WATCHMAN & CARTER

[2011] FamCA 132

FAMILY COURT OF AUSTRALIA

WATCHMAN & CARTER [2011] FamCA 132

FAMILY LAW - CHILDREN – interim orders – where the mother alleges that the father has sexually and physically abused the children – where there are concerns about the impact of the father’s parenting behaviours – where one of the children has been diagnosed with ADHD – best interests – orders that the children live with the mother and spend supervised time with the father at a children’s contact centre – orders that the father participate in therapeutic counselling

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

APPLICANT: Mr Watchman

RESPONDENT: Ms Carter

INDEPENDENT CHILDREN’S LAWYER: Denise M Rieniets & Assoc

FILE NUMBER: ADC 2964 of 2010

DATE DELIVERED: 28 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 28 February 2011

REPRESENTATION

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

COUNSEL FOR THE RESPONDENT:	Mr Bowler
SOLICITOR FOR THE RESPONDENT:	Barr Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Rieniets
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Denise M Rieniets & Assoc

Orders

1. Further consideration of the proceedings be adjourned to 10.00 am on Monday 26 September 2011 before the Honourable Justice Burr, with liberty to the parties and the Independent Children’s Lawyer to apply on short notice in the event that it is possible to report the progress of the matter to the Court at an earlier date or it is otherwise necessary to do so to represent the best interests of the children.

2. The father make immediate appointments to attend upon and engage in counselling with NADA.

3. The father spend time with the children C born … June 1998 and K born … November 2002 UPON CONDITION THAT:-

   (a)    he has commenced his counselling with NADA;

   (b)    he continues his counselling and therapy with Dr O at times identified as appropriate by Dr O;

   (c)    an IKids counsellor is available to support K prior to the re-introduction of any supervised time to be spent by the father at the T Children’s Contact Service (“CCS”);

   (d)    any such time spent by the father be at the T CCS and supervised at all times by them.

4. At the conclusion of six [6] visits by the father at the T CCS the Independent Children’s Lawyer do secure, file and serve a report from the T CCS.

5. Upon the conclusion of the aforesaid six [6] visits at the T CCS and the filing of the report from the T CCS pursuant to paragraph 4 hereof, the parties participate in a further Section 11F conference with Ms R on a date and at a time to be advised by the Court.

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

1. The children C and K live with the mother.

2. The father be restrained and an injunction is hereby granted restraining him from attending at the mother’s home or the children’s school.

3. Both parties are restrained and an injunction is hereby granted restraining each of them from:-

   (a)    discussing these proceedings with the children or within their hearing and from allowing any other person to do so;

   (b)    removing the children from the State of South Australia without the written consent of the other.

4. The father be at liberty to provide cards, letters and birthday presents to the children C and K to be forwarded to the office of the solicitors for the father who shall provide them to the office of the solicitors for the mother.

5. Subject to any concerns that the mother may have in relation to the content of the said cards, letters and gifts that she provide the same to the children.

6. The mother forthwith provide to the father’s solicitor copies of the children’s school reports as and when they become available.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2964  of 2010

Mr Watchman

Applicant

And

Ms Carter

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I have before me a continuing dispute between the parents of two children C born in June 1998 and who is hence approaching 13 years of age and K born in November 2002 and who is therefore 8 years of age.  This matter has been within the Court’s Magellan Project for a period of time now as a consequence of allegations made by the mother that the father has sexually and physically abused the children. 

2. The Court has been provided with a number of reports in these proceedings to assist it in arriving at a conclusion that will represent the best interests of these two young children.  Details of the parties’ engagement and the children’s engagement with the Department for Families and Communities – Families SA is set out in the Magellan Report letter dated 30 September 2010.  That letter contains a number of reports from a mandated notifier in relation to K.  It refers to a number of incidents where K reported that he had been physically harmed by the father, but possibly in circumstances where there was an aggressive play activity and not any deliberate abuse of K by the father. A more concerning notification was later which was as to alleged disclosures made by K as to the sexual abuse of him by his father or certainly a very concerning inappropriate behaviour.  The details of that notification contained in that letter are quite specific.  The matter was then investigated by the South Australian Police who subsequently reported that they would not be taking any action in relation to the allegations made.

3. As is usually the case in proceedings of this nature, I ordered the preparation of a Family Report by one of the Court’s expert Family Consultants in order that the Court may gain some assistance in making orders that would represent the children’s best interests.  That report was provided by Ms R on 30 November 2010 and in it, after a very helpful evaluation which commences at page 15 of that report, she then made a number of recommendations.  Ms R was concerned by the family violence that existed during the relationship but was encouraged by the father’s acknowledgement that indeed he was the perpetrator of violence towards the mother during the course of the relationship but was nonetheless concerned that he tended to minimize that behaviour.  He acknowledged that alcohol was a factor in his poor conduct during that relationship. 

