Buzenval and Hanter

[2010] FamCA 259

FAMILY COURT OF AUSTRALIA

BUZENVAL & HANTER [2010] FamCA 259

FAMILY LAW  -  CHILDREN  -  Magellan  -  interim time  -  supervision

Family Law Act 1975 (Cth)

FATHER: Mr Buzenval

MOTHER: Ms Hanter

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8443 Of 2008

DATE DELIVERED: 19 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 19 February 2010

REPRESENTATION

SOLICITOR FOR THE FATHER:

Mr Renwick

Kennedy Guy

SOLICITOR FOR THE RESPONDENT:

Ms. Altavilla

Altavilla Vessali

INDEPENDENT CHILDREN’S LAWYER

Mr. Myers

Forte Family Lawyers

Orders

1. That paragraphs (2), (3) and (4) of the orders made in the Federal Magistrates’ Court on 13 January, 2010 remain in full force and effect until further order. 

2. That pursuant to s.62G(2) of the Family Law Act 1975 a family report be prepared and released before 23 April, 2010.

3. That the parties attend a trial notice listing with the Magellan registrar on 5 May, 2010 at 2:15 pm.

4. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

5. That the reasons for judgment this day be transcribed and copies made available to the parties.

6. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES

That the paternal grandparents, Mr and Mrs Buzenval (Snr), gave oral undertakings to the court this day and the solicitor for the father undertook to file written undertakings signed by them in the same terms. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8443 of 2008

MR BUZENVAL

Father

And

MS HANTER

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Litigation between Mr Buzenval and Ms Hanter commenced with an application for parenting orders made on 15 September 2008, a year after their separation.  The parties’ children are M, born in June 2005, and N, born in February 2007.  As a result of allegations made in that earlier litigation, orders initially provided for the father’s time with the children to be supervised.  By 30 March 2009, the requirement for supervision had been dropped. 

2. The case was listed for trial before Bender FM on 13 July 2009 and, on that day, final parenting orders were made, by consent.  They provided for the parties to have equal shared parental responsibility for the children. A graduated regime was introduced;  by December 2009 the children were to spend alternate weekends (from Friday to Sunday) with the father, plus most of Wednesday until M started school.  They were also to be with their father for half of school holidays and on special days.  Other orders related to the mechanics of the arrangements.

3. At the time of the parties’ separation in 2007, the parties were living in a home owned by the paternal grandfather.  Following separation, the mother moved to a property a short distance away, to live with the father’s best friend.  That relationship continues.  It is unsurprising that the climate was one of hostility and distrust.  In those earlier proceedings, a family report was prepared by Mr. D.  He noted that the mother alleged violence and verbal and emotional abuse by the father during the relationship, and that it had been witnessed by the children.  The father alleged that he was constantly denigrated by the mother, particularly about his mild cerebral palsy condition.

4. A number of other allegations were made in that litigation.  The mother alleged that time with the father was traumatic for the boys;  they were neglected by him, locked in rooms, had difficulties separating from her. A neuro-psychological report about the father, prepared by Dr S, was before the court. 

5. This round of proceedings commenced on 4 November, 2009 when the father filed a contravention application.  He had not seen the children since 30 September 2009.  Pursuant to the orders of 13 July, 2007 the boys were about to commence overnight time with the father. 

6. On 1 December 2009, the mother filed an initiating application in which she sought that the father’s time with the children be suspended and that he see them at a Contact Centre.  She also sought the appointment of an independent children’s lawyer and that the case be placed in the Magellan list.  On the same day she filed a form 4 in which she alleged that the father had inappropriately touched M on his penis;  that he took M to the toilet and did not leave when asked to;  that he stayed in the toilet with M and held M’s willy;  and that M could not wee and was hurt.    

7. Before the court is a file note of a conservation between the mother and a police member on 23 November 2009, in which the mother related a conversation M allegedly had with her on 30 September, 2009 when she collected him after time with his father.  The mother made no complaint or report for some time after M’s alleged disclosure of abuse.  The mother is recorded in the police file note as having told police that when she collected the children on 30 September, M disclosed that his father had played with his doodle.  She said M referred to masturbation.  When the police member queried the capacity of a child of M’s age to use that sort of language, the mother initially said M was very advanced and watched adult programs.  Queried further, she said the programs were educational.  The note refers to her becoming flustered.  Finally, she alleged the father allowed the boys to watch adult movies, the inference being that M, aged four, learnt the word masturbation from that source. 

