Dawson and Wright
[2017] FamCA 1029
•28 June 2017
FAMILY COURT OF AUSTRALIA
| DAWSON & WRIGHT | [2017] FamCA 1029 |
| FAMILY LAW – CHILDREN – Magellan List – best interests – interim parenting orders – where current orders suspend the time the children spend with the father – whether the father should spend time with the children – where the mother opposes that the children spend time with the father – where the Independent Children’s Lawyer seeks the children spend supervised time with the father – where there are allegations that the father has physically abused the children – where there are allegations the father has exposed the children to sexually inappropriate behaviour – where the father denies the allegations – where the father alleges the mother has influenced and coached the children – orders made for the father to spend supervised time with the children. |
|
| Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Dawson |
| RESPONDENT: | Mr Wright |
| INDEPENDENT CHILDREN’S LAWYER: | Lampe Family Lawyers |
| FILE NUMBER: | MLC | 6838 | of | 2014 |
| DATE DELIVERED: | 28 June 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 28 June 2017 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mandelert |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lampe Family Lawyers |
Orders
BY CONSENT IT IS ORDERED
That the respondent have leave to withdraw the Contravention Applications filed on 7 March 2018 (2) and 4 May 2016.
AND THE COURT NOTES that the respondent has without admissions withdrawn the Contravention Applications in order that the further hearing of proceedings will not be delayed.
That the parties attend upon Professor B, psychiatrist, on 7 December 2017 or on such further or other date as advised by him for psychiatric assessment and report as to their mental welfare.
That the cost of the assessment and report of Professor B be borne by each of the parties.
That all extant applications be adjourned for Directions in the Magellan List on the first available date in 2018.
IT IS ORDERED BY THE COURT
That until further order the respondent spend supervised time with the children of the marriage C born … 2004 and D born … 2008 on an alternate weekend basis on such dates as may be arranged by the Independent Children's Lawyer and a professional supervisor.
That the cost of such supervision is to be borne by the respondent.
BY CONSENT IT IS ORDERED
That once the respondent father has had four supervised visits with the children pursuant to these orders the parties and the children commence family counselling with either the E Centre in Suburb F or G Group, at times and dates to be made by the relevant counselling department.
That the parties do all acts and things to forthwith enrol in the family counselling and confirm to the Independent Children's Lawyer their enrolment and acceptance at the appropriate centre.
That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawson & Wright has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6838 OF 2014
| Ms Dawson |
Applicant
And
| Mr Wright |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
The matter of Wright comes before the Court today in the Magellan list of cases. Today is its first listing in this list of cases, having been transferred from the Federal Circuit Court pursuant to orders made by Judge Bender on 21 March 2017. This matter has a long litigation history.
The parties in this matter married in 2002 and separated in May of 2014. Final orders were made by consent as to parenting matters in September of 2014.
There are two children of the relationship, C, who is aged almost 13 years, and D, who is aged almost nine years.
The final orders made by consent in the Federal Circuit Court provide that the parties have equal shared parental responsibility for the children, that the children live with the mother and that the father spend time and communicate with the children, essentially on an alternate weekend basis, from Friday afternoon to Sunday, as well as one half of school holidays. Additional orders were made with respect to special days, including Mother’s Day, the children’s birthday, Father’s day and Christmas, and there was an order which is set out at paragraph 10 of those orders that neither party engage in corporal punishments of the children or allow any other person to do so.
What has followed since the making of those orders is a series of applications to the Federal Circuit Court because of difficulties that have emerged between the parties as to how they parent their children. The wife alleges that the children have been subjected to physical abuse at the hands of the father and, more recently, that the children and in particular D, have been exposed to sexually inappropriate behaviour by the father.
The father denies those allegations. He says that the issues between the parents arise as a result of the mother’s conduct. He says that the mother has influenced and coached the children and, as a result, has caused them to be aligned with the mother and alienated from him. The mother denies those allegations and so it is that the matter finds its way to this Court and in this list.
