Dupleix and Duroc

[2007] FamCA 1349

FAMILY COURT OF AUSTRALIA

DUPLEIX & DUROC [2007] FamCA 1349

FAMILY LAW – CHILDREN – With whom a child spends time – Supervision – Mother’s application to vary interim parenting arrangements to substitute a contact centre for supervision by the paternal grandmother – mother relies on recent allegations of her son (not the child who is the subject of these proceedings) – current supervision arrangements not impugned – application declined

Family Law Act 1975 (Cth)

Goode & Goode (2006) FamCA 1346

APPLICANT: Mr Dupleix

RESPONDENT: Ms Duroc

INDEPENDENT CHILDREN’S LAWYER: Caroline Smith

FILE NUMBER: DGC 204 of 2007

DATE DELIVERED: 12 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McBain

SOLICITOR FOR THE APPLICANT: Ryan Carlisle Thomas

COUNSEL FOR THE RESPONDENT: Mr I.F. Mawson

SOLICITOR FOR THE RESPONDENT: McBain Lawyers

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Bender

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Victoria Legal Aid

Orders

UPON THE UNDERTAKING OF THE PATERNAL GRANDMOTHER AND UNTIL FURTHER ORDER that she will continue to be bound by her previous undertaking:-

IT IS ORDERED UNTIL FURTHER ORDER:

1. That paragraph 3 of the Orders of FM Walters made 6 June 2007 be suspended.

2. The time the child spends with the father continue to be supervised by the paternal grandmother or Ms D or such other person as agreed between the parties and confirmed in writing with the additional requirement that the supervisor and not the father attend to the changing of the child’s nappy and bathing the child.

3. That the father spend time with the child born … November 2005 as follows:-

   (a)       Each Saturday from 10:00am to 5:00pm;

   (b)       Each alternate Sunday from 10:00am to 5:00pm;

   (c)       From 10:00am to 2:00pm on 8 November 2007 (the child’s birthday);

   (d)       On 23 December 2007 from 10:00am to 5:00pm.

IT IS FURTHER ORDERED BY CONSENT:

1. That the mother do all acts and things necessary to ensure that Dr A has an opportunity to interview and assess the child A born … January 1992 prior to the completion of any report in this matter. 

2. That the independent children’s lawyer index the documents which he proposes to submit to Dr A within 7 days which documents are to provide Dr A with a comprehensive view of recent developments in this case including the child A’s statements to police given 1 September 2007.  Upon preparing the index a copy of the index by sent to the practitioners for the other parties who, within 48 hours, should notify the independent children’s lawyer  of any further documents which he or she proposes also be submitted to Dr A or documents to which he or she objects being submitted to Dr A. After the independent children’s lawyer is satisfied that both parties have had an opportunity to consider the documents to be sent to Dr A the independent children’s lawyer promptly send those documents and a copy of my reasons for judgment to Dr A for his consideration prior to completion of his report. 

3. That the parties attend a Trial Notice Listing with the Magellan Registrar on

   
   21 November 2007

   at 2:15pm.

4. That my reasons for judgment this day be transcribed and when transcribed a copy be made available to the parties with the independent children’s lawyer to receive 2 copies.

5. That pursuant to section 65DA(2) and 62B 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 204 of 2007

MR DUPLEIX

Applicant

And

MS DUROC

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the Magellan duty list of cases and it concerns the young child born in November 2005.  The matter is to go to a trial notice listing on 21 November 2007, on track for a hearing in the defended list of Magellan cases to be conducted in February 2008. 

2. There are existing orders for preparation by Dr A of a report assessing the parents as well as the child.  Dr A has conducted interviews for the purpose of completing that report but its finality has been delayed by an ongoing police investigation to which I will come shortly.

3. Very briefly and by way of background, the parents commenced living together in 2004 and separated in October 2006. The child is the only child of that relationship although the mother's child by a previous relationship, A, was a member of the household. 

4. In January 2007 the father filed an application in the Federal Magistrates Court essentially seeking that the child live with each parent on a weekabout basis.  On 9 February 2007 the mother filed a response seeking that the father have time with the child from 4pm to 6:30pm each Wednesday and each alternate Saturday between 10 am and 4pm and on some special occasions.

5. On 27 February 2007 interim orders were made by consent which provided for the father to spend time with the child on a daytime basis every Tuesday and Thursday from 4:30 to 6pm, and from 10am to 6pm every Saturday and every Sunday.  I note that there were no overnight occasions. 