8. M was interviewed by police.  A summary of the interview is before the court;  the VATE tape has not been seen at this stage.  M made no disclosures of any form of inappropriate touching.  Asked why he thought he was there, he told police he was “here to speak about stinky [T] [T is his father’s first name] who lives around the corner”.  He said that stinky T was going to jail.  He told police members more than once when asked about touching, that stinky T touched him on the tummy and when asked to indicate, he touched his own tummy.  He alleged he had been given green food (perhaps meaning mouldy food) at his father’s house and made some reference to school, despite not yet attending school. 

9. On 10 December 2009, interim orders were made in the Federal Magistrates’ Court which provided for the father to spend time with the children on a number of days, supervised by the paternal grandfather.  The order notes that the matter was to be transferred to this court.  On 13 January 2010, further orders were made by Bender FM when the parties were before her on the listing of the father’s contravention application.  At that time, she ordered that the father spend time with the children on each Thursday, from 10:00 am. to 3:00 pm., and on N’s birthday in February, from 9:00 am. to 12:00 noon.  She ordered that the father’s time be supervised by either the paternal grandfather or the paternal grandmother and made orders about changeovers. 

10. On 11 December, 2009 Registrar Mestrovic made orders which provided for the appointment of an independent children’s lawyer and a DHS report.  Although the DHS report is dated 25 January, it was not received by the court until Monday or Tuesday of this week.  All counsel have referred to that report in their submissions.  Department of Human Services’ workers have not interviewed the father, or anyone connected with him.  In my experience with this list, that is unusual.  Department workers have not formally interviewed N and M, which may be appropriate, as M, at least, has already been interviewed by police.   

11. The DHS report summarises material provided to DHS by the mother, which is consistent with material in her affidavits.  In particular, DHS investigated advice from the mother that, on about 6 October 2009, a child-care worker, Ms F, had approached her and advised that M had disclosed at child-care that his father had touched his penis.  A letter from Ms. F, dated 20 November 2009, is annexed to an affidavit sworn by the mother on 1 December 2009, which was before the court on 10 December, 2009 when orders were made for supervised time with the father, and, again, when Bender FM made orders on 13 January, 2010. 

12. The court cannot say whether the child-care worker made a notification to DHS on or soon after 6 October, 2009.  If she is a teacher, the mandatory reporting provisions apply to her.  Whether she is or is not required to report a disclosure, the court would expect a worker who believes that a child in his/her care has been exposed to physical or sexual abuse to report their concerns.  In her letter, Ms. F wrote :

    On the 6^th October 2009, [M] was sitting at the puzzle table in the kinder room when I sat next to him to help him finish the puzzle.  During the time we were finishing the puzzle [M] started to tell me that he went to visit his dad [Mr Buzenval’s] house.  I asked him what things he and his brother do when they go and visit dad.  I asked if they go to the park or if they go to the shops. He then replied, “NO” sounding really upset.  I asked if he was ok.  [M] then replied, “Daddy hurt me on my willy”.

    I asked if he has told his mum [Ms Hanter] but he had no response.  I approached [the mother] about the situation she then explained what was going on. 

13. The mother deposed to having noticed a change in both boys’ behaviour after September 2009.  According to her, since contact with their father ceased they have both settled very well;  they listen more to their teachers and are happier than before.  They are less physically violent.  If this is so, it was the case when Bender FM made orders by consent on 13 January, 2010, when the mother and father were both legally represented. 

14. The DHS recommendation is that any contact between the father and  the children should be supervised by an independent person.  The author of the report is concerned about the mother’s evidence that the children have reported being threatened by their father.  DHS recommended that M recommence therapeutic counselling “to further explore his experience and assess his relationship”.  Recommendation (3) is in these terms :

    It is recommended that [the father] undergo a psycho-sexual assessment and participate in an appropriate offender program to further assess any risks he may pose to the children. 

