Watts and Vickers

[2011] FamCA 981

FAMILY COURT OF AUSTRALIA

WATTS & VICKERS [2011] FamCA 981

FAMILY LAW – CHILDREN – interim orders – with whom a child resides – where the mother makes allegations of physical, sexual and emotional abuse in addition to neglect of the child by the respondent – where the respondent has been the principal carer for the child for a significant period of time – where the child suffers from a multitude of serious health concerns – where the mother has had a limited role in the care of the child – best interests – where departmental enquiries are underway – where the Court needs to adopt a cautious approach given the seriousness of the allegations levelled against the respondent – orders that the child remain living with the mother and spends supervised time with the respondent.

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

APPLICANT: Ms Watts

RESPONDENT: Ms Vickers

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 4124 of 2011

DATE DELIVERED: 28 November 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE JUDGMENT OF: Burr J

HEARING DATE: 28 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Gilbert
SOLICITOR FOR THE APPLICANT:	Gilbert & Mattner

COUNSEL FOR THE RESPONDENT:	Mr Gallasch
SOLICITOR FOR THE RESPONDENT:	Dixon Gallasch Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Stephen
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Services Commission

Orders

1. Further consideration of the proceedings be adjourned to 2.15 pm on Monday 30 January 2012 before the Honourable Justice Burr (2 hours allowed).

2. Each of the parties and any of their partners or family members whom Families SA would seek to engage in their investigation co-operate in all respects with all reasonable requests made by Families SA.

3. Leave is granted to the Minister’s representative and Families SA to have access to the Family Court documents.

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

1. The respondent be restrained and an injunction is hereby granted restraining the respondent from attending at the L School or from removing the child B (“the child”) born … 1997 from the care of the applicant SAVE AND EXCEPT in circumstances otherwise provided in these orders.

2. The respondent spend time with the child under the supervision at all times of either of Mr E or Ms E as follows:-

   (a)    between the hours of 10.00 am and 5.30 pm each Sunday, SAVE AND EXCEPT on Sunday 25 December 2011;

   (b)    from 4.30 pm on Saturday 24 December 2011 until 11.00 am on Sunday 25 December 2011

   with handovers on each occasion to be effected by the applicant delivering the child to the respondent’s premises and collecting her therefrom at the conclusion.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4124  of 2011

Ms Watts

Applicant

And

Ms Vickers

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me for interim determination today disputed proceedings between the parties in relation to the child B (“the child”) who was born in 1997.  The proceedings commenced with an Initiating Application filed by the mother on 1 November 2011.  In a detailed affidavit filed at that time, the mother raised a number of concerns as to the respondent’s care of the child.

2. The Court is acutely aware of the background against which the mother makes these allegations though in that the child has been in the care of the respondent for some 6 years now in circumstances where the mother consistently demonstrated an inability to provide consistent care for the child.  Final Orders were made in favour of the respondent in circumstances where the mother did not appear at a hearing on 29 June 2006.  The mother, to a degree, acknowledges her past and her inability at those times to provide any consistent care for the child but makes a number of very serious allegations as against the respondent that prompted me on the previous occasions the matter was before the Court to permit the child to remain with the mother whilst further enquiries and investigations were made. 

3. The mother’s allegations are detailed not just in the affidavits filed by her but in the Notice of Abuse filed by her on 1 November 2011.  The allegations are as to the almost complete range of abusive concerns that arise in proceedings in this Court.  The mother alleges that the respondent has either abused the child or permitted the abuse of the child whilst in her care in a number of respects.  She alleges physical abuse, sexual abuse, emotional and psychological abuse (if there is any difference between those two) and neglect.

4. From the respondent’s perspective, it would no doubt appear to be an outrageous action and constitute outrageous behaviour by the mother in circumstances where, if it was not for the respondent, the child would not have been able to enjoy nor experience consistent and sustained care over the past 5 years.

