Cochrane and Cochrane

[2016] FCCA 2370

FEDERAL CIRCUIT COURT OF AUSTRALIA

COCHRANE & COCHRANE [2016] FCCA 2370

Catchwords:
FAMILY LAW – Interim parenting orders – allegations of family violence – supervised time – supervision by paternal grandmother – need for care when making serious allegations alleging criminal conduct.

Legislation:

Family Law Act 1975, s.66CC(2)

Cases cited:

B & B (1993) FLC 92-357, 16 Fam LR 353

Applicant: MR COCHRANE

Respondent: MS COCHRANE

File Number: MLC 5066 of 2016

Judgment of: Judge McNab

Hearing date: 6 September 2016

Date of Last Submission: 6 September 2016

Delivered at: Melbourne

Delivered on: 6 September 2016

REPRESENTATION

Counsel for the Applicant: Mr P Baker

Solicitors for the Applicant: Peter Baker & Associates

Counsel for the Respondent: Mr C Dunlop

Solicitors for the Respondent:	Stuthridge Legal
Counsel for the Independent Children's Lawyer:	Ms Elleray
Solicitors for the Independent Children's Lawyer:	Victoria Legal Aid

ORDERS

UPON THE UNDERTAKING GIVEN by:

(a)MR COCHRANE of (omitted), in the State of Victoria, to:

“THAT I WILL NOT ALLOW THE CHILDREN THE SUBJECT OF THESE PROCEEDINGS TO BE LEFT ALONE WTH MR C”;

(b)MS H of (omitted), in the State of Victoria, to:

“THAT I WILL NOT ALLOW THE CHILDREN THE SUBJECT OF THESE PROCEEDINGS TO BE LEFT ALONE WITH MR C”.

THE COURT ORDERS THAT:

1. Paragraph 2 of the consent orders of 27 July 2016 be discharged.

2. The husband spend time and communicate with the children X born (omitted) 2003, Y born (omitted) 2006 and Z born (omitted) 2009 (“the children”) as follows:

   (a)For 2 hours with X, Y and Z each Saturday at times to be agreed and failing agreement from 11am until 1pm commencing 10^th of September 2016.

   (b)For the purposes of time pursuant to paragraph (a):

   (i)handover occur at (omitted) Contact Centre in (omitted, and;

   (ii)time shall be supervised by the Paternal Grandmother.

3. The husband forthwith enrol and attend the Men’s Behavioural Change Program/Anger Management course offered by the Centre for Non-Violence, (omitted) (anticipated course duration is 24 weeks).

4. The husband provide the wife’s lawyers and the Independent Children’s Lawyer written confirmation of enrolment and subsequent completion upon receipt.

5. The husband and wife each enrol and participate in a Post Separation Parenting Course as nominated by the Independent Children’s Lawyer and provide written confirmation of completion.

6. Subject to the Paternal Grandmother’s Undertaking the Paternal Grandfather be permitted to come into contact with Y and/or Z and/or X whilst they are spending supervised time with the husband pursuant to these Orders.

7. In the event the wife has not already done so, she authorize the Independent Children’s Lawyer to liaise with the child X born (omitted) 2003 and Y’s psychologist from time to time and this Order act as an authority for same.

8. The husband be and is hereby authorised to attend all school events and functions normally attended by parents including but not limited to parent/teacher interviews.

9. The parents be at liberty to provide a copy of the Family Consultants Report dated 24/8/2016 to the children’s psychologist referred to above.

10. The husband shall be entitled to attend any (hobby omitted) venue where a team he coaches is playing or a team his partner’s daughters are playing.

11. The Independent Children’s Lawyer shall make further enquires of possible suitable family therapists in the (omitted) area as recommended by the Family Consultant at page 39 of Ms L’s report and communicate details of same to the parents and their respective solicitors.

THE COURT ORDERS BY CONSENT THAT:

1. Until further order, the father, his servants and agents be and are hereby restrained by injunction from

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the wife, and

   (b)discussing these proceedings,

   to or in the presence or hearing of the children or any of them and from permitting any other person so to do.

2. Until further order, the mother, her servants and agents be and are hereby restrained by injunction from

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the husband; and

   (b)discussing these proceedings,

   to or in the presence or hearing of the children or any of them and from permitting any other person so to do.

AND THE COURT NOTES THAT:

1. The paternal grandfather be entitled to be present any time the father spends time with any of the children including at (omitted) games coached by the father subject to the undertaking given this day at Court.

2. The family dog “(omitted)” has been returned by the husband to the maternal family/home.

3. The Family Consultants recommendations (contained in paragraph 85 of her report) has been discussed at length today between the legal representatives however the parents are disadvantaged by their location from attending therapists in Melbourne.

4. Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5066 of 2016

MR COCHRANE

Applicant

And

MS COCHRANE

Respondent

EX-TEMPORE REASONS

FOR INTERIM ORDERS (revised from transcript)

1. This matter was before the Court on 27 July 2016 and orders were made for obtaining an 11F report of an independent family consultant and consent orders were entered into in relation to the children, Y and Z, spending each Saturday from 2 pm to 4 pm, commencing on 30 July 2016, at (omitted) Play Centre or another agreed place, supervised by the maternal grandmother, and at other times as agreed. It would appear that those arrangements are not satisfactory to the parties.

