ASHWOOD & PETERS

[2015] FamCA 974

FAMILY COURT OF AUSTRALIA

ASHWOOD & PETERS [2015] FamCA 974

FAMILY LAW – CHILDREN – Interim orders – where the father seeks to have time with the child supervised by a private contact supervisor – where the mother opposes the father’s application and seeks that his time is supervised by a contact centre – where the father has been incarcerated for sexual offences – where the mother alleges that the father has sexually abused the child – where the private supervisor proposed by the Independent Children’s Lawyer has been informed of the nature of the allegations against the father and the father’s history – where a contact centre would be unable to provide continued supervision services –orders made that the father spend time with the child supervised by a private contact supervisor

FAMILY LAW – CHILDREN – Interim orders – application by the father to enforce orders that the mother give written authorisation to the child’s treating medical practitioners and allied health professionals to communicate with the father – where the mother has only provided verbal authorisation – orders made that the mother provide the father with a list of the child’s treating medical practitioners and allied health professionals and provide written authorisation for those practitioners and professionals to communicate with the father 

Family Law Act 1975 (Cth)

APPLICANT: Ms Ashwood

RESPONDENT: Mr Peters

INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

FILE NUMBER: MLC 10556 of 2011

DATE DELIVERED: 1 September 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 1 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms O’Connell

SOLICITOR FOR THE APPLICANT: Fiona R McGregor

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders

1. That the mother and the father do all acts and things and sign all documents necessary to facilitate the father’s time with the child B born … 2010 (“the child”) being supervised by C Family Services as directed by the Manager of C Family Services.

2. In addition to the time referred to in paragraph 3 of the orders made 14 May 2015 the father shall spend time with the child at least two hours per fortnight, such time to be fully supervised by a professional supervisor nominated by C Family Services.

3. That the father provide the mother with at least 7 days’ notice of when time will occur pursuant to paragraph 2 hereof.

4. That the father be responsible for payment of all costs related to C Family Services.

5. That for the purposes of facilitating supervision of the father’s time, the Independent Children’s Lawyer cause copies of the following documents to be forwarded to C Family Services prior to the commencement of their supervision of the father’s time:-

   (a)Section 67Z Report of Department of Health and Human Services dated 13 August 2015;

   (b)       Affidavit of Dr D filed 17 March 2015; and

   (c)       A sealed copy of these orders.

6. That by 4.00pm on 4 September 2015 the mother do all acts and things as may be required to:

   (a)Provide to the father a current list of the child’s treating medical practitioners and allied health professionals, such list to include but not be limited to her general medical practitioner, paediatrician and psychologist (“the child’s medical practitioners”); and

   (b)Authorise in writing the child’s medical practitioners and any other medical or health practitioner upon whom the child attends from time to time to communicate with the father in respect to the child’s medical conditions, their diagnosis, treatment and/or other requirements.

7. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. That the father’s Application in a Case filed 30 July 2015 and the mother’s response to Application in a Case filed 28 August 2015 be otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ashwood & Peters 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 MELBOURNE

FILE NUMBER: MLC 10556 of 2011

Ms Ashwood

Applicant

And

Mr Peters

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me today in a judicial duty list upon the application of the father filed 30 July 2015.  Indeed, on that day, the father filed three applications, being an application contravention, an application contempt and an application in a case.  At the commencement of the hearing before me, the father sought and was granted leave to withdraw his application contravention and application contempt. 

2. The remaining issues, which are set out in his application in a case, relate to two matters-:

   ·    first, the question of who is an appropriate person to supervise his time with the child of the relationship; and

   ·    second, the implementation of orders enabling him to communicate with and to receive information from the child’s treating medical practitioners and allied health professionals.

3. The background to the matter is as follows. 

4. The father is aged 34 years.  His occupation is tradesman.  He resides in E Town. 

5. The mother is aged 31 years.  She resides in Suburb F, and her occupation is home duties. 

6. There is one child of the relationship, B, who was born in 2010.  She is aged approximately four years and 10 months.  I am informed that she has been diagnosed as being on the autism spectrum.

7. The father in his application in a case seeks an order that his time with the child be supervised by Ms G of G Family Mediation Centre.  Alternatively, the father proposes that his time be supervised by a private contact supervisor as nominated by the Independent Children’s Lawyer (“the ICL”).  The mother opposes that application.  She seeks that the father’s time be supervised in a contact centre.

8. The father also seeks an order that the mother authorise the child’s treating medical practitioners and allied health professionals to communicate with him regarding their care of the child.  The mother has indicated through her counsel that she has provided verbal authorisation for such communication, but beyond that makes no other proposals as to how that issue should be resolved.