5. It is the experience of this Court that children do suffer appalling abuse at the hands of adults responsible for their care, but it also the experience of this Court that people manufacture allegations in order to achieve an advantage.  The Court has had no opportunity at this time to explore the veracity of the allegations or make any final determinations. 

6. Consequently on the last occasion the matter was before the Court I made a Section 91B Order and requested that in the event that the Minister declined to intervene, that the Minister be represented at the proceedings and be in a position to advise what action, if any, the Department for Education and Child Development (Families SA) was prepared to take in order to assist in developing an understanding of what would best represent the child’s interests.

7. The Court is grateful for the Department’s response which is contained in some detail in a letter dated 24 November 2011 signed by Ms G and Ms H.  In that letter they elicit quite accurately the various concerns that arise in the proceedings now before the Court and also provide a very short summary of Departmental experience with this family.  A more detailed description had earlier been provided in the Families SA Magellan report letter dated 16 November 2011.  The Department’s letter makes reference to all of the allegations of the mother and has indicated the matters that have been put in place and are being put in place in order to explore those issues and be in a position to report more fully to the Court in about mid-January 2012.

8. I am informed by Counsel for the mother today that part of the assessment process in relation to the child’s physical health and other issues is to be conducted at the Women’s & Children’s Hospital on 1 December 2011 at 2.40 pm.  I otherwise have no information as to when other interviews might be scheduled or concluded, although there is some indication that the South Australian Police may well be pursuing a forensic interview and examination of the child by Child Protection Services.

9. I am aware of the many issues that the Department is being asked to explore at short notice and over a fairly tight period of time and the Court is grateful for that exercise and looks forward to being in a position to receive further information to make a decision that would reflect the child’s best interests.

10. The child was given a very unfortunate start to life in that she has a number of quite serious medical conditions that require constant monitoring and attention.  Some of those problems are detailed in annexures to the affidavit of the mother’s solicitors filed on 17 November 2011.  Included among the problems which the child faces are diagnoses in her case of Rett Syndrome and Hypothyroidism.  In addition subtle dysmorphic features and intellectual disability is described.

11. It is the respondent’s position that she has diligently attended to all of the child’s needs and those medical issues and that the present change of arrangements for the child’s care could potentially jeopardise the child’s treatment and consequently, her health.

12. The Court’s position is made difficult by the mother’s history and her lack of consistent care for the child.  If the allegations had been made as against the respondent in circumstances where the mother had always been there for her daughter and had presented as a realistic option for the child’s care, then the Court’s task would have been easier.  However, given the seriousness of the allegations that have been made, conscious nonetheless of the possibility that they may not be true, it is not for the Court to be able to gamble with the child’s health.  The relevant legislation does not provide that option for a Judicial Officer in my position and whilst the child is almost 14 years of age, the difficulties that she has encountered with her health mean that in reality in the sense of mental and emotional development, she is a much younger child and certainly in no position to protect herself.

13. Given that the allegations range through physical, sexual and emotional abuse and neglect on the part of the respondent, despite the potential unfairness to the respondent if they prove not to be true, it is nonetheless my view that the present circumstances ordered by me on the last occasion should remain in place.  I am conscious too of the potential risks associated with that exercise and regrettably, given the allegations that have been made and the poor history by the mother, it is very much a case of spreading the risk until such time as a more definitive explanation can be provided to the Court.

14. The legislation requires me to make a decision which, in my view, represents the child’s best interests and that is proscribed by Section 60CA of the Act. In arriving at that decision I am obliged to consider a number of provisions, most of which are contained in Section 60CC of the Act. Section 60CC sets out two primary considerations and a multitude of additional considerations. The first of the primary considerations is:-

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

or in this case, the child’s principal carers.

1. I am satisfied that given the long history of the respondent’s care of the child, that in the event that it is appropriate for the Court to order that the child be returned to her care, that her relationship with the child will not be harmed in the long term.  I accept that if the information provided to the Court is inaccurate, there will be some consequential harm done to the child and indeed to the child’s relationship with the respondent.  However, it is the Court’s aim to resolve the matter in the relatively short term and thus I am satisfied that the lengthy relationship established by the respondent with the child will quickly be restored in circumstances where it was appropriate and safe to return the child to her care.

