FAMILY COURT OF AUSTRALIA
Blann & Kenny [2021] FamCA 322
File number(s): SYC 8232 of 2018 Judgment of: MACMILLAN J Date of judgment: 21 May 2021 Catchwords: FAMILY LAW – CHILDREN – MAGELLAN – Allegations of sexual abuse – where the mother alleges that the father and members of his family have sexually abused one of the children of the relationship and poses an unacceptable risk to both children of the relationship – where that child is alleged to have made disclosures to the maternal grandmother that he has been sexually abused by the father – where the child thereafter made further disclosures to the mother, maternal grandparents and treating psychologist – where the mother and maternal family believe the child has been sexually abused by the father and the paternal family – where the child did not make any disclosures to Police or Family and Community Services – where the allegations were not substantiated – where the Court is not satisfied to the requisite standard that the child has been sexually abused by the father or by any other member of his family – where the Court is satisfied that orders for the children to spend time with the father would not expose them to an unacceptable risk of harm – where the children will gradually be reintroduced to the father through a combination of supervised time and with the support of family therapy.
FAMILY LAW – CHILDREN – Physical abuse – where the evidence does not support the conclusion that the children have been physically abused by the father – where orders are made that are contrary to an Apprehended Domestic Violence Order (NSW).
FAMILY LAW – CHILDREN – spend time with – where the mother seeks that the children spend no time with the father – where the father proposes spending supervised time with the children progressing to unsupervised and then overnights – where orders are made for the father to spend supervised time with the children progressing to unsupervised day time.
FAMILY LAW – EVIDENCE – Failure to call a witness – where counsel for the mother submitted that in circumstances where the father had not sought to adduce evidence from his brothers the Court should draw an inference that their evidence would not have assisted the father’s case [Jones v Dunkel (1959) 101 CLR 298] – where the father being self-represented provided a reasonable explanation for not having adduced evidence from his brothers – where the circumstances of this case do not permit such an inference.
FAMILY LAW – COSTS – where the ICL sought a contribution from both parties – where the father is legally aided – where the mother’s senior counsel appeared pro bono – where neither party have been wholly unsuccessful and their conducted would warrant an order for costs – where the circumstances in this case do not justify the Court making an order for costs.
Legislation: Evidence Act 1995 (Cth) ss 91, 140
Family Law Act 1975 (Cth)…
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CaseChat Overview and Summary
The court was required to determine whether the allegations of sexual and physical abuse were substantiated to the requisite standard, and if so, what orders were in the children's best interests. Specifically, the court had to assess the risk of harm to the children if they were to spend time with the father and consider the evidence presented, including disclosures made by the child to various family members and a treating psychologist. The court also considered the application of the *Jones v Dunkel* principle regarding the failure to call certain witnesses and the appropriate orders for costs.
Macmillan J found that the allegations of sexual abuse were not substantiated to the required standard, nor was there evidence to support the conclusion that the children had been physically abused by the father. The court was satisfied that orders for the children to spend time with the father would not expose them to an unacceptable risk of harm. The court applied the principles of determining the best interests of the child under the *Family Law Act 1975* (Cth), considering the evidence presented by both parties, the Independent Children's Lawyer, and the Magellan Report. The court noted concerns regarding the evidence of the mother and maternal grandmother but found the father and paternal grandmother to be forthright witnesses. The court also determined that the circumstances did not permit drawing an adverse inference from the father's failure to call his brothers as witnesses, as he had provided a reasonable explanation.
The court made consent orders discharging previous parenting orders. The mother was granted sole parental responsibility, and the children were to live with her. Orders were made for the father to spend supervised time with the children, progressing to unsupervised day time, with a gradual reintroduction supported by family therapy. The court also made orders regarding communication, parental responsibilities for medical and educational decisions, and international travel. Costs were not awarded to either party, and certain applications were dismissed. The matter was adjourned for mention to address further issues.
