Helm and Walenty

[2011] FamCA 770

FAMILY COURT OF AUSTRALIA

HELM & WALENTY [2011] FamCA 770

FAMILY LAW – CHILDREN – Magellan matter – Case management hearing – Where allegations have been made that the father has sexually abused daughter – Where the Department of Human Services have elected not to intervene in the Family Court proceedings, but are proceeding with their application brought in the Children’s Court.

APPLICANT: Ms Helm

RESPONDENT: Mr Walenty

INDEPENDENT CHILDREN’S LAWYER: Ms Walters,
Lampe Family Lawyers

FILE NUMBER: DGC 3870 of 2009

DATE DELIVERED: 20 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 20 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Harrison
Robert Halliday & Associates

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Keysers
Duffy & Simon

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Langham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders

IT IS ORDERED THAT:

1.This matter remain listed for final hearing to commence on Monday 25 July 2011 at 10.00 am.

2.This matter be listed before me for review by telephone on 11 July 2011 at 2.00 pm.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGC 3870 of 2009

Ms Helm

Applicant

And

Mr Walenty

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. This matter, which concerns the child B born in 2004, is set down for final hearing in this Court as a Magellan matter on 25 July 2011.  It is estimated to take between five and eight days. 

2. The preparation of the matter for trial in this Court has been interrupted by proceedings taken by the Department of Human Services (“DHS”) in the Children’s Court for the protection of the child.  The proceedings in the Children’s Court arise out of a risk which DHS identifies emanates from the child’s father, Mr Walenty, and, in particular, allegations that he has sexually abused the child.  The mother, Ms Helm, is supportive of the proceedings in the Children’s Court and seeks that they run their course.  She seeks that the child be interviewed by an independent lawyer to be provided for her on 5 July and that Mr Walenty undergo a “psychosexual assessment” which has been arranged by DHS.  The lawyer for the child’s mother says that his client would like to “hear the allegations made against the father” because they do not emanate from her.

3. The father’s preference would be that all matters be ventilated in this Court and that DHS intervene here as a party so that there can be a determination by this Court of all parenting aspects concerning the child including the concerns in respect of which DHS has made a protection application. 

4. The Department of Human Services was invited to intervene in these proceedings and has declined to do so.  By letter dated 10 June 2011 from one Ms C, protection worker, this Court was advised that protection application proceedings were on foot, that an interim accommodation order had been made in the Children’s Court and that the father was to have access to the child which was supervised.  The letter goes on to say:

   I request this Honourable Court to adjourn the Family Law Court proceedings until the proceedings in the Children’s Court are finalised.  Please note that it is difficult for me to estimate when the proceedings at the Children’s Court are likely to be finalised. 

   The Department of Human Services does not wish to intervene in the family law proceedings and does not wish to attend Court on 20 June 2011.

5. The purpose of these reasons is to set out briefly a history of the proceedings in this Court and to put beyond doubt that this Court remains willing and is appropriately resourced to determine all matters in this case, which has been classified as a Magellan matter. 

6. The hearing on 25 July 2011 will remain and I will review the file again after the next mentioned date of the Children’s Court proceedings, which I am advised is 5 July by all present today.

Background

1. The mother and the father were in a relationship for two years between about March 2003 and January 2005.  The one child of their relationship is B who is now aged six years.  The parties separated in January 2005.  On 17 February 2007 Burchardt FM made final orders by consent which provided that the parents have joint parental responsibility, the child reside with the mother and spend time with the father on alternate weekends from Friday through to Sundays and alternate Wednesdays and half school holidays and special occasions.  At that stage, the child was two and a half years old.

2. The mother instituted proceedings in the Federal Magistrates Court at Dandenong on 16 November 2009 seeking orders that the previous orders be discharged and that she have sole parental responsibility and that the child reside with her.  She also sought the matter be placed into the Magellan list and that there be no communication between the child and the father.  In this round of proceedings the mother’s evidence was that the parties’ separation was precipitated by a violent assault upon her by the father and that the father consumed alcohol to excess.  By a response which was filed on 23 November 2009, the father sought orders not dissimilar to the original consent orders, and as a fall-back position if supervision of his time with the child was considered necessary, he would pay for a professional access agency to supervise his contact.

3. He supported the matter being classified as a Magellan matter so that the hearing would be expedited, the proceedings would be judge managed and DHS would be involved.  He also sought that an independent children’s lawyer be appointed and that the mother undertake supervised drug screen tests.  In his evidence the father conceded that his relationship with the mother had been volatile.  He conceded to having an alcohol consumption problem but said that had abated.  He alleged that the mother had been and continued at that time to be a substantial drug user and that post-separation he attempted to have regular time with his daughter but that time had been thwarted.  As a result, he had found it necessary to institute proceedings after separation which had resulted in the consent orders made on 17 February 2007.

