be freed from the fall out of the acrimony between their parents in that consent Orders were made in this Court on 25 June 2009 which established that the children were to live with the mother save for the times they were to live with the father which was from 4.30 pm on the Thursday of one week to the following Thursday, effectively establishing a week and week about arrangement.  The parties also agreed that they were to have equal shared parental responsibility for the children.

2. Since then matters for these two very young children deteriorated markedly and did so as a result of concerns and allegations that were raised and made by the mother as to the possibility of sexual abuse of both of the children by the father of the children.  These children have therefore again been subjected to a number of interviews and considerable scrutiny on the topic.

3. The Child Protection Services (“CPS”) released one report on 30 October 2009 in which they indicated that it was not possible to conclude that either of the children had experienced sexual abuse.  Rather more specifically, at page 14 of that report, Ms B, the Senior Social Worker at CPS who prepared the report, was rather more concerned about the level of acrimony between the parents and the emotional and psychological effect that was having upon the children.

4. Thus there were some very clear indicators late last year that the problems for these children did not relate to any issues of sexual abuse, but rather to the inability of the parents and more specifically the mother, to set aside their significant acrimony and differences and instead promote the well being of their children.

5. That though was not the end of the matter in that the mother once again raised allegations of sexual abuse by the father and that again required further interviews of the children but specifically in this instance of the child S. 

6. The Court now has the benefit of an extremely helpful detailed and pointed report from Ms L, Senior Clinical Psychologist of CPS to the Independent Children’s Lawyer and dated 28 January 2010.  Again it was the finding of this expert that S had not been sexually abused.  As had been the case in earlier materials, Ms L squarely places a good deal of the concern and potential blame for the children’s current state of affairs upon the mother. 

7. The spectre which had been raised earlier in these proceedings before me of alienation of the children by the mother is again squarely raised by this report.  The information contained in those reports is confirmed to a large degree also in the Family Report prepared by Dr E and dated 18 January 2010.    She makes a number of very pointed references to that issue.  I will not detail all of those references by Dr E but in the end result her recommendations and the detail leading to those recommendations again clearly point the finger at the mother.  Her recommendations are that unsupervised time between the father and the children commence immediately.  She further recommends that the mother undergo a neuropsychological assessment.  There were other recommendations that she made which I will incorporate into Orders in these proceedings. 

8. However, whilst all of the allegations and counter allegations have not been tested on the evidence, an element of caution needs still to be exercised by the Court when such very young children are involved.  As I said, I have not, in my considerable experience, seen such a clear indication at such a very early stage where the experts who have had the opportunity to interview the parties and the children are of the view that the problems of the children are very much more related to probable alienation by the mother than they are of any abuse of the children by the father.

9. Within the spectre of the dreadful child abuse cases that this Court is obliged to consider and determine, there are two actions by parents which stand at the extreme.  Any sexual or physical abuse of children by one parent is absolutely abhorrent and a complete abrogation of all parental responsibility and the important position of trust that parents hold in relation to their children.   It is therefore extremely important not to miss relevant and appropriate cues in the interim stages of the proceedings and to protect the children.  The Court did this in delaying any resumption of the father’s time with the children until all relevant enquiries had been made and reports provided.  That then leaves the other extreme end of the spectrum which is the deliberate manufacture of such allegations of sexual abuse by the other parent in order to interrupt, or worse, destroy, the relationship between the children and that other parent.

10. Of those two extremes the more likely scenario on the preliminary evidence in these proceedings to date is that of alienation by the mother.  As I say, an element of caution still needs to remain as the mother will have an opportunity to present her evidence at trial, be cross-examined, the experts will present their evidence, the father will present his and be cross examined and at the end of that process, the Court will have a much clearer picture of what the real issues are.  However, I cannot shy away from the evidence as is presented to the Court at the moment which is clearly to the effect that the mother has alienated the children from the father and that there are no issues or concerns of sexual abuse by him of his children.

11. Long experience tells me though that alienation of children at times is not deliberate.  There can be a genuine misreading of signals offered by the children, there can be a heightened level of vigilance that relates to previous experiences of that person in the relationship which ended and there are many other possible explanations.  All will be revealed, one trusts, when the evidence is tested.

12. For now the father has appropriately recognised that it would not be in his children’s best interests to resume the previous week and week about arrangement given that T is due to start school in May of this year.  He resides in the Port area, the mother inland at R and I am informed that the distance between the two towns is some 130 kilometres.  Thus it would not be physically possible to manage two households for the children which would in any way represent their interests as against the interests of the parents or specifically the father.

13. There is no reason though why the father ought not to immediately resume unsupervised time with his children on weekends.  The mother, through her Counsel, has acknowledged as much and has indicated that she consents to such an arrangement taking place. 

14. Any determination I make at an interim level as well as a final level has to be dictated by the relevant provisions of the Family Law Act 1975 (as amended) and in that regard the most relevant of course is section 60CA which is to the effect that the Court must make any determination on a parenting issue in terms of what represents the best interests of the children. In doing that the Court is then obliged to consider the numerous sub-paragraphs of section 60CC which is divided into “primary” and “secondary” considerations. The Full Court has said in Gould and Gould (2007) FLC 93-333 that it is the obligation upon first instance Judges to indicate their consideration of those factors in any interim determination.

15. I have considered all of the factors that are enumerated in section 60CC.  I do not believe it is necessary or appropriate for me to individually identify all of those relevant sub-sections.  I think it is plain from the remarks that I have made above that I have considered those relevant matters and in any event, a more detailed consideration of them is not indicated because of the mother’s consent to an immediate resumption of the relationship between the father and the children in an unsupervised environment. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date: