BAILEY & HUPPATZ

[2016] FamCA 332

FAMILY COURT OF AUSTRALIA

BAILEY & HUPPATZ [2016] FamCA 332

FAMILY LAW – CHILDREN – where the father seeks unsupervised time with the child – where the Court does not consider it in the child’s best interests for supervision to be abandoned – where there is a risk of psychological harm – where orders are made for time with the father to continue on a supervised basis.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Bailey

RESPONDENT:	Ms Huppatz
INDEPENDENT CHILDREN’S LAWYER	Denise M Rieniets & Associates Pty Ltd
FILE NUMBER:	ADC	2754	of		2015

DATE DELIVERED: 3 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 3 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Paul Kirk Roberts and Co

COUNSEL FOR THE RESPONDENT: Mr Roberts

SOLICITOR FOR THE RESPONDENT: Legal Services Commission of SA

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rieniets

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise M Rieniets & Associates Pty Ltd

Orders Pending trial

1. The child B born on … 2005 (“the child”) do live with the mother.

2. The mother be restrained and injunctions are hereby granted restraining her from:

   2.1changing the child’s principal place of residence from the metropolitan area of Adelaide;

   2.2permitting, allowing or encouraging the said child to have contact with the person known as “Ms C” as referred to in paragraph 88 of the mother’s affidavit filed 13 October 2015.

3. The child do spend time with the father as follows:

   3.1on each Saturday between the hours of 10.00 am and 4.00 pm;

   3.2at such other times as agreed between the parties in writing and with the consent of the Independent Children’s Lawyer

   PROVIDED THAT such time is supervised by a person who is agreed between the parties in writing.

4. The father has liberty to apply to the Court if the parties are unable to agree upon a nominated supervisor.

5. The father be restrained and an injunction is hereby granted restraining him from consuming alcohol twelve [12] hours prior to or during any period of time with the said child.

6. The parties are restrained and injunctions are hereby granted restraining each of them from:

   6.1discussing these proceedings with the said child or allowing any other person so to do;

   6.2denigrating each other in the presence of the said child or allowing any other person so to do.

7. The mother do keep the father informed of all medical, psychological or health related appointments for the said child.

8. This order shall stand as an Irrevocable Authority to permit the father to liaise with the treating professional pursuant to paragraph 7 herein and to obtain information in relation to the said child.

9. The parties be at liberty to communicate with each other via email in relation to matters pertaining to the said child.

10. Each party do advise the other as soon as possible in the event that the said child requires hospitalisation or urgent medical treatment.

11. The parties attend a Family Dispute Resolution organised by the Legal Services Commission as notified by the Independent Children’s Lawyer.

12. The mother is restrained and an injunction is granted restraining her from facilitating the child B (“the child”) born on … 2005 attendance upon any psychologist, social worker, counsellor (or any agency employing such health professional) or psychiatrist without the prior written consent of the father and the Independent Children’s Lawyer SAVE AND EXCEPT the child is permitted to continue treatment with the psychologist, Ms D, as the psychologist recommends PROVIDED THAT any report made available to the mother or the Independent Children’s Lawyer is also made available to the father UPON NOTING the father is at liberty to contact the psychologist, Ms D, to provide her with information and request her to provide him with reports.

13. Leave is given to the Independent Children’s Lawyer to release to Ms D the report of the family consultant for her consideration.

14. The father’s Interim Orders Application filed on 24 July 2015 is dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bailey & Huppatz 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 2754 of 2015

Mr Bailey

Applicant

And

Ms Huppatz

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I strongly recommend the parties reach some agreement concerning the resolution of this matter.  However at the moment I am faced with making interim orders which have to be made taking into account the material in the affidavits of the parties and now the family consultant’s report, which is annexed to the Independent Children’s Lawyer’s affidavit filed on 19 April 2016 (presumably served shortly thereafter). 

2. That is the last document which was on the Court file.  That report is the significant in the matters which are argued before me today, but it still raises considerable issues in relation to a final determination of the matter. 

3. The principles of Goode & Goode (2006) FLC 93-286 require me to do what I can in relation to applying the provisions of s 60CC and determining what is in the best interests of the child, taking into account the matters which are agreed or the facts which are established and those which are not agreed and which have not yet been established.