6. On 6 June 2007 final orders were made by consent in the Federal Magistrates Court providing for the parents to have equal parental responsibility for the child, for the child to live with the mother and for the father to spend time with the child on a graduating and increasing basis:

   (3)The child live with the Father as follows:

   (a)each Monday and Wednesday from 5.30pm to 7.00pm;

   (b)Until May 2008, each alternate Friday from 5.30pm to 7.30pm to coincide with the Saturday overnight periods;

   (c)Until the child reaches the age of 2:-

   (i)each Saturday from 10.00am to 5.00pm;

   (ii)each alternate Sunday from 10.00am to 5.00pm;

   (d)Upon the child reaching the age of 2, each alternate Saturday from 10.00an Saturday morning to 5.00pm Sunday night.

   (e) Commencing the first “contact” weekend in May 2008 from 5.30pm Friday until 5.00pm Sunday.

   (f) On Christmas Day 2008 from 1.00pm until Boxing Day (1.00pm) and each alternate year thereafter.

   (g) From 1.00pm Christmas Eve until 1.00pm Christmas Day 2007 and each alternate year thereafter.

   (h)On Father’s day from 10.00am to 5.00pm.

   (i) That the Father’s time with the child shall be suspended from 10.00am on Mother’s Day if such falls on Mother’s Day.

   (j) Otherwise as agreed.

7. It was provided that the parents would continue to consult with the psychologist, Dr S. There was a restriction on the father consuming alcohol prior to caring for the child and the parties were to attend a post-separation parenting course.  Today, I do not know whether they have done so. 

8. Very shortly after those orders were made, the father filed an application in the Federal Magistrates Court seeking a discharge of the orders, that the mother be psychiatrically assessed and an independent children's lawyer be appointed.

9. On 20 June 2007, orders were made requesting the appointment of an independent children's lawyer, requiring supervision of time spent between the father and the child to be supervised by his mother, the paternal grandmother or Ms D and a recovery order.  The matter was transferred the matter to the Family Court. 

10. On 25 June 2007 the mother filed a response to the father’s application. She sought that all previous orders be suspended and the child spend only supervised time with the father each Saturday from 10am until 2pm and each Wednesday from 5pm to 6:30pm.  In August 2007 the mother filed a further application in relation to having an expert inspect the father's computer and having him attend for a psychiatric examination.  At the same time, she filed a notice of risk of child abuse alleging sexual abuse of the child by the father, resulting in the child displaying sexualised behaviour.

11. The mother filed an affidavit in support of her application which annexed a report of clinical psychologist, Dr S, who had been treating the child since May 2007 and who was specifically referred to in the final orders made on 6 June 2007.  The child had been referred to Dr S by the general treating medical practitioner on account of the child showing alleged behavioural disturbances, including head banging, hair pulling, crying for no apparent reason, loss of appetite, refusal to take fluids, dehydration, weight loss, night terrors and disturbed sleep patterns.  At this stage, the child was one and a half years old.  Dr S, in her report, concludes that the only explanation for an increase in more sexualised behaviours is inappropriate sexual stimulation. 

12. On 13 August 2007 the matter came before Senior Registrar FitzGibbon.  The matter was assessed as a Magellan matter and the Senior Registrar made orders of a procedural nature.  By consent, he also made an order that the parents and the child attend upon Dr A for preparation of a family report; the mother be restrained from taking the child to health professionals without the consent of all parties; that the time which the child was spending with the father, namely 10am to 5pm every Saturday and 10am to 5pm each alternate Sunday, be supervised by the child's paternal grandmother or Ms D or such other person as the parties may agree upon, with the additional requirement that the supervisor and the father change the child's nappy and bathe the child.

13. The terms of supervision as outlined above also pertain to the increased time to be spent between the father and the child upon the child turning two years of age, which is going to now happen in less than a month. That increased time would be from 10am on Saturday to 5pm on Sunday and would, on my calculation, be the first period of overnight time spent between the child and the father since the parties separated in October 2006. 

14. The matter which I am required to determine today is an application by the mother that the orders to which she consented on 13 August 2007 be changed and in lieu of the daytime period supervised by the paternal grandmother, the father spend time with the child for two or so hours per week at a supervised contact centre.  The mother has not made application for admission for the family into a contact centre.  She proposes that until such facility came on line, the wife of the husband's brother, one Ms P Dupleix, supervise time to be spent between the child and the father.  However, she has not asked Ms P Dupleix whether she would do so.  She proposes that the time supervised by Ms P Dupleix would be two hours per week.

