CAIMHEUL & BURCHELL

[2015] FamCA 984

FAMILY COURT OF AUSTRALIA

CAIMHEUL & BURCHELL [2015] FamCA 984

FAMILY LAW – CHILDREN – Interim orders prior to interim parenting hearing– Change in circumstance – Allegations of sexual misconduct – Risk of harm to the children.

Rice & Asplund (1979) FLC 90-215; (1978) 6 Fam LR 570.

APPLICANT: Mr Caimheul

RESPONDENT: Ms Burchell

INDEPENDENT CHILDREN’S LAWYER: Ms Nielson

FILE NUMBER: SYC 2792 of 2014

DATE DELIVERED: 20 October 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Silva of Andrew Lee Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Sivasothy of Family Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ryan for Ms Nielson of Legal Aid NSW Parramatta Family Law

Orders

1. The partly handwritten and partly typed document headed Minute of Proposed Order by the Independent Children’s Lawyer shall become Court’s Exhibit “A” in today’s proceedings.

2. By consent and pending further order, orders are made in accordance with paragraphs 1 to 4 of Court’s Exhibit “A”, such orders being:

   1.Orders 2.1, 2.2, 2.3, 2.10, 3 and 6.1 of the final consent orders made in the Sydney Family Court on 27 February 2015 are suspended.

   2.The children shall spend time with the father each alternate weekend from 4pm Friday until 3pm Sunday commencing on Friday 23 October 2015.

   3.For the purposes of changeover, the father shall collect the children from B Town Railway Station at the commencement of his visit and shall return the children to the mother at Suburb C Railway Station (commencing on Sunday 25 October 2015 and each alternate visit thereafter) and Suburb D Westfield (commencing on Sunday 8 November 2015 and each alternate visit thereafter) at the conclusion of his visit.

   4.On a without admissions basis, the father and the mother are injuncted from:

   (i)Taking the children to any medical practitioner, counsellor, Police or health professional for the purposes of investigating any allegations of sexual abuse of the children without the written consent of the mother and the Independent Children’s Lawyer or an Order of the Court;

   (ii)Allowing any other person to take the children to any medical practitioner, counsellor, Police or health professional for the purposes of investigating any allegations of sexual abuse of the children without the written consent of the mother and the Independent Children’s Lawyer or an Order of the Court;

   (iii)Discussing the Court proceedings or any allegations made in the Court proceedings in the hearing or presence of the children;

   (iv)Allowing any person other than the Independent Children’s Lawyer, a Family Consultant or a Court appointed Expert to discuss the Court proceedings or any allegations made in the Court proceedings in the hearing or presence of the children.

3. Pursuant to Section 65DA(2) 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 party contravenes these Orders are included in these Orders, annexed hereto.

4. The Independent Children’s Lawyer is to forward a typescript of Court’s Exhibit “A” within 48 hours in word format.

5. On a without admissions basis and pending an interim hearing of this matter, the mother shall ensure that the children are not left alone in the presence of her partner Mr E.

6. Liberty is granted to the father to approach the Registrar to list the interim hearing in the next available duty list when the father is in a position to proceed with that application.

7. The Independent Children’s Lawyer has liberty to issue such subpoena as appropriate in the matter.

Notations

1. The father intends seeking the interim orders set out in his Initiating Application filed 21 August 2015.

2. The Children’s and Parents Issues Assessment dated 15 September 2014 recommended that the child, F born … 2011 be referred to a developmental psychologist for an assessment but it is noted this has not yet been carried out.

3. Each of the parties agrees that the circumstances of the children have changed such that it is in their best interests to re-visit the parenting orders and no submission in relation to Rice & Asplund will be made by any party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Caimheul & Burchell 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 PARRAMATTA

FILE NUMBER: SYC 2792 of 2014

Mr Caimheul

Applicant

And

Ms Burchell

Respondent

REASONS FOR JUDGMENT

1. This is a matter where the parties reached agreement earlier this year in respect of parenting orders and consent orders were made.

2. In recent times, the last few months, the father has become concerned about some form of sexual misconduct which he fears is being perpetrated by the mother’s partner against the children. 

3. I have to say I’m very concerned about the way in which the father has taken it upon himself to press the children, make inquiries of the children and involve his partner, also, in those inquiries and it certainly is something that ought to have been handled, in my view, by the father quite differently given the nature of the concern. 

4. On the other hand, I think the issue raised by the mother that the orders sought by the Independent Children’s Lawyer will cause inconvenience – personal inconvenience to the mother and the smooth running of her household absolutely must yield to the issue of the safety of the children.  The Act makes it very clear that of all the matters relating to the best interests of children the issue of protection of the children from harm is the most significant within those considerations. 

5. I think what is being asked for is not unreasonable, that is, by the Independent Children’s Lawyer.  In fact, I had originally read it on the basis that an order was being sought that the mother shall ensure the children do not come in contact with her partner and, in my view, possibly something even that far could have been appropriate in the circumstances. 

6. The lesser order, that the mother ensure that the children are not left alone in the presence of her partner is, in my view, the minimum that is appropriate in these circumstances especially given that the Independent Children’s Lawyer makes it clear that this is an interim order until the father’s interim application is heard. 

7. Accordingly, the handwritten document is marked as Exhibit “A” in today’s proceedings and by consent, pending further order, I make orders 1 to 4 and I also make order 5 in Exhibit “A”.

8. I make a notation that the father intends seeking the interim orders set out in his Initiating Application filed on 25 August 2015. 

9. Liberty is given to the father to approach the Registrar to list the interim hearing in the next available duty list when the father is in a position to proceed with that application. 

10. The Independent Children’s Lawyer has liberty to issue such subpoena she regards as appropriate in the matter. 

11. I also make a notation that the Memorandum from a Children’s and Parent’s Issues Assessment, dated 15 September 2014, recommended that the child, F, be referred to a developmental psychologist for an assessment but it is noted that this has not yet been carried out.  I will leave that as a notation that that has not happened. 

12. I also make an order that the Independent Children’s Lawyer provide a typescript in word form to my Associate within 48 hours. 

13. The other notation is that each of the parties agrees that the circumstances of the children have changed such that it is in their best interest to revisit the parenting orders and no submission in relation to Rice & Asplund[1] will be taken be made by any party.

    [1] (1979) FLC 90-215; (1978) 6 Fam LR 570.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 October 2015.

Legal Associate:

Date:  9 November 2015