4. On 24 November 2009, orders were made by consent in the Federal Magistrates Court at Dandenong.  The mother was to undergo supervised drug screen tests, the parents were to complete all necessary forms for the admission of the family into a contact centre, and there was to be private professional supervision of time in the meantime.  The matter was also transferred to the Family Court. 

5. On 2 December 2009 the usual orders made for Magellan matters were made.  The department was requested to intervene in the proceedings or, alternatively, to prepare a report.  An independent children’s lawyer was requested and in due course Jamie-Lee Walters of Lampe Family Lawyers was appointed as independent children’s lawyer and she remains the child’s independent children’s lawyer today.

6. By a report dated 9 February 2010, DHS concluded that the father’s time with the child should be supervised due to what it perceived as the serious nature of the allegations.  These allegations were made by the mother to the effect that the child had complained of digital vaginal penetration by the father.  DHS noted that there were inconsistencies in the information provided by the child during a VATE interview.  The inconsistencies included that she said that the abuse happened at night, then during the day, then many times, and then two times only.  It is noted that she presented as a fidgety child and was difficult to engage.  This was attributed by DHS to her being “very young.”

7. The medical examination was inconclusive but the report submitted to the police did not exclude the possibility of the alleged abuse.  It is recited that there were ongoing criminal investigations and it was at that stage unclear if the father was to be charged.  The father denied all allegations, but did confirm that the parties’ relationship was volatile and that he had had an alcohol abuse problem which he has since overcome.   The father also made an allegation of marijuana abuse by the mother.  As a baby the child did have some developmental delays.

8. DHS reported that the protective worker had spoken to a refuge worker in Western Australia who confirmed that at the time of one stay by the mother at the refuge, she presented with black eyes, bruising and abrasions. 

9. On 19 February 2010, the matter came before Brown J sitting as a Magellan Duty Judge.  A family report was ordered to be prepared by one Ms D.  The matter was adjourned pending receipt of the report.  It was ordered that the child spend time with the father on alternate Wednesdays from 4.30 pm to 6 pm commencing on 3 March and alternate Saturdays from 10 am to 2 pm commencing on 10 March and otherwise by agreement and that all times were to be supervised by Home Access Network at the cost of the father.

10. Ms D’s report, which was her first report, was released on 9 April 2010.  It is 13 pages and 50 paragraphs long.  It is a document common to all parties.  It appears from the report that Ms D’s clear impression was that the mother had interrogated the child about various comments she made and that it would have been apparent to the child that the mother did not like the father.  When the child was interviewed by Ms D she retracted her comments spontaneously and said that the father did not do anything wrong and that the writer should prepare a letter to her mother telling her mother that this was the case.  Ms D reports that when she presented the retraction to the mother, the mother accused the child of lying and demonstrated displeasure when the child asked to spend more time with the father.

11. Apart from seeing the mother and the father and the child, Ms D also saw one Ms E who was then the partner of the father.  At paragraphs 24 to 28 of the report Ms D deals with her assessment of Ms E.  It is apparent that Ms E told Ms D that the abuse which was alleged to have occurred could not have occurred because Ms E was actually present at the time and sleeping with the child on a mattress in the lounge room.  Therefore, Ms E’ conversation with Ms D would have been exculpatory of any wrongdoing by the father including the allegations which were the subject of the proceedings.  Ms D described Ms E as follows:-

    24        [Ms E] formed a relationship with [Mr Walenty] in September 2009 and she and her 16 year old daughter, [F], have lived with [Mr Walenty] since approximately late October 2010.  She has two children from her previous marriage: [F] lives with her and spends time with her father each weekend and her 19 year old son lives independently with friends.  She stressed that the relationship with [Mr Walenty] was a longstanding one and that they had known each other as friends for five years.

    25.        [Ms E] confirmed the circumstances for the weekend that the sexual abuse was alleged to have occurred.  Further she claimed that she had previously had a stomach virus of some kind and that the child probably caught it from her.  This may have been the reason [the child] was sick on the Sunday night.  Instead of [the child] sleeping in her own bed, they settled together on the mattresses in the lounge room to comfort her because she had been sick.

