Bale-Sutch and Bale-Sutch (No. 3)

[2009] FamCA 726

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH (NO. 3) [2009] FamCA 726

FAMILY LAW – CHILDREN – Notice of risk of child abuse – Invitation to Department of Human Services to intervene

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Bale-Sutch

RESPONDENT: Ms Bale-Sutch

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 31 JULY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 31 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR BARBAYANNIS

SOLICITOR FOR THE RESPONDENT: WISEWOULD MAHONY LAWYERS

Orders

1. That until further order, paragraphs 15, 16 and 25 of the orders made on 18 February 2009 are suspended.

2. That all outstanding applications be adjourned for final hearing as the fourth case in the list commencing on 21 September 2009 for a period of two days.

3. That the wife’s legal practitioner this day provide to the husband a copy of the photographs marked “W1”.

4. That pursuant to s 91B of the Family Law Act 1975 (Cth), the Director-General of the Department of Human Services for the State of Victoria is requested to intervene in the proceedings and for that purpose the Department be provided with:

   (a)     a copy of the judgment made on 18 February 2009; and

   (b)    the affidavit material filed by the parties subsequent to that date.

5. That pursuant to Section 68L(2) the Family Law Act 1975 the children S born … December 1997 and R born … February 2000 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation with a request that the previous Independent Children’s Lawyer be reappointed if practicable.

6. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. That the wife file any Notice of Risk of Child Abuse upon which she is advised to rely by 4.00pm on 7 August 2009.

9. That all parties have leave to issue up to five subpoenae to produce documents returnable on a date to be fixed by the Registrar.

10. That the file is referred to Registrar Field for the appointment of a registrar to manage the file and hold a telephone mention as soon as practicable to make orders in readiness for trial in September 2009.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the reasons be released as soon as practicable.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800  of 2007

MR BALE-SUTCH

Applicant

And

MS BALE-SUTCH

Respondent

REASONS FOR JUDGMENT

1. Mr Bale-Sutch said that this Court has done nothing about its orders for five years.  In addition to the Court, he blames his former wife Ms Bale-Sutch for the fact that he cannot have a sensible relationship with his two children S born in December 1997 and R born in February 2000.  In my view, sadly, the father is the one who is out of step. 

2. On 18 February 2009 after a three day defended hearing at which the father was represented by counsel, I made final parenting and property orders between the parties and gave written reasons for my judgment.

3. The time to be spent by Mr Bale-Sutch to whom I shall refer in these reasons as “the father” was to be built up slowly and under supervision.  The father had not seen the children for a long time pursuant to court orders.  In my orders, I provided for Ms Bale-Sutch to whom I shall refer in these reasons as “the mother” to facilitate the father and sons’ relationship by delivering them to an appointed place where they were to be met by the supervisor.

4. There were a number of difficulties that gave rise to the logistics of the order as well as their substance.  The father was awaiting criminal court proceedings which included matters associated with violence.  The father did not have a motor car licence and lived three hours away from the mother in circumstances where the public transport would not have made any time between father and sons practicable. The relationship between the father and children was virtually non-existent and had to be commenced from a very low comfort base on the part of the children.

5. Specifically in the orders, I provided for the Independent Children’s Lawyer to nominate a supervisor of the sessions between father and sons.  That was to give comfort to the children and give them an opportunity to develop a relationship that had been sadly lacking.  As I said, the father blames the Court and the mother for that situation but my reasons for judgment in February make it abundantly clear that that was not so.

6. The application before me that gave rise to these reasons was the second hearing subsequent to the final orders in February 2009. 

7. The first hearing was an application by the father for the mother to be dealt with for contravention.  Two allegations were made and they were dismissed.

8. This application culminated in orders being made on 31 July 2009 at which time I indicated that I would give comprehensive reasons.

9. The mother sought to suspend the February contact orders on the basis that the children were at risk from their father.  That was her amended application.  Her initial application was for the orders to be varied so that the supervision that I had provided for in the February orders be extended.  An incident on 17 July 2009 changed all of that.

10. The father’s application was simply to dismiss the mother’s request for suspension or variation of the orders on the basis that my orders should stand and he should have his time with his sons according to my comprehensively prepared program. 

