Hernandez and Bazeno

[2008] FamCA 912

FAMILY COURT OF AUSTRALIA

HERNANDEZ & BAZENO [2008] FamCA 912

FAMILY LAW – CHILDREN – Interim Application – Allegations of inappropriate touching by father – Allegation that child had witnessed father engaged in sexual activity – Question of suitability as s supervisor of a witness in the father’s case

Family Law Act 1975 (Cth)

APPLICANT: Mr Hernandez

RESPONDENT: Ms Bazeno

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

FILE NUMBER: SYC 7309 of 2007

DATE DELIVERED: 24 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snelling

SOLICITOR FOR THE APPLICANT: Milne Berry Berger & Freedman

SOLICITOR FOR THE RESPONDENT: Ross Clarke & Associates

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

Orders

Orders made 19 August 2008

IT IS ORDERED THAT:

1. By consent, orders be made in the terms of the document entitled “Short Minutes of Proposed Orders” marked Exhibit “B” and attached hereto.

2. Pending further order, orders be made in terms of the document entitled marked as Exhibit “X” as follows:-

   2.1.That order 2 of the orders of the Federal Magistrates Court of 9 May 2008 be and is hereby vacated.

   2.2.That the child B (“the child”) born … June 2002 spend time with the father from 11.30am to 3.30pm each Saturday commencing 23 August 2008.

   2.3.That the said child’s time with the father will be supervised by Mr C at all times.

   2.4.That changeover for the child to spend time with the father will take place at F Police Station.

3. Pursuant to s.65DA(2) and s.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 these particulars are included in these orders.

Exhibit “B”

1. That Dr R, Child and Family Psychiatrist be appointed as Single Expert pursuant to the provisions of Part 15.5 of the Family Law Rules to enquire and report on matters relating to the welfare of the child … born … June 2002 (“the child”).

2. That the parties be jointly and severally liable for the cost of such report by the Single Expert, including any costs which may be incurred by the said Expert in attending Court and giving evidence in relation to this matter.

3. That within 21 days of the date of these Orders the parties shall forward to the Legal Aid Commission the sum of $2,500.00. These monies to be applied by the Commission in payment of Dr R’s fees. In the event that either of the parties is legally aided, it is noted that such party has a grant of legal aid for the purpose of securing a report from a Single Expert witness.

4. In the event that the Single Expert’s fees exceed the sum set out in paragraph 3 herein, each party is to pay one half of the amount by which the Expert’s fees exceed that sum to the Legal Aid Commission within 21 days of being forwarded a copy of the Expert’s Memorandum of Fees. Such further sum is to be applied by the Commission to the payment of the Expert’s fees.

5. In the event that there remain monies available subsequent to payment of the Single Expert’s fees, these monies are to be returned to the parties in equal shares.

6. The Report by Dr R is to address the following matters:-

   (a)The views expressed by the child, if any, including an opinion as to the cognitive and emotional maturity of the child as it relates to those views;

   (b)The nature of the relationship between the child and each of her parents and with any other significant person with the discretion of the Expert;

   (c)The likely effect of any changes to the child’s circumstances including the likely effect of any change upon the child of any separation from either of her parents or significant person;

   (d)The capacity of each parent to provide for the needs of the child including her emotional and intellectual needs;

   (e)That attitude towards the child to the responsibilities of parenthood demonstrated by each of the parents;

   (f)Whether there is any evidence to support the Mother’s contention that the child has been abused by her Father in any way;

   (g)Any other matter pertaining to the welfare of the child at the discretion of the Single Expert.

7. That the Independent Children’s Lawyer has leave to photocopy documents produced on subpoena for the purposes of providing these copies to Dr R.

8. In the event of non-compliance with Para 3 of these orders, the Independent Children’s Lawyer is at liberty to cancel any appointments scheduled with the Single Expert.

9. That the parties shall facilitate the preparation of the report by Dr R including attending personally upon Dr R when requested and arranging for the child to attend as requested. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7309 of 2007

MR HERNANDEZ

Applicant

And

MS BAZENO

Respondent

REASONS FOR JUDGMENT

1. This matter came before me on 19 August 2008 and concerns the parties’ child, B, born in February 2002.

2. There was agreement that a report be prepared by Dr R and I made an order to that effect.

3. The central allegation up until 19 August 2008 had been that the father had, whilst playing a tickling game, touched the child inappropriately.  It was said that the child told “Dr G”, paediatrician, the father had touched her.  I had the DoCS material tendered in evidence by consent (Exhibit A).  At tab 5 of that material, page 79, there is an entry which indicates that it was not a Dr G but a Dr T.  Dr T is a paediatrician.  It appears that the case worker from DoCS spoke to Dr T on 29 November 2007.  Dr T told the case worker that the mother had brought the child on Saturday 25 November 2007 (not 27 November as stated by the mother in her affidavit) for an irritation to her vagina.  Dr T inspected the area and assessed it as being an allergic reaction to soap/bubble bath etc.  Dr T did not see any signs or symptoms of injury to her genitals other than the allergic rash. Dr T stated that during this assessment, the child stated on her own accord that “daddy plays ticklish games with me”. Dr T asked for a further clarification from the child and she stated that it occurred on the natural father’s bed and that they were both clothed.  The child (who was aged 5 years and 9 months at the time) explained to the doctor that she initiated the tickle game by tickling her father’s tummy, he responded by tickling her genital region. The child stated to the doctor that she was aware that this was not right and felt uncomfortable about it.  From what the doctor could gauge there was no penetration and the game was quite brief.  The child did not associate pain or injury with this experience and did not mention previous incidents to this one.

