Davidson and Davidson

[2009] FamCA 1020

FAMILY COURT OF AUSTRALIA

DAVIDSON & DAVIDSON [2009] FamCA 1020

FAMILY LAW – CHILDREN – Magellan list – allegations of sexual abuse – interim orders – interim application for supervised time dismissed

Family Law Act 1975 (Cth) ss 60CC(2), 62G(2)

APPLICANT: Mr Davidson

RESPONDENT: Ms Davidson

FILE NUMBER: MLC 2243 of 2007

DATE DELIVERED: 19 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 March 2009

REPRESENTATION

FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms M.E. Agresta

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms A Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED:

1. That the parties attend a Trial Notice Listing with the Magellan Registrar on 27 July 2009 at 2.15 pm NOTING THAT affidavits for the final hearing may be required to be filed within seven (7) days of the Trial Notice Listing.

2. That pursuant to s62G(2) a report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services of this Registry of the Court to be released by 23 July 2009 and not commenced until after the Dr E report is to hand.

3. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issues.

4. The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

5. That the parties shall attend and ensure the children N born … October 2003 and L born … October 2003 attend all necessary appointments for the preparation of the Family Report.

6. That the application of the husband to spend supervised time with the children be dismissed.

7. That by 4 May 2009 the mother file and serve a report by Dr M, or any other appropriately qualified person upon whom she relies, in relation to N’s medical condition, diagnosis and prognosis.

8. That by 29 May 2009 the independent children’s lawyer indicate her views on what evidence should be adduced from Dr R, and how.

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

IT IS ORDERED BY CONSENT:

1. That the mother and father attend upon Dr E for the purpose of obtaining a psychiatric assessment and report on each of the mother and the father AND IT IS NOTED THAT Dr E is likely to set appointments for mid-May 2009.

2. That the mother and father in the first instance each be responsible for the cost of their respective reports and it is requested that Victoria Legal Aid fund the mother’s share.

3. That in the event that Victoria Legal Aid does not fund any or all of the mother’s psychiatric assessment the father pay the cost or balance of the mother’s report.

4. That the father have liberty to apply to seek reimbursement from the mother of any payment by him to Dr E for the mother’s report.

AND THE COURT NOTES that the mother has no objection to the father communicating with Dr R and the father be at liberty to do so at his own expense.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2243 of 2007

MR DAVIDSON

Applicant

And

MS DAVIDSON

Respondent

REASONS FOR JUDGMENT 

ex tempore

1. I am asked to determine the discrete issue of what time, if any, time the father should be able to spend with N born in October 2003 and L born in October 2003, who are both five years of age.  This matter is in the Magellan List of cases, the mother having made allegations of sexual abuse against the father.  A final hearing is estimated to occur in August 2009; if not, then certainly by November 2009. 

2. Between now and August 2009, the parents will attend upon Dr E, psychiatrist, for a psychiatric assessment.

3. Once Dr E’s assessment is to hand, a family report will be prepared by the child dispute services section of this court.  The family report will involve an assessment of the children and the parents.  It will proceed on the basis that it is preferable for the children to be observed with the father, although it will be a matter entirely within the discretion of the family consultant on the day as to whether or how that interaction this occurs. 

4. N is currently under the care of a paediatrician, Dr M.  The DHS report dated 22 January 2009 summarises Dr M’s treatment of N. N was referred to Dr M in late 2007 in relation to an assessment for autism.  N displayed ‘poor eye contact, developmental delay, speech delay, lining up behaviour, would often repeat what was said to him, was fussy about clothes and had limited social skills.’  The mother had also told Dr M that N was having difficulties with toilet training as he would not touch his penis.  After the first assessment, Dr M believed N may have autism spectrum disorder, adjustment disorder or an anxiety disorder related to exposure to domestic violence. Dr M most recently saw N on 30 October 2008.  She stated that at this stage she believed N had a developmental delay and should be re-examined for autism.  Dr M also stated that if N’s behaviour settles down whilst not having contact with the father, the behaviour may have been a reaction to sexual abuse.  No disclosures of abuse where made by N directly to her.

5. Both children are midway through a course of counselling or therapy with Dr R, psychologist, which was arranged on some basis through Victoria Police.  Dr R stated to DHS workers that she had concerns about the issues underlying the children’s behaviours and she would recommend the father not have access until further information was available.[1]

   [1] DHS Magellan Report, dated 22 January 2009, pg 11.

6. The father has filed an amended application in which he seeks supervised time with the boys.  The father does not concede that supervision is necessary. He proposes that the time be supervised by Aiders and Carers, which is a professional agency providing supervision in Family Court cases, or a contact centre.  He will accept any supervision because he wants to see the boys, whom he has not seen since approximately September 2008.

7. The father submits that it is in the boys’ best interests that they see not only him but his family.  The paternal grandparents of the children are in Court. 

8. The father’s case is that the mother has marginalised him from medical treatment of the boys by not involving him in any of the treating interventions, and that she is now seeking to alienate him from the boys' lives in a psychological and an emotional sense. 

9. I have had the benefit of some input from Ms H, family consultant.  Ms H’s view is that these boys have a lot on their plate at this time; that given their special needs, one of the boys may be mildly autistic; that this is not a time to introduce supervised time with the boys.  Ms H’s view accords with my assessment.  

10. The boys will go through a number of assessments.  I understand that the father is concerned that the longer the boys do not see him, the more estranged they will feel from him and the observations of their interaction with the father may be unnecessarily stilted.  However, this is not a rare occurrence in this court. The family consultant will be able to put in context the fact that the boys have not seen their father for some time.

11. There is a report from the Department of Human Services (DHS), which recommends that this court take into account the emotional impact that any supervised contact would have on the children.  I do so. 

12. I have regard to the primary considerations contained in s 60CC(2), namely the benefit to the children of having a meaningful relationship with both of their parents to the extent that it is in their best interests to do so, and the need to protect the children from emotional or physical abuse. As with many cases in this list, there is a tension between the two primary objectives.

13. The court must proceed conservatively.  The children's therapist is said to have recommended that there be no time spent between the boys and the father.  DHS asks that caution be expressed in relation to time being introduced.  I give weight to the recommendations of the therapist and DHS, mindful that none of the evidence has been tested.

14. I conclude that it is not appropriate to accede to the father's request for supervised time at this stage.  The court will accord this case all the priority it can to make sure that it is set down for final hearing as soon as possible.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  29 October 2009