    26.        Like [Mr Walenty], the circumstances of having detectives come to their home and interview him, was traumatic and both of them “have since been in shock”.  [Mr Walenty] had received a text message from [Ms Helm] that mother and child might have swine flu as an explanation as to why contact could not proceed as scheduled.  [Ms E] added that [Mr Walenty] was at that point preparing to take food, groceries and hot soup to [Ms Helm] and [the child] because he was concerned that they would not have been able to shop for their necessities.

    27.        She has observed the relationship between father and daughter and considered that [the child] is very caring and loving toward her father.  She explained that [the child] “adores” her father and listens to him and that is why he does not even need to raise his voice to her.  She also described [the child] as being confused and that she has missed her father.

    28.        [Ms E] would be prepared to act as supervisor.  She clearly understood the role of supervisor to be concerned with the welfare of the child as the foremost consideration and would be prepared to cease the time in the event that there was any improper behaviour.  She also understood that such a role could cause a conflict with her relationship with [Mr Walenty].

12. Ms D set out conclusions in her report dated 9 April 2010 as follows:- 

    42.      [B] was five years old when she made the allegations to her mother that she had been sexually abused.  [Ms Helm] has a strong belief in the truth of both allegations: that the child was anally penetrated and “poohed” on her father’s hand” and that she had been scratched on the vagina.  She believed the latter because this too had allegedly occurred to [Ms Helm] during her relationship with [Mr Walenty], and also because the child appeared to be in pain when she urinated on return from spending time with her father.  Although [Ms Helm] admitted asking a direct and leading question to the child about being touched on the vagina, she maintained her belief that the disclosure was true and that she remained calm during the questioning of the child despite her shock at the disclosures.

    43.      [Ms Helm] did not believe [the child’s] apparent retraction and instead accused the child of lying and maintained that she only lied since attending school.  She demonstrated her displeasure with [the child] when the child asked to spend further time with her father and told [Ms Helm] that her father will not do it again.  She further confronted [the child] when returning home causing the child to again retract her previous comments.  [The child] is all too aware of her mother’s feelings about the allegations and has heard her discuss it with many people.  I was concerned that [Ms Helm] would ask [the child] about her comments to me during the interviews and for this reason I had asked the mother not to discuss them with [the child].  I do not consider [the child] telling her mother that “she lied” during the interview, to constitute a confirmation of the abuse allegations.  In the circumstances, [the child] would have been reacting to her mother’s expectations and wanting to minimise any further problems.

    44.      From [Ms Helm’s] own account, [the child] has repeatedly wanted to return to how things were prior to the allegations, which [the child] characterised during the interviews as wanting things to return to “normal”.  [Ms Helm] has also debated and argued with [the child] that tickling is bad: [Ms Helm] included tickling of the child’s back and tummy as well as the backside.  The child has probably become confused about characterising previously pleasant experiences (rubbing back and tummy) as bad or wrong.  [The child] rubbed her “care bear” doll’s stomach during the interview to make her feel better.  There is little indication that this child has demonstrated distress when recounting the alleged touching to the various people who have asked her.  [Ms Helm’s] description that [the child] was angry in the early stage after the allegation was made, if true, could either be as a result of not being able to see her father or as a result of the alleged abuse.

    45.      [B] has now been interviewed or counselled by various people over the past six months.  Much of what [the child] now alleges occurred is likely to be highly unreliable and contaminated by repeated questioning and discussion of events which may or may not have occurred.  [The child’s] primary attachment is with her mother.  She would be strongly motivated to please her mother and to minimise further problems.  If [the child] is punished and “yelled” at home with her mother, her need to please her mother is even stronger.  [Ms Helm] rejected any possibility that [the child] may make comments to please her or in the belief that she should say what her mother wants to hear or in response to her mother’s reaction. 

    46.      [The child’s] relationship with her father appeared gentle and loving and despite the 5 months absence in her life, she demonstrated a strong attachment to her father.  My observations of their relationship were consistent with comments describing their relationship.  She was very well behaved and calmer with her father.  [Mr Walenty] was patient and the child listened to her father.  There was a notable lack of fear or reticence in how she related to him.  The circumstances during the interviews which elicited the statement that her father had not done anything bad to her and she had made a mistake, were significant.  The comments were spontaneous and there was no expectation that she make any comments about the abuse allegations.   It had not been mentioned to [the child] nor discussed in her presence.  It was the neutral and relaxed atmosphere and possible memories to their previous relationship what prompted [the child’s] comments.

    47.      The child’s comments, her earnestness and repeated urgings to intervene on her behalf were compelling as was her pleasure when I indicated that I would speak to her mother.  I strongly doubt that [the child] was lying.  I am of the opinion that [the child] wants to see her father again for extended periods and to resume staying overnight.  I consider the circumstances and the child’s comments as being strongly indicative of a good and healthy relationship between father and child. 