4. Ms R reported some confusion and hurt in the children’s minds and expressed views in the context of their relationship with their father and at times endeavoured to be protective of him and explain his conduct, which of course is not a role for young children.  However, she certainly identified in the children a desire to have an ongoing relationship with their father, but clearly only after the father both acknowledged his role in the fracturing of his relationship with his children and the need for him to secure assistance on a number of levels before that relationship with his children could be advanced.   As a consequence Ms R recommended that the father form a therapeutic relationship with a psychologist experienced in inappropriate parenting and accountability for behaviours.  It was her recommendation that somebody like NADA be approached.  She was also concerned about K’s presentation, particularly with respect to his learning difficulties, and noted that an assessment had been recommended by Ms M and the children’s current school.  Ms R felt it important that the father not spend any time with the children or have any contact with them until such time as he had engaged a therapist and was made fully aware of the impact his abusive behaviours had had on the children and could have on the children into the future.  There was a recommendation for some limited contact with the children by telephone or letter and he was to receive school reports.  Ms R then reported that she had scheduled a Section 11F conference on 14 February 2011 with a view to determining whether or not it was appropriate for supervised visits to commence at the T Children’s Contact Service (“CCS”).

5. I now have the advantage of a number of other reports since that Family Report of 30 November 2010, chronologically the first of which is the report of Dr O dated 9 February 2011.  Dr O has been engaged by the father to attend to the therapies recommended by Ms R.  I am satisfied that Dr O is aware of the very serious reasons why the father has needed to engage her services and she reports as such in the first paragraph of her letter of 9 February 2011.  After reporting on her contact with her father, which I understand has now been on four occasions, she made a number of recommendations.  Essentially, she supported the reintroduction of contact between the father and the children but in a supervised supported environment.  She also supported the father being able to write letters to his daughter C.  However, he still needs some assistance in that regard as Dr O records at the foot of page 3 and the top of page 4 that a number of his early attempts at writing letters contained a number of inappropriate references and of particular concern to Dr O was “that the contact revealed consistently mistaken defences against any accusation that he had erred”. 

6. Subsequent to Dr O’s report the Independent Children’s Lawyer filed an affidavit on 8 February 2011 and to that was annexed a report from Consultant Paediatrician Mr P.  Mr P’s report is dated 17 January 2011 in which he indicates in relation to K:-

   “This young man’s psychometric assessment from last year by [Ms M] has confirmed a young man with essentially normal intelligence, features of Attention Deficit and Hyperactivity Disorder and at that time historical suggestion of anxiety which may well have related to his psychosocial presentation at that time.”

   I am informed this morning that Mr P has recommended the commencement of a trial period of medication for K being Ritalin for his ADHD. 

7. Subsequent to that report I now have a report, again from Ms R, being a Child Dispute Conference report dated 15 February 2011 which reported upon her Section 11F session with the parties the day before, namely on 14 February 2011.  It is encouraging for the Court that the father to Ms R expressed a willingness to “do whatever it takes in order to be able to resume a relationship with the two subject children ….”  According to Ms R he had found the four sessions to date with Dr O very helpful and had assisted him in gaining appropriate insights into his past parenting behaviours.  He demonstrated too some further understanding of the emotional impact those behaviours had had upon the children and their consequent behavioural problem.  The mother though then, as she does today through her Counsel, expressed some continuing concern and promoted a continuing conservative approach to any re-engagement by the children with their father.

8. Of interest is that Ms R reports that the father agreed to attend upon a therapist from NADA despite the fact of his current engagement with Dr O.  NADA certainly is a specialist agency appropriate for the types of therapy as identified by all reports as being necessary for the father and I perceive some considerable benefit to the father, and hence to the children, in him engaging with NADA as well as his continuing relationship with Dr O.

9. Whilst the mother has continued to express some concern for her children’s safety I am satisfied that their physical safety would be assured in the environs of the T but the Court must consider as is the dictate of the legislation, but common sense in any event, that the children need to be protected from any future emotional harm.  Supervision at the T CCS will not necessarily provide that protection from emotional harm.  The only way that can be assured is if the father continues his encouraging progress with counselling and therapy in order that his time with the children can indeed be child focussed and represent very positive experiences for the children.

10. Ms R identifies K as being the more vulnerable of the two children and that would seem a quite appropriate observation given his diagnosis by Mr P as suffering ADHD and the commencement of his course of medication for that condition.  I accept as appropriate the recommendation by Ms R that K be supported by a counsellor to assist him with the re-introduction of time with his father.   It is Ms R’s recommendation that such support be provided by an IKids counsellor.  I am informed today that there will be a wait of some 2 – 3 months until an IKids counsellor becomes available for K and similarly there will be a wait until about mid-April for availability at the T CCS. 

11. I am sympathetic to the father’s wish to be re-engaged with his children as promptly as possible but the obligation of this Court is not to look to his needs nor indeed to the mother’s needs, but to the best interests of the children. That is a matter dictated clearly by Section 60CA of the Act. Section 60CA requires the Court to consider the many and multifaceted matters that arise under Section 60CC of the Act. Section 60CC is divided into “primary considerations” and “additional considerations”. There are two primary considerations and they require the Court to exercise the difficult task of balancing two entirely contradictory considerations. The first is the obligation on the Court to consider:-

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

but the other provides, nonetheless:-

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

1. The orders that I intend to make, I believe, provide the best opportunity for the father to re-establish a meaningful relationship with his children, but in circumstances where the children will be protected not just physically but also psychologically in the process.  There are numerous additional considerations.  In my view, it is not necessary to consider all of those additional considerations seriatim and make individual findings in relation to each of them.  I am satisfied that I have considered all relevant matters that arise pursuant to those additional considerations and I certainly have them in mind when framing the orders that I make.

I certify that the preceding twelve (12) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 28 February 2011.

Associate: 

Date: