Waterford and Waterford (No. 2)

[2012] FamCA 777

FAMILY COURT OF AUSTRALIA

WATERFORD & WATERFORD (NO. 2) [2012] FamCA 777

FAMILY LAW – PRACTICE AND PROCEDURE – application by the father seeking orders for the preparation of a Family Assessment report – where there are allegations that the child has been sexually abused by the son of the mother’s current partner – where the Court already has before it various reports from the police and CPS – consideration given to the potential impact of further interviews on the emotional and psychological wellbeing of the child – best interests – where the Court was not satisfied that it was necessary or appropriate for further interviews to be conducted in relation to the allegations of sexual abuse – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Waterford

RESPONDENT: Ms Waterford

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 4588 of 2009

DATE DELIVERED: 30 August 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 30 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Read

SOLICITOR FOR THE APPLICANT: Von Doussas Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Adey

SOLICITOR FOR THE RESPONDENT: Adey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission

Orders

1. The Application in a Case filed by the father on 6 July 2012 is dismissed NOTING THAT the matter remains listed before Registrar Paxton on 11 September 2012 at 2.30 pm.

2. The mother’s costs in relation to this application are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waterford & Waterford (No. 2) 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 4588 of 2009

Ms Waterford

Applicant

And

Mr Waterford

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the father by way of Application in a Case filed on 6 July 2012.  In that Application the father seeks specific orders directing the psychologist, Dr M, to be appointed to undertake a further Family Assessment report.  Paragraph 1 is quite specific, although counsel for the father now indicates that she would have redrafted that application.  Specifically, however, the father is seeking that Dr M address:

   [S]pecifically with the child [C] the allegations with respect to her being sexually abused by [J]; assess the capacity of the mother to protect [C] and put [C]’s needs ahead of her needs and desire to further her relationship with [L] and [J]; and the mother’s capacity to protect [C] from any future abuse; assess and ascertain if the mother has been coaching, coercing or manipulating the child with respect to the matters in dispute along with issues generally assessed as part of a Family Assessment and the parties share equally in the cost of the same.

2. I am told this morning that there would be some arrangement whereby an approach would be made for the Legal Services Commission to bear the father’s share of the costs.  I have not sought information concerning the mother’s ability to pay the costs.

3. The mother opposes the application.  The application is not supported by the Independent Children’s Lawyer.  The application also seeks further orders in relation to providing documents to the psychologist, Dr M, and restraining the mother from “discussing the issues in dispute or from coaching, coercing, manipulating or intimidating” the said children or from permitting any other person from so doing. 

4. I have heard detailed submissions this morning from counsel and have given consideration to the affidavits filed in support of this application and opposing the application, including the affidavit and response of the mother recently filed. 

5. The issues concern whether the parties should obtain a Family Assessment report from Dr M rather than await the process which would in due course follow when the matter is actually listed for trial for consideration to be given to an updated Family Assessment.  It appears that this expert psychologist has been chosen by the father with the assistance, no doubt, of his legal representatives.  There is no doubt about the qualifications of Dr M. 

6. The question is, however, whether it is appropriate and in the best interests of the children and in particular the child, C, for the order the father seeks to be made. 

7. The background to the matter is an allegation made sometime in around early June 2011 that C had been subjected to sexual abuse by J who is the son of the mother’s current partner.  J was then aged 14.  He is now aged 15.  C was born in March 2005 and is now seven but would have been six at the time of the allegations. 

8. As a result of the allegations made in June 2011 there have been reports made to the police and the children (C and her sister, M) have both been interviewed by the experts in the Child Protection Service (“CPS”) who have prepared a report which is before the Court attached to the affidavit of the Independent Children’s Lawyer. 

9. The interviews of C carried out at that time were carried out a short time after the allegation first came to light.  What the father is now seeking is a further assessment of the allegations of sexual abuse by someone independent or independent from the CPS and someone selected by him.  My concerns are whether that will assist the Court (bearing in mind the length of time that has progressed since the allegation first arose) and the risk it may have upon the emotional and psychological health of the child.  The Court will have before it in due course the evidence of the qualified experts who interviewed C at a short time after the allegations arose.  It will be able to obtain full details of that and those matters can be the subject of cross-examination. 

10. Another issue of significance is raised by the Independent Children’s Lawyer’s counsel.  The report of Ms T refers to C’s reticence to engage in an interview and in particular paragraph 55 of the Family Report says:

    [C]’s reticence to engage in an interview was understandable given her experiences of being interviewed by the CPS; being questioned by the father, and potentially also by the paternal grandmother; and being provided mixed messages by the adults around her regarding speaking of her alleged experiences, in light of the Court Order preventing such discussion.  However, a number of comments made by [C] and by the father in their interviews gave the writer reason to question how [C] had come to believe that her disclosure was somehow linked to her living and spending time-arrangements.

11. That Report (which was released in December 2011) is quite significant in that the father now brings an application for a further interview of the child in relation to this allegation in the context of these proceedings about with whom the children should live, the time they should spend with the parents and other significant conditions which might need to be attached to any final order in relation to the interaction between the children and the adolescent child, J. 

12. The Court is required to make the decisions concerning children taking into account the best interests of the children as the paramount consideration.  The Court must also ensure that the best evidence is available when finally determining the facts upon which that decision can be made and the need to balance those factors.

13. However, I consider that there would be limited benefit to the Court or indeed the families and the children for a further interview by any expert of C at this late stage.  It is in excess of 12 months from the first set of interviews.  I appreciate that C is now older but I am not satisfied that a year later at age seven would mean that she would not be subject to further emotional and psychological risk if this matter was to be raised again in detail or if C was to be required to be questioned about those matters further. 

14. I am therefore not satisfied that it is necessary or appropriate for the preparation of the final hearing of this matter that the orders sought by the father be made.  Nor do I consider it to be in the child C’s best interests for such further interviews to be required. 

15. I note that the matter is listed before the Docket Registrar on 11 September at 2.30 pm when consideration will be given to the matter being listed for trial. 

16. I regret to say that it will probably be in a queue, depending upon the availability of visiting Judicial Officers.  I cannot say when the trial is likely to be reached. 

17. I have been told that Ms T is on maternity leave and therefore consideration will have to be given when the matter is likely to be listed for trial as to the update of the family report or a fresh Family Consultant’s report being prepared to ensure that the Court has the most up to date information concerning the parties’ proposals and generally the best interests of the children.  I would consider that a sensible arrangement, foreshadowed by the father’s counsel, would be a Legal Services Commission conference to mediate and conciliate a sensible outcome to this matter.  It would certainly be a reduction of the difficult relationship problems between the parents if that conference could take place fairly promptly. 

18. It will not assist the parties and definitely will not assist the children if the parents go on arguing about matters which should be capable of a sensible resolution, bearing in mind that the primary considerations for this Court, and what should be the primary considerations for the parents, are the meaningful relationship with the parents and the need to protect the children from any risk of abuse. 

19. I have dismissed the father’s Application in a Case filed on 6 July 2012.  The matter remains listed before Registrar Paxton.

20. There being no opposition, I will make a note that the mother’s costs in relation to this application are reserved. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 August 2012.

Associate: 

Date:  7 September 2012