4. Solicitor for the mother said that his instructions went far wider than the mother’s initial affidavit (that had been filed by another lawyer, Pigott Stinson) sworn 8 February 2008 and filed 12 February 2008.  In that affidavit the mother does not mention other issues.  Mr Clarke gave me from the bar table an outline of other evidence that the mother wanted to put before the court in relation to things that the child had said, not only to the mother but to other persons.  The other major allegation was that the child had witnessed the father and his new partner having mutual oral sex.

5. Ms Z, the father’s new partner, on 26 June 2008, filed an affidavit wherein in paragraph 20 she has said the following:-

   20.  Our lifestyle is very simple.  I observed that like me [the father] is conscious of changing only in the bedroom.  I have also taught [H] to change her clothing in her room. Most times, we sleep with the bedroom door closed.  Occasionally it has been left ajar for one or two inches but certainly; when the girls are there, the door is closed.  They take special delight in waking up early in the morning and knocking on the door and running away and coming back and knocking on the door and running away, to put us on notice that they were awake and they want us up.

6. The solicitor for the father summarised her client’s case by saying that the mother had brainwashed the child into saying things that she had said. 

7. The issue on an interim basis before me was whether or not the contact should be moved away from a child contact centre so it could take place during the day time for four hours once a week at the father’s home with a supervisor.  On the previous occasion I had noted that there was going to be six occasions at the child contact centre between that date and 19 August 2008.  I am not quite sure if those six occasions all took place.  It sounded from the father’s words from the back of the court that they may not have all taken place, but nobody was saying that anything untoward had happened during those sessions which had taken place. 

8. I had indicated on the previous occasion and I had noted on the bench sheet that we would see how things had gone (the implication being that I would deal with an interim application for a relaxation of the child contact centre requirement on the next occasion).  Some notice had been given to the mother of that application but no formal notice had been given in relation to Mr C being the proposed supervisor. 

9. The parties were given an opportunity to discuss the suitability of Mr C as a supervisor, after which the solicitor for the mother came back in and said that he had been taken by surprise by the application and wanted an adjournment so the mother could bring evidence before the court as to somebody that she would propose (who was unknown to the father).  I indicated to the solicitor for the mother that if it was a contest between somebody who was suitable proposed by the father and somebody who was suitable unknown to the father proposed by the mother, I would choose the former. I therefore said I would proceed to hear evidence from Mr C.

10. Mr C was then called.  Mr C had filed an affidavit in the proceedings already. The Independent Children's Lawyer asked Mr C questions, so did I.  I was satisfied that Mr C understood the allegations that had been made against the father. They were primarily genital touching through clothes in a tickle game and the child witnessed the father and his new partner having mutual oral sex.  The general submission made by the solicitor for the mother was that the court should wait for Dr R to report back but Dr R was not gong to see the parties for a couple of months.

11. The solicitor for the mother established in cross examination that Mr C is a close friend of the father.  Whilst he pretended that he was neutral in relation to the mother I did not accept that that was so. He has filed an affidavit questioning the mother’s mental health. He however understood the nature of the allegations that were made; understood that they were serious; understood that his role was to protect the child from any untoward thing that he saw happening between the child and her father.  I was comfortable that he would remove the child from any situation that he found disturbing.  I accepted Mr C’s evidence that he was a father himself and he had known the child since birth and the last thing that he would allow happen is for the child to be brought into any danger.

12. I balanced my satisfaction about Mr C’s suitability as a temporary supervisor against the fact that the mother did not want Mr C.  The mother saw Mr C as a partisan person (which I accept he is); that Mr C did not believe the allegations were true, and I accept Mr C does not believe the allegations are true. I however made the assessment that Mr C sufficiently understood his role and the serious nature of the job I was giving him and I concluded that he was capable of carrying out that role.  In the circumstances, I therefore agreed for him to be a supervisor. The supervision role is in the short term.  He indicated that he probably would have his wife with him and whilst no formal order was made that this occur, if that did occur would add another layer of protection for the child and the father. 

13. I asked the parties to prepare a short minute of what I intended to order.  The order which I proposed was supported by the Independent Children's Lawyer.  The matter came back before me in the afternoon.  The mother was not in the court room initially; she subsequently came into the court room.  For her benefit, I started to read out the terms of the short minute that had been prepared which represented the order that I intended to make.  She screamed out in an imploring way asking me not to make an order putting the child with a “child molester”. Her solicitor attempted to calm her without effect. I excused her and as she left the court room she screamed “child molester” in the father’s direction on a couple of more occasions. 

14. I asked the solicitor for the mother whether or not he wished me to deliver formal reasons (in addition to those that were obvious from things that I had said on this day) and he indicated that he would prefer I did that.  Notwithstanding the mother’s level of distress, I decided that it was in the child’s best interest that her time with her father be able to progress beyond time at a contact centre in a more natural setting with Mr C providing appropriate supervision.  I find that there is no unacceptable risk to the child arising out of the short term arrangements I have put in place. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  24.10.2008