As part of the preparation of the matter for this proceeding, an order was made for the preparation of a Magellan report. That report has been prepared and has been received by the Court. It is a report dated 22 June 2017. It is a detailed and considered report which provides the history of this family’s engagement with the Department of Health and Human Services (“the Department”). The parties have today had the assistance of an Independent Children’s Lawyer.
There is much that is agreed between them. Firstly, the father has agreed that it is appropriate, in order to ensure that this matter moves seamlessly through the system, that he be granted leave to withdraw the three contravention applications that are presently before the Court. I am satisfied that it is appropriate that he have the leave to withdraw those applications so that the issues can be progressed towards a final hearing. The parties have consented to orders that will enable a psychiatric assessment of them to be undertaken and a report prepared, and I will make orders giving effect to those arrangements.
The issue that has emerged which requires determination by me is the question as to what, if any, time the father should be spending with the children pending the preparation of the report and the ability of this Court to hear and determine the parties’ competing parenting applications, it now being the position that each party seeks orders that the children live with them, and in the case of the mother, that they spend no time with the father, in the case of the father, that they spend supervised time with the mother.
It is evident from the parties’ competing applications that the stakes are high, and ultimately a decision is likely to be made which will result in the children living with one of their parents and perhaps having limited or no time with the other. That is certainly one potential consequence of pursuing these matters in this way.
What is sought by the father is that there be some reintroduction of his time with the children. As a result of the allegations as to his conduct made in February 2017, that is, the sexually inappropriate conduct alleged to have occurred between he and D, as well as allegations of physical abuse, orders were made in March 2017, the effect of which was to suspend his time with both children.
Up until that point, he had been spending alternate weekend times with the children as well as half holidays. What is sought by the Independent Children’s Lawyer is that the father resume spending time with the children, albeit on a supervised basis, that time to occur on alternate weekends with the assistance of a professional supervisor. It will be limited to daytime time only and, given the nature of the availability of supervision services, will likely be a period of a few hours once every alternate weekend. The mother opposes the resumption of that time.
The other matter that was raised during the course of submissions was the question of whether or not the parties should engage in family therapy, as has been recommended by the Department. The parties have considered that matter, discussed it with counsel appearing for Independent Children’s Lawyer and have agreed that that would be appropriate once the father’s time has resumed.
The issue, therefore, is the question of what time, if any, the children should spend with the father. The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode & Goode”) set out the approach to be adopted by the Court in interim parenting matters. In that decision, the Full Court highlighted the difficulties that can face the Court in interim determinations, insofar as there are conflicting facts (as is the case here and as described already by me in these Reasons), little helpful evidence, and disputes between parties in relation to what constitutes the best interests of the children. That is the situation that squarely presents itself before me today.
The Full Court confirmed in the decision of Goode & Goode that in determining interim parenting applications, the Court should firstly identify the parties’ competing proposals, secondly identify the issues in dispute, thirdly identify any agreed or uncontested relevant facts, fourth consider the matters in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) that are relevant and, if possible, thereafter make findings, fifth decide whether the presumption in s61DA of the Act with respect to equal shared parental responsibility being in the best interests of the children applies, and next, if the presumption does apply, decide whether it is rebutted because the application would not be in the children’s best interests. In determining interim parenting matters, the best interests of the children is the paramount consideration.
I have already identified the parties’ proposals and the issues that present themselves in this matter, and I have identified the central conflict between the parents as to the conduct each alleges the other has engaged in. Those matters are traversed in some detail in the Magellan report of 22 June 2017. That report provides the history of the parents’ engagement and the children’s engagement with the Department. There is an investigation of the allegations that emerged in February 2017.
The Department, in the preparation of its report and in the investigation of those matters, has had the opportunity of interviewing the children, those interviews occurring at the children’s school. They have also interviewed both parents. What is observed by the Department in its report is that each of the parents provided summaries to them consistent with the matters contained in the affidavits that have been filed at Court.
