Cluny and Cluny

[2009] FamCA 1112

FAMILY COURT OF AUSTRALIA

CLUNY & CLUNY [2009] FamCA 1112

FAMILY LAW  -  CHILDREN  -  Magellan  -  Interim parenting orders.

Family Law Act 1975 (Cth)

FATHER: Mr Cluny

MOTHER: Ms Cluny

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2161 of 2009

DATE DELIVERED: 6 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 6 November, 2009

REPRESENTATION

SOLICITOR FOR THE FATHER: Zenith Lawyers & Cons.

COUNSEL FOR THE MOTHER: Ms Vogel

SOLICITOR FOR THE MOTHER: Defteros Lawyers

INDEPENDENT CHILDREN’S LAWYER: Peter Lynch

Orders

1. That until further order the children O born … June, 2003, M born … November, 2004 and L born … December, 2005 live with the mother. 

IT IS FURTHER ORDERED

1. That until further order O, M and L spend time with the father from 1:30 pm. until 4:30 pm. on each alternate Saturday, such time to be supervised by the manager or her nominee of H Pty. Ltd. G at a location determined by the manager or her nominee and such time commence on 14 November, 2009 or the first Saturday thereafter on which H Pty. Ltd. is available to supervise. 

IT IS FURTHER ORDERED BY CONSENT

1. That O attend counselling with the Australian Childhood Foundation as recommended by the manager of the foundation.

1. That the mother attend family therapy at Anglicare or other family care therapy organisation recommended by the Australian Childhood Foundation. 

1. That the mother and father forthwith complete all necessary applications required by H Pty. Ltd. in order for it to supervise the children’s time with the father. 

1. That the father pay all of the costs of supervised time direct to H Pty. Ltd., and such costs be paid prior to the commencement of each period of supervised time. 

1. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 26 February, 2010.

1. That the parties attend a Trial Notice Listing with the Magellan Registrar on 10 March, 2010 at 2:15 pm.

1. 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.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2161 of 2009

Mr Cluny

Father

And

Ms Cluny

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The case concerns the parties’ three boys, O, M and L.  Their parents were in a relationship between late 2001 and March 2008.  These proceedings were initiated by the father in July this year, seeking a number of parenting orders, including an order that the boys reside with him.  He raised a number of concerns about the parenting then being provided to the boys by their mother. 

1. The mother filed a response in August.  She sought that the boys live with her and that there be psychological assessments to address protective concerns.  She alleged incidents of domestic violence and verbal abuse by the father, which were allegedly witnessed by the children;  a number of poor parenting practices on his part;  and observations of sexualised behaviour between two of the boys from January 2009, which continued and became more significant. 

1. A form 4 notice of child abuse was filed on 14 September;  it relies on much of the material deposed to by the mother in her affidavit. 

1. The matter was transferred to this court from the Federal Magistrates Court on 17 August and orders were made in September for the subpoenaing of the DHS file and for a Department of Human Services report.  I have sat in this list since Magellan was created and the DHS report is one of the longest and most thorough I have seen in that time.  Length does not necessarily equate with thoroughness, but this is a very comprehensive report.  It appears that workers not only spoke with the parents and all of the children, but with some six associated professionals. 

1. The DHS report concludes, despite a through investigation, that there is currently insufficient evidence on which to substantiate protective concerns.  It has one mandate;  the court, of course, has another.  It is a matter for this court in the long run, absent a protection application, to determine where the best interests of the children lie and in reaching that conclusion to assess any alleged risk to their physical and emotional health. 

1. The parties seek a family report and that the case then be listed for trial.  Whatever orders are made today the case will not be ready by the Magellan sittings in February 2010 and the next sittings do not commence until late May 2010.

1. The submission of counsel for the mother is that there should be a family report, and no contact until that report is released.  She relies on the mother’s evidence of concerning behaviour by the children and their responses to time spent with their father. 

1. The independent children’s lawyer and counsel for the father propose the introduction now of supervised contact;  the proposed order would have the father spend time with the boys from 1.30 pm. to 4.30 pm. on each Saturday, supervised by a person employed by H Pty Ltd.  I understand that the Government funded supervision services in the area have waiting lists which effectively preclude their involvement in the case. 

1. The obligation of the court is to focus on the best interests of children.  Until allegations can be determined it always must err on the side of caution and do what it can to reduce the potential for children to come to harm.  That does not mean that once an allegation is made, all time with the alleged perpetrator must cease;  the risk has to be assessed on the evidence before the court in each case.  The father has not seen the children since about April this year, which is not at all surprising, having regard to the allegations made by the mother.  I understand it is accepted that Thomas will continue to attend counselling with the Australian Childhood Foundation. 

1. The DHS report notes that Ms Y of the Foundation has not observed any of the reported sexualised behaviour and O has not made any disclosures of concern to her.  O often initiated discussions about his father but was unable to continue with those conversations for long periods of time. 

2. Balancing all the evidence, I am satisfied there should be some supervised contact in the interim.  I do not find it appropriate for it to be every Saturday.  The children need to be able to spend some Saturday afternoons with their mother and be able to engage in activities routinely undertaken by families at that time. 

1. If a supervised service had been available, it is highly improbable there would have been contact each week but, in any event, I am not satisfied that would be in the boys’ best interests. 

1. I am satisfied supervised time each fortnight is in the children’s best interests.  It will allow them to resume a relationship with their father in a safe environment, pending trial and determination of the allegations. 

1. I remind everybody that this list is scheduled on a roughly monthly basis.  If an urgent application needs to be made, that can be arranged by contacting the Magellan registrar.  I add that it would be premature to determine questions of parental responsibility.   

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

Dated the            day of             2009.

…………………………………………
Associate.