15. The father opposes any alteration to the existing regime which includes the progression to his mother supervising overnight periods between him and the child within the next month when the child attains the age of two years.  As a fall-back position, the father is prepared to adopt the proposal of the independent children's lawyer which is that the existing arrangements for spending time continue but not be stepped up in accordance with paragraphs 3(d) and (e) of the orders made on 6 June 2007 as amended by subsequent orders.  That is his fall-back position, it is not his primary position.  It is, it seems to me, a very sensible position for him to adopt today, having regard to the fact that evidence is untested, the expedited hearing this matter will receive (in February 2008) and the fact that this is only one of many matters in the duty list.

16. The mother relies on a change of circumstances.  She deposes that the child A, who is now 15 years of age, told her on 18 August 2007 about a number of matters that he had not previously disclosed to the mother or to a previous family report writer or, it would appear, anyone else.  A allegedly spoke of sexual misconduct by the father to the child and collusion by the paternal grandmother in trying to conceal such conduct from the mother.  Furthermore, on 1 September 2007, A made a statement to police which is some seven pages long.  That is annexed to the affidavit of the mother, sworn on 8 October 2007 as annexure B. 

17. In A’s statement to police, he alleges that in May 2006 (some three or so months prior to the parties separating and now nearly 18 months ago), he was in bed at the home of the paternal grandmother and the father entered the bedroom, stood at the end of his bed and refused to leave.  A alleges that the father was then abusive, in that he sworn at him.  The paternal grandmother of the child came into the room and the next day said to A, "I've spoken to [the father].  He said he won't do it again.  Best we keep this between us.  We don't want anything to come between mum and [the father]."  He relates other instances, including an instance where he entered the bathroom at the family home and observed the father to be standing near the child, who was in the bath and at the time the father’s hand was on his penis. 

18. As indicated, these are not matters which the child A had previously mentioned to the mother, to the father or to a previous family report writer, Ms T, who assessed the family and prepared a report in April 2007, having seen the parents, A and proceeding on 23 March 2007. 

19. I calculate that about 10 per cent of the report by Ms T is devoted to the child A. That goes from paragraphs 45 to 50 inclusive and paragraph 61. 

    
    

    I have not read the other parts of the report.  I am relying on counsel who have highlighted the parts that relate to A. My reading of those parts of the report indicates that A was not particularly favourably disposed to

    
    

    the father. He did not seem to be at all protective of the father or his own personal relationship with the father.  In contradistinction, he has been assessed by Ms T as being fairly protective of his mother and protective of his sister.  A is said to have specifically referred to the paternal grandmother, insofar as he referred to the father's parents as "decent people", but he did not like the way that they attempted to interfere after the father and his mother separated. 

20. There is no explanation offered by A, through the mother or otherwise, as to why he did not make statements to the effect of those made to the police on 1 September 2007 contemporaneously with the events that he allegedly observed or to anyone else.  Having said that, I note that it is alleged by him that he had a brief discussion with the paternal grandmother the day following the father allegedly entering his room in May 2006.  However, the paternal grandmother has sworn an affidavit denying that the event occurred and also denying any such conversation. 

21. On behalf of the mother, it is said that the timing of A's disclosures coincided with him becoming aware that the Department of Human Services would attend her home again and reopen an investigation into possible sexual abuse of the child. However, that does not explain why he had not, more than a year ago, told anyone about what allegedly occurred.  I am confident that he knew that his mother was going through Family Court litigation concerning the care of the child. 

22. As part of the court's preparation of this matter as a Magellan matter, the Department of Human Services was requested to and did prepare a report of its assessment.  That report is dated 1 October 2007 and has been available to all parties. 

23. The authors of the report from the Department of Human Services, draw the following conclusions:-

    [The child] is a 22 month old girl who is reliant on her caregivers to meet all of her day-to-day needs, and to provide a safe, warm and nurturing environment where her psychosocial needs are met.  [The child] is too young to interview, and therefore is unable to support or deny the concerns that she has been sexually abused by [the father] or any other person. 