    48.      [Mr Walenty] behaved appropriately, was non-defensive and gave serious consideration to the allegations to try to understand how they may have arisen.  He had a good appreciation of [the child’s] needs and was child focused.  He did not simply deny the allegations and blame the mother.  At no stage has [Mr Walenty] blamed [the child] or been angry with her conduct.  He reviewed his behaviour and whether in the past he had acted in ways which could have been construed by [the child] as abusive or contained any elements of the allegations made against him.  He has experienced the allegations and the police involvement as traumatic and in pursuing Court proceedings, is primarily motivated to again resume his relationship with [the child].  His conduct at interview was open and frank and he was at all times considerate of the child’s needs.

    49.      It is not the role of the psychologist to indicate whether sexual abuse occurred.  In the circumstances of this case, no psychologist would be able to make recommendations to the Court without qualification.  All the indicators are that [the child] does not consider that she has been abused by her father.  From observations and interviews, her relationship with her father is positive and on this basis I would recommend that the child’s time with her father be restored including overnight time on alternate weekends and alternate Wednesdays.  Until the matter is determined by the Court, supervision by a family member may be appropriate.  Although it is unusual, [Ms E] could supervise the father’s time or [Mr Walenty] undertake to the Court not to be alone with the child nor to bathe or attend to her toileting.

    50.      [Ms Helm] has a strong belief that [the child] was abused and may need therapeutic counselling to assist her when this matter is concluded. Counselling may further assist her to support [the child’s] continuing relationship with her father.

1. Final orders were ultimately sought by the consent of the mother and the father and the independent children’s lawyer and made by Brown J on 15 April 2010.  The orders provided for shared parental responsibility, for the father to spend time with the child each alternate weekend from Thursday after school to before school on Monday, and on Thursday overnight in the other week and for half school holidays and special occasions.

RECORDED:   NOT TRANSCRIBED

1. I note that on 15 April 2010 the mother was represented by Mr Brewer of counsel, Ms Phelan represented the father and Ms Walters appeared as independent children’s lawyer.  The mother was represented by Robert Halliday & Associates, which is the firm who still represent her today.

2. The second round of litigation, which are the current proceedings in this Court, were commenced by the mother by filing an application in the Federal Magistrates Court on 9 August 2010.  She sought that all previous orders be discharged, that she have sole parental responsibility, that the father’s time with the child be reserved, that the matter be placed into the Magellan list and that an independent children’s lawyer be reappointed.

3. The father’s relationship with Ms E had concluded and it is apparent that Ms E has made reports to DHS which accused the father of sexually inappropriate conduct with the child. 

4. The court is informed that on 23 July 2010, DHS contacted the father and said that they had received a further notification.  So this second round of proceedings appears to be based on the mother’s understanding of reports made to DHS by the father’s estranged partner. 

5. In the father’s response filed on 24 September he sought that the previous parenting orders be discharged, that the child reside with him and that the mother spend supervised time with the child.

6. Of his own volition, the father underwent a risk assessment by Mr G, a psychologist.  It is dated 13 September 2010.  It is filed as an annexure to an affidavit sworn on 16 September 2010 and is a document common to all parties.  It is referred to as a “psychosexual report”.  It sets out chronologically, in what appears to be a well reasoned and comprehensive and internally consistent manner, the psychologist’s assessment of the father, and concludes that the father does not pose any significant risk to the child.  In particular, Mr G concludes at page 13 and 14 of his report as follows:-

   7.        CONCLUSIONS

   [Mr Walenty] is a 34-year-old man psychologically evaluated in the context of Family Court proceedings associated with allegations that he has sexually abused his daughter.

   [Mr Walenty] grew up in the Pakenham area on a family farm, and works in the family business on the farm.  He described a positive early family life.  It appears he was not particularly academically oriented, and possibly could have been considered as having some behavioural problems in his teenage years, although in some ways his behaviour could probably be considered typical for his cohort.

   Nevertheless, it is clear that [Mr Walenty] has taken some time to settle.  His partnerships at times have been volatile, and it is likely that he is a person with some vulnerability towards impulsivity at times.  This is particularly evident in his alcohol use over the years, which at times is likely to have been excessive.  Additionally, he has used cannabis up until about 3 years ago.  It would appear that over the last 3-4 years he has gained greater stability, although his relationships may not have always been so consistent, and his choice of partners may not have been particularly wise.