11. From a factual point of view, the starting point is the orders that I made in February. I have already mentioned the criminal proceedings and the supervision. It is common ground between the parties that the criminal proceedings came to an end with the father doing a “deal” with the prosecutor under which he pleaded guilty to certain charges and received a suspended sentence of imprisonment.  The problem however lay with the question of the supervision.

12. In my orders, I provided for the father to spend time supervised by a nominee of the Independent Children’s Lawyer on a build-up basis and once the criminal proceedings were out of the way (and any custodial sentence imposed against the husband completed) and upon the supervisor advising the wife in writing that the children did not need supervision, the husband was to spend time with the children on each alternate weekend from the conclusion of school on the Friday until 6.00pm on the following Sunday.

13. The parties did not seem to be even able to agree on who the supervisor was.  The father said that the orders were unclear.  I disagree.  I made a provision for the Independent Children’s Lawyer to nominate the supervisor.  It transpires that a shire council community service manager appointed Ms N to be the person who undertook the task at the expense of the father.  Ms N kept comprehensive notes and pursuant to a subpoena issued by the father, attended the hearing before me on 31 July 2009 and gave evidence.

14. The orders in February provided for Ms N to notify the wife in writing that the children did not need supervision.  Ms N did not do that but her supervisor at the shire council wrote something along those lines.  The father interpreted that as meaning his supervised time was over and he could collect the children for his alternate weekends.

15. On hearing the evidence of Ms N, I am quite satisfied that she did not believe that there was a comfortable relationship between father and sons as at May 2009 although she was certainly acknowledging that the children were not at risk of harm from their father.  Her view was that at that time, the relationship was just starting but she would not have countenanced overnight time between father and children as had been envisaged by the court order.

16. The dilemma therefore was that it was not Ms N who was making the decision but rather her supervisor and on a different basis to that which I had contemplated under the orders. 

17. Before turning to what happened thereafter, it is interesting to look retrospectively at what gave rise to Ms N’s view.

18. Ms N first met the children on 1 March 2009.  Her first visit was such that the children responded in one word answers.  That was for two hours.

19. On 29 March 2009 over a period of four hours, things were a “bit better” but still confined to one word answers.  Ms N pointed out that that might very well have been the nature of the children at that age but she did concede that there was little that was comforting in the relationship between father and sons.

20. By the third visit which occurred on 12 April 2009, the child R told her that he did not want to go unless she was present.  The remarkable thing about that was that the child was opening up to the supervisor rather than to his father. 

21. By the visit of 24 May, the children seemed reluctant to do anything and if anything was suggested, they would do the opposite.  Again in fairness, Ms N put that down to the nature of the age of the children.  She described the father’s interaction as quiet and pleasant but importantly, she saw him as trying to get to know his own children.

22. On any view, the children were not comfortable with their father by the end of May.  Ms N was prepared to stay overnight if that problem was still present.  Clearly, the relationship with Ms N and the children was sound.  Ms N was at pains to point out that the children did not know their father.  She said at times they enjoyed what they were doing and there was no concerns about safety.  She confirmed the recommendation to move to the next phase of unsupervised time was made by her supervisor. 

23. Importantly, Ms N said that she was told that her function was to make the situation for the children safe and ensure that “Dad did the right thing”. 

24. When I asked Ms N whether perhaps it was ambitious to move to unsupervised time when her own supervisor suggested it, she agreed on the basis that the children just did not know their father.

25. From a sensible parenting point of view therefore, removing Ms N would not have helped the children foster any form of relationship with their father that was long absent.  When I asked Ms N about any affectionate nature between father and children, the closest she could point to anything was a shake of the hand between father and son. 

26. In the proceedings that led up to February 2009, the father had undertaken an anger management course, parenting course and also been assessed by a psychiatrist.  Even armed with that information, his relationship with his children was still very limited and the children were very unsure.

27. The father’s position was clear.  He had been given the green light by the council and he was going to ensure that his rights under the order were fulfilled.  His abrupt and dogmatic approach gave rise to what then unfolded.

28. On 17 July 2009, the father attended at some time after 3.00pm at the primary school of the children.  He went to the principal’s office.  The principal was then on long service leave but his place was being filled by the assistant principal.

29. The evidence of what happened thereafter is very contentious and very much unclear and will be the subject of future proceedings.  I am told by the father that the police are investigating something but exactly who they are investigating and what will come out of it remains to be seen.