4. The family consultant’s report concerned the determination of that opinion after interviews with the parties and the child and a brief interview with one of the father’s supervisors.  This all concerns the issues in relation to the welfare of the child, the daughter of the parties who is now aged 10.  The detailed family consultant’s report is some 30 pages and concludes with recommendations which include that:

   Unless new evidence comes to light regarding the allegations of sexual offending by the father, then the child spend unsupervised time with the father each Saturday for four occasions from 10 am until 2 pm (four hours per week).  Thereafter, the child to spend time with her father each alternate weekend on either a Saturday or a Sunday for an extended period of time, that is, 10 am until 7 pm, allowing both lunch and dinner to be shared together or a similar period of time.

5. It then continues with recommendations that the child continue to engage with Ms D and a copy of this report to be provided to any therapist working with the child and current orders relating to the person named “Ms C” to remain long-term. 

6. There has been no opposition to the injunctions in relation to the person named “Ms C” continuing, and I have made those orders. 

7. Paragraph 3 was the order of 2 February 2016 which restrained the mother from taking the child “… to any psychologist, social worker, counsellor (or any agency employing such health professional) or psychiatrist, without the prior written consent of the father save and except as it relates to [Ms D] …”.  I propose to continue the order in terms of paragraph 3 of my order of 2 February 2016 which provided for any report being made about the child being made available to the father.  I also give leave to the Independent Children’s Lawyer to release to Ms D a copy of the report of the family consultant for her consideration.

8. The issues which need to be determined at the moment are the question of whether the time the father is to spend with the child the child is to be supervised or not.  As is clearly pointed out in the family consultant’s report, there remains significant issues to be determined.  When the child was interviewed by the family consultant, she said that she did not want to spend any time with the father.  Paragraphs 67 onwards deal with  some of the conversation the family consultant had with the child and includes at paragraph 70:

   [the child] stated that she now spent supervised time with her father.  She said, “I do, and I don’t like it,” explaining that she likes seeing her cat but didn’t like “looking at him”, and also stated, “to me, he (the father)just looks scary and can get really angry. …

9. It then continues to indicate that she did not “really feel safe” but she was not able to say why. 

10. It is in contrast, however, to the observations of the family consultant of the time the child spent with the father.  Although reluctant to attend, she agreed to do so and appeared to be relaxed and happy enough, showing no “overt discomfort” in the time she spent with the father (paragraph 77).

11. Under the heading “Evaluation” which begins at paragraph 78, the family consultant raises considerable issues which are still outstanding and have yet to be determined.  This included the risk of the child having been exposed to the high level of family conflict between the parties and the recommendation that there should be some attempt to rebuild a level of trust between the parties and the child.  It has a reference to concern which was not only held regarding the parties’ relationship but also the effect this issue would have on the child and her relationship with her father;  in particular, her sense of safety in his care, a burden of divided loyalties, a possibly feeling torn between her father and her mother and Ms E. 

12. To reduce the risk of psychological harm to the child in this case, it would be recommended that both parties be restrained from exposing the child to adult issues or allowing anyone else to do so, including the specific issues of Ms E’s alleged abuse. 

13. This is a reference, clearly, to the issue which remains outstanding.  That is an allegation made by Ms E, the child of the mother, who is now an adult that when she was approximately the child’s present age she was allegedly sexually abused by the father.  There has apparently been some steps taken in relation to Tasmanian Police inquiries, but the progress of those is still not known.  The mother remains concerned about the allegation made by Ms E and the impact this has upon her requirement currently for the time the father spends with the child to be supervised. 

14. Paragraph 80 of the family consultant’s report is as follows:

    Whilst multiple allegations between the parties remain as matters for evidence before the Court, both parties appear to be child-focused, responsible caregivers who have emotional control and an understanding of their child’s emotional needs, including the importance of parenting with sensitivity.  It also appeared that [Mr Bailey’s] alleged (and partly accepted) poor behaviours during the relationship and soon after separation had been enacted within a framework and context of an unhealthy marriage and extreme anger between the parties at times, and therefore the likelihood of these alleged behaviours being repeated were thought to have been minimised by subsequent time passed since separation.  It also appeared that the likelihood of the child being harmed due to violence perpetrated by either parent was able to be limited by maintaining orders that the parties not consume alcohol 12 hours prior to or whilst caring for the child.