   Nevertheless, [Mr Walenty] is a man without a formal psychological disorder, but it is possible that in the past he could have been diagnosed as person who abused substances.  However, he presents as a person who is relatively conventional and quite conservative in relation to his sexual values.  The specific sexual evaluation revealed a person who is at low risk of sexual offending.  He has had a series of relationships over time, as well as more short term contacts.  The likelihood of him offending against his daughter or any child based on this evaluation is very low.

   To understand the allegations as they have arisen, it is clear that they have come about in the context of some relationship conflict at a point where [Mr Walenty] had repartnered with a new partner and there was a history of conflict between himself and his daughter’s mother.  The family report would suggest a consistent and positive relationship between himself and his daughter.  There is also evidence from the family report of the statements made by the child being elicited through direct questioning from the mother, and as such, represent the possible effects of the questioning of children in a demand environment.

   I have not been in a position of interviewing the child directly or seeing the mother, and as such, the comments in this matter relate only to the evaluation of the father, and any comments about these matters should be qualified as such.

   To summarise, [Mr Walenty] presents with no psychological issue or a pattern of behavioural difficulties which would raise concerns about the care of his child.  He appears to have matured to some degree over the last several years, he is in a current relationship, and appears to have a positive relationship with his child.

7. The matter went before McGuire FM on 28 September 2010 and orders were made transferring the matter to this Court and for the father to continue spending time with the child, but with supervision to be provided by the paternal grandparents.  The time that the child was to spend was each alternate weekend from after school on Friday to the commencement of school on Monday, each Wednesday from after school until Thursday, some time on Christmas Day and for two periods of seven days each during the long summer school vacation.

8. The matter was reviewed by the Magellan Registrar who reappointed the independent children’s lawyer. 

9. In due course, the matter came before me and was set down for final hearing on 29 March 2011 to take somewhere between five and nine days.  A further report was ordered to be done by Ms D.

10. Ms D saw the mother, the father, and the child on 3 March 2011, as well as seeing the paternal grandmother.  Ms D’s report is dated 14 March 2011 (although the copy on the Court file appears to be erroneously dated 14 March 2010).

11. It is, in many respects, a very disturbing report.  Particularly as it concerns Ms D’s conclusion of how the child has faired with the continued proceedings about her and various evaluations.  Ms D describes a young child who appears to be in a high state of anguish and a family who is in desperate need of a resolution of issues.

12. Ms D’s evidence is untested in this Court.  In the ordinary course, Ms D would be cross-examined at length as part of the final trial process.  Ms D concludes as follows:-

    CONCLUSION

    52       These second set of allegations are that [Mr Walenty] rubbed the child’s leg while the child was masturbating when the two of them were on the couch.  [Mr Walenty] believed that the allegations were made by his ex-partner after their separation in circumstances when she was angry with him.  He denied the allegation.  DHS ensured that the child’s time with her father was suspended by requiring the mother to commit to a safety plan which included that [Ms Helm] was to supervise any contact between the child and [Mr Walenty].  Given the conflict between the parties and past allegations made by [Ms Helm] against the father, the supervision situation was unrealistic.  One visit occurred but [Mr Walenty] refused to participate in any further visits under those circumstances and despite repeated request by him to change the supervisor to the maternal grandmother, the mother would not agree and DHS did not respond.  It caused a 2 month delay in recommencing [the child’s] time with her father and significantly contributed to the adverse emotional and psychological reactions by [the child].  Ultimately at Court, the parties did agree to the paternal grandmother being the supervisor.

    53       There was no supporting evidence for the allegation and no disclosure by [the child].  Both parents reported that the child has “rubbed herself” or “masturbated” since she was a young child: neither parent has been particularly perturbed by her behaviour nor has she been discouraged from continuing to do it.  [Dr G] has assessed [Mr Walenty] as “a person who is at low risk for sexual offending”.   My assessment of [Mr Walenty] is that he continues to be child focussed, have good parenting skills and I make few criticisms of his parenting or attitudes toward [the child].  Subject to the Court making a finding of abuse, the child maintains a very good relationship with her father and there was nothing in her demeanour which indicated any fear of her father or resistance in being with him.  On the contrary the child has great trust of her father (as well as her mother) and all her actions are indicative of a child who wants and needs to maintain her relationship with her father.

