Fairburn and Janda

[2018] FCCA 2692

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIRBURN & JANDA [2018] FCCA 2692

Catchwords:
FAMILY LAW – Parenting – interim hearing – time spent – allegations of sexual assault not substantiated – where there is emotional abuse – where there is a family violence order.  

Legislation:

Family Law Act 1975 (Cth) s.68P

Applicant: MR FAIRBURN

Respondent: MS JANDA

File Number: DNC 408 of 2014

Judgment of: Judge Young

Hearing date: 31 August 2018

Date of Last Submission: 31 August 2018

Delivered at: Darwin

Delivered on: 31 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Duggan

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Crook

Solicitors for the Respondent: Maleys Barristers & Solicitors

ORDERS

UPON NOTING this is an Order that is inconsistent with the provision of a family violence order pursuant to section 68P of the Family Law Act 1975,

1. For the purposes of section 68P(3) of the Family Law Act 1975 a copy of this Order is to be provided to:

   (a)The Registrar, Local Court at Darwin (File No);

   (b)Commissioner of Police (Northern Territory Police); and

   (c)Child Welfare Officer at Territory Families.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That upon an affidavit being filed by the paternal grandfather in relation to supervision, the child’s time with the father be reinstated.

2. That the child [X] born 2013 spend time with the father on the following basis, to be supervised by the paternal grandfather, Mr J:

   (a)From 2.30pm to 5pm (or other such time suitable to CatholicCare NT) each Tuesday and Thursday, with the father to collect the child from school at the commencement of time and to effect handover at the conclusion of time at CatholicCare NT;

   (b)Each alternate weekend from 9.30am to 5.30pm on Saturday and Sunday (or such other times suitable to CatholicCare NT), with handover to occur at Catholic Care NT, commencing on the first weekend that CatholicCare NT can accommodate; and

   (c)In the event that the child is not otherwise spending time with the father, from 9.30am to 5.30pm on 22 September 2018 and 13 October 2018 for the purpose of the father attending a (hobby) performance with the child, with handover to occur at CatholicCare NT at times suitable to them

3. That the parties each forthwith enroll at CatholicCare NT to assess their suitability to take part in the handover program and each shall comply with all reasonable directions of any employee of CatholicCare NT and follow all guidelines regarding the use of the Service.

4. That each party is restrained from denigrating the other party in the presence or hearing of the child or permitting any third person to do so in the presence or hearing of the child.

5. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship [X] born 2013 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on a date to be advised to the parties and the Court requests that the report be prepared on a urgent basis if possible.

6. That the family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

7. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

8. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

9. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

10. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 8 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 1 October 2018 as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter be adjourned to 10 December 2018 at 11.00am for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 408 of 2014

MR FAIRBURN

Applicant

And

MS JANDA

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning [X] who is about four and three-quarter years old.  She has been living with her mother and spending time with her father.  There was an order of the Court in 2015 but the parties departed from that by consent and entered into a parenting plan in September 2017 which saw [X] spending approximately two hours each week day with her father and four hours on each Saturday and Sunday.

3. The mother has raised an allegation that [X] disclosed to her that her father had told her to stick her fingers in her vagina and/or anus and also that the child had made disclosures that he took her to out of the way places in his car and masturbated in front of the child.  That is the substance of the allegations.  Those allegations were on affidavit in this Court on 12 June 2018. On the basis of those allegations I made orders entirely suspending the child’s time with her father.  I made an order that the child be represented by an independent children's lawyer and I made orders pursuant to section 69ZW for the production of material from Territory Families.

4. Territory Families have assessed the allegations. First of all, as I understand it, there was a report to the police. There was then a physical examination of the child by the Sexual Assault Referral Centre at Hospital undertaken by a paediatrician.  Then there was, as I understand it from the file, an interview of the child and various parties. The results of that assessment are attached to the affidavit of the father and in a report dated 3 July 2018. I will summarise the assessment.

5. First of all, it refers to the medical examination by the paediatrician at the Sexual Assault Referral Centre in response to a complaint by the child, or a complaint perhaps by the mother, of redness about the child’s vagina and perhaps, it appears, a complaint by the child that her vagina was sore.  That medical examination showed no evidence of sexual assault and according to the assessment, in the view of the paediatrician, was suggestive of nappy rash.  Why a four and a half year old might be wearing a nappy was not explored but anyway there it was.

6. In relation to the forensic interview of the child it was noted that the child, while repeating the allegation that her father had asked her to put her fingers in her vagina and repeated that statement, was unable to provide any context to that claim.  She expressed no fear of her father and said, essentially, that she was happy spending time with her father.

7. It was noted that the child had used the word “vagina” in various contexts in the interview in a way that was, and this is my interpretation of what the assessment said, suggestive of coaching.  There was also some more direct indication in the assessment that the child had told the interviewers that her mother had told to say various things.  The investigators interviewed a Ms M who is a psychologist who undertakes play therapy with children and [X] visits Ms M.