    From all reports, [the child]’s behaviours have changed since her parents have separated, with [the child] displaying more aggressive and emotional behaviours, likely to be indicative of stress.  After parental separation, it is not unusual for children of [the child]’s age to display some behavioural changes, including becoming more clingy with one parent, unsettled sleep patterns and general displays of distress.  Some of the more sexualized behaviours reported may fall within the realm of normal child development, or may be indicators of abuse, however given [the child]’s age it is difficult to determine the source of these behaviours.  A genital examination conducted was normal, which would also not refute nor support allegations of sexual abuse. The majority of the sexualized behaviours have been reported by [the mother] and have not been observed by an independent person. 

    Given this, Child Protection is unable to provide a definitive answer as to whether [the child] is at risk of sexual abuse in the care of [the father], due to [the child]’s young age and the subsequent impracticality of obtaining a disclosure.  There is no evidence to assert with any certainty that [the child] has been sexually abused, either by [the father] or by any other person.  Likewise, Child Protection cannot definitively advise that [the child] has not been sexually abused by [the father] or by any other person.

    Therefore, given the serious consequences to [the child]’s safety and wellbeing should she be sexually abused in the future, the writer would recommend that [the child]’s access with her father continue to be supervised.  The writer feels that supervised access not only ensures [the child]’s safety, but would also offer a measure of protection for [the father] against further allegation, regardless of the accuracy of these concerns.  Under these circumstances, the writer would make no recommendation for any reduction in [the father]’s access. 

    The writer has assessed that the paternal grandmother, Mrs [Dupleix] is a suitable supervisor of access between [the child] and [the father].  [The paternal grandmother] appears exceptionally committed to [the child]’s safety and wellbeing.  The writer is confident that [the paternal grandmother] would not allow any inappropriate activities to occur during supervised access, and it is the writer’s view that if [the paternal grandmother] was at all concerned, that she would not hesitate to report her concerns to Child Protection. 

    It is of concern to Child Protection that the ongoing conflict between [the father] and [the mother] is likely to have ongoing psychological and emotional consequences for [the child] should she continue to be exposed to this.  Both [the mother] and [the father] have acknowledged hostility during access hand-overs, and the writer would strongly encourage both parties to consider the impact of this upon [the child].  [The child]’s emotional wellbeing will require ongoing monitoring given the concerns that she has been sexually abused, and due to her exposure to parental conflict, and therefore it is recommended that [the child] continue to be monitored by a psychologist.  It is the writer’s opinion that it would be in [the child]’s best interests to be assessed and monitored by an independent psychologist who has not previously formed a conclusive view that [the child] has been sexually abused by her father.

    Child Protection also holds concerns for [A]’s emotional and psychological wellbeing, who appears to have been drawn into the conflict between [the mother] and [the father].  Whilst [A] is old enough to form his own opinion in relation to [the father], it is important that [the mother] does not impose her own negative views of [the father] onto [A].  Further, in the event that [A] has been influenced to make false allegations against [the father], this would severely compromise [A]’s psychological and emotional wellbeing.  Whilst [A] is not the subject of the current Family Court matter, Child Protection will be recommending that [A] be linked in with a psychologist to assist him in dealing with the conflict he is being exposed and included in. 

    Given the conflict between [the father] and [the mother], the writer would strongly recommend that both [the father] and [the mother] engage in individual, and possibly joint psychological treatment or counselling, in order to learn effective conflict management and to develop insight into the impact that this conflict has on [the child] and [A]. [The child] should be encouraged to develop a positive relationship with both parents, without feeling disloyal to either parent.  Both [the mother] and [the father] should strive to speak in positive terms to [the child] about each other, and each other’s extended family, in order that she does not become anxious or apprehensive about time spent with either parent. 

    In summary, Child Protection would make the following recommendations:

    ·[The father] to have all access with [the child] supervised by the paternal grandmother or other persons assessed as suitable by the Court;

    ·[The father] to have an amount of contact with [the child] that will allow the child to forma secure attachment and positive relationship with her father;

    ·[The father] and [the mother] to seek counselling to assist them in managing any conflict in their relationship, minimizing any conflict that the children may be exposed to, and to support them to prioritise the child’s needs to have a positive relationship with both parents;

    ·[The child] to continue to be monitored by an independent child psychologist. 

1. I accept that the report of the Department of Human Services is entirely untested.  That said, it seems to be a document which flows logically and draws conclusions which have some basis on reported facts. 

2. The solicitor who appears as counsel for the mother submits that the authors of the Department of Human Services report have taken a fairly narrow perspective.  For instance, they did not make investigations of the child's treating general practitioner or previous carers of the child at a creche or childminding facility.  However, neither has the mother’s solicitor and it is he who prepares the case for the mother to bring to court today. 

