Huffman and Bourman

[2019] FamCA 59

FAMILY COURT OF AUSTRALIA

HUFFMAN & BOURMAN [2019] FamCA 59

FAMILY LAW – CHILDREN – interim orders – time with – supervised – unsupervised.

APPLICANT: Ms Huffman

RESPONDENT: Mr Bourman

INDEPENDENT CHILDREN’S LAWYER: Mrs L McGregor

FILE NUMBER: CAC 1577 of 2017

DATE DELIVERED: 7 February 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 7 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Wendy Evans Lawyer

SOLICITOR FOR THE RESPONDENT: Andrew Warren Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

1. I find that on 8 December 2018 the Mother contravened Orders 2 and 3 of the orders of 17 August 2018 by failing to provide X and Y for time with the Father, but did so with reasonable excuse.

2. No order for compensatory time is made.

3. Orders 3 and 4 of the orders of 17 August 2018 are discharged.

4. Unless otherwise agreed in writing:

   (a)Until further order Y shall spend time with the Father commencing at 10am each Saturday and ending at 4 pm each Saturday;

   (b)The Mother shall deliver Y to the Father at E Street, Suburb F at the start of the time;

   (c)The father shall return Y to the Mother's home at the end of the time. 

5. It is directed that the Independent Children’s Lawyer provide these orders and the Reasons for Judgment to the management staff at B Group at C Town.

6. I transfer the matter to the Registrar's list pending further interim application or the matter being readied for trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Huffam & Bourman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1577 of 2017

Ms Huffman

Applicant

And

Mr Bourman

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter falls for consideration of the current interim arrangements that are in place pending a final trial.  No date has yet been allocated for the final trial.  That consideration comes by virtue of the Mother’s Application in a Case filed 13 December 2018, by which she sought the cessation of the Father's supervised time with X and the cessation of his unsupervised time with Y.  That is, while the Father has been having regular supervised time with X and unsupervised time with Y the Mother seeks that each of those be brought to an end and that he simply have supervised time with Y. 

2. The matter also comes before the Court by virtue of the contravention proceedings brought by the Father at about the same time in which the Mother was found to have been in contravention of two of the orders on one occasion in relation to the provision of X and Y. 

3. The pattern of time that the Father has been spending with X and Y has involved X having supervised time supervised by a professional agency in C Town of New South Wales.  Piggybacking on to that supervised time Y has also spent time with his Father for the period for which his sister has been supervised, but has then had a period of unsupervised time following the end of her time.  The order specifically provided that there was no requirement that the Father's time with Y be supervised. 

4. No issues of significance appear to arise from these arrangements until the events that surrounded the contravention proceedings and the Mother’s application for interim change.  Those centred around the Mother commencing to withhold X from her supervised time and Y from his unsupervised time.  The ending of those arrangements would constitute a major change in what had otherwise, up until then appeared to be, a positively working process.  Until those orders were put into place there were concerns about whether X could have a relationship with her Father.  Those are set out in the Single Expert's report where she reports a resistance on the part of X.  While that resistance has not completely dissolved there have certainly been significant periods of time that X has been able to spend with her Father and enjoy spending with her Father as is recorded in the subpoenaed material that was tendered from the supervision agency.

5. In order to resolve these proceedings it is important to understand what brought about the Mother's decision to withhold X from the supervised time and Y from the unsupervised time.  The Mother reports that B Group, through her solicitor, told her that two staff had reported that X was behaving in a sexualised manner in the Father's presence and that X wanted the staff to leave so that she could be alone with the Father. 

6. Material produced on subpoena by B Group contains the most direct evidence of the underlying events. In terms of those underlying events subsequent correspondence received from B Group, being exhibit ICL1 in the proceedings, indicates that their concerns stemmed from visits on 13 October 2018 and 3 November 2018.  They expressed their concern in this way.

   During the contact visits 13rd [sic] of October 2018 and 3^rd November 2018 [X] displayed further concerning behaviours that appeared to be of a sexual nature.  When [X] was sitting on [the Father] at the contact on 3^rd November 2018 she had wrapped her arms and legs around him and moved her bottom in humping motions.  [X] was observed kissing [the Father] down the side of his neck and she also bit [the Father] on the neck.  The family worker and I considered this behaviour to be concerning and I discussed the observations with [the Father] who advised me that he did not notice these behaviours. 

7. It may be noted that the detailed notes prepared in relation to the visit of 13 October 2018 contained no notion of any sexualised behaviour at all.  The detailed notes of 3 November 2018 which seemed to form the primary incident have been produced and relevant portion is as follows:

   When it was nearing time for contact to end, [X] gave [the Father] a hug which was physically unusual.  She had her arms around his neck tightly while kneeling on his chest, thrusting her bottom out.  She then started to kiss his cheek around to his neck, then bit him on the neck.  The [Father] looked very uncomfortable with this and reprimanded her and they continue to hug.

