Hemiro and Sinla

[2007] FamCA 1518

FAMILY COURT OF AUSTRALIA

HEMIRO & SINLA [2007] FamCA 1518

FAMILY LAW – CHILDREN – 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: 16 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 16 November 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr M. Clarke

SOLICITOR FOR THE HUSBAND: Kennedy Guy

COUNSEL FOR THE WIFE: Ms. Crocker

SOLICITOR FOR THE WIFE: Hogg & Reid

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr. Salce

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Forte Family Lawyers

Orders

1. That the further hearing of all extant applications be adjourned before the Honourable Justice Brown and the Magellan Registrar on 1 February, 2008 at 10:00.

2. That until further order the husband’s time with the child … born … April, 2003 be suspended.

3. That the parties do all things reasonably necessary to apply to … Contact Service or such other contact service as is agreed between them, to be assessed for the family to use the contact service for the purpose of supervised contact. 

4. That prior to the adjourned date the independent children’s lawyer file and serve a report from Gatehouse relating to the assessment currently being undertaken. 

5. That each of the parties file and serve any additional affidavits on which he or she intends to rely, no later than seven days prior to the adjourned date. 

6. That the question of costs of this day be reserved.

7. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

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

9. 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

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Although this matter was assessed as suitable for the Magellan list only very recently, it is clear from the file, and from the submissions, that it has some history in the court.  The parties lived together from May 2001, married in 2004 and separated shortly thereafter.  They divorced on 16 January 2006.  The child is their only child, born in April 2003.  Earlier litigation between the parties resolved when orders were made, by consent, on 21 November last year.  While those orders were made by consent, it is clear that in the course of that litigation significant allegations were made by each against the other.  Reports were obtained from psychiatrists and a psychologist and the litigation was hotly contested for some time. 

2. The consent orders provided for the child to live with the wife and spend two out of each three weekends with her father.  There were mutual non-denigration orders and changeovers were to take place at a contact centre.

3. The father was enjoined from viewing pornography while the child was in his care. 

4. On 4 September the mother filed an application in which she sought the suspension of the order which provided for the father to spend time with the child, the appointment of an independent children's lawyer (ICL), and an order that she be permitted to take the child to Gatehouse, for counselling.  On the same day she filed a form 4, alleging that the child disclosed, in August on a VATE tape, that her father had touched her on the bottom and vagina, and that it hurt.  It was alleged the child said that blood had come out, that she and her father both had blood on them and that she had asked her father to stop hurting her.  On three occasions she had asked her mother to help her. 

5. The mother's evidence was that the child came back from a contact period with a vaginal discharge, and drew pictures of the alleged abuse.  She deposed that the disclosures were made from about 20 August, 2007. 

6. In his response the father sought a variation of the previous telephone contact order (it provided for calls on Tuesdays and Thursdays between 6:00 and 6:30 and he wanted the calls to be at 6.15), a variation of a paragraph which required the mother to use her “best endeavours” to arrange an alternative weekend if he was unable to attend on any occasion (he wanted that to be an absolute entitlement) and that the mother's application be dismissed.  That was the position when the case came before Registrar FitzGibbon, on 25 September. 

7. On the material then available to him and the parties, and by consent, he suspended the order for the father to spend time with the child until today and ordered that both parents facilitate her counselling at Gatehouse.  A report was to be obtained prior to the adjourned hearing.  The counsellors at Gatehouse were to be provided with material filed by the parties. 

8. I accept that when the father agreed to those orders on 25 September he believed that, on the adjourned date (which is today) an assessment report would be available from Gatehouse.  The reality is that there were less than two months between the two hearing dates; it is easy to be wise in hindsight but it might have been preferable for a December date to have been fixed. 

9. Gatehouse has provided a very brief report, noting that the child was referred to them, having been examined by Dr Y on 22 August.  He recommended further assessment by an appropriate counselling agency and referred her to Gatehouse.  She then saw a paediatrician, Dr N, who referred her for the counselling assessment. The assessment is incomplete.  The mother has been seen as part of the assessment process on three occasions.  The child has been seen, together with the mother, on two occasions.  She has not yet been seen alone.  Her first individual session is planned for next week.  An assessment of a small child, involving serious allegations, takes time and it is anticipated that between three and five sessions with the child will be necessary.

