Hemiro and Sinla

[2008] FamCA 244

FAMILY COURT OF AUSTRALIA

HEMIRO & SINLA [2008] FamCA 244

FAMILY LAW – CHILDREN – Parenting– Magellan -  assessment in process - whether continued suspension of orders for time with child is warranted.

Family Law Act 1975 (Cth)

HUSBAND: Mr Hemiro

WIFE: Ms Sinla

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9921 of 2007

DATE DELIVERED: 1 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 1 February, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND:	Mr. Clarke
SOLICITOR FOR THE HUSBAND	Kennedy Guy

COUNSEL FOR THE RESPONDENT:	Ms. B. Crocker
SOLICITOR FOR THE RESPONDENT	Hogg & Reid

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr A. Salce, Forte Family Lawyers

Orders

1. That pursuant to s.62G(2) of the Family Law Act 1975 a family report be prepared and released before 30 May, 2008 and that it be in the absolute discretion of the family consultant preparing the report as to whether he or she observes the father with the child … born … April, 2003

1. That each of the parties attend upon Dr. E for the purpose of the preparation of a psychiatric assessment and that Dr. E’s report be filed no later than 25 April, 2008. 

1. That the costs of Dr. E’s reports be shared equally between the parties  AND IT IS REQUESTED  that Victoria Legal Aid extend funding for the mother for this purpose. 

1. That prior to seeing the parties, the following material be provided to Dr. E :

   (a)all reports prepared by Mr. P in earlier proceedings between the parties;

   (b)all reports prepared by Gatehouse; 

   (c)such of the subpoenaed material as the independent children’s lawyer, after consultation with the parties, deems appropriate;  and

   (d)all affidavits filed in this Court after the date on which Dr. E prepared his earlier reports. 

1. That the independent children’s lawyer have leave to copy those parts of the subpoenaed material which are to be provided to Dr. E. 

1. That the wife be at liberty to arrange counselling for the child with Gatehouse or such other service (or psychologist/counsellor) as recommended by Gatehouse.

1. That the reasons for judgment this day be transcribed and copies made available to the parties. 

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9921 of 2007

MR HEMIRO

Husband

And

MS SINLA

Wife

REASONS FOR JUDGMENT

1. I will not repeat the background to this matter, which is set out in a ruling  delivered on 16 November, 2007.  The case concerns the parties' child, who is four.  As made clear in that ruling, the father was very keen, understandably, to resume contact with the child, having had no contact with her since August 2007. 

1. When the case was before me in November 2007, the child had commenced an assessment at the Gatehouse Centre at the Royal Children’s Hospital.  I determined that no decision should be made about the question of the father’s time with the child, or the future conduct of the matter, until the court had an opportunity to consider that assessment.  The matter was adjourned to today to allow for its completion.  Gatehouse has now provided a report, dated 30 January 2008, prepared by Ms R, an experienced child psychotherapist.

1. I also made orders which provided for the filing of any additional affidavit material seven days prior to today's date.  On 25 January, the wife filed two affidavits;  one is sworn by her and one by her mother.  I understand from the submission of counsel for the father that it is probable those documents were late served, albeit filed within the deadline.   

1. A short responsive affidavit, sworn on 1 February, was filed by the father today.  

1. The application of the father is for the immediate resumption of contact.  The submission of the mother is that there should be no orders for any time until a trial of the competing applications allows the court to make findings about the allegations made.  That position is supported by the independent children's lawyer.

1. The parties previously used a contact service in the western suburbs for changeovers.  It is unclear whether the parties have been reassessed to use that centre for supervised visits, as opposed to changeovers.  It is unclear whether the service would be able to supervise the father’s time with the child.  I am told there would be a delay of one to two months before supervised time could commence.

1. In terms of case management, it was the submission of the father that Mr P, who prepared reports in an earlier set of proceedings (which resolved by final orders made in November 2006) should be asked to prepare an updated report. He also submitted that Dr E, who prepared psychiatric assessments for that same round of proceedings, should prepare a fresh assessment.

1. For the mother it is submitted that there is no need for an updated family report and that exposing the child to the potential trauma of time with her father in the course of preparation of such a report would be contrary to her welfare. She also submitted that it is not in issue that, prior to these allegations arising, the relationship between the child and her father was good, that their attachment was sound, and that the child loves her father. 