8. The notes go on to say

   [X] demonstrated quite sexualised behaviour, although it wasn't apparent whether that was mirroring behaviours she may have witnessed elsewhere or if she was trying to gain her father's attention however she could. 

9. The notes are supervised and written by Ms G. 

10. It may be observed that the careful and direct description given by Ms G conflicts with the summary subsequently provided by B Group.  For example, while the summary refers to the legs being wrapped around the Father it is difficult to see how this is consistent with Ms G's note that X was kneeling on the Father's chest (I interpolate the Father must have been on the ground with X kneeling on top of him).  It is also important to note that the Father reprimanded X and there was no adverse effect observed for X.  It may be seen that the correspondence provided by B Group in ICL1 is not supported by the detailed notes provided by their worker Ms G.  It may also be observed that amongst the detailed notes there is nothing of particular consequence in relation to X noted in the Father's conduct.  It was noted that he focused on X rather than focusing on Y in a context where he was soon to spend unsupervised time with Y.

11. At some time after the actions observed by Ms G, that is on another day, the matters raised by the Father who did not recall.  It may also be observed that nothing in any of the reports show the Father's behaviour towards X to have been in any manner inappropriate.  There is certainly nothing to suggest that he has encouraged X in what was construed to be sexualised conduct by the B Group workers. 

12. Amongst the subpoenaed material, B Group notes their intention to seek to redirect X but concerns as to their capacity to do so.  It should be acknowledged that these concerns come amongst broader issues of risk of harm that are to be resolved in the final proceedings.  The Mother has expressed concerns as to the Father presenting a sexual risk to X.  She records that X disclosed sexual matters to the Mother.  X was questioned by the police and subsequently is said to have made a disclosure to a counsellor.  These matters are quite contentious.  It may also be observed that the Single Expert has assessed the Father as being a low risk of sexual harm.  None of these matters are able to be resolved at this point in the proceedings.  They call for, in X's case, supervised time in the interim pending their resolution. 

13. Having examined those notes provided by B Group, the circumstances are not suggestive that if the Father is under professional supervision he presents an unacceptable risk of harm to X.  If something is required in respect of X's conduct that seems to be the redirection that B Group refers to within their notes.  There is nothing to suggest that the Father's conduct in supervision could be the genesis of these behaviours.  Although it is suggested that the genesis may occur prior to the supervised time there again seems to be nothing suggestive of a likelihood of harm to X should the supervised time continue, particularly given no adverse behaviour being noted on the part of the Father.

14. It is also the case that there is no material before me that suggests that the Father's unsupervised time with Y is likely to be harmful or less than beneficial to Y. 

15. The key aspects of what are in the best interests of the children in this interim matter go firstly to the question of harm.  Supervised time with X is sufficient in the circumstances of this case to protect her from an unacceptable risk of harm.  A further question arose as to the nature of the relationships between the children and the Father and their ability to take benefit from meaningful relationship.  For X to take those benefits the balance is best struck by supervised time.  For Y unsupervised time is called for, although in short periods. 

16. A further matter arises as to the capacity of the Father to care for the children.  Any questions as to his capacity in respect of X are answered by supervised time and are answered in respect of Y by the times being short. 

17. I note that in the interim he does not seek overnight time with Y which is a sensible position on his part.  For these children there are potentially grave consequences if the progress that has been made in trying to re-establish the relationships with their Father are interrupted.  X has come a long way in starting to establish that relationship with her Father.  If it is brought to an end now it is difficult to perceive there being positive consequences for her flowing from that.  Similarly if the time with Y is disrupted now it can hardly be beneficial to him.

18. In order for the time to continue the Father suggests that his parents would supervise his time with X.  Unfortunately in this case there is an issue as to whether or not the paternal grandmother stood by while the Father sexually abused X.  I am unable to make findings one way or another about that issue at this point.  That is an issue for determination of the final proceedings, but under the spectre of that allegation it is not appropriate for the paternal grandparents to be supervising Father's time with X. 

19. That leaves, I am told, a single option which is for B Group to continue with supervision.  It appears from their correspondence that they have withdrawn their supervision of X but make a qualified offer to recommence their supervision.  They seek the support of Ms H, who has previously counselled and provided support for X.  The Independent Children’s Lawyer has established that Ms H is available to support X.  I am not in a position to direct B Group to do anything in particular in this case.  Their continuing supervision is important in order to continue the relationship that was fractured between the Father and X but is now being restored.  It is important because it also provides appropriate protection for X and it is important that it continue as, on a careful examination of the notes provided by B Group, it does not provide in my view, a reason to end the Court ordered regime of supervised time. 

20. Y requires structured time with his Father, in the sense that it can no longer be predicated on whether B Group are able to supervise the time with X or not.  The previous orders provided that it was.  He is now in a position where that time should go ahead independent of whether or not time with X goes ahead.  It should not be supervised, it should be extended by a small amount reflective of the positive manner in which it has been continuing.

21. The regime that will be set for both X and Y in these orders displaces any need for compensatory time in the light of the contravention that was proven. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 February 2019.

Associate:

Date:  14 February 2019