FAULCONER BLAN & BLAN

[2014] FamCA 32

FAMILY COURT OF AUSTRALIA

FAULCONER BLAN & BLAN [2014] FamCA 32

FAMILY LAW – CHILDREN – Interim Parenting Orders – Review of Orders made by Senior Registrar – Where father spent supervised time with children – Where father allegedly possessed pornographic and child abuse material – Where mother raised concerns that time spent with the father put the children at risk of psychological harm – Where mother sought order for the father to have no face to face time with children
FAMILY LAW – BEST INTERESTS OF THE CHILD – Section 60CC– Fostering father’s relationship with children while protecting them from psychological and sexual harm – Where children are of different ages and at different developmental stages – Effect of changes in parenting arrangements on children if order made for no face to face time – Whether reduction in telephone and Skype contact is in children’s best interests – Order for supervised face to face time to continue

APPLICANT: Ms Faulconer Blan

RESPONDENT: Mr Blan

INDEPENDENT CHILDREN’S LAWYER: Ms Power

FILE NUMBER: SYC 2791 of 2013

DATE DELIVERED: 20 January 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney

Orders

IT IS ORDERED BY CONSENT

1. The Commissioner of Police be excused from producing the physical items caught by the subpoena and instead that the items be kept in the exhibit room at the Suburb B Police Station.

2. Access be granted to the parties legal representatives and the Independent Children’s Lawyer and any expert appointed in connection with the Family Law proceedings, by prior arrangement with Detective Senior Constable C and in his absence Detective Senior Constable D at the Suburb B Police Station.

3. Access to information contained on items caught by subpoena to be in the presence of Detective Senior Constable C and in his absence Detective Senior Constable D.

4. No copies of any information contained on the items caught by the subpoena are to be made without further order of the Court.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children E (female) born … November 1998, F (female) born … July 2001 and K (male) born … September 2003 (“the children”) live with the wife.

2. That where the terms of any Apprehended Violence Order made by the Suburb B Local Court or in the Suburb G Local Court in Sydney or any other Local Court in relation to the parties and /or the children are inconsistent with the terms of these interim orders, these interim orders shall prevail.

3. That the children spend time with the husband for a period of three (3) hours every second Sunday at a time to be determined by consultation between the husband and the professional supervision service appointed in accordance with the orders below.

4. That the time the children spend with the husband pursuant to order 3 herein shall be supervised by H Supervisors or such other professional supervision service as is agreed between the parties.

5. That the husband pay the costs of the professional supervision services.

6. That each party is hereby restrained from discussing any of the criminal law, family law or other issues arising from the marital breakdown with the children except as advised by a family consultant or a health professional in either psychology or psychiatry or social work treating the children or providing therapy or counselling to the children.

7. That the husband be permitted to have telephone/Skype communication with the children for a reasonable period between the hours of 6.30 pm to 8.30 pm on Tuesdays and Thursdays each week and every alternate Sunday, being the Sunday the children do not spend supervised time with the husband and the wife do all things reasonably necessary to facilitate the children’s participation in the telephone/Skype communications.

8. That for the purpose of order 7 herein both the wife and the husband are at liberty to email each other directly in relation to varying the telephone/Skype days and times.

9. That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Faulconer Blan & Blan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2791 of 2013

Ms Faulconer Blan

Applicant

And

Mr Blan

Respondent

REASONS FOR JUDGMENT

1. Before the Court are proceedings in relation to three children: E, born in November 1998 and now aged 15; F, born in July 2001 and now aged 12; and K, born in September 2003 and now aged 10 (“the children”). The parents are Mr Blan (“the father”) and Ms Faulconer Blan (“the mother”). 

2. On 31 October 2013, Senior Registrar Campbell heard an application of the father seeking supervised time with the children pending further order. Before the Senior Registrar, the mother opposed that application and sought that the father have no time with the children. 

3. After hearing the matter, the Senior Registrar ordered time between the father and the children which was to be professionally supervised, ultimately by an agency known as H Supervisors.

4. The mother sought to review the orders of the Senior Registrar, and it is on that basis that the matter comes before me, to review the decision by way of hearing de novo. 

5. The proceedings relate to an assertion on the part of the mother that the father poses a risk to the children by virtue of his having sexually abused the mother’s youngest brother and his downloading pornographic material online. The mother asserts that some of the material which was downloaded relates to images or text in relation to children. 

