DINH & WHELDON

[2011] FamCA 226

FAMILY COURT OF AUSTRALIA

DINH & WHELDON [2011] FamCA 226

FAMILY LAW – CHILDREN – Additional supervisors appointed pending hearing of appeal

Family Law Act 1975 (Cth)

Re K (1994) FLC 92-461

APPLICANT: Ms Dinh

RESPONDENT: Mr Wheldon

INDEPENDENT CHILDREN’S LAWYER: Ms Chan

FILE NUMBER: BRC 8725 of 2008

DATE DELIVERED: 17 March 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 March 2011

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Ms Ewart appearing as Duty Lawyer

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Chan of Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Ms Chan be re-appointed as Independent Children’s Lawyer and within 7 days shall file and serve a Notice of Address for Service.

2. The Independent Children’s Lawyer shall, as soon as reasonably practicable after the making of this order, satisfy herself as to the suitability of Mr J Wheldon, Ms K Wheldon, Dr D Wheldon, Ms S Wheldon, Mr M, Ms M, and Ms S, as supervisors for time as ordered by this court in respect of the children the subject of these proceedings S born … March 2004, and T born … January 2008 (“the children”).

3. The Independent Children’s Lawyer shall explain in clear and unequivocal terms to each and all of those named supervisors:

   a.their obligations as supervisors of a court order;

   b.the nature and extent of the allegations made during the course of proceedings in this court in July 2010;

   c.the findings of this court made in those proceedings;

   d.the fact that there is an appeal by the mother in respect of the orders made;

   e.that the obligations owed by each of them are owed to the court and independent of any relationship they have or might have with the father.

4. Paragraph 3 of the orders made by Justice Murphy on 7 December 2010 be varied so that it reads:

   Until delivery of orders by the Full Court of the Family Court of Australia in respect of the Notice of Appeal filed by the mother on 16 September 2010, the father shall spend time, supervised by any one or more of [Mr J Wheldon], [Ms K Wheldon], [Dr D Wheldon], [Ms S Wheldon], [Mr M], [Ms M], and/or [Ms S], with the children [S] born […] March 2004 and [T] born […] January 2008 for a period not exceeding 6 hours each alternate Saturday commencing not earlier than 1.00pm, with changeover to occur at the […] Shopping Plaza.

IT IS FURTHER ORDERED THAT

1. The Application in a Case filed by the father on 25 November 2010 is dismissed.

2. 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8725 of 2008

Ms Dinh

Applicant Mother

And

Mr Wheldon

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. A trial of this matter was conducted before me on 26, 27 and 28 July 2010. The Court’s decision was reserved and Orders made on 20 August 2010, at which time extensive reasons were delivered.  Subsequently, an appeal was lodged by the mother and, subsequent to that, an application made by her to stay the substantive parts of the order.  On 7 December 2010, I ordered that the substantive parenting orders be stayed pending determination of the appeal filed by the mother and I delivered reasons at that time. 

2. Subsequent to those orders, Ms Chan who was the Independent Children’s Lawyer leading up to, and during the course of, this difficult trial has appeared at mentions of the appeal and, I gather, Ms Chan anticipates preparing for, and instructing counsel to appear at, the appeal of this matter. What has been overlooked is that the Independent Children's Lawyer was discharged by the Orders of 20 August 2010.

3. Ms Chan has had a lengthy and significant involvement in this matter. A number of factors addressed in the decision of the Full Court in Re K (1994) FLC 92-461, can be seen to have founded the appointment of an Independent Children’s Lawyer leading up to and at the trial of this action. The issues currently before the Court are no less complex than they were there. Indeed, little has changed.

4. As a result, though, of the order being made on 20 August 2010, the subsequent proceedings on 7 December 2010 and indeed the involvement of the father’s son in supervision of time did not involve the Independent Children’s Lawyer and she advises the Court today that she was not served with any material in respect of those matters.  As it transpires, the non-service of that material was in fact appropriate because of the order made on 20 August.  Ms Chan appears in the current application which is the return date of an application in a case filed by the father on 25 November 2010.

5. What needs to occur, then, if Ms Chan is to formally continue in these proceedings is that she be re-appointed.  It seems to me that she ought to be.  The father does not oppose that course of action.  The mother does not consent to it, but offers no substantive reasons why it should not occur.  I consider that all of the matters present at the time when Ms Chan was appointed have not changed.  One might argue, in fact, that the issues have become more complex in light of what has occurred since the trial, and it seems to me entirely appropriate that she be appointed and I order so.  I will then, as a consequence, require Ms Chan to as it were refile a notice of address for service within seven days.