3. The report of the Department of Human Services will not be tested until the matter proceeds to a final hearing and the authors are made available for cross examination.  Included in the report is an assessment (extracted above) by the Department of Human Services' workers of the paternal grandmother's appropriateness as a supervisor and her consciousness of the responsibilities of supervision. 

4. In submissions on behalf of the independent children's lawyer, I was informed that, independently of the report of the Department of Human Services, the independent children's lawyer concludes that the paternal grandmother is an appropriate supervisor.  That assessment was formulated on the basis of a lengthy discussion with the paternal grandmother at court.

5. The mother, through her counsel, does not point to any shortcoming in the paternal grandmother's execution of her responsibilities as a supervisor since she has been required to do pursuant to various orders of the court.  Likewise, the mother does not point to any unusual behaviour of the child that was not present when she consented to orders on 13 August 2007 which saw the grandmother confirmed as a supervisor. 

6. Interim proceedings are difficult insofar as I can take into account and accept matters which are not in issue between the parties, but many of the facts in cases such as this are in issue and I am unable to make findings of fact in relation to them.  I will proceed cautiously, having regard to the primary and additional considerations set out in the legislation and following the pathway identified by the Full Court in the matter of Goode & Goode (2006) FamCA 1346.

7. My inquiries are significantly curtailed so are the considerations that I take into account. 

8. The child's best interest is the paramount consideration; it is not the only consideration. 

9. It is not contended by either party that a meaningful relationship with both parents would not be of benefit to the child. 

10. This is a case which really occupies s 60CC(2)(b), the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  No party says that should not occur.  The father is merely saying he is not the source of any harm or danger. 

11. The matter comes to me today with the court, having already put in place at the request and by the consent of the parties, safeguards to protect the child from abuse.  The mother makes the further application because she has now become aware of allegations made by A which she, as his mother, accepts are events that occurred about 18 months ago.  These allegations do not, in my view, justify an increase in the precautions which are taken at the moment.  The current supervision of the grandmother and her performance of that role is not impugned.  The behaviour of the child since 13 August 2007 is not said to have become exaggerated, exacerbated or worse.

12. Now I look at the additional considerations which are relevant to this case.

13. I am satisfied that the child's views are not a relevant consideration; she is too young. 

14. I take into account the nature of the child's relationship with both parents.  The mother is her primary caregiver.  She clearly would have a relationship also with A and she has a relationship of course with the father. 

15. The considerations under subsections (c) and (i) which relate to the parents' preparedness to facilitate a relationship with the other parent and the discharge of their responsibilities of parenthood are matters that I find difficult in this case to make an assessment of as I am currently placed.  They are matters that are going to occupy the court significantly at a final hearing.

16. The independent children's lawyer proposes a regime that does not effect any significant or material change in circumstances for the child. It is a continuation of an arrangement which has been in place for some months now about which there is no ongoing complaint over and above the mother's awareness of matters that may have happened 18 months ago.

17. I have not been referred to any family violence considerations. 

18. The mother, through her solicitor, has consented to Dr A interviewing and assessing A in the context of his report to be received by the court in relation to the child.  That's a matter for the mother but I will make that order because she consents to it.  It may also be the only scrutiny that A's statements receive.  It is not at this stage known whether there will be any charges laid as a result of police inquiries. 

19. It is also important in my view that Dr A have all material necessary to give him a comprehensive impression of recent developments in this matter that can be provided to him by the independent children's lawyer but it is important that it be provided to him whilst he still has an opportunity to factor those matters into his assessment of the parents, the child and A, and before he completes his report.

20. I am going to make orders which coincide with the proposal of the independent children’s lawyer, not because of that but because I am satisfied that the proposal is most consistent with the child’s best interests.  I am satisfied that the current arrangements for supervision of the child's time with the father are adequate.  I am satisfied that it would be inappropriate to extend the time that the father has with the child to encompass overnight periods because even if they were, as would be necessary, conducted in the home of the paternal grandparents, it requires a vigilance overnight which I am satisfied would not be available or practicable.  It follows that, for the time being, the father will not be able to spend time with the child overnight.  He will be deprived of the increase provided for in the earlier orders.  That is unfortunate for him but a course which I identify as being in the child’s best interests. 

21. For these reasons, I make the orders set out at the beginning of these reasons.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  19 November 2007