15. Those latter orders I have just continued. 

16. It then continues to refer to the issues in relation to the parties’ alcohol abuse and mental health issues and the psychological help required. 

17. I take into account the continuing paragraphs of the evaluation of the family consultant.  Paragraph 83 in particular refers to the child informing the family consultant that she did not want to see her father again and felt scared in his care, particularly when unsupervised and contrasting that with the time she did manage to spend with him at the assessment and, in fact, appeared to enjoy this.  It then continues:

    …Of note, this was supervised and within a safe and restricted environment, however it did suggest that notwithstanding [the child’s] reservations about her father and her safety in his care, she did feel at the very least ‘conflicted’ in her feelings towards him, and to have an attachment base with him, of some quality. …

18. Taking into account other matters, it moves on to the question of supervision.  Paragraphs 85 and 86 state:

    85.        The issue which remained in dispute was that of supervision.  It was most unfortunate that [Ms F] was no longer available to supervise [the child’s] time with her father as no doubt this had provided the child with the emotional security she needed to date, when spending time with her father.  It could be argued that it was necessary to maintain supervision to reduce the risk of harm to the child in her father’s care, and also reduce the child’s emotional anxiety when in his care.  However, it could also be argued that supervision was not necessary, and that without any concrete evidence before the Court to validate [Ms E’s] claims of sexual abuse by the father, then the level of risk for the child in her father’s care was not unacceptable, particularly given the child’s older age, level of independence, the father’s mindfulness of the Court’s involvement, and the child’s limited time in her father’s care.  Further, it could be argued that in order for the child to ‘reality test’ her concerns about her father, she needed time spent in his care, without supervision, to create positive experiences and memories, and reinforce the belief that supervision was not required to ‘keep her safe’.

    86.        With all this in mind, it was the opinion of the Family Consultant that unless [Mr Bailey] was to be found guilty of sexual offending, that the level of risk of harm to the child in her father’s limited care (one day each fortnight) without supervision, was acceptable.  Notwithstanding, the Consultant was left with considerable concern that the child may be unwilling to commence unsupervised time in her father’s care, particularly if she developed and or maintained a sense that her mother was opposed to this, or any other people she looked to for guidance.  For this reason, it was considered essential for the effectiveness of this arrangement in the short and long term, for both parties to equally support this arrangement.  It would also be essential for the child to be supported by her Psychologist as per her needs, particularly through her early period of transition into supervised time with her father, and for a period of time thereafter.”

19. These are matters which will have to be determined by the Court when considering all of the evidence that the parties provide to the Court and after it has been appropriately tested. 

20. I am therefore not in a position at this stage to consider that it is in the child’s best interests for the supervision to be abandoned, even though the report suggested at this stage there be unsupervised time with the father, because of the risk that that might cause to her.  This is not necessarily a risk of any physical harm but a risk of psychological and emotional harm due to the previously referred to concerns that the child has expressed and that the mother has concerns (taking into account the history of the fractured relationship between the parties and the allegations which have been made by the adult child Ms E) about significant matters which are yet to be determined. 

21. I therefore am not in a position to make any order which would require the mother to hand over the child to the father for unsupervised time.  I propose to continue the orders which were in place and were made providing for the father to spend supervised time with the child, that put in place not only the names of the available supervisors at the time but the provision that the supervision be by such other person as is agreed between the parties in writing. 

22. I will give leave to the father to apply to the Court for the nomination of a supervisor if the parties are unable to agree the same.  The current orders provided for the time to be on each Saturday between the hours of 10.00 am and 4.00 pm.  If the father is able to find supervisors who are able to do each alternate Saturday or each alternate Sunday, between the hours of 10.00 am  and 4.00 pm, then that could be a sensible alternative which, on the face of it, seems clear that the mother is not opposing.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 3 May 2016.

Associate: 

Date:  11 May 2016