Chinson and Harcourt

[2009] FamCA 222

FAMILY COURT OF AUSTRALIA

CHINSON & HARCOURT [2009] FamCA 222

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Chinson

RESPONDENT: Mr Harcourt

FILE NUMBER: PAC 3842 of 2008

DATE DELIVERED: 23 February 2009

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughan JR

HEARING DATE: 23 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Blaxland Mawson & Rose

COUNSEL FOR THE RESPONDENT: Ms De Vere

SOLICITOR FOR THE RESPONDENT:	Smythe & Wozniak
COUNSEL FOR THE INTERVENER:	Ms Guterres

SOLICITOR FOR THE INTERVENER I.V. Knight, Crown Solicitor

Orders

1. The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 1 April 2009 at Sydney.

2. Until 6:00 pm on 1 April 2009 that part of the operation of orders made on 2 February 2009 that provide for unsupervised time between the father and the children K born … July 1999 and J born … May 2000 is suspended.

3. That the children spend time with their father under arrangements of supervision that are agreed with the Department of Community Services and the mother’s solicitor.

4. That the parties do all things and sign all documents to meet the requirements of any independent supervising agency.

5. That until 6:00 pm on 1 April 2009 the injunction contained in Orders 6 and 7 made on 10 February 2009 continue.

6. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children K born … July 1999 and J born … May 2000

7. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

8. The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.

9. Each party make available to the Legal Aid Commission of New South Wales, within 7 days, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

10. That the mother facilitate the attendance upon their representative of the children at times, dates and places requested by the representative.

11. That any further documents on which any party seeks to rely are to be filed and served not later than close of business on 30 March 2009.

IT IS NOTED that publication of this judgment under the pseudonym Harcourt & Chinson is approved pursuant to s 1219(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3842 of 2008

MS HARCOURT

Applicant

And

MR CHINSON

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two boys: K and J, who are 9 and 8 years of age, respectively.

2. The matter first came before me at Parramatta on 2 February 2009. I made orders requiring the children to return to live in Sydney, it being the case that their mother had moved the boys from Sydney to southern New South Wales without the acquiescence or agreement of the father. A further application has been filed on behalf of the mother and in aid of that application I was asked to stay the operation of the orders of 2 February 2009. That application came before me at Newcastle on 10 February 2009. On that date I heard brief evidence from a Senior Case Worker with the Department of Community Services from southern New South Wales.  The mother was heard, through her representative by telephone and the father's counsel also appeared by telephone. 

3. I was told that a notification that had been made to the police earlier and which had resulted in no continuing action by the police or the Department had been further pressed with the Department and that the department was making inquiries.  I was told that the Senior Case Worker had spoken to, at least, one of the children and at a point where the nature of a notification was revealed, that interview was terminated and that arrangements have been made for further interviews under the auspices of the JIRT process.

4. Thus on 10 February 2009 I was asked to stay the operation of the orders until an adjourned date.  I requested that the Director-General of the department intervene, expressed some dissatisfaction with the events that had occurred and put to the parties proposals for the arrangements that could be made in the meantime. An order was made with the agreement of the mother, through her solicitor, and of the father, through his counsel, for some time on weekends between the father and the children. It is my recollection that I asked the Senior Case Worker what his view about that was, and that as a result a restraint was imposed on the mother, her current husband, and the father to prevent them discussing the allegations with the children or in their presence. I also restrained the mother from causing the children to receive any further counselling until the adjourned date. I noted that the father proposed, and the mother agreed, to the father having overnight time with the children prior to the adjourned date on the basis that the time was supervised by the maternal grandmother, paternal aunt, or anybody else agreed between the parties. The matter was then adjourned to today.

5. I am now told that the mother was prevailed upon by the Department of Community Services, not to provide the children to the father prior to today. 

6. The matter comes before me today.  The Department indicates that it will intervene in the proceedings, for which I am grateful. I am told that the processes of the Department require something like six weeks to complete a wide ranging, holistic investigation, including inquiries made through the police, inquiries made of the schools past and present to see whether there have been any reports made in relation to the children's welfare. Following that investigation the Department will be in a position to express a view into the medium term.  