6. On 20 August 2010, I delivered reasons for judgment in support of orders made after a trial which took place before me from 26 to 28 July.  In simple terms, the central issue in that trial was an assertion by the mother that the father presented an unacceptable risk to their two children, S born in March 2004 and T born in January 2008. 

7. In extensive reasons delivered after that trial, I made a series of findings contained at paragraphs 131 and following of the judgment.  The findings there expressed can be seen summarised at paragraph 145 of the judgment which is as follows:

   On all of the evidence before me and taking into account my observations of the mother and the father during the course of the proceedings, I am not satisfied that the mother has come close to satisfying the onus of establishing to the appropriate standard that sexual abuse of [S] has occurred and/or has occurred at the hands of the father.

8. In the following paragraph, I said:

   Further I am not satisfied on the evidence before me that the father presents an unacceptable risk of abuse or indeed any – or indeed any other harm to [S].

9. From the orders made on that day, the mother appeals.  For reasons given on 7 December 2010, that day, I ordered that the substantive parenting orders be stayed pending the appeal.

10. For present purposes, it needs to be noted that paragraph 3 of those orders provided for variation of the trial orders so as to provide for time between the father and the children as follows:

    Until delivery of orders by the Full Court of the Family Court of Australia, in respect of the Notice of Appeal filed by the mother on 16 September 2010, the father shall spend time, supervised by his adult son [Mr J Wheldon] with the children [S] born […] March 2004 and [T] born […] January 2008 for a period not exceeding 6 hours each alternate Saturday commencing not earlier than 1.00pm, with changeover to occur at the […] Shopping Plaza.

11. That order was made and Mr J Wheldon who is the father’s adult son was appointed as supervisor over the then objection of the mother.  Mr J Wheldon gave evidence before me on that occasion, which included evidence of his domestic circumstances.  He is currently employed in the finance industry with significant responsibilities and he and his partner have a very young child themselves. Time has been occurring supervised as contemplated by that order.

12. However, the father filed an Application in a case on 1 February 2011 in which he seeks an order that additional supervisors be appointed so as to supervise the time between he and his daughters. 

13. That application is supported by an affidavit in which the father deposes to the difficulties confronted by Mr J Wheldon as a supervisor of time.  It needs to be said that none of those difficulties strike me as being at all surprising.  This Court is well aware of the difficulties in providing supervision of time.  As has frequently been commented upon, contact centres, whilst providing a superb service to the community, have many more calls upon their time than their capacity to meet those calls.

14. So, too, as has been commented upon in many decisions of this Court, whilst providing a very good service for the community, those contact centres are, by their nature, restrictive in terms of the nature and amount of time that parties can spend with children in that supervised setting. 

15. It was with those considerations in mind, together with the findings made by me after a trial about the nature of the relationship between the children and their father, that the orders provided for a greater period of time than that which could be availed of at a contact centre and also provided for supervision by someone other than the contact centre.

16. Nevertheless, as is notorious, the requirements of supervision on a regular basis, is onerous indeed (as they should be if supervision is being carried out as contemplated by the orders).  The father deposes to his son’s responsibilities connected with his employment and, of course, his responsibilities associated with his yet very young child.  It is in that context that the father applies for an order varying the earlier order so as to permit additional supervisors to be used. 

17. I should say that the application in terms says that the order be “expanded” to include as alternate supervisors the persons named in the application. The father makes it clear that those named persons are to be seen as additional to Mr J Wheldon.

18. The mother’s position today, having presumably observed Mr J Wheldon as a supervisor and, presumably, observed the children’s reactions to that supervision, is that she is now agreeable to Mr J Wheldon continuing to be a supervisor. 

19. Six people are named in the application by the father.  They are: Ms K Wheldon, Dr D Wheldon, Ms S Wheldon, Mr M, Ms M and Ms S.  Those people are described in the father’s affidavit filed 1 February 2011. 

20. Ms K Wheldon is the father’s former wife.  She provided affidavit evidence in the trial before me and I made favourable comments about that relationship in my trial reasons.  The mother is agreeable to Ms K Wheldon being a supervisor. 

21. Ms S Wheldon is the father’s brother’s wife.  The mother is also agreeable to Ms S Wheldon being a supervisor. 

22. Dr D Wheldon is the father’s brother.  He is described in the affidavit as being “a medical doctor of some 30 years experience”.  It is said “he has personal experience of the effects of child molestation.  His now deceased partner and mother of their 24-year-old son was a child molestation victim.  He saw the anguish that she went through and did everything he could to help her.”

23. I need to point out that none of the three people just mentioned is a deponent in this application.  The father represents himself in this application, as he did during the trial, and subsequent applications before me.  I note that the provisions of Division 12A of the Act permit the Court to receive hearsay evidence. Of more concern in the instant circumstances is that the Court has not had the opportunity to hear directly from those named individuals. 