2. In accordance with the previous orders, an Independent Children’s Lawyer was appointed and the children are represented before me by Ms Elleray. She has proposed orders that the children Y and Z spend time with their father from 4 pm until 6 pm on a week day to be agreed between the parents and from noon until 2 pm each Sunday, such other times as agreed, and that contact be subject to a professionally supervised service.

3. The solicitor for the husband applicant has made proposals that the husband spend time with the children X, Y and Z each fortnight at a time to be arranged for two hours, supervised by a person nominated by Ms J, who is a professional supervisor; for two hours with Z and Y each alternate Sunday and at times to be agreed; four hours with Y and Z each intervening alternative Saturday from 10 am to 2 pm. 

4. Counsel for wife has suggested that there may be two sessions of two hours per week, with one supervised session to be paid for by the parents jointly and the other supervised session to be paid for by the husband.

5. The parties attended upon the family report writer, Ms L, who prepared a comprehensive report which was released on 24 August 2016.  For the purposes of giving these reasons, I have reread the affidavit material.  I have also had regard to a decision which I was referred to of the Full Court of the Family Court of B & B.[1]  The facts in that case were somewhat singular, where the father was alleged to have sexually abused the children and that finding was made and found to be established by the trial judge.  In the context of that case, at page 33 of the judgment:

   Both social science literature and experience demonstrate that    it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. (See, for example, Beverly James and Claudia Gibson, "Supervising Visits between Parent and Child”, Family and Conciliation Courts Review, Volume 29 No.1 January 1991, 73);William F Hodges, Interventions for Children of divorce: Custody, Access and Psychotherapy (2nd ed) 1991; Wyatt and Powell, Lasting Effects of Child Sexual Abuse 1988) and Patton, Family Sexual Abuse: Front Line Research and Evaluation (1991). Fami1y and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.

   [1] B & B (1993) FLC 92-357, 16 Fam LR 353

6. I note that comment is made in the context of the particular facts of that case. 

7. In this case, there are a large number of allegations being made by the respondent mother in relation to the conduct of the father. It would appear on the basis of that material that the father has had an issue with anger and inappropriate conduct in terms of being unable to properly manage his anger; he has subjected his wife to fear of violence, and perhaps actual violence, and created an environment where the children feel unsafe because of his behaviour. On my reading of the material, the allegations are directed by the mother at the father and there is no allegation that the father has subjected the children to particular harm or violence and certainly there is no allegations of the kind that are made in the Full Court case that I have referred to.

8. As I said earlier, there has been a large number of allegations made by the wife and I have the impression that the affidavit that has been prepared and filed on behalf of the wife is something that may have been largely written by her and perhaps put into a different format for filing without any actual consideration being given to the nature of the allegations being made or whether they could be proved by credible admissible evidence.

9. I understand that family law is its own separate area of practice, but I note it may be an ethical offence to make allegations against a person, which are serious (such as fraud, illegality, misconduct or dishonesty), which cannot be proved, or where there is no proper ability to prove them.[2] I refer to [21] and [22] of the affidavit of the wife sworn 25 July 2016.  It refers to the fact that X, the eldest daughter, is a chronic bed-wetter and has done so since the age of five. Paragraphs [21] to [25] state:

   21.X is a chronic bed-wetter and has done so since the age of 5. The husband was not empathetic towards her condition and often yelled at her, and on occasion would say things to me to me like “getting that fucking kid sorted out”. I would set alarms at 2am & 5am to get X up to go to the toilet. She is being treated by the (omitted) Hospital for her condition, which has mostly resolved now, and the opinion of the treating paediatrician was that her bedwetting was directly related to the domestic situation X had been living in. Now produced and shown to me marked SC-2 is a true copy of correspondence from Dr L dated 11 December 2015. (Original emphasis)

   22.Not long after the separation the (omitted) Hospital referred X to (omitted) sexual assault services because of her ongoing bedwitting [sic]. That referral was made by the (omitted) Hospital. Now produced and shown to me marked SC-3 is a true copy of correspondence from the (omitted) Hospital dated 26 August 2016. (Original emphasis)

   23.As a result of the referral (omitted) contacted me by phone and explained that the (omitted) Hospital had sent them a referral.  I was asked many questions the previous situation at home they also asked both the maternal grandmother and me if we thought it was possible that X had been sexually abused by the father, which we both denied as a possibility; I asserted that whilst I believed that the Husband had a anger problem that I did not believe that the Husband had sexually assaulted X; the conversation was had prior to me becoming aware of the allegations made by Mr A.

   24.I was strongly advised by (omitted) to seek advice from the police regarding the domestic violence, and to require supervision of the children, or that I could be seen have not been acting protectively and that Child Protection may intervene to take the children into care. Following that call I did contact the police, and (omitted) contacted me the following day to ensure that I had done so.