15. As I said in the course of submissions, while allegations of abuse have been made, they have not been substantiated by a court.  No criminal charges are pending.  The father denies the allegations.  The author of the DHS report seems to assume the father’s guilt.  I am unaware of any sex-offender program which is open to a person who denies abuse and who has not been convicted of abuse. 

16. DHS, which seeks supervision by an independent person, relies on the father’s denial of the allegations as a reason such supervision is warranted.  In the civil and criminal spheres, a party or accused is free to deny allegations.  What this case needs is judicial assessment of all the evidence and a determination as to whether there is an unacceptable risk one or both of the children will be abused in the father’s care. 

17. I am unconvinced of the necessity for M to undergo some sort of therapeutic counselling, if the recommendation is based on an assumption he has been abused.  There is little point in counselling to assess his relationship with his father, unless his father is involved in it.  These issues can be considered by the person who prepares a family report. 

18. The independent children’s lawyer and the mother both advance a woman who is present in the courtroom as a potential independent supervisor, and submit she would be preferable to the father’s parents.  It is put by the ICL that she is a professional “personal carer”, that she lives close to both parties, that she could supervise at the times provided in the January orders, that the children are comfortable with her as she sees them on occasions, and that supervision would be at her home.  All those factors may mitigate in favour of her being an appropriate supervisor.  A number of other factors do not. 

19. When the father’s counsel was making his submissions, the proposed supervisor interjected, loudly and in apparent disgust, with the word “shit.”  A person who cannot contain herself in the formal environs of a courtroom, listening to a courteously put submission, is not someone who should supervise children’s time with a parent.  The interjection and her demeanour made her partisan position clear;  she is not, as asserted, independent, and would be a poor role model for young children.  Her partisan stand is corroborated by the advice that she would not be prepared to supervise the children’s time with their father at the father’s home, because it is “too unhygienic”.  She may or may not be right about the state of the house;  an assessment can be made of that in due course. 

20. The ICL expressed concern that the paternal grandparents are too close to their son to provide vigilant supervision.  Having observed the demeanour of the proposed supervisor, the court could have no confidence she would be an objective observer of the father or encourage and support the children’s time with him. 

21. I propose to order the preparation of a family report.  The court cannot guarantee a hearing in the June Magellan sittings.  There are five judge weeks of Magellan sittings in August.  If a family report is released in late April, the case can be made ready for either the June or August sittings. 

22. In terms of the law, I say only this.  The court has to balance the importance of protecting children from a risk of physical and emotional abuse with the importance of maintaining a meaningful relationship between children and their parents.  Numerous facts are in dispute between the parties.  The mother is now concerned about supervision to which she agreed a month ago.  She alleges that M has spoken of threats made by his father. 

23. There is a 16 week waiting list at the nearest supervised contact centre, which is Y Centre.  Private supervision is prohibitively expensive for most litigants.   

24. The court’s focus must be on the children;  it is their best interests which are paramount.  If ensuring their safety means no contact for four months until a place becomes available at Y Centre, that will occur. 

25. The court has not had an opportunity to test the evidence of the parties and cannot determine facts in issue.  Considering all the evidence, I am not satisfied that it supports any change to the orders made by the Federal Magistrate on 13 January 2010, including the orders for supervision. 

26. I will ask each of the paternal grandparents to undertake that they will supervise the father’s time with the children and be present at all times;  that they will terminate the father’s contact immediately in the event he speaks of any of the allegations made in this case, or exhibits any threatening behaviour, or in the event a child becomes unreasonably distressed.  The father’s solicitor will file signed copies of those undertakings. 

27. The court has not made findings about what has or has not happened.  It is often difficult for family members to accept that a child of theirs may have acted in an inappropriate way.  This court’s focus is on the best interests of children, which are paramount.  Parents’ and grandparents’ wishes and desires have to give way to those best interests.  Vigilant supervision is designed to ensure a child’s protection but it can also protect a parent from allegations of ongoing inappropriate conduct. 

28. I maintain the earlier orders on the basis the grandparents will put the interests of their grandchildren ahead of the interests of their son, and will abide by their oral and written undertakings.  An undertaking is a solemn promise to a court, for breach of which significant penalties apply.      

I certify that the preceding
27  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2010.

…………………………………………
Associate.