Orders
Orders of the court
SYC 8232 of 2018
BETWEEN:
MS BLANN
Applicant
AND:
MR KENNY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
21 MAY 2021
THE COURT ORDERS BY CONSENT THAT:
1. All previous parenting orders be discharged.
2. The mother have sole parental responsibility for the children B born … 2014 and C born … 2017 (“the children”).
3. The children live with the mother.
4. The father and the mother advise the other party of their respective residential address, mobile telephone number, and email address if they have not already done so, within forty-eight (48) hours of the date of these orders, and keep the other party advised of such details at all times and advise the other party by text message within twenty-four (24) hours of any change.
IT IS ORDERED THAT:
5. In the exercise of sole parental responsibility:
(a) the mother advise the father by email one (1) month prior to any proposed change to the children’s respective schools and/or any proposed medical treatment unless it is an emergency treatment in which case the mother shall notify the father by email or text as soon as practicable after the said treatment;
(b) As soon as practicable and in any event not more than seven (7) days after being so advised the father provide a response by email to the proposal to the mother;
(c) That the mother, having considered the father’s response to the proposal or in the event that the father has not provided the mother with a response within the seven (7) day period in accordance with Order 5(b) hereof may make the decision; and
(d) As soon as practicable and in any event not more than twenty-four (24) hours after making her decision the mother advise the father by email of her decision.
6. The children spend time with the father as follows:
(a) For twelve (12) consecutive visits of no more than 3 hours per week with such time to be supervised at a supervising contact centre (“the supervising service”) agreed upon in writing by the parties or in default of agreement to be nominated by the Independent Children’s Lawyer at the expense of the father and on days and at times as may be arranged with the supervising service;
(b) Within fourteen (14) days of the date of these orders the father and mother contact the supervising service agreed upon or in default of agreement the supervising service nominated by the Independent Children’s Lawyer and complete the intake process required by the supervising centre;
(c) Upon acceptance by the agreed supervising service or the nominated supervising service, the father and the mother forthwith authorise the supervising service to provide each of them with information relating to the supervised sessions;
(d) After the completion of the twelve (12) consecutive visits pursuant to Order 6(a) hereof each alternate Saturday from 10.00 am to 5.00 pm for a further three (3) calendar months with such time to be supervised by a responsible third person as agreed by the father and the mother in writing and failing agreement such time to be supervised by a private supervising service nominated by the Independent Children’s Lawyer at the father’s expense; and
(e) At the conclusion of the three (3) calendar month period pursuant to Order 6(d) hereof the children spend unsupervised time with the father each alternate Saturday from 10.00 am to 5.00 pm and changeover take place at a location to be agreed upon by the father and the mother in writing.
7. Until further order the mother facilitate the children making contact with the father by telephone or other electronic communication such as Facetime or Zoom at 8.00 am or otherwise as agreed in writing on each of the following occasions:
(a) Father’s Day;
(b) Christmas Day;
(c) New Year’s day;
(d) each of the children’s birthdays; and
(e) the father’s birthday.
8. The father be permitted to send letters, cards and gifts to the children’s residential address on special occasions including but not limited to each child on their respective birthdays and:
(a) The mother is to provide any letters, cards or gifts sent by the father to the children upon receipt of same; and
(b) The mother forward a photograph of the children with any gift received from the father to the father within twenty-eight (28) days of the gift being received.
9. Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer provide the father and the mother with the names and contact details of three suitable psychologists experienced in complex family law matters (“the Psychologist”):
(a) Within seven (7) days of receiving the names, the mother select one of the psychologists and advise the Independent Children’s Lawyer and father by email; and
(b) The mother within seven (7) days thereafter, do all things necessary, to obtain from the children’s general practitioner a mental health referral to the Psychologist for assessment and ongoing treatment for each of the children, as required.
10. In the event the Psychologist assesses the children as suitable for ongoing treatment then the parties shall continue to engage with the Psychologist for the purposes of the children’s treatment and ensure the attendance of the children at such times and for such appointments as are required by the Psychologist.