24. As a result of that decision made earlier by me today Ms Chan, who after the trial, has been reappointed as the Independent Children's Lawyer. 

25. I have made it plain to the parties that the Court would not contemplate any of the named supervisors supervising time unless and until Ms Chan has had the opportunity to speak to each of them to explain clearly the obligations which supervision pursuant to a court order entails and explain the nature of the allegations made (whether or not those allegations have been explained to the supervisor by the father) and, very importantly, has explained to each of those supervisors that the obligations they owe are solemn obligations owed to the Court (as distinct from obligations owed to the father). 

26. Although Mr J Wheldon has been supervising time pursuant to my earlier order, Ms Chan had been discharged by earlier orders and has not had the opportunity to speak to him.  Despite the fact that the mother is now agreeable to Mr J Wheldon being a supervisor and makes no assertions that he has carried out that supervision in anything other than an entirely appropriate way, I will nevertheless require Ms Chan to give that explanation to Mr J Wheldon as well as any other potential supervisors. 

27. It should not be forgotten that the Independent Children’s Lawyer herself owes obligations to the Court directly related to the welfare of the children subject to these proceedings.  As has frequently been said, the Independent Children’s Lawyer’s obligations are independent of the parties and she does not act at the behest of or upon instructions from either of the parties.  More importantly she too owes obligations directly to the Court and those obligations have at their very core ensuring, to the best she is reasonably able to do so, that the best interests of the children are protected. 

28. Accordingly, it is important to note that no supervisor will be permitted to supervise time under the order unless and until the Independent Children’s Lawyer has satisfied herself that that person is a fit and proper person to conduct that supervision, as well as providing the explanation and obligations earlier referred to.

29. The first matter of objection raised by the mother is that she contends that Dr D Wheldon is a man. Whilst, currently, supervision has been undertaken by a man, he is, she says, much younger than Dr D Wheldon. She says that, in those circumstances, Dr D Wheldon ought not be permitted to supervise unless he is in the presence of a woman (namely either Ms K Wheldon or Ms S Wheldon). 

30. In light of what I have said about the independent and solemn obligations cast upon an Independent Children’s Lawyer to satisfy themselves as to suitability, I can’t see that this objection has real substance.  On the face of the material (leaving aside any subsequent process to be undertaken by the Independent Children’s Lawyer as I have explained) Dr D Wheldon is a medical doctor of some 30 years experience who has his own child now aged 24. 

31. I can’t see that the mother raises any legitimate objection to a medical doctor who is himself a parent being a supervisor of time in circumstances where the Independent Children’s Lawyer is otherwise satisfied as to his suitability and provides details of the obligations that I have just referred to.

32. In respect of the other person’s nominated by the father he describes them as follows:

    [Mr M] was my accountant (now retired) for nearly 30 years.  He and his wife [Ms M] have assisted their daughter in a matter before Wilson FM over the last two to three years.  They were accepted by him in supervisory roles.

33. In respect of Ms S, the father deposes:

    [Ms S] is a 65-year-old grandmother.  Our relationship started with her as my client over 30 years ago.  I have completed several building design projects for her in the intervening period and we have now become good friends as she attended the Court each day during the trial in July 2010.

34. It is perhaps understandable, in light of the finds made about her at trial, that this mother would be troubled by the children being with their father, when supervision is carried out by persons who she does not know.

35. However, as against that, one must take account of the findings otherwise made by me in respect of the nature of the relationship between the children and the father, what the Act says about the benefit of a meaningful relationship between the children and their father and the general tenor of the legislation with respect to promoting meaningful time between children and each of their parents. 

36. When that is taken into account, and added to the obligations owed independently by an Independent Children’s Lawyer, and the solemn obligations owed to the Court which, I have no doubt, will be explained carefully and in detail by Ms Chan to any individual supervisor, and the fact that Ms Chan herself will need to be satisfied as to the suitability of each of those individuals I can see no legitimate reason why the named persons should not all be added as supervisors to this order subject to the conditions to which I have earlier referred.

37. In that respect it needs to be pointed out that the difficulties in supervision are, as I have earlier said, very significant indeed and, frequently, real practical difficulties attend finding persons who are appropriate and willing to supervise time on a regular basis.  It is therefore desirable to have alternates in circumstances where the Court can be satisfied, through the agency of the Independent Children’s Lawyer, that those persons are indeed suitable for the onerous obligations owed to the Court which supervision entails.

38. I order accordingly.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 March 2011.

Associate: 

Date:  4 April 2011