8. Ms M, in her interview with the investigators, said that the mother had asked her to make a report of a disclosure by the child but she had refused.  Ms M said various other things to the investigators raising some concerns about the approach of the mother and, as I understood it, the mother’s sister.  It was also noted in the report that various allegations by the mother that the father was grooming the child appeared to be, on inquiry, innocuous. 

9. There were, according to the assessment, indications of emotional abuse of the child by the mother and the aunt, which I take it is the reference to the mother’s sister, including denigration of the father within the hearing of a child.  As I read the assessment, that had been independently observed.  There was an assessment by the investigators that the mother and the aunt appeared to engage in “delusional” and “extreme” allegations.  On another occasion, the child was observed to disengage and withdraw when the mother and aunt spoke ill of the father.

10. In summary, there was no evidence or indication of sexual abuse of the child by the father.  The investigators said that they would make a finding of substantiation of emotional abuse by the mother.  In the recommendations, the investigators said that the family would receive continuing support and counselling and that counselling was necessary for both parents.  Notwithstanding that assessment, the mother continues to oppose the reinstatement of any time. The independent children's lawyer supported the reinstatement of time but told me from the bar table that there had been further allegations of sexual assault or sexual abuse of some kind, I understood it, made recently.

11. She said in those circumstances that, in the interim, it was in the child’s interests, to protect against baseless allegations, that the father’s time be supervised and the independent children's lawyer suggested that the paternal grandfather would be a suitable supervisor subject to the independent children's lawyer interviewing him and subject to him filing an affidavit acknowledging that he would comply with the usual requirements of a supervisor in this Court.

12. The independent children's lawyer also said that she thought it was appropriate and in the child’s interest for the frequency of the child’s time with the father to be reduced and the time extended in hours.  She proposed that the regime should be during week days from 2.30 pm Tuesday to 5 pm and on Thursday, 2.30 pm to 5 pm with the 5 pm changeover to occur at Catholic Care.  The 2.30 time would allow the father to collect the child from child care and there would be no need for any contact with the mother, which I agree is desirable in this case.  On alternate weekends the ICL suggested the time should be from 9.30 Saturday to 5.30 pm Saturday and the same times on Sunday in alternate weekends with changeover at Catholic Care. 

13. That general proposition was agreed to by the father, at least in the interim, and I am satisfied that that is an appropriate and desirable regime at this stage, so I propose to make orders accordingly.  The ICL also said that there ought to be an urgent family report and while I am a little bit limited in what can be achieved at the moment because our permanent family consultant is on extended leave and we are reliant on visits from Queensland, I will endeavour to do what I can about that.

14. The mother has obtained a domestic violence restraining order in the Local Court under the Domestic and Family Violence Act. The protected person is the child. The interim domestic violence restraining order prohibits the father approaching the child, being in any place where the child is, assaulting the child, damaging the property of the child or intimidating, harassing or verbally abusing the child.  It’s a wide-ranging order.  I’m satisfied that that order in those terms is inconsistent with the best interests of this child and I propose to make orders that are inconsistent with essentially the entirety of that order. 

15. Pursuant to section 68P of the Family Law Act I specify that the orders I’m about to make are inconsistent with the family violence order. I have given a detailed explanation of what is to take place under the order I’m about to make. In relation to (c) I have explained the order I am about to make. I cannot give an explanation to the protected person because she is a child and is not in court. I have given an explanation to the father and I’ll give brief reasons for the order that is inconsistent with the family violence order.

16. I’m satisfied that there is no evidence of any substance to the allegations underlying the making of the interim domestic violence order and I’m satisfied that the order that I made suspending the child’s time with the father should be revoked and the time reinstated in substance.  Of course, the order I’m going to make is an interim order so any party may seek to vary that order. 

17. The Court is obliged to give a copy of the order I’m about to make to the applicant and the respondent. That will be done.  The person against whom the family violence order is directed in this case as the respondent. 

18. The person protected by the family violence order is the child and that is not practicable to give her a copy though the independent children’s lawyer will obviously have a copy and copies will be provided to the clerk of the Local Court, the Commissioner of Police and Territory Families in compliance with subparagraphs (d), (e) and (f) of section 68P(3).

19. I will make an order that the parties are not to denigrate each other. 

20. Ms H, I will make orders in terms of reinstatement of the time subject to the provisos that you have mentioned, that is, your interview with the paternal grandfather and the filing of an affidavit by paternal grandfather saying he will comply with the requirements. 

21. Once that is done the following orders will take effect, that is, the child to spend time with the father 2.30 Tuesday to 5 pm Tuesday and also same time on Thursday with collection from preschool at 2.30 and changeover at CatholicCare at 5pm and on alternative weekends which will begin on the weekend immediately after the material is filed. 

22. I’ll make an order for a family report.  I’ll make an order that the parties are to immediately enrol at CatholicCare and I’ve made the non-denigration order. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 20 September 2018