HERIOT & MAVERICK

[2012] FamCA 568

FAMILY COURT OF AUSTRALIA

HERIOT & MAVERICK [2012] FamCA 568

FAMILY LAW – ORDERS – Application to vary orders on an interim basis.
FAMILY LAW – CHILDREN – best interests

Family Law Act 1975 (Cth)

M v M (1988) 166 CLR 69

APPLICANT: Ms Heriot

RESPONDENT: Mr Maverick

INDEPENDENT CHILDREN’S LAWYER: McKean & Park

FILE NUMBER: MLC 1334 of 2007

DATE DELIVERED: 24 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 19 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Kelly & Associates

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Pearsons

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr James

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean & Park

IT IS ORDERED THAT

1. Until the final hearing of this matter the child V born … March 2005 (“the child”) spend time with the father fortnightly at times and places as arranged with Home Access Network (“HAN”), supervised by a worker from Home Access Network and being no longer than three hours in total at the cost of the husband.

2. The father’s partner Ms C and her daughter B  be permitted to be present on all occasions the father spends with the child.

3. The question of reimbursement by the mother of the cost of HAN’s supervision of the time the father spends with the child be reserved for determination at the trial.

4. The oral applications of the father and the mother be otherwise dismissed

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heriot & Maverick 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 MELBOURNE

FILE NUMBER: MLC 1334  of 2007

Ms Heriot

Applicant

And

Mr Maverick  

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter is listed before me today for the first day of a final hearing. As a consequence of the hearing today I have made orders and directions for the trial which is to commence on 1 October 2012.

2. The matter was listed for hearing before Senior Registrar FitzGibbon on 30 May 2012. On that date he ordered by consent that the until the hearing of the matter before me the child V (“the child”) spend time with the father fortnightly at times and places as arranged with Home Access Network (“HAN”), supervised by a worker from HAN and being no longer than three hours in total at the cost of the husband save that the wife pay $150 towards the costs of the initial intake. Both the father and the mother now seek to vary that order pending the final hearing of the matter.

3. The mother’s application is that until the trial, and it is common ground that there will be four more occasions when the child will spend time with the father pursuant to the orders, he should spend that time at Berry Street Victoria Children’s Contact Service (“Berry Street”). It is the mother’s case that it is likely to take about four weeks to be accepted to Berry Street during which time the father would not spend time with the child. In the alternative, if I do not accede to that application, it is her case that HAN should continue to supervise the time the child spends with the father but that Ms M, an employee of HAN, should not be permitted to supervise that time.

4. The father’s application is that I should make orders in the terms of the final orders proposed by the Independent Children’s Lawyer based upon the recommendations of Mr P in his report dated 2 July 2012 annexed to his affidavit sworn 18 July 2012. Mr P said at paragraph 48 of his report as follows:

   Ultimately, it may be that the sensitivities in relation to this family need to be respected, and whilst I am not advocating that there should be supervision, it might be sensible for [Mr Maverick] to have someone in substantial attendance for a period of six moths, and especially at night, and most sensibly this could be his partner in order to attend to matters of bathing and toileting and other such considerations until when with the passage of time a sense of normality can be returned to this family’s life. From my clinical perspective, there are other explanations for why [the child] may have made the statements that she did.

5. The Independent Children’s Lawyer submitted that the child’s best interests would be served by either the father’s time being supervised by his new partner, Ms C or by the continued supervision of HAN subject to an order that Ms C and her daughter,  B be permitted to be in attendance.

6. The mother sought leave to file a further affidavit sworn 18 July 2012. The father and the Independent Children’s Lawyer did not object to the filing of the affidavit and I granted leave to do so. The Independent Children’s Lawyer sought leave to file an affidavit of Ms S sworn 17 July 2012, an employee of HAN. There was no objection to the filing of that affidavit and I granted leave to do so. The Independent Children’s Lawyer also referred me to the affidavit of Ms M filed 16 July 2012. The father and the Independent Children’s Lawyer both referred me to and relied upon the affidavit of Mr P. The case was otherwise conducted by oral submissions.

7. Mr Hoult submitted on behalf of the mother that she has lost confidence in HAN and it is her case that HAN and in particular Ms M has not acted in the child’s best interests. The mother in her most recent affidavit deposes in general terms to the child’s reluctance to spend time with the father and her distress and what she describes as uncharacteristic behaviour upon her return from spending time with him. She further deposed to what she said were three occasions when the child had been left unattended with the father. The balance of her concerns were in relation to what she referred to as HAN’s failure to follow their own policy and criticism or what might be described as unprofessional behaviour by Ms M.

8. Of particular concern to the mother was that Ms M had allowed Ms C and her daughter to be present during the father’s time notwithstanding that it was HAN’s policy not to do so unless agreed to by the residential parent. I note that the orders with respect to the time the father spends with the child make no reference to either Ms C or B. Apart from the fact that the mother says the father was living with Ms C at the time of the alleged sexual abuse it was acknowledged by Mr Hoult that her objection is to HAN’s failure to follow their own policy not an objection per se to the presence of either Ms C or her daughter.

9. It was submitted by Mr Hoult that the evidence is yet to be tested and that I should in those circumstances err on the side of caution and make orders for ongoing supervision pending the trial. It was the wife’s case that the need to protect the child outweighed any risk associated with the introduction of a new regime of supervision at Berry Family.