    54       The notes on the child’s interview with SOCAU on 23 July 2010 are notable for the repeated statements by the child that her father had done nothing wrong when the first set of allegations were made and that she had lied.  She was accompanied by her mother and she was in the presence of a police officer and a DHS officer.  She had first made these comments at the interviews for the first Family Report and she has since repeated it at a formal interview with police and DHS and the father and paternal grandmother report that she has repeated it to them.  Given the earnestness of the child’s plea when I last saw her, withdrawing her statements and attempting to restore her time with her father, I can confidently conclude and reiterate my conclusions from the first report.  [Ms Helm] now also asserts that the child continues to want the normal resumption of time with her father.

    55       Subsequent observations and reports of [the child’s] behaviour by her mother, father and paternal grandmother, strongly suggest that [the child] has been significantly adversely affected by the events.  These events include: repeated interviews and questioning by her immediate family members and various professionals; disrupted relationship with her father, with whom she has been very close, with two prolonged periods of total separation and ongoing partial separation from her father because her overnight time is spent with her grandmother;  being informed directly or indirectly that her father, whom she loves has done wrong or bad things; conflict between her parents and her confused feelings resulting from conflict of loyalties.  It is likely that these multiple factors have contributed to the child’s psychological and behavioural reactions.  [The child] has had nightmares, she feared the dark, [Ms Helm] believed the child does not want to leave her to spend time with her father, she becomes highly distressed at separation from her father, and [the child] has extreme tantrums, angry outbursts and she has been observed to curl into a foetal position when severely distressed.  The angry and aggressive outbursts were also displayed at school and both her parents and paternal grandmother reported [the child’s] angry, disobedient and bad behaviour at home as being uncharacteristic.

    56       This second long break from seeing her father and the circumstances surrounding it have resulted in clinical symptoms which the psychologist, [Dr H] considered to be Post Traumatic Stress Disorder.  Despite the multiplicity of factors, I am of the opinion that her disrupted relationship with her father, the ongoing conflict and negative messages the child experiences about the other parent and her interpretation that she must show loyalty to the parent that she is with, are likely to be the key reasons for this young child’s disturbance.  [The child] is being given direct and indirect messages that her relationship with her father is under scrutiny and her relationship with him is curtailed.

    57       I continue to be concerned about the extent of [the child’s] statements to her mother, and am of the view that [Ms Helm] continues to encourage the child, either directly or indirectly, to report the negative stories about the father’s household.  It promotes the child’s anxiety through her conflict of loyalties.   [Ms Helm] may be correct in saying that [the child] now does not report negative stories about her father because of her loyalty to him.  The focus of the antagonism appears to have shifted to the paternal grandmother and the child is reporting what she believes her mother wants to hear about the paternal grandmother.

    58       I would be concerned about any psychological intervention which solely involves the mother, even if it is only for the purpose of transporting the child.  I would also be concerned that [the child] will once again be faced with more questions by well meaning strangers and the potential for systems abuse.  I consider it important for this 6 year old child, to have consistent, loving and secure parenting which consolidates her attachment and bonding.  It is critical for the child that there is no further disruption of her time with her father.  She needs to feel that she can love both parents freely and that she is not involved in the parental conflict.  Should the child attend further interviews with health professionals for psychological and behavioural purposes, including the scheduled appointments at CAHMS, they should be provided with the two Family Reports to read prior to any interviews with [the child]. 

    59       [Ms Helm] has learned that [the child] loves her father and wants to see him but she has little insight about the damage which is cause to the child when that relationship is disrupted.  [Ms Helm] also needs to develop greater awareness of the impact of her feelings and expectations on [the child] and that the child feels she has to prove her loyalty to her mother and to tell her what she wants to hear.

    60       [The child] is still primarily attached to her mother and she is strongly bonded to her father.  At this stage I do not consider that the [child’s] primary residence should be changed but I would be very concerned should her relationship with her father be further disturbed by more separations.  The circumstances surrounding this second set of allegations and disruption to her relationship with her father have caused this young child to develop significant clinical symptoms.  Any further disturbance would be so concerning that, depending on the circumstances, a change of residence may then be considered.

    61       I recommend that the child remain living primarily with [Ms Helm] and spend substantial time with her father.  It is important for [the child] to spend reasonable chunks of time with her father to help reassure [the child] and consolidate her relationship with him.  I also recommend that there be as few change-overs between households as possible to minimise the various anxieties those changes create and, for the present time, few if any telephone calls to the other parent when the child is in the care of one parent.  I would advise [Mr Walenty] to change his work schedule if possible, so that the child is taken to and collected from school by him and so that he may be substantially in attendance.