30. According to the assistant principal in a file note or letter which is attached to the affidavit of the wife filed 24 July 2009, the following occurred:

    The boys were called over to the office to come with their bags.  [R] came to the glass door saw his father was there and ran to tell [S] who was over getting his bag.

    I saw [the father] and went outside to see where the boys were.  [The father] followed me over to the bag area where [S] was sitting on the ground.  Both boys made it very clear to me that they did not want to go with their father.  I tried to talk [the father] out of taking the boys, but he insisted.  After further discussion between us all, [the father] said he was taking them whether the boys wanted to go or not.  [The father] then grabbed [R] by the wrist and [S] under the arms, lifting [S] off the ground. 

    The boys insisted they were not going with [the father].  [R] managed to get away from his father and ran off.  [The father] continued to “carry” [S] quite forcefully through the school grounds across the road and dump [S] at the bus stop across the road.  During the time [S] was being carried he was kicking and calling out for someone to save him or help him.

    I followed across the road and tried to reason with [the father] to leave the boys at school.  During this discussion [the father] asked me to call a taxi for him.  I refused. He asked me to bring [R] to him.  I refused.  Discussion was at a standstill and further talk was fruitless. 

    I walked across the road back to the school and went to ring the police.  I was unaware that [the father] must have decided to follow me, because at that stage [S] up and ran across the road and ran into my arms before I reached the office.  [S] and [R] were kept safely in a staff room while I rang the police.  The police arrived within about 10 minutes.

31. The wife relied upon an affidavit of L who is a sergeant of police at the local Police Station.  Mr L swore his affidavit on 27 July 2009 saying that he had interviewed the boys in relation to “incidents they allege occurred on that day” and he then attached their statements.  I do not propose to treat the statements as evidence of the boys but rather as evidence of what the boys told the police officer.  I do not propose to rely on the entire contents of those statements however.

32. S told Mr L that his father grabbed him by the shoulders under his armpits and was dragging him towards the school gate.  He was screaming and his father put his hand over his mouth.  He said his father rammed him into a metal tab at the front gate and it hurt.  He said he went through the gate and made him sit on the ground where he was crying.  He said he tried to stand up and his father pushed him down again.  He said his father grabbed him again under the arms and around the chest from behind.  He said he was pushed on the ground onto the gravel on his face and stomach and his father put his body on top of him and covered his mouth with his hand and he squeezed out from underneath him whereupon his father grabbed him by the arm causing a bruising to which he pointed.  He said he had a fresh scratch on his left cheek and bruising under his armpits and his back was bruised.  He said his right upper arm was bruised as was his thigh.  He said he was scared of his father who had been really rough with him and swears at him. 

33. R told Mr L what he saw of his father taking S out of the school grounds.

34. As a result of the telephone call of the assistant principal, the wife attended at the school and immediately took the children to a doctor.  There is considerable dispute about whether it is the doctor that the wife usually goes to but her sworn evidence was that that was so.  She then took photographs of what appear to be scratches and bruises and those have been tendered as an exhibit.

35. When the father was handed a copy of the photographs for his examination, he responded by saying that the injuries were caused by the mother.  I then permitted the mother to be called to give evidence about that particular allegation and the sequence of events.  She gave evidence that she had not inflicted the injuries on the children and that she had attended the doctor within 15 minutes of leaving the school ground.  Although it is early days and the evidence remains untested, the implausibility of the allegation of the father ought to be obvious.  If it turns out that he in fact caused these injuries by rough handling of the children in an endeavour to enforce what he sees as his rights under a court order, it will reflect very poorly upon him. 

36. The father pursuant to a subpoena that he requested be issued, called the school principal who on the day of 17 July 2009 was on long service leave.  He was called in.  When he arrived, police were in attendance.  He could add little to what had occurred because he was obviously not present.  However, the principal told me that subsequent to this incident, the school community was concerned and he had spoken to both children who expressed a desire not to have time with their father and were clearly in fear.  He said as a result of what he and the assistant principal and class teacher had discussed, the children were to be referred to the school counsellor for emotional assistance.  When given an opportunity to call this evidence, the father simply wanted to show that the school had been admonished by its superior departmental officers for effectively interfering in parenting matters on a number of occasions.  Whatever may have been the position, the relevance of any evidence must relate to the period subsequent to February 2009.  The principal indicated to me that he had had virtually nothing to do with the father subsequent to February nor should he have had to do so because of the fact that the time between father and sons was under supervision in the father’s home area. 

