Hinds and Hinds

[2007] FamCA 85

FAMILY COURT OF AUSTRALIA

HURST & HURST [2007] FamCA 85

FAMILY LAW - CHILDREN - Magellan - Interim parenting orders – Psychosexual assessment

Family Law Act 1975 (Cth)

HUSBAND: Mr Hurst

WIFE: Mrs Hurst

INDEPENDENT CHILDREN’S LAWYER: Independent children's lawyer

FILE NUMBER: MLF 6575 of 2001

DATE DELIVERED: 9 February, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 9 February, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr Arnold

SOLICITOR FOR THE HUSBAND: Kenna Teasdale Lawyers

COUNSEL FOR THE WIFE: Mr Eidelson

SOLICITOR FOR THE WIFE: Kennedy Guy

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Webb

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Danielle Webb Lawyer

Orders

1. That until further order the husband spend time with the child B born in October, 2000 from 10:00 am. until 4:00 pm. on each alternate Sunday commencing on 18 February, 2007 and that such time be supervised by Ms A and that the husband’s daughter, Ms Z, be permitted to be present.

1. That each period of time which the husband spends with B pursuant to these orders commence and conclude at the home of the maternal grandmother, and that the balance of the time take place at venues other than the husband’s residence.

1. That Ms C be appointed to prepare the assessment pursuant to paragraph (15) of the orders made herein on 15 December, 2006  AND IT IS REQUESTED  that Ms C :

   (a)read all affidavit material filed in the proceedings on which the parties rely;

   (b)inspect the Department of Human Services’ file (or if more convenient to her, the independent children’s lawyer have leave to photocopy that file and provide copies of it to Ms C); 

   (c)inspect other documents produced pursuant to subpoenae;  and

   (c)read Mr P’s report;

   and in the event Ms C is not prepared to prepare the report on that basis, the independent children’s lawyer have leave to mention the matter before me by arrangement with my associate.

1. That until further order the parties be and are hereby restrained from discussing these proceedings or any evidence in the proceedings in the presence or hearing of B or allowing any other person to do so, save as requested by any therapist consulted by B.

1. That the costs of supervision be borne by the husband, including out-of-pocket costs of the supervisor.

1. That the parties attend a Trial Notice Listing with the Magellan Registrar this day at a time to be advised by her.

1. That all interim applications be otherwise dismissed.

1. That 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.

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 a solicitors appearing as counsel

AND THE COURT NOTES

1. That the parties agreed on the supervisor and on an order for supervised contact, however not on the frequency or duration.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6575  of 2001

Mr Hurst

Husband

And

Mrs Hurst

Wife

REASONS FOR JUDGMENT

1. This is a complex case involving the parties' son B, who was born in October 2000.  The parties separated in August 2001.  The wife's application was filed late last year.  In it she sought the discharge of parenting orders made in 2003 pursuant to which B was spending substantial and significant periods of time with his father.  Until the wife alleged that the husband had sexually abused B, they were together on each alternate weekend and on Tuesday nights. 

1. The wife filed a form 4 on 16 November alleging sexual abuse.  Before the court is a report from the Department of Human Services and a report from Mr P.  Both are concerned that B has been exposed to sexually‑explicit material. 

1. DHS has made its position clear.  The allegations have been substantiated on the material before DHS.  This Court will consider all the evidence in due course.  But the DHS report makes it clear that if unsupervised access (to use the word of the State law) were ordered by this Court it is highly likely there would be some departmental intervention. 

1. The parties have agreed that the husband should spend some time with B, pending trial, supervised by the wife's mother, and that another daughter of the husband (Ms Z) may be present.  They have not been able to agree on the extent of that contact or on the times of a psychosexual assessment.

1. The wife submits that the time should be on alternate Sundays, from 10:00 am. till 4:00 pm.  The father seeks every Sunday.  It is submitted by the father that he was spending very considerable time with his son before these allegations were made and it is vital that continue.  The wife submits that there is evidence that B has been upset and disturbed, which is corroborated, the independent children's lawyer having spoken with a counsellor at the school.  Supervision is to be undertaken by the wife’s mother which is an onerous responsibility. 

1. I propose to order that the husband and B spend time together in each second weekend.  What is important is that their relationship be re‑established, by having time together.  B is used to seeing his father on alternate weekends and spending the whole of the other weekend with his mother.  He will continue to see his father on alternate weekends, but, albeit for a short period.  That is sufficient to maintain their relationship while the allegations are investigated further.

1. The parties have proposed that Ms C undertake a psycho-sexual assessment of the husband.  I do have some concerns about what is actually being sought from Ms C.  I do not want anything I say to be seen as critical of Ms C’s professional expertise;  I have heard evidence from her in other matters and found her to be an insightful expert witness.  But I am a little concerned about what she is being instructed to do, or not to do. 

1. To be useful to the judge who hears the trial Ms C needs to have available to her not only the affidavit material filed by the parties but the subpoenaed material, and Mr P's report.  Without access to that it is unlikely her report will be of assistance.  I will order that she look at specified material.  If there is a problem with that, the independent children’s lawyer can advise my associate and I will list the case for mention early one morning. 

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

Dated the           day of            2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HURST & HURST