    62       I recommend that [the child] spend time with her father from Thursday at the conclusion of school to the commencement of school Monday on alternate weeks plus Thursday overnight to Friday morning in the other alternate week. (An alternative but similar schedule could be from Friday to Tuesday on alternate weeks plus alternate Monday overnight to Tuesday).

    63       I recommend that [Mr Walenty] be involved in all significant decisions, that he ensure that he also becomes involved with the school and attend any medical and psychological appointments.

13. The hearing on 29 March 2011 did not commence due to the mother’s medical condition, however, there was opportunity for all parties to reassess their position. 

14. The matter came before the Court on 21 March 2011, at which time I had granted an adjournment of the final hearing but rescheduled it with the current hearing date of 25 July 2011.  Consideration was given to evidence to be relied upon by all parties, including the attendance of Ms E at Court.  The practitioners said the evidence of Ms E would be crucial but that they had not been able to serve Ms E with a subpoena.  The independent children’s lawyer was given permission to make an oral application for an order that Ms E attend Court on the first day of the final hearing in July and orders were made which enabled notification of that hearing and her requirement to attend to be given by Ms E by an SMS message because at that point it was only means available to anyone of contacting Ms E.

15. In relation to Ms E, the following orders were made:-

    12.      Subject to further order of the Court, [Ms E] attend Court to give evidence on 25 July 2011 and remain at Court until excused.

    13.      The independent children’s lawyer be at liberty to send a SMS message to [Ms E] in the following terms:-

    “I am the independent children’s lawyer for [the child] born … 2004 in proceedings which have been set down for final hearing to commence on 25 July 2011.  I have intended to serve a subpoena on you but do not know your current residential address.  In lieu of the subpoena, an order was made by the Family Court on 21 March 2011 requiring you to attend Court on 25 July 2011 to give evidence in these proceedings. It was further ordered that you be notified of your obligation to attend by SMS message to this mobile telephone number. In the event that you wish to have the order set aside or discharged you have liberty to apply to do so. In the event that you are prepared to accept service of the subpoena, whereupon you will not need to attend Court on the first day of the hearing, please notify me of an address at which you can be served with a subpoena.”

    14.      [Ms E] have liberty to apply to vary or set aside the preceding order, or as she may be advised.

    15.      In the event that [Ms E] has notice of the requirement that she attend Court as provided for in this Order and she fails or neglects to attend, each party to the proceedings has liberty to apply on 25 July 2011 for an order that [Ms E] be apprehended and brought before the Court for the purpose of giving evidence.

16. Ms E has not made any application to this Court.

17. On 31 March 2011 orders were made by consent which provided for the child to spend further time with the father from 19 to 26 April and from 2 July to 9 July on condition that the time continue to be supervised by the paternal grandparents.  The father was expressly permitted to participate in the child’s counselling through Child and Adolescent Mental Health Service and that service, CAMHS, was to be provided with copies of certain documents including the reports of Ms D dated 9 April 2010 and 14 March 2011.

18. The independent children’s lawyer arranged for a round table dispute resolution conference to be convened by Victoria Legal Aid, which is normal and commendable in matters after receipt by all of the parties of the expert evidence. 

19. On 11 May 2011 an RDM conference was convened at the premises of Victoria Legal Aid by Ms Hamilton-Green, solicitor.  The father was represented by his solicitor.  The mother was represented by Joye Elleray, who had been her counsel of longstanding in this proceeding.  The independent children’s lawyer, Jamie Walters, attended.  All outstanding matters were negotiated to a final resolution and minutes of orders were prepared and signed by the applicant mother, the respondent father and the independent children’s lawyer.  Those minutes (made an exhibit marked “Exhibit A, not made as orders”) record the agreement which was reached between the parties on that day.

1. The agreement between the parties which is set out in Exhibit A provides for equal shared parental responsibility, for the child to continue living with the mother, for the father to have unsupervised time with the child from the conclusion of school on Thursdays to the commencement of school on Mondays, overnight on Thursday in the other week, half school term holidays and two periods of seven nights during the long summer school vacation.  The mother was to authorise all information to be provided to the father from the child’s school.  The mother was to notify the father as soon as practicable of any attendances by the child upon doctors, specialists, counsellors or other professionals, save that by paragraph 11:

   The mother be restrained by injunction from taking the child to any counsellor other than CAMHS including but not limited to SECASA.

2. In paragraph 12 of the agreed minutes the father was required to attend upon a psychologist or psychiatrist at Vicpsychplus for a psychosexual assessment and further on in the agreement it was provided that the father provide confirmation of having completed a post-separation parenting program.  It was agreed that the father would provide a mobile telephone to the child and that the parties would attend a second RDM conference to review the parenting arrangements within six months.  It was also agreed that an order would be sought “that either party or the independent children’s lawyer be at liberty to apply to the associate of Bennett J for an urgent mention of the matter in the event of non-compliance with these orders.”  These minutes were never made into orders.