11. The parties and the Independent Childrens Lawyer are permitted to provide to the Psychologist the following documents:
(a) Judgment delivered 21 May 2021;
(b) The Magellan Family Report by Ms D dated 8 July 2020;
(c) ICL Exhibit 3 – Subpoenaed Notes of E Services; and
(d) If requested, the affidavit material filed in these proceedings.
12. That should a mental health plan not be available for each of the children then the parties shall pay equally the net costs payable to the Psychologist, for any consultation with the children.
IT IS FURTHER ORDERED BY CONSENT THAT:
13. The father and the mother each attend upon their respective general practitioner, within seven (7) days from the date of these Orders for a referral to a psychiatrist or psychologist under a Mental Health Plan and each attend the said psychiatrist or psychologist for assessment and treatment.
14. The mother forthwith authorise the children’s school and day care to provide the father with any information he requires to enable him to access the school Portal and digital newsletter.
15. The father is at liberty to obtain term reports for each of the children, newsletters, photographs, order forms or other documents relating to the children’s schooling directly from the school at his expense, and access the school portal for each of the children’s school from time to time, and this Order operate as authority for the schools to provide information to father about the children’s education.
16. The father and the mother be and are hereby restrained from denigrating each other and/or discussing these proceedings in the presence, or hearing, of the children, and both parties are to use their best endeavours to stop any third party from doing so.
17. The mother has the sole responsibility for giving consent to making arrangements for the application and issue of an Australian passport for each of the children.
18. Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) the mother is permitted to apply for and obtain the issue and renewal of Australian passports for the children under the provisions of the Australian Passports Act 2005 (Cth) without the father’s knowledge or consent.
19. Pursuant to section 65Y of the Family Law Act 1975 (Cth), the children are permitted to travel internationally with the mother, including outside the Commonwealth of Australia, without the father’s consent.
20. In the event that the mother intends to travel overseas with the children, or any of them, then the mother shall provide to the father by email no less than eight (8) weeks prior notice of her intention to travel with the children, or any of them, and shall provide the father with the following:
(a) Copies of any travel itinerary, airline tickets and booking confirmation; and
(b) Details of where the children will be staying including a contact number.
21. Within fourteen (14) days of the date of these orders the Independent Children’s Lawyer meet with the children in person at O Park, or another location as agreed with the mother.
IT IS FURTHER ORDERED THAT:
22. Until further order the father be and is hereby restrained from attending the children’s schools/day-care, school/day-care events, social events, extracurricular activities, including sporting events, without the mother’s written consent.
23. Until further order the father be and is hereby restrained from bringing the children into contact with Mr F Kenny and Mr G Kenny.
24. Unless agreed in writing between the parties, until further order the father be and is hereby restrained from:
(a) Attending at or being within 150 metres of the place of residence of the mother and/or the children;
(b) Attending at or being within 150 metres of any place of employment of the mother;
(c) Attending at or being within 150 metres of any school of preschool or extra-curricular activity attended by the children.
25. These orders are inconsistent with the Final Order - Apprehended Domestic Violence Order Case Number … made at H Town Local Court in NSW on 15 July 2019 as a result a copy of these orders be sent by the Melbourne Registry of the Family Court of Australia to the following:
(a) The Registrar of the Local Court of NSW at H Town in relation to Case Number … with a request that they be placed upon their file and brought to the attention of the presiding Magistrate; and
(b) The Domestic Violence Liaison Officer at H Town Local Police Station.
26. The question of the children spending additional day time and/or overnight time, holiday time and special occasions with the father, the discharge or variation of Orders 7, 22, 23 and 24 herein and the application of the father and the Independent Children’s Lawyer to restrain the mother from continuing B’s treatment with Ms M be otherwise reserved and adjourned for mention of the matter before Justice Macmillan at 10.00 am on 13 December 2021.
27. The Independent Children’s Lawyer application for costs is hereby dismissed.
28. The mother’s Initiating Application filed 20 December 2018 and the father’s Response to Initiating Application filed 28 February 2019 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.
29. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 the 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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