6. Whilst that assertion has not been proved before me, I take into account the fact that a subpoena was issued to the Commissioner of Police for the production of the relevant material. Mr McIlwaine of Counsel appeared for the Commissioner and told the Court that some of the material sought to be produced under the subpoena came within a restricted category which related to images of children. Agreement was reached for the material to be inspected by the legal representatives only and in the meantime to be held in the custody of the Commissioner of Police. 

7. The matter comes before me as an interim application. None of the evidence or the allegations referred to in the evidence can be tested. The father denies the assertions which are made by the mother. In those circumstances it is not possible for me to make findings of fact. 

8. The mother’s brother has sworn an affidavit in the proceedings. He deposes to an escalating relationship with the father, commencing when he was 11 or 12 years old and culminating when he was 15 or 16 years old when the father asked him for oral sex. 

9. The mother became aware of her brother’s allegations only in late 2012. 

10. After hearing the allegations, the mother and her sister gained access to the father’s computer and copied a large volume of material from the computer. They allege that the material is pornographic in nature and that it deals with incest and sex between adults and teenagers. Those allegations will fall to be determined by the Trial Judge in these proceedings. 

11. The father was charged with three counts of possessing child abuse material, and on 17 September 2013, those charges were dismissed.

12. The father, before me, seeks supervised time with the children in accordance with the orders of the Senior Registrar. The Independent Children’s Lawyer also seeks supervised time between the father and the children with a slightly differently worded order. The Independent Children’s Lawyer wishes to reduce the telephone and Skype contact between the father and the children slightly, and the father agrees to that proposal. 

13. The mother seeks that there be no face-to-face contact between the father and the children, even in the presence of a professional supervisor, and seeks to reduce the phone or Skype contact to one call each week. 

14. The Court has had the benefit of a report produced by Dr J who is an associate professor of psychiatry and a child and family psychiatrist. That report was released in December of 2013. 

15. Also before me I have the benefit of reports of five out of six occasions of supervised time between the children and the father, supervised by professional supervisors from H Supervisors. The written reports are extensive in relation to the first five episodes of time between the father and the children. 

16. Dr J was provided with reports of the first two visits. 

17. The supervisors report visits with the children and their father which are happy, relaxed and enjoyable for the children. The supervisors make no adverse comments about the father’s parenting or his interaction with the children. 

18. The mother complains of one comment by the father which she says is inappropriate. In the supervised visit which took place on 6 January 2013, the father is reported as saying to the children, in relation to New Year’s resolutions, that he had made one resolution, which was to do all that he could to get things back to normal as soon as possible. On its face, I do not ascribe to the father’s statement a sinister or inappropriate connotation. 

19. The mother swore an affidavit in the proceedings on 14 January 2014. She does not report any adverse reaction or effect on the children after the supervised visits.

20. Dr J saw the children on 29 October 2013 both alone and with their father. In her report Dr J says at page 16 that the mother told her that the children love him (referring to the father) and they trust him so she understands that they want to see him.

21. When Dr J spoke to the children, she records on page 20 of the report in relation to E:

    It has been difficult not seeing dad, and [E] wants to see him.  She has an understanding about the issues, about his computer activities, but she still wants to see him.  She believes that [F] would feel the same way and possibly [K] too. 

22. At page 21, in relation to F, Dr J says: 

    But whatever it is, [F] wants to see him again.  She misses him, especially at times like birthdays and Christmas.  She is very sad that they are not seeing him. 

23. At page 22, Dr J says in relation to K: 

    [K] was very surprised when his parents split up; he feels sad about it and he wants to see dad again;  he would like to see him a couple of times a week.

24. Dr J goes on to say in relation to K: 

    He doesn't recall any bad experiences that he has had in the family.  Neither mum nor dad has ever done anything that has made him feel uncomfortable or unhappy.

25. Dr J, at the end of page 22, states, in relation to K:  

    It seems clear that he had nothing to report and he remained relaxed and open. 

26. In relation to her observations of the children when interviewed with their father, Dr J says on page 29: 

    The three children joined us now, and it was plain that they were very pleased to see their father; there was a very affectionate reunion.  All three sat on the couch close to Mr [Blan] [the father], and there was an easy interaction:  they chatted easily and brought him up-to-date on various events that he had missed with them.  There was a lot of good humour.  It was an easy session and there were no issues.  Mr [Blan’s] [The father’s] behaviour was entirely appropriate. 

