HULSE & KOPEC

[2019] FCCA 2891

FEDERAL CIRCUIT COURT OF AUSTRALIA

HULSE & KOPEC [2019] FCCA 2891

Catchwords:
FAMILY LAW – Parenting – where allegations of sexual abuse against the father – where government agency willing to supervise children’s time with father under strict conditions for the purpose of therapy for children – best interests of children.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR HULSE

Respondent: MS KOPEC

File Number: DNC 118 of 2019

Judgment of: Judge Young

Hearing date: 29 July 2019

Date of Last Submission: 29 July 2019

Delivered at: Alice Springs

Delivered on: 29 July 2019

REPRESENTATION

Counsel for the Applicant: Ms Bowen

Solicitors for the Applicant: Michael Whelan & Associates

Counsel for the Respondent: Mr Caldwell

Solicitors for the Respondent: Alice Springs Family Law

BY CONSENT UNTIL FURTHER ORDER:

1. That the children X born … 2011 and Y born … 2013 spend time with the father as follows:

   (a)Each Monday from 2:45pm until 3:45pm supervised by a Sexual Assault Referral Centre (“SARC”) counsellor, Suburb D, for a period of 2 months from the making of these Orders, and subject to:

   (i)the counsellor’s availability; and

   (ii)the child/children wishing to participate in the supervised time with the father.

2. That upon the conclusion of the children’s time with the father pursuant to Order 1, the SARC counsellor provide the court with written observations of the children’s time with the father.

3. That the SARC counsellor be at liberty to suspend the children’s time with the father as they deem appropriate.

4. That the matter be adjourned to 11 November 2019 at 10.30am at the Federal Circuit Court, Alice Springs for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALICE SPRINGS

DNC 118 of 2019

MR HULSE

Applicant

And

MS KOPEC

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a matter concerning two children, X who is eight years old and Y who is six years old. This is an application by their father that the children spend time with him.

3. The solicitor for the father has filed (or will file again as I direct that the affidavit sworn or affirmed by the father is not clear because the jurat clause is not complete) an affidavit setting out some background to this material.

4. This matter has previously been before me and I was asked to make orders by consent that the children spend time with the father supervised by a counsellor from the Sexual Assault Referral Centre (“SARC”) in Suburb D, which is a branch of the A Medical Centre Service, which in turn is a branch of the Northern Territory Government.

5. On that occasion, I refused to make the orders because I was not satisfied that it was in any way appropriate to make an order, whether by consent or otherwise, for two young children to spend time with their father when it appeared to me that there are unresolved allegations of sexual assault or sexual abuse, either against him or others. It was unclear on the material that was put before me which is, frankly, quite inadequate for what I was asked to do.

6. A further affidavit has been filed by the father where he denies having abused his children at any time, physically, sexually or emotionally. That is all well and good. However, he annexes to his affidavit a letter from Territory Families which sets out a long history of involvement of Territory Families with this particular family. Of notable concern is a notification received on 28 June 2018 of emotional or sexual harm (it is not clear from the summary I have received) which was found to be substantiated on 18 March 2019. I ought to have been given detailed information about that by the father in his affidavit instead of a bare denial.

7. There is also some information contained in another sheet annexed to the affidavit which tells me some more about the background but not so much as to allay my concerns. Far from it. Page 132 of a 377-page file briefly summarises some of the notifications received in respect of these two children. On 19 September 2018 there was a notification concerning these children with "sexual harm concerns". The notifier reported that Y disclosed that “X touched my body and front part" and some further information. X, of course, being Y’s brother.

8. There was also a notification received around about that time about X being subjected to physical abuse at the hands of his uncle. In November 2018 Territory Families received a report about these children concerning neglect, essentially concerning the children being up late and not sleeping properly.

9. Territory Families go on to say:

   Territory Families have been involved with the family extensively since 2013. A total of 14 reports have been made to the Department, with neglect, physical, sexual and emotional harm. The children are likely suffering from the comprehensive experience.

   Of course that is not grammatical but I am not sure that I can correct it as that is how it how it appears. It continues:

   Out of the 14 reports received from 8 January 2013 and 1 November 2018, only three were screened for investigation. No abuse or neglect was found for two of the reports. The current report will be substantiated for physical harm, emotional harm and sexual harm, with the father being the person who is believed to be responsible.

10. It is against that background that I am asked to make orders by consent that these children spend time with their father.

11. If that was all the information I had received, there is absolutely no prospect I would make the orders sought. None whatsoever. However, I have received a letter which is annexure C to that affidavit. I have received a letter from a Ms B, who is a senior counsellor at the Sexual Assault Referral Unit Centre in Suburb D.  Again, as I say, a branch of A Medical Centre, a department of the Northern Territory Department of Health, and she addresses the letter which is dated 14 June 2019 to me and I will read the entirety of the letter, concerning Y and X:

    To Judge Young,

    I am a senior counsellor of the Sexual Assault Referral Centre, Suburb D. I write this letter in the interests of the above named children. SARC have been working with the children since May 2018 upon receiving a referral from Territory Families in regards to emotional, physical and sexual abuse of the children, and in particular, the children exhibiting sexualised behaviours at school. My colleague, Ms C, and I subsequently met with the children's teacher, the mother and grandmother, and commenced weekly counselling with the children, which is ongoing.

    Both children have engaged positively with counselling and advancements have been observed in their behaviours. However, in recent weeks there have been relapses in X's behaviour at school, and this has coincided with X expressing views and wishes to the effect that he is missing his father, and that he would like to see him.

    I have offered to provide supervision of the father spending time with the children for a period of up to two months. This may provide some insight into X's behaviours and the programs we need to develop in order to provide ongoing help to him. I feel it is appropriate that SARC provides such supervision, as we have developed a trusting and supportive relationship with the children and are best placed to assess their behaviours.

    Y has indicated that she does not wish to see her father; however, she may wish to sit alongside myself whilst X spends time engaged in appropriate activities with his father. Should Y not wish to attend, however, she will not be forced to do so. At the end of the two-month period, SARC may provide written observations of the children's time with their father. Their contact is to be fully supervised and at no time are the children to be left alone with their father. Further, the contact is to be child-led. Therefore, should the children wish to suspend the contact and discontinue with further visits, we would cease contact and advise the parents accordingly.

    Yours sincerely,

    Ms B

    
    

    Senior counsellor, SARC, Suburb D, NT

12. Given that letter, despite some misgivings on my part, I am satisfied that any time the children are likely to spend with their father under the supervision of a SARC counsellor is not likely to constitute any risk to them. As Ms B says, it may be that an observation of X in particular, and perhaps both children, with their father will provide some assistance in a therapeutic sense to dealing with what appear to be these troubled children.

13. It is important to note that I am not told how the substantiation of the allegations concerning the father or against the father has been made. I am not told of any detailed findings. In my view, that is inappropriate and I am going to make an order that there be a detailed affidavit filed from the father setting out the background of this matter and the affidavit should be supported by any relevant pages from the Territory Families file, not just one.

14. So for the limited period that is proposed, that is, two months, I propose to make the order, and I also note the proposed order 3, that the SARC counsellor is at liberty to suspend the children's time with their father should the counsellor deem it appropriate.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:     10 October 2019