3. I am informed by the mother’s solicitor that shortly after signing the minutes the mother decided that she was not prepared to proceed with the agreement.  It is his description that the mother signed the orders under “duress” and that she again contacted DHS which commenced the current round of Children’s Court proceedings on 16 May 2011. 

4. On 17 May 2011 orders were made in the Children’s Court that both parents accept visits and abide recommendations of DHS, that the father undergo the psychosexual assessment.  Responsibility for making the appointment for the psychosexual assessment was apparently left to DHS which, I am advised, did not make an appointment until 1 June 2011.  The earliest appointment date that can be secured is now 21 July 2011 with Vispsychplus.  The solicitor for the father tells me that it will take some four to five weeks after the appointment for a report to be completed.  I received no explanation of the delay, from 17 May to 1 June, in making the appointment.

5. On 26 May 2011, the mother filed a notice of child abuse and family violence in which she alleges that the child is at risk of sexual abuse by the father.

6. There is to be a mention of the matter in the Children’s Court on 5 July 2011 by which time the Vicpsychplus assessment will not even have been commenced.  An order was made for the child to be independently represented, but apparently that doesn’t occur until 5 July either when the child will meet with a lawyer at Court.  In the meantime, the father was seeing the child in block periods from Thursday until Monday, subject to him residing at the home of the paternal grandparents during that period.  So it was not strict supervision in the terms that had previously existed.

7. I am advised that most recently, on 14 June 2011, the arrangements for the child to see the father have been further relaxed so that it can now occur at the father’s home, providing that his current partner, Ms J, is present. 

8. As indicated, the father’s position is that he wishes the proceedings to be determined by this Court at the hearing which can commence on 25 July 2011.  The mother’s position, as advised by her solicitor to the Court, is that she wants the Children’s Court proceedings to take their course, for the father to go for the Vicpsychplus assessment report and for the child to see her lawyer at Court on 5 July 2011.  As also indicated, DHS has decided to proceed in the Children’s Court with its protection application rather than to intervene in these proceedings.

9. The Protocol between the Department of Human Services and the Family Court upon which the Magellan project is founded was concluded many years ago and has recently been revised.  Broadly, it is directed at avoiding a situation where families are required to litigate in two courts.  That is in the Family Court of Australia as well as in the Children’s Court.  It recognises that DHS can and should elect to proceed in only one court so as to avoid a matter being conducted in this Court with further proceedings being taken, in relation to the same facts, in the Children’s Court.

10. I direct that, for ease of reference, a copy of the Protocol be attached to these reasons and I incorporate here page 21 of the Protocol at which a selection of jurisdiction is discussed.

11. In this case, DHS seem to have adopted a somewhat curious course.  It is open to DHS to intervene in this Court in these proceedings which are appropriately resourced and have been set down for hearing at the end of July, 2011.  Instead, they want to proceed in the Children’s Court.

12. It would appear that, in the event that the DHS protection application fails, the parents may well end up back in this Court litigating all parenting matters which is the sort of unsatisfactory outcome to which the protocol was originally directed. 

13. The conduct of DHS is within the broadest interpretation of what the protocol permits.  Providing that DHS succeeds in every respect, no harm will be done. However, if the matter requires further litigation in this court on issues of residence and time spent, the father and the community will have been put to considerable extra expense and delay.  The delay concerns me greatly as it is, according to Ms D, having very deleterious consequences for the child’s psychological health and wellbeing.

14. It is appropriate that I retain the final date of 25 July 2011 in case it can be of use to the family.  If I were to vacate that date now, it may send an inaccurate message to the parties, DHS and the learned Children’s Court judge that the family and DHS can no longer access this Court.

15. I will have a further mention of the matter after 5 July, when the matter is next before the Children’s Court.  On that date a decision will need to be made about the requirement of Ms E to attend Court on 25 July 2011.

16. In the event that the Children’s Court proceedings are concluded on 5 July, the matter could be listed before me immediately for mention and the trial on 25 July 2011 could proceed subject to the parties being ready. 

17. In the event that there is no resolution of the matter on 5 July 2011, but subsequently the parties need to come back to this Court, the matter can be allocated an urgent hearing date.

18. That concludes the reasons for judgment.

ORDERS DELIVERED

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 20 June 2011.

Associate: 

Date:  29 June 2011