10. It was submitted by Ms Smallwood on behalf of the father that the order made 31 May 2012 set in place a regime for the father to spend time with the child pending today’s hearing not the trial. It was the husband’s case that not only did the evidence and in particular Mr P’s report, not support ongoing supervision, but that the supervision is harmful to the child and not in her best interests. The father was not critical of HAN. His concern was that the requirement for on going supervision continued to reinforce the doubts in the child’s mind about him which he says emanate from the mother. It was submitted that notwithstanding that the child had no problem spending time with him for 18 months prior to her making the allegation, 12 months of that being after the alleged sexual abuse is said to have occurred,  the relationship between the father and the child is now deteriorating. It is his case that as demonstrated by the mother’s most recent affidavit the child is exposed to her mother’s dislike and distrust of the father and emotionally rewarded for adopting a similar position.

11. The Independent Children’s Lawyer submitted that it was open to me on the evidence to make orders requiring the father’s partner, Ms C, to supervise the four occasions the child spends with the father pending the trial. But that equally it was also open to me on the evidence to continue the current supervision of that time by HAN subject to an order permitting both Ms C and B to be present.

12. As is the case in all applications for parenting orders, the Court must have regard to the objects underlying the provisions of Part VII of the Family Law Act 1975 which are intended to advance the best interests of the child. They include ensuring that children have the benefit of the meaningful involvement of both of their parents in their lives, protecting the children from harm, ensuring that they receive adequate and proper parenting necessary for them to achieve their potential, and ensuring that their parents fulfil their duties and meet their responsibilities concerning the children’s care, welfare and development (s 60B). The Court must also have regard to the principles underlying those objectives, which are set out in s 60B(2) of the Act.

13. The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child or children’s best interests, the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. The analysis of those statutory considerations of what is in the best interests of the particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives. The primary considerations directly take up the first two of those objectives.

14. The question of whether the child has been sexually abused is the central issue in the final determination of this case.  The fact that a child may or may not have been sexually abused does not alter the fact that it is the child’s best interests that is the paramount consideration. I am required to consider the nature of the risk of sexual abuse and the degree of that risk and ultimately apply the test formulated by the High Court in M v M (1988) 166 CLR 69 and determine whether that risk is “unacceptable”.

15. These are interim proceedings and I cannot test the evidence however, as submitted by Mr James, there is not much dispute as to the facts in this case and in so far as Mr P’s evidence has not been tested I agree that it is essentially his conclusions based upon his observations and what is largely uncontested evidence that will be tested.

16. In those circumstances there is some temptation to adopt Mr P’s recommendations at least in part at this stage of the proceedings and move to supervision by Ms C as proposed by the Independent Children’s Lawyer.  That would require me to find that supervision by Ms P would not present an “unacceptable risk” to the child. In circumstances where the evidence is untested I cannot not make such a finding and I am conscious of the fact that the evidence can be tested in a matter of months. However my decision in this case is also not to be taken as a finding that in the absence of supervision there would be an “unacceptable risk” of abuse of the child by her father. I emphasise that that is a matter to be determined at trial. 

17. I have also had regard to Mr P’s evidence as to the sensitivities of this particular family. Whilst there is some force in Ms Smallwood’s submission that the supervision reinforces in the child’s mind what is her mother’s belief that she has been sexually abused by the father I am not satisfied that removing the supervision at this time would fix the problem. In my view, there is a very real possibility that removing the requirement for supervision, particularly before there has been an opportunity to test the evidence, will only add to the mother’s anxiety and that that will not be in the child’s best interests.

18. I am however satisfied that it would not be in the child’s best interests to require supervision by Berry Street, not the least because that would likely result in there being no opportunity for the child to spend time with the father for a period of approximately 4 weeks. The mother does not object to Ms S acting as supervisor in the event that I do not accede to her application that the child spend time with her father at Berry Street and there is no evidence that would lead me to conclude that Ms S has not acted appropriately. To the contrary, the evidence suggests that she has acted both appropriately and sensitively and that she is a suitable person to supervise the father’s time with the child pending the hearing. I have been advised by Mr Hoult that Ms S is available to supervise the time the father spends with the child pending the trial.

19. The mother’s complaints about the supervision provided by HAN are primarily directed to Ms M’s supervision. That evidence has not been tested and I am not, in those circumstances, prepared to exclude Ms M as a potential supervisor.  However, as there are only four occasions when supervision will be required pending the trial, in order to avoid further disputes as to what has occurred during the time the father spends with the child it would be preferable if practicable for someone other than Ms M to supervise that time if Ms S is for some unforeseen reason unavailable to supervise.

20. I am satisfied on the basis of the evidence and the submissions made by Counsel that there is no basis for excluding either Ms C or her daughter B from the time the father spends with the child. It is clear that the criticism by the mother of Ms M for allowing Ms C to be present was on the basis that to do so without first obtaining her consent was contrary to their policy not because either the presence of either Ms C or B presented any risk to the child. Whilst the child told Mr P that she hadn’t complained to Ms C about the father’s alleged abuse at the time it occurred because she didn’t think Ms C would believe her, there is no evidence of any behaviour by either Ms C or B which would suggest that they should not be present. To the contrary, both the evidence of Ms M and Ms S suggests that their presence may be of benefit.    

21. In all of the circumstances I am satisfied that it is in the child’s best interests to continue the current regime pending the hearing on 1 October 2012, subject to  both Ms C and B being permitted to be present.

22. The orders made 31 May 2012 require the father to pay for HAN’s supervision of his time with the child. He now seeks an order that the mother share equally the cost of that supervision. It was submitted by the father that the mother earns significantly more than he does. On the other hand I was told by Mr Hoult that the mother is not in employment. I cannot make findings as to the parties respective financial positions at this time and in those circumstances I propose to order that the husband meet the costs of supervision but reserve the question of whether he should be reimbursed by the mother to the trial.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 July 2012.

Associate: 

Date:  24 July 2012