10. Counsel for the father has drawn my attention to the fact that the Department of Human Services has advised they do not propose further involvement.  The report notes that, in the view of the worker, the mother is acting protectively, so DHS does not intend to intervene.  There had been two previous notifications to DHS.  One was in January 2005, relating to the father's care of the child;  the second in June 2005, relating to the mother's care of the child.  They do not take the matter much further, but are referred to in the DHS report. 

11. The DHS report notes that the child has made disclosures and that they were repeated to police, on the VATE tape.  I note the report also states that the VATE tape conducted by the SOCAU “did not provide evidence to support the allegation”. With a child of this age, a VATE taped interview can rarely be determinative.

12. The police position (as described in the DHS report) is that the father has been interviewed, and "exonerated".  I assume they mean that he will not be charged.  Exoneration is not within their power. A Senior Constable advised a DHS worker that he had reviewed two independent doctor's reports, one from a forensic medical officer and one from the family doctor, and neither reported evidence of “tampering”.  That is not a word I find particularly helpful in this context.  The police are not going to take any further action.

13. The reasonable inference is that the two reports are one by the family doctor, being Dr L (who referred to a "non-specific infection", treated with Canesten cream, so probably some form of fungal infection) and the Royal Children's Hospital assessment of 22 August, which reported a normal ano-genital appearance and nothing corroborative of the significant trauma which would need to occur were there to be significant bleeding.  It was Dr Y who strongly recommended an assessment at Gatehouse, noting the potential for different interpretations of what the child said; Dr N then endorsed that assessment.  There is no evidence that police spoke to anyone at Royal Children’s Hospital or Gatehouse.  I am not critical of that.  Police have a forensic role and to justify the preparation of a brief, a minimum standard of admissible evidence is necessary.  It is clear that, on the available evidence, they saw no justification for any charge to be considered.

14. The father seeks the immediate resumption of time with his daughter, who he has not seen for some time.  He is understandably very concerned about the delay. He has proposed that his mother supervise, if supervision is deemed necessary in the short term.  The ICL has submitted, strongly, that it would be premature to allow any contact between the child and her father until the assessment is completed.  That submission is supported by counsel for the mother. 

15. While the court must be and is mindful of the views of parents, a case such as this is not about a parent’s rights.  It is about the child’s best interests.  The court must balance the two often inconsistent primary considerations of ensuring a child has as meaningful a relationship as possible with his or her parents and that the child is protected from abuse and violence.  The court must err on the side of safety when determining where the best interests of children lie.  I appreciate that, for a parent in the father’s position, an extra two weeks or two months is an enormous time out of a child's life.  He is concerned about the impact on his relationship with the child.  He has made clear his belief he has been unjustly accused and that, if accurate, is a very corrosive process.  He may well feel it is adversely affecting the whole of his life and his family’s life.  This court sees such scenarios frequently and is aware of the effect on parents of continuing litigation.  Nevertheless, the court's focus must be squarely on the child and I do not propose, at this stage, to interfere with the Gatehouse assessment.

16. I make it clear that it is a matter for this court to determine what contact parents are to have with their children, if they cannot agree.  It is not a matter for Gatehouse. On occasions, this court makes orders which mean that the Gatehouse process cannot continue.  But in this case I am satisfied that this assessment needs to be completed, and to do otherwise would be to do an injustice to the child.  When the assessment is concluded, the way forward may be clear.  On any basis the court will be better informed.

17. The father has raised the potential for contact to be supervised by his mother.  In a number of similar cases I have made an order at this time for the parties to apply to a contact centre for supervision.  This family has used a contact centre for changeovers.  This is not to prejudge the issue.  On the adjourned date, a number of options may be considered.  The court may determine there is no need for supervision or, if there is, supervision by a family member would be appropriate.  But if the court does order supervision at a contact service, an application now would reduce the waiting time by many weeks. 

I certify that the preceding 17 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM

Associate

16 November 2007