   25.Having had some time to reflect now, I recall that 3 weeks prior to X turning 12 years of age (so approximately July 2015) that I took Z to a birthday party for 1½ hours. During this time the husband attempted to force X to have a shower so that he could wash her hair. She locked herself in the toilet and attempted to call me and the maternal grandparents. I had 12 missed calls from both X and the maternal grandparents by the time I checked my phone. Considering her age, it was not appropriate that she be showered by her father (or anyone for that matter).

   [2] See for instance Rules 34, 38 and 42 of the Bar Rules

10. In the report that was prepared by Ms L, she looked into some of these matters and at [13] of the report states that:

    On 25 August 2015 (omitted) Hospital was contacted with concerns for X in regard to her contact with her father and a possible allegation that X may have been sexually abused.  Further assistance was sought from the (omitted) Centre, at which time further concerns were communicated, specifically relating to concerns for X in regard to her exposure to her father’s violent behaviour. During communications with (omitted), it was identified that X had not disclosed that she had been exposed to sexual abuse.  On this basis, (omitted) did not remain involved with the family, but recommended the family contact the Sexual Offences and Child Abuse Investigation Team of SOCIT.

11. The Family Report then makes reference to involvement of SOCIT:

    In September/October 2015 Ms Cochrane reported to the (omitted) Hospital recurrence of X’s enuresis and identified that this was connected with a previous experience of family violence in the family and subsequent distress resulting from communication with the father.

12. The reference to the matters in paragraph [25] of the affidavit of the wife referred to above occurs in a context where concerns about sexual abuse were raised and the reference is made for the purpose suggesting that there may have been sexual abuse of X. In my view, there may have been a deliberate attempt to raise allegations against the father which appear to be not supported by the material which has been produced or which is in the possession of (omitted) in which X had told (omitted) that she had not been sexually abused. In my view, there should have been some attempt to verify the material held by third parties before serious allegations were raised as they are in [25].

13. One of the other areas of concern for the parties is an allegation in relation to the paternal grandfather.  The allegations are contained in an affidavit of the brother of the paternal grandfather of the children.  This person resides in the (country omitted).  There are a series of allegations that are made.  All relate to conduct which is said to have occurred between these two people many, many years ago, when Mr A was about eight and his brother was about 12. In my view, having regard to the material that has been put in answer to this, it is not of great probative value and there is no current allegation that the paternal grandfather has behaved inappropriately with the children.  What we have is a whole series of allegations that have been made about the paternal grandfather, often without proper supporting material and in relation to matters that occurred more than 50 years ago.  

14. I am making these comments on a preliminary basis only, and of course there may be a different position at trial.  However, I am very concerned that the parties are going down a path where they become entrenched in a position whereby it becomes impossible for the father to have any meaningful relationship with any of his children because of serious allegations being made against him and the paternal grandfather. The mother is entitled to make serious allegations of family violence against the husband and the Court has taken those allegations into account when considering this matter. I raise the concern in relation to the suggestion of a possibility of sexual abuse when there is a lack of evidence. I do not intend to convey the view that parties are to be artificially constrained from making serious allegations, particularly where family violence and sexual abuse is present. However there must be care taken when doing so.

15. I note the recommendation of the family report writer was that the children, inclusive of X, spend supervised time with their father for the period of two hours each week.  There was no recommendation that the supervision had to be privately supervised. Basically, there is an option suggested: that it be by private supervision or by the paternal grandmother.

16. Given the financial position of the parties, in my view, the recommendation which is contained in the family report that there be supervised time for a period of two hours per week involving all the children should be conducted in the presence of the paternal grandmother and that an undertaking should be given by the paternal grandmother and the father that the paternal grandfather not be alone and unsupervised with the children.  I do not believe that there is any admissible evidence which would support a finding that he is a sexual predator or abuser or that he is a risk to the children, but given the tensions in this matter, it would be sensible for him to stay to one side.

17. I make that order specifically having regard to the provisions of section 60CC(2) of the Family Law Act 1975 (Cth): that the primary considerations in making a decision on an interim basis certainly is for the benefit of the children having a meaningful relationship with both of the child’s parents, and (b) the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

18. In this case, there is no allegation that the father has abused the children and, there is no allegation that the paternal grandmother has abused the children or has had anything but a loving, caring relationship with the children prior to the separation of the parents. There is affidavit evidence in support of this – that she is an experienced child-care worker and that she is aware of her responsibilities in terms of protecting her grandchildren and reporting any instance of harm or abuse that may arise.

19. There have been allegations made that the father has a real issue controlling his anger and setting an appropriate level of response to conflict. It is for this reason that I believe that it is in the best interests of the children to (a) to maintain a relationship with the father; and (b) protect them from the risk of family violence. I note that this matter is before the court on 24 November 2016.

20. I make the order in relation to supervised time as per the recommendation of the family report writer for a period of two hours per week and it should be agreed between the parties as to when that is to occur. There has been some suggestion that the time spent at a play centre has not been successful because it really has not resulted in actual time being spent with the children and I am not sure that X is going to be interested in attending such a place. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 12 October 2016