9. The position of the ICL is set out in a minute of order which was provided to me during the course of the ICL’s submissions.  That proposal is that the father’s time with the child be supervised by a private contact supervising service, namely, C Family Services.  There are orders proposed as to how such supervision be implemented.

10. It is agreed that pending final hearing the father’s time be supervised.  The father has been convicted of sexual offences.  He has been incarcerated for those offences.  The mother alleges that the child has made disclosures that she has been sexually abused by the father.  Further, the mother alleges that the child has made disclosures to workers at her kindergarten that the father has touched her inappropriately.

11. The Department of Human Services (“the Department”) have prepared a report pursuant to s 67Z of the Family Law Act1975 (Cth) (“the Act”). That report is dated 13 May 2015. It sets out the history of protective concerns. It also details the contact that the Department has had with the child’s clinical psychologist and paediatrician. It contains a report of an interview with the child, which was conducted on 10 April 2015; it is reported that during interview there were disclosures made by the child as to the father’s alleged sexual abuse. That report also provides observations as to the supervised time between the child and her father at the Department’s offices in Suburb H.

12. The summary to that report concludes the following recommendations insofar as the Department is concerned:-

    ·    firstly, that the child’s contact with the father take place at a contact centre until the child’s language has developed and the child’s psychologist has assessed that she is at a level where she can communicate and articulate her concerns;  and

    ·    secondly, that the father engage in regular treatment in relation to his past criminal behaviour with a forensic psychologist as recommended by Dr D. 

    ·    Finally, there is a recommendation that the child continue to engage with a psychologist. 

13. That report is the basis for the mother’s position that the father’s time with the child only occur in a contact centre.  She says that she has significant concerns for the child’s safety if the child was to spend time with the father away from the security of a contact centre. 

14. The mother also relies upon the report of Dr D, psychologist, who has assessed the father and prepared two reports in relation to the matter in support of that position.

15. The position of the ICL is that whilst a contact centre would be desirable, the reality is that due to a lack of availability of resources, there is no realistic prospect of ongoing supervised time between the child and the father in a supervised contact centre.  Accordingly, the ICL proposes that the father’s time be supervised by C Family Services, which is a contact service well known to this Court.  It is a service that is experienced in providing supervision in matters such as this.  The ICL has communicated with that service, has informed it of the very serious allegations that are made with respect to the father’s behaviour, and that service has confirmed that it is able to assist this family.

16. In determining the issue of supervision, I must have regard to the child’s best interests. I must also have regard to the considerations set out in s 60CC of the Act. There are two primary considerations, one of which is to ensure that the child is protected from harm, whether it be physical harm or psychological harm.

17. The other consideration that I must have regard to is the need for the child to have the opportunity of a meaningful relationship with her parents. 

18. In applying those considerations, I am required to give greater weight to the need to protect the child from physical or psychological harm. 

19. Having regard to the submissions that have been made on behalf of the ICL, I am satisfied that in the circumstances of this case, it is appropriate that C Family Services be appointed to provide supervision for the child’s time with the father.  I accept the submissions of the ICL that that service has the capacity to provide appropriate supervision to ensure the child’s safety and well-being when spending time with the father.   

20. I propose to make orders that will require the ICL to provide to that service copies of the report of the Department and also the reports of Dr D to ensure that the service is well aware of the very serious matters that give rise to the mother’s concerns.  Those documents, together with a copy of my orders, will be required to be provided to that service prior to it commencing to supervise the father’s time.

21. The second issue that I am required to determine is the question of the father’s communication with the child’s treating health professionals.  Previous orders made in the Court on 14 May 2015 provided that the mother authorise any medical practitioner upon whom the child attends from time to time to communicate with the father in respect of the child’s medical condition and/or requirements.  The mother was also required to provide to the father a list of all allied and medical practitioners upon whom the child has attended from 1 January 2014 to date. 

22. The father complains that the child’s health practitioners have not communicated with him or have refused to communicate with him, notwithstanding those orders. 

23. During the course of submissions, counsel for the mother conceded, quite properly, in my view, that, indeed, the authorisation given by the mother to the health practitioners was a verbal authorisation only.  In my view, it is likely that those practitioners have not been enabled to act on that authorisation, as they would have no record on their files of the mother’s authorisation to them to communicate with the father.  Accordingly, I propose to make orders that will require the mother to provide written authorisation to the medical practitioners, and that such authorisation be provided by 4.00 pm this Friday, 4 September. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 1 September 2015.

Associate:

Date:  1 September 2015