1. The mother's position is that if there is to be a psychiatric assessment, Dr E should not undertake it, as she formed a view, based on his earlier report, that he accepted the father's side of the story.  To put it in simple terms, she does not have confidence in him. 

1. The independent children's lawyer supported the preparation of a family report, whether by Mr P or a family consultant of this court, but did not press for an updated psychiatric assessment. 

1. To deal first with the question of time between the child and the father in the interim. The evidence which was not adverted to in the earlier judgment, is that contained in the affidavits of the mother and her mother, the father and the Gatehouse report.  The child has been seen six or seven times alone with Ms R.  On the fifth occasion, she spoke of being abused by her father. It is the mother's evidence that the child made a disclosure in similar terms to her on the night before that session.

1. There are a lot of discrepancies in the accounts. As counsel for the father has pointed out, some of the allegations made now are different to those made previously, and they are not necessarily of a sexual nature.

1. Two things need to be said about that submission.  First, research shows that children who have been the targets of abuse may disclose over lengthy periods, may disclose different things over those periods, and there may be inconsistencies in their accounts.  That is not to find that there is any truth in the allegations in this case but to point out that the court cannot discount them for those reasons alone.

1. Second, when one talks about children being frightened, or manifesting fear through behaviour or words, it is not always possible to be sure what has given rise to that fear.  Potential causes may be psychological, physical or sexual abuse, or events which do not come within any of those categories.

1. The Gatehouse report is of concern because it is the opinion of the psychologist that the child has, over a period, communicated experience of trauma within her family context.  Her expression includes an overwhelmingly powerful male figure being physically abusive to a child or infant, and a male figure whose actions are conveyed as being for his own needs at the expense of her and her mother.

1. The child has also communicated an awareness that it is her mother who has been traumatised and needs care. Ms R carefully points out that the child may feel it is her responsibility to care for the mother.  Ms R’s report is comprehensive and cogent.  Her opinion is that the child should be offered therapy, and that as contact with the father may further confuse and traumatise her, any contact needs to be carefully introduced at a time and frequency in line with the child’s readiness.  Ms. R made it clear that this may not be in the immediate future.  If and when contact is introduced, Ms. R recommended it be closely supervised, preferably at a contact centre.  It is not a report which recommends no contact, ever; its thrust is that contact needs to be considered and implemented commensurate with the child’s needs.

1. I have regard to that evidence and to the concession of the mother that the child’s relationship with and attachment to her father has been sound in the past. This gives rise to a reasonable inference that contact could be reintroduced in the future, if the child is deemed to be safe in the then circumstances. However, I am not satisfied that, consistent with its obligations, the court can order contact now.  In my judgment the emphasis must be on protecting the child from physical and/or psychological harm and until these allegations are tested, there is an unacceptable risk of harm if she were to spend time with her father.

1. Mr P does not provide reports funded at Victoria Legal Aid rates, which is a stumbling block to his involvement.  In my view, it will be useful for a family consultant to prepare the report.  It will be entirely within the discretion of the family consultant as to whether the child is seen with her father.  The family consultant can speak with Ms R.  I propose to order that the mother be at liberty to arrange ongoing counselling for the child with Ms R.  If Ms. R and the family consultant believe it to be in the child’s interests, the family consultant could observe the child at Gatehouse.  Those are matters within the professional discretion of Ms. R and the family consultant.  The family report will be available for release by 30 May.

1. I am satisfied there should be updated psychiatric assessments.  It is clearly the father's case that the mother has coached the child to repeat invented allegations.  That raises the potential for him to question the mother's psychiatric state, and I do not want the trial to be derailed by not having necessary evidence before it. 

1. I am aware of the mother's concern about Dr E, having heard from her counsel.  I have been told that there are matters raised in Mr P’s report and, indeed, in the Gatehouse report that would indicate that a preliminary view Dr E expressed was not well‑founded.  Orders will provide that Dr. E have access to all that material, as well as other subpoenaed material.  It would not be helpful to end up with two psychiatrists giving evidence to the court.  Dr E’s updated psychiatric assessments are to be filed by 25 April.

I certify that the preceding
20 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.