Both parties sought to highlight the same events, and both sought to press their views as to the faults of the other parent. Each alleged the other was a narcissist. Each said that they would pursue their applications to the end. Seemingly, their presentation demonstrated little focus on what might well be best for the children.
The observations of the children indicated that the children are comfortable and well cared for by the mother. There was no opportunity for the Department to undertake observations of the children with their father.
The Department communicated with the children’s counsellor and received information from both children’s counsellors as to their presentation and progress. Both children were observed by their counsellors to have made reports as to their concerns with respect to the father’s conduct towards them. Both children presented as expressing views that they did not wish to see their father at this time. The Department has also made contact with the children’s school.
In my mind, it is significant that what emerges from the communication with the school is that there were no significant concerns in relation to the children by the school. At page 7 of the report, it is noted that the school reports that whilst there are some behavioural and academic issues in relation to C, those matters are being managed between the school and the mother, and no significant concerns were noted in relation to either parent. In the conclusions to that report, the report writer notes the views maintained by the children currently that neither child seeks contact with the father due to his alleged behaviour.
However, it is also noted in those conclusions that there is a likelihood that the children have been influenced in part by the mother’s attitudes towards the father due to the highly conflictual relationship between them and given the fact that the children reside in her primary care. As to the allegations of sexually inappropriate conduct, the Department notes as follows:
In relation to a further allegation of the children being exposed to sexual harm…[D] has made no disclosures of that nature when interviewed by the police.
Whilst it was noted that C had reported that he had observed the father naked and with an erection, it was considered that that behaviour, whilst inappropriate, is seen to be what might be described as a one-off incident. It is observed that there is no corroborating evidence to suggest significant sexual harm, i.e., a pattern of grooming behaviours, repeatedly exposing the children to inappropriate sexual material or the like. As such, significant sexual harm has not been substantiated at this point in time.
As to the allegations of physical abuse, whilst there had been a police investigation into the allegations of such abuse of D by the father, I am informed today that the police have indicated to both parties that they do not intend at this time to pursue criminal prosecution against the father.
In determining the matter, I must have regard to the primary considerations as set out in s 60CC of the Act. Those considerations require, firstly, a consideration as to the benefit of the children having a meaningful relationship with both parents, and secondly, the need to protect the children from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.
In determining those matters, the consideration set out in s 60CC(2)(b) of the Act, that is, the need for protection, must have greater weight than the need for the children to have a meaningful relationship with both parents.[1] The proposals as put by the Independent Children’s Lawyer and as supported by the father will ensure that the children have the opportunity of continuing to have a relationship with their father. The history of this matter is that they have enjoyed frequent and regular time with him since the final orders were made in 2014, that time commenced in September of 2014 and continued until the suspension of those orders in late March this year.
[1] Family Law Act 1975 (Cth) s 60CC(2A).
There have been a raft of allegations made by each parent against the other since the final orders were made. Nonetheless, those orders have continued. The orders as proposed by the Independent Children’s Lawyer will ensure that the children are protected from the risk of harm, both physical and emotional, whilst in the father’s care. I am satisfied that the orders as proposed are appropriate and in the children’s best interests to ensure that they have the opportunity and ability of resuming their relationship with their father in a protected and safe environment.
Given the proposal as to supervision, the mother can have confidence that the children will be safe in that setting, and to that end, it is to be hoped that she will support and encourage the children’s resumption of their relationship with the father in that setting. I am mindful of the observations made by the report writers in the Magellan report as to the children’s views and of their currently stated reluctance to spend time with the father. They are matters that I take into account in making orders for supervised time.
However, having regard to the history of the children’s relationship with the father, their ages, the allegations made by each party, and particularly the allegations that the children might be subject to some influence in the mother’s household (and I note the mother’s denial of those allegations), and that that is a concern raised by the Department in its report, I am satisfied, at this point in time, that those views must not take precedence over the children having an opportunity of a meaningful relationship with the father. It is for those reasons that I consider that the orders as proposed by the Independent Children’s Lawyer are in the children’s best interests.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 28 June 2017.
Associate:
Date: 28 June 2107
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