37. The father questioned the principal about behaviour in his son which was noted in a school term report as “quite silly and unacceptable” but the principal said that the child was normally “pretty good” and he did not imagine that the problem could not be modified.

38. In so far as the father has a distorted view of what actually happened after he returned to the school grounds at the time that the police arrived, the principal’s view was that the children were taken to a staff room whilst the father and he and the police discussed matters.  It was from the staff room area that the children were taken to the doctor by their mother.

39. The principal also agreed with the father that in the presence of the police when the father demanded that the police do a “welfare check” on the mother or the children, the police officer refused.  Quite frankly, I am not surprised.

40. It is quite clear from the evidence of the school principal that the school is concerned about the welfare of the children and the approach of the father on 17 July 2009 was simply wrong.  He caused the problem.  In an ironic twist, the principal said that he would love to sit down with the father and assist him to sort out the problem but I suspect the father’s belligerent attitude which includes making complaints (as he sees them) to anybody he can as a citizen, will make that olive branch very difficult to be accepted.

41. It is not possible for me to make any finding on this evidence as to whether or not the children were physically harmed by the father deliberately or whether it was accidental as a result of his ineptitude in handling the situation.  It probably matters little in this case because the emotional harm that he did to the children was appalling.  That evidence is clear from the mother, the principal, Sergeant L and the assistant principal.  The evidence of Ms N would make it obvious why the children would now be so disconcerted by their father’s behaviour.

42. Counsel for the mother suggested that the father should be ordered to undertake a psychiatric examination, an anger management course and a post-separation parenting course.  He has already done all of those things prior to the orders and if his behaviour on 17 July 2009 is any indication, he has learned little.  The evidence of Ms N would suggest that there is no emotional attachment between father and sons and it cannot be said that that has anything to do with court orders.  Ms N’s evidence is that he has little skill in working out how to approach his own children.  That is evidence from the fact that she has no difficulty in acting as the security blanket for the children and can communicate with them.

1. Because of the fact that I was uncertain as to whether or not it was being alleged by the mother that the father’s behaviour was deliberately wilful in hurting the children, I propose to direct that the mother file a Notice of Risk of Child Abuse which will no doubt activate the involvement of the Department of Human Services.  The father complained that the assistant principal had written a letter to which I had earlier referred.  It is clear however that the assistant principal did exactly what she was required as a matter of law to do.  She recorded the facts as she saw them and whether she is right or wrong is a matter for another day.

2. The overwhelming evidence in this case is that the children have now had a setback from what was going to be a slow path to a relationship with their father. Only the father can resolve that problem by beginning again. Fortunately for him, Ms N is willing to continue her work but I am not prepared at this stage to simply ignore what happened on 17 July until an opportunity can be undertaken for the matter to be comprehensively re-examined.  I propose to allow some days for this matter where all of the evidence can be tested.

3. I have given thought to the issue of Rice v Asplund (1979) FLC 90-725 but I have no doubt there is every basis to reopen the proceedings because of the fact that the children have now had a setback as I have described.

4. Because of the behaviour of the husband, I propose to make an order under s 91B of the Act inviting the Department of Human Services notwithstanding a notification may or may not have been made to intervene in the proceedings because the school may have a view about whether the children should be put in a position of fear as is the perception at the moment. I propose also that the Independent Children’s Lawyer be reappointed if possible rather than a new Independent Children’s Lawyer so that I can have an independent voice who may or may not desire to pursue a family report. These children have been through enough social science prodding and may ultimately have to face more if the police investigation goes on. The principal of the school indicated that he was aware that the police have visited the school and wanted to talk to a number of people about what had happened. The father’s response to all of that is that the police officer is a person who has a set against him and is not objective. Again, without making any finding as to fact, it would appear to me that the father is the one who is out of step.

5. It is also important to not lose sight of the fact that the father is making an allegation against the mother that in a very short space of time, she injured these children deliberately for the purposes of her own case to cut him out of the lives of the children.  For him to make such an assertion will require him to file the appropriate notice and if necessary, he can invite the Department of Human Services to investigate the situation under their own state mandate.

I certify that the preceding Forty Seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  4 August 2009