27. On page 30, Dr J says in relation to her debriefing session with the children: 

    They agreed that they were pleased with the visit, and they had no other issues they wished to raise.  I then spoke with each of the children alone.  None had anything else to add, and they confirmed that the meeting with their father had been very pleasant.

28. In relation to the children’s relationship with their father, Dr J said at page 39: 

    Nevertheless the children are strongly attached to him, and the bonds between father and children are warm and affectionate. 

29. Turning then to the matters to which I am required to give weight pursuant to section 60CC of the Family Law Act insofar as they are relevant to the limited enquiry before me.

30. It is presumed that the children will benefit from a close and ongoing relationship with their father. The issue for the Court is how and whether that relationship can be fostered while concurrently ensuring that the children are safe and protected from any possibility of harm arising out of their father’s behaviour. This consideration takes place in the context that it is conceded by the father and the Independent Children’s Lawyer that any time which will be spent between the father and the children will be professionally supervised. 

31. It is submitted on behalf of the mother that professional supervision cannot prevent the father from grooming the children, particularly, K. There is no evidence which supports that submission. Dr J does not express any concerns about the adequacy of professional supervision. The reports of the supervisors satisfy me that they are vigilant and observant, and on the evidence before me I am satisfied that they will be alert to any covert influences on the children. 

32. The views of the children have been expressed in Dr J’s report to which I have referred earlier in these reasons.. 

33. As to the nature of the relationship between the parents and the children, Dr J reports, in relation to the father, that the children are strongly bonded to the father, and they wish to have regular contact with him. The mother in her affidavit sworn 20 June 2013 says that the father:

    Has been an important part of the children’s lives providing love, support and mentoring.

34. Dr J, in her report, states that the children love their father and that they trust him, and, indeed, that is what the mother told Dr J. 

35. The willingness of each of the parents to support the relationship of the children with the other is a matter that will be assessed in the final hearing and is not for determination here.

36. However, the effect of any changes in the arrangements on the children needs to be considered. Having regard to the statements made by the children to Dr J and their evident pleasure in spending time with him, observed by both Dr J and the supervisors, it is likely that the children would be distressed if their time with their father ceased.

37. The mother proposes a substantial reduction in telephone and Skype contact with the father. In her affidavit sworn on 14 January 2014, at paragraph 33 and following, she sets out the difficulties that she perceives with the arrangements between the father and the children for telephone and Skype contacts. Those difficulties are not exceptional, having regard to the children’s different ages and stages of development and the activities which they all enjoy. 

38. I accept that the mother finds the supervision of the children’s calls with their father upsetting. Dr J, at page 33, says this in relation to the mother:

    The mother presents some mild symptoms of depression and trauma that are entirely reactive to this situation and, most likely, they will resolve with the resolution of these matters.  Thus, she is deeply preoccupied with the issues, especially with the possible risk of harm to the children.  Given the context and what the mother understands about the situation, her reaction is largely appropriate.  Her symptoms are not sufficient to require medication but she might benefit from some further counselling.  These symptoms do not cause any significant impairment of her capacity to parent.

39. I note that the mother has taken Dr J’s words to heart and has sought professional guidance in relation to her own situation. At paragraph 26 of the mother’s affidavit, the mother deposes, “More recently, my physical symptoms have reduced. However, I continue to feel very anxious about the children spending time with the [father].” 

40. Whilst I am sympathetic with the mother’s anxiety and her distress, which is entirely understandable, I do not consider that her anxiety is such that it outweighs the benefit to the children of contact with their father in circumstances where their face-to-face time with him is limited to three hours each fortnight.

41. I am required to balance the protection of the children on the one hand and the maintenance of their relationship with the father on the other. I am satisfied that the limited time and strict professional supervision ordered by the Senior Registrar in relation to the children’s spending time with their father is appropriate to protect them until such time as the court is able to hear and assess the evidence and determine whether the father’s conduct proposes a risk to the children. 

42. In relation to the form of orders sought by the Independent Children’s Lawyer, I do not propose to impose upon the parents, in the circumstances, the further burden of negotiating arrangements for the time the children spend with their father and I propose to make those orders which were set out by the Senior Registrar in relation to the supervised time. The parents and the Independent Children’s Lawyer agree that there should be an order that pending further order, the children live with their mother and I will make that order.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 20 January 2014.

Associate: 

Date:  20 January 2014