7. The mother opposes the father having time with the children in the meantime.  The Department opposes the father having time with the children in the meantime. If there is to be any time then the Department says it should be supervised by an independent agency.  The reason for that is the ongoing investigation. It is submitted for the Department that the children have said some things and contact with the father might involve a level of a breach of trust with them. There is also the issue of interfering with or contaminating to some extent the material involved in the investigation. Finally, if the allegations are made out, then they would warrant supervision by somebody independent of the father.

8. There were two categories of complaint by the boys late last year.  One was physical abuse by the father's brother. The evidence about that is very unsatisfactory. As recorded by the police it appears that at least, one of the boys thought that it was a case of the father's brother reacting appropriately to rough play by them, rather than anything untoward. The second category relates to a non specific allegation of inappropriate touching.

9. As I have said in the course of submissions, the timing of the allegations is unfortunate. The parties have been separated for eight years. There have been problems between the parents from time to time, but the mother's concerns seem to be mainly that the father was more focused on his sport and less on the boys; that he was inconsistent about spending time with them, rather than any suggestion of physical assault. We get to a time when the mother and her current husband want to move to southern New South Wales, and then these allegations come out. 

10. The boys have the same initials, and I am told the record of who was interviewed is incorrect. One of them said that his father does not wear anything to bed, that "he makes me touch his rude part". The interviewer suggested, "Is it his penis?"  And the boy nodded. He was asked "What happens then?"  and answered "It goes hard a bit, white stuff comes out it a bit." It was at that point that the Senior Case Worker, Mr W truncated the interview. 

11. The issue before the Court related to the best interests of the children.  The orders made on 2 and 10 February 2009 were intended to promote that aim and that is my obligation today. Meeting that obligation calls for a balancing of risks. The competing risks here are that the boys will be brought into contact, without adequate supervision, with somebody who had an erection and ejaculated in the presence of one of the boys. As against that, it is possible that either by design or acquiescence somebody in the mother's household has conspired at a false allegation. We have a system whereby allegations are investigated.  They are not always investigated as well as they might be.

12. The consequences of allegations such as these can be very unfair and difficult to resolve. That is part of the story of family law. Allegations often arise from conduct that occurs in private. There is usually no independent witness. If there is a witness, often that witness is under a legal disability.

13. The process of interviewing a person under a legal disability is fraught. It is almost impossible to avoid leading questions when you interview a child. I have set out examples above. There is another passage in the interview, "When somebody hits you, do they use a close or open hand?"  And the boy is led to, "Well, is it an open hand?" And so on. There can be problems just because a child wants to please the person who asks the questions.

14. Thus there are problems with the process.

15. I have said that these circumstances may be very unfair on the father. However it could be even worse if the boys are in his care between now and the conclusion of this investigation and there is a suggestion that he tried to encourage the boys to his point of view, or to have them change their mind about an allegation or some other fact. 

16. The boys are not babies, they have a substantial relationship and bonding with their father. They have been heard to discount his skills on the soccer field, but they obviously have a relationship with him. Indeed, until recently, the mother represented to the Court that she wanted to foster that relationship.

17. In my view the Department must be permitted to do its work. As I have said to the mother's solicitor today, there is a downside to this for the mother. There are really only two possibilities. It is likely that the boys have been abused by physical abuse or false allegations but we do not know which one.

18. The greatest risk for the boys would result if they have been abused in the father's household and are put back in that household after they have made that disclosure. That is a greater risk than the continuation of what may have been the poisoning of their minds against the father, in the mother’s household for another six weeks.  Minds might differ about that and I concede the force of the arguments that have now been made on a number of occasions in the father's case.

19. As I said at the outset, the backgrounds facts suggest the allegations are contrived or exaggerated. There is no logic at all in allegations first coming out eight years after separation and just at the time when the mother wants to move to southern New South Wales. I am obliged to try and make orders in the best interests of children.  I think their interests will be safeguarded if any time they spend with the father is in some entirely independently supervised situation. At the risk of inconvenience or even no time spent for six weeks or so, that is a better approach.

20. Now, I cannot speculate what supervised arrangement is possible. It is up to the mother and the Department to cooperate in that exercise. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Judicial Registrar Loughnan

Associate: 

Date:  27 March 2009