2. The second of the primary considerations is the one that prompts my decision and that is:-

(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 affidavits of the mother detail the various respects in which she alleges that there is a need to protect the child and in fact, of recent days, her case in that regard has been supported by other affidavits filed.  One of those is by a Mr I who in many respects supports the mother’s allegations as to the atrocious state of the respondent’s house premises and the serious lack of hygiene.  He further raises concerns about the manner in which the respondent disciplined the child.  A number of allegations have been made by the mother as to the respondent’s poor state of health and those observations of the mother are supported also by Mr I in his affidavit.  The allegations made are that the respondent’s health is so poor that she would seriously struggle to be able to care for the child physically.

2. A further affidavit, supporting to a degree the allegations of the mother, is that of a Ms J filed on 22 November 2011, where she too made observations of the appalling state of the respondent’s house and in fact attested that she and the mother had to undertake an enormous amount of work in the premises in an endeavour to try and remedy the situation to a degree.  She further makes adverse observations of the respondent’s discipline of the child and further suggests that there was at least one occasion, if not others, of physical abuse of the child by the respondent.   She also supports the mother’s contention as to the potential of sexual abuse of the child in the respondent’s household and makes the same allegation in her affidavit as the mother did in hers that the child said on more than one occasion “[Mr K] fucked me”.

3. I need to be cautious about too readily accepting the evidence of Ms J given that she acknowledges that she has been in a relationship with the mother only since 18 July 2011, a very short period of time.  One would expect that Ms J was likely to support the mother.  However, the seriousness of the allegations raised with at least some preliminary corroboration of the mother’s allegations in those two affidavits mentioned by me, mean that I am satisfied that I need to proceed with caution and for that reason, will indeed be leaving the child in the care of the mother whilst the Department’s enquiries are undertaken.

4. I have made reference already to the mother’s poor history in terms of caring for her own daughter and her solicitor has filed an Affidavit on 22 November 2011 attempting to address some of the Court’s concerns in that regard in annexing details of a Certificate of Attendance by the mother at a Pre-Employment Programme in Aged Care and Community Care, a National Police Clearance Certificate which discloses no criminal history and a First Aid Certificate. 

5. Whether those matters or the mother’s current presentation will be sufficient to overcome the Court’s continuing concerns about her consistent capacity to care for the child, one trusts will be known sooner rather than later.  I will not detail all of the concerns in relation to the mother’s history of care for the child but they are, as a minimum, summarised in the Magellan report letter dated 16 November 2011. 

6. I make this decision too, acutely aware of the fact that on each and every other occasion that the respondent has had to answer allegations made against her, the child has ended up in her care yet again.  I am thus conscious of the possibility of that happening again.   It would be regrettable if the mother has manufactured these allegations in order to gain an advantage, and an unfair one at that.  It would particularly be regrettable for the child in terms of having to deal with different residential arrangements over a short span of time.

7. The additional considerations, in my view, do not throw up any other matters that I need adumbrate in making my determination today.   A number of them simply can not apply, for example any views expressed by the child in relation to the matter.   I have already detailed above the issue of the nature of the relationship of the child with each of her carers and also the fact that I am acutely aware of the possible detrimental effect of any changes in the child’s circumstances.  The question of the capacity of each of the parties to provide for the child’s needs will be tested in due course.  At the present moment the respondent has history on her side in having provided, on her case, for all of those needs for the last 5 years or more. 

8. To put it at its simplest, the only reason why the child is not still living with the respondent is the as yet unresolved allegations of physical, sexual and emotional abuse and neglect.   If those matters are resolved in the respondent’s favour, it seems highly likely that the child will be returned to her care.  If they are not, then it seems highly likely that the child will henceforth reside with her mother, provided the mother can satisfy the Court that she is a changed woman and that her appalling history will not be repeated in the future.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Burr delivered on 28 November 2011.

Associate: 

Date: