Bradley and Bradley

[2008] FamCA 738

FAMILY COURT OF AUSTRALIA

BRADLEY & BRADLEY [2008] FamCA 738

FAMILY LAW – CHILDREN - interim - supervised time with - best interests - allegations of sexual abuse

Family Law Act 1975 (Cth)

APPLICANT: Mr Bradley

RESPONDENT: Ms Bradley

INTERVENOR: Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

FILE NUMBER: SYC 2248 of 2008

DATE DELIVERED: 20 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT: Ms Cleary

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: Crown Solicitor's Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

Orders

PENDING FURTHER ORDER IT IS ORDERED THAT:

1. All previous parenting orders are discharged.

2. R born … December 2001 and T born … October 2004 spend time with their father for three hours on one day of each week on the following conditions:-

   2.1.The times at which that will take place be agreed upon between the parties or failing agreement be nominated by the Independent Children's Lawyer, which times are to be convenient to Ms W (“the supervisor”);

   2.2.Ms W supervise the children all time the children spend with their father;

   2.3.As soon as practicable and before the commencement of the children’s time with their father, Dr S explain to the children the effect of these orders and the Independent Children's Lawyer make the necessary arrangements for a meeting between the children and Dr S for that purpose and the father pay Dr S’s costs of that meeting;

   2.4.All fees payable from time to time to Ms W be paid by the father;

   2.5.The parties, Independent Children's Lawyer and the Department of Community Services each have liberty to restore this matter on seven days notice in the event that Ms W is unable to supervise the children’s time with their father.

3. The Independent Children's Lawyer prepare a brief, including the report of Dr S dated 20 June 2008 and Exhibit D and any other material the Independent Children's Lawyer thinks appropriate so that the supervisor is fully appraised as to the allegations of sexual abuse that have been made in this case.

4. The father when talking to the children, do so in a manner which at all times is audible to the supervisor. 

5. The time which the children spend with their father in the week which includes Father’s Day, if at all possible, be on the Sunday which is Father’s Day.

6. The time that the children spend with their father in the week in which the children’s birthdays fall, if practicable, be on their respective birthdays.

7. The time which the children spend with their father in the week which includes Christmas Day be on Christmas Day, if practicable, or if not, on a day as close to Christmas Day upon which Ms W is able to provide supervision. 

8. The matter be set down for final hearing for 6 days commencing on 19 January 2009 before Justice Benjamin. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2248 of 2008

MR BRADLEY

Applicant

And

MS BRADLEY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter is about what time R, a daughter born in December 2001 and T, a son born in October 2004, will spend with their father until the final hearing.  The hearing to determine what final parenting orders are to be made will be set down for six days commencing 19 January 2009.

2. The mother's proposal in respect of final orders is that the two children relocate with her to Sweden. 

3. The central concern in this case is sexual abuse allegations involving R and her father.

4. The recent history of this matter has been that for about the last six months there has been no face to face time and no communication between the children and their father at all, apart from an interview with Dr S for the purposes of preparing the Chapter 15 report.   There is now going to be another five months at least until judgment at the conclusion of the final hearing is delivered.  If the mother is successful, she will be going overseas with the children. 

5. Dr S has provided the Chapter 15 report dated 20 June 2008.  In it Dr S has reviewed a copy of the tape of R’s interview with JIRT and a copy of that is now in the possession of the Magellan Registrar.   Dr S details observations and comments about what is on the JIRT tape and those observations and comments appear at pages 21, 22 and 23 of his report.

6. The conclusion he reaches in the first full paragraph on page 23 of his report is that there is an unacceptable risk that R has been sexually abused by her father if the Court forms the view that the father's inappropriate contact with R was not accidental.

INTERIM APPLICATIONS

1. Counsel for the father filed an amended application for interim orders.  The father’s interim application suggests that there should be different periods of face to face time for each of the two children with T spending longer periods with his father. 

2. The effect of the times sought in sub-paragraphs 4.1 - 4.3, as set out below, would be that the children would be seeing their father face to face five times a fortnight: 

   4.1That the father spend time with T every alternate weekend from Saturday morning at 10am until Sunday evening at 6pm and that on each day that the father spends time with T that he spend time with R for a period of not less than 4 hours each day as agreed between the mother and the father and failing agreement from 10am until 2pm on  Saturday and from 2pm until 6pm on Sunday under the supervision of a person agreed to by the mother and the father and failing agreement a person nominated by  Dial-an-Angel.

   4.2That the father spend a period of not less than 4 hours each other alternate Saturday with the children under the supervision of a person agreed to by the mother and the father and failing agreement a person nominated by Dial-an-Angel for a time period of not less than 4 hours as agreed between the mother and the father and failing agreement from 10am to 2pm. 

   4.3 That the father spend time with the children each Tuesday evening from 5pm to 7pm under the supervision of a person agreed to by the mother and the father and failing agreement a person nominated by Dial-an-Angel.

3. The father pressed applications 4.4 which relates to him being able to go to school functions at H Public School;  paragraph 4.5 which seeks telephone contact with the children each day; paragraph 4.7 which relates to Father's Day;  paragraph 4.8 which relates to the children's birthdays;  paragraph 4.10 which relates to the upcoming school holidays; and then 4.10.1 and 4.10.2 and 4.10.3 relates to specific periods during the upcoming school holidays.  Those paragraphs are as follows:-

   4.4That the father be permitted to attend school functions at the [H] Public School upon providing the mother with not less than 2 days notice of his intention to do so.

   4.5That the father have telephone communication with the children each day that the children are living with the mother between 6pm and 6.30pm and that the mother telephone the father on his mobile telephone number 04[…] during this period.

   4.7From 10am to 6pm on Father’s Day 2008 under the supervision of a person agreed to by the mother and the father and failing agreement a person nominated by Dial-an-Angel.

   4.8For a period of not less than 2 hours on each child’s birthday.

   4.10During the September/October 2008 school holiday period:--

   4.10.1From 3pm on Saturday 27 September 2008 until 3pm on Monday 29 September 2008 under the supervision of the children’s paternal grandfather [Mr …].

   4.10.2From 3pm on Friday 3 October 2008 until 3pm on Monday 6 October 2008 under the supervision of the children’s paternal grandfather [Mr …]; and

   4.10.3From 3pm on Thursday 9 October 2008 until 3pm on Sunday 13 October 2008 under the supervision of the children’s paternal grandfather [Mr …].

4. It is the father's proposal that during the September/October 2008 school holidays the time that the children spend with the father would be supervised by the paternal grandfather and for that purpose the father has filed an affidavit by the paternal grandfather and the paternal grandfather has sworn an undertaking which has been filed.  Sub-paragraph 14.12, which is pressed by the father, seeks an order relating to Christmas Eve and Christmas Day.

5. Mr Moore on behalf of the Department of Community Services in his submissions put that there should be no face to face contact between now and the conclusion of the final hearing between the children and their father and I should take the path of least risk, they were his words, and allow only electronic communication monitored by the mother.

6. Ms Cleary on behalf of the mother also submitted that there should only be electronic communication.  In the alternative she said that if I found face to face time was warranted then she would propose that Ms W would be the most appropriate option of the proposals that I have been given, as a supervisor. 

7. Ms Karagiannis on behalf of the Independent Children's Lawyer submitted that I should make an order for two to four hours face to face time per week and that the supervision would be carried out by a professional service and in her final submissions provided me with details of Ms W’s CV and gave some indication as to what her availability was.

DOCUMENTS RELIED UPON

Father

1. The father relied upon his affidavit filed on 14 August 2008 and an affidavit of the paternal grandfather filed in Court on 19 August 2008. 

The Department

1. I have read the affidavit by Ms M filed 16 May 2008.

Mother

1. The mother relied upon two affidavits, one sworn 11 August 2008 and a further affidavit filed in Court on 19 August 2008. 

2. I also admitted into evidence the firsthand hearsay statement taken by the solicitor for the mother from R’s therapist, Ms K.

THE LAW

1. Section 61DA provides for a presumption of equal shared parental responsibility.  That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child and the presumption may be rebutted by evidence that satisfies the court it would not be in the best interests of the child to have equal shared parental responsibility.

2. The question of equal shared parental responsibility is not an issue that I need deal with today.  Section 61DA(3) provides that when the court is making an interim order the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making the order.  In this case, given the outstanding serious allegations, I conclude when making interim orders in this case, that it would not be appropriate for the presumption to apply.  It follows that I am not compelled to consider the matters in s.65DAA and I do not think it is appropriate to do so in this case. 

3. Given the outstanding serious allegations, I conclude that when making the interim orders that I have been asked to make in this case that it would not be appropriate for the presumption to apply.  It follows that I am not compelled to consider the matters in s 65DAA and I do not think it is otherwise appropriate to do so in this case. 

4. When making a determination in this matter s 60CA requires me to have regard to the best interests of the children as my paramount consideration when deciding what particular parenting orders to make.  I also have regard to the objects and principles in Part VII.

5. Sections 60CC(2), (3), (4) and (4A) set out matters which I need to take into account when determining what is in the children’s best interests.  I will deal with the statutory considerations later.

DR S’s REPORT

1. Dr S was asked some specific questions in relation to matters pertaining to what interim orders should be made.  A draft letter dated 18 July was handed to me on 23 July which asked Dr S two questions.  Those questions are set out in Exhibit D which is Dr S’s response to the questions.

2. Dr S also gave oral evidence by electronic means in the interim hearing.  His chapter 15 report dated 20 June 2008 was also before me. 

3. Dr S has recommended interim supervised time.  He said that the supervisor could be a relative if everybody consented but clearly that is not something that either the mother nor the Department nor the Independent Children's Lawyer have advocated.  Dr S was of the view that a service such as Dial an Angel was a better alternative than a child contact centre and that type of service would be more flexible.

4. Dr S said it was important to optimise the maintenance of the relationship between the children and their father given his assessment that there is a significant prospect that at least limited or quite constrained contact is likely to be allowed by final orders.  The doctor said that in the interim the time that he would recommend the children spending with their father would be weekly or fortnightly for two to four hours.  Whilst not eliminating electronic communication as a less vivid form of interaction between the children and their father, Dr S was of the view that if I ordered face to face contact on a weekly basis then additional electronic communication between the children and their father was not necessary.

5. He indicated that any supervision of electronic communication should not be kept a secret from the children.  He specifically addressed the issue of electronic communication in annexure D.  He opined that if the mother was prepared to undertake the monitoring she would probably do it in quite a sensitive and appropriate way but it would be helpful if there was somebody with whom she could debrief about these occasions both in terms of dealing with her own emotions and to assist her in making appropriate judgments during supervision of the electronic communication.

6. Dr S also opined that a family member, that is the mother's family member, might also be an appropriate option.  It seems to me that those options are problematic.  If I had formed the view that electronic communication was the only appropriate method of contact between the children and their father pending the final hearing then I would have had to have addressed those problems.  I have, however, concluded that there can be face to face time if properly supervised within the parameters of the risks that have been articulated by Dr S in this case.  I therefore do not think it necessary to make an order for electronic communications.  

7. Dr S was clearly of the view that the supervisor should be instructed that all communication between the children and their father should be audible, that is audible to the supervisor.  Dr S agreed that R’s weak point, if it turned out that there was an unacceptable risk that she had been abused, was that she wanted to see her father and it was unlikely that R would be willing to report anything untoward that happened during her time with him.

8. To my mind the emphasis on this weakness in R is adequately answered if a professional supervisor was attentive to the interaction between R and her father in the short term. 

9. Ms Cleary asked Dr S questions which in effect suggested that it would be better for the children, given the history of recent contact in the time to trial that they not re-engage with their father face to face.  Dr S did not agree with that, reaffirming his written opinion that even if the mother was allowed to go overseas there may be some communication between the children and their father ordered on a continuing basis and therefore an order for there to be some time in the next five months between the children and their father was warranted.

10. Dr S says in the event that the Court makes a finding that the likelihood that the father molested R exceeds the requisite standard that is unacceptable risk, then it is Dr S’s view that whatever orders are made for R should also be made for T.  This view is expressed in Dr S’s report and is also reaffirmed in oral evidence that that is his view in relation to the interim orders that should be made.

11. Dr S commented that R is at an age where she would be aware of issues of fairness and she would probably find it difficult to understand if her brother was seeing her father for longer periods than she was. 

12. Counsel for the father pointed to the fact that the mother's current proposal is that if she was allowed to go overseas she would come back to Australia and she would make the children available, face to face, with their father for particular periods. I do not place any significant weight upon that longer term proposal by the mother in the context of this application for interim orders. 

STATUTORY CONSIDERATIONS

1. In relation to the first primary consideration, Dr S at page 19 of his first report notes that the general principal, that children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural or education and relationship difficulties in the future, applies in this case.  He goes however to say that safety will need to be maintained and the children’s conflicted feelings about their father’s positive and negative attributes probably will need to be professionally managed.

2. It is the second primary consideration however, that is the focus of this interim hearing.  There is a need on an interim basis to protect the children from the possible physical and psychological harm of being subjected to or exposed to abuse.  Whether or not there is an unacceptable risk of the children being with their father is a matter that will be determined at the final hearing in January.  It is clear that there is evidence which, if accepted, could support a finding of that nature. 

3. When looking at the additional consideration the views of the children seem quite unambiguous that they wish to be able to spend time with their father.  The age of the children and particularly R’s immaturity and inexperience, are factors however which I have to weigh when assessing the children's expressed views.  Dr S opines that both children have historically had strong attachments to each of their parents.  He says R’s overwhelming feeling towards her father is one of affection and she is uncomprehending about whether or not her father could have hurt her.

4. That may have changed given the contents in her therapist’s report which is before me.  That therapy has taken place since Dr S wrote his first report. 

5. Dr S in his most recent report says that the attachment that T has with his father at T’s age may be jeopardised by not having any time with him in the next five months given the break that has already happened in the last six months, a break in which T has not had any time with his father. 

6. Dr S comments on the closeness of the two children's relationship and that feeds into his opinion that they should not have different amounts of time with their father.  Dr S is confident that the mother will abide by the Court orders and I have got no doubt that she will facilitate and encourage the children in participating in any order that I make. 

7. Apart from the issues surrounding the allegations of sexual abuse Dr S has formed the opinion that both parents have appropriate attitudes to the children and to the responsibilities to parenthood and both are capable parents.

8. Having considered the matters in s 60CC I have formed the view that it is on an interim basis in the best interests of both children to have the amount of face to face time with their father that is proposed by the Independent Children's Lawyer taking a mid-point of three hours per week. It follows from what I have said, however, that that time needs to be supervised by a professional supervision service. 

WHO SHOULD SUPERVISE?

1. In relation to who should do the supervision there is an issue as to whether or not that be Dial an Angel or Ms W who is an option that was proposed by the Independent Children's Lawyer at the conclusion of the submissions. 

2. Ms W’s details in respect of services, qualifications, experience and fees were handed up to me by consent.  Her curriculum vitae shows that she has a bachelor in social work and she is a woman of some maturity having obtained that degree in 1975.  She has worked for the Department of what then the Department of Youth and Community Services. 

3. The father energetically through his counsel sought that I order Dial an Angel.  Ms Cleary for the mother submitted that if there was to be face to face contact then the mother's position was that it be more appropriate for a more experienced person to be in the role of supervisor rather than somebody from a service such as Dial an Angel who may not be as qualified and who may not be the same person each time.

4. I have looked at the material in relation to Dial and Angel which counsel for the father has referred me to.  I am told that the rate at which Dial an Angel charges is something between $15 to $25 an hour but they charge a minimum of four hours.  There is a costs differential in relation to the two proposals.  It appears that a weekly period of three hours for Ms W would cost about $210 plus she would charge for travel time. 

5. Exhibit C which has been tendered before me today corrects the representation that was made by counsel for the father to me yesterday.  I was told yesterday the father's gross income was $8000 per month; in fact that is his net income.  His correct gross income is $150,125 per annum for the most recent financial year ending June 2008.   I was told that he pays $1900 a month in child support and $2350 per month in mortgage repayments. 

6. The mother has filed a statement of financial circumstances.  Her income is wages, family tax benefit and child support and her financial statement indicates that that amount is almost fully expended, although I noted that there is a weekly provision for holidays of almost $200 per week.

7. None of those matters have been the subject of any testing before me.  However, it seems apparent that the husband's income significantly exceeds the wife's income.  The wife has the ongoing responsibility for paying for the two children from income that she receives, which of course includes child support.  It seems to me that the father is far better placed to pay the costs of supervision and I am, based on exhibit C, totally comfortable in finding that he has the ability to pay for whichever service I choose.

8. Counsel for the father strongly submitted that Dr S did not consider Dial an Angel an inappropriate supervisor and as I have already mentioned Dr S endorsed that type of professional service over the more rigid arrangements that are provided by child contact centres.  Unfortunately the proposal made by the Independent Children's Lawyer at the end of final submissions was not the proposal that was on the table at the time that Dr S was giving his oral evidence.  However I have looked at the qualifications of the person who is being proposed by the Independent Children's Lawyer and it seems to me that given the risks in this case that person should be employed if the parties have the capacity to do so and I find that the father does have that capacity.

9. In relation to the September holidays, the father's proposal includes a proposal that the children spend consecutive overnights with their father, supervised by the paternal grandfather.  The mother raises concerns about the paternal grandfather being an appropriate supervisor and I am not satisfied, at this interim level without there being any testing of the allegations in this case, that the paternal grandfather would provide adequate supervision for consecutive overnights to cover the level of risk that exists in this matter if the allegations are substantiated at the final hearing.

PROPOSED ORDERS

1. There was an issue raised as to whether or not R should be spoken to before my orders were implemented and there was an issue as to who should do it.  The two options were Ms K and Dr S.  I accept the submission by counsel for the father that Ms K has adopted as an assumption the fact that the allegations that R has been abused by her father are true.  Her therapy is based and predicated on that assumption. She is also of the view that the minor gains that she has achieved in therapy would be jeopardised if face to face time took place in the short term.

2. Dr S did not agree with that assessment.  Given that the orders that I will make are substantially in line with the orders suggested by Dr S, my view is that it should be he rather than Ms K to explain it to R.  

3. I was informed yesterday that Dr S would be available next week to speak to R about the arrangements that I have ordered and I shall order that that happen and that the Independent Children's Lawyer make the necessary appointment and arrangements for that to happen.

4. I will also order that the Independent Children's Lawyer prepare a brief, including Dr S’s report and any other reports and any other material that the Independent Children's Lawyer thinks is appropriate so that the supervisor is fully appraised as to what the allegations are. 

5. I also intend to make an order that all conversations between the children and their father during supervised contact time be audible to the supervisor.

6. I make no order in relation to school functions at H Public School.  Nobody made any submissions about that application.  I note I have not been asked to restrain the father from going there.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  1.9.2008