Hunter and Marsaille

[2010] FamCA 869

FAMILY COURT OF AUSTRALIA

HUNTER & MARSAILLE [2010] FamCA 869

FAMILY LAW – CHILDREN – Magellan Directions – Application to increase “Level 2” supervision to “Level 5” – Application dismissed

Evidence Act 1995 (Qld)s 144
Family Law Rules 2004 (Cth) Div 12A

APPLICANT: Ms Hunter

RESPONDENT: Mr Marsaille

INDEPENDENT CHILDREN’S LAWYER: Ms Khushal

FILE NUMBER: BRC 2477 of 2008

DATE DELIVERED: 8 September 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 8 September 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms K.L Neri of Turnbull & Company Solicitors

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Buchanan Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Vachon of Bridges Family Law Specialists

Orders

IT IS ORDERED THAT

1. The matter be adjourned to the Magellan Registrar for the making of trial directions at 10.00am on Wednesday 12 January 2011 in the Brisbane Registry of the Family Court of Australia.

2. The orders made by Federal Magistrate Jarrett on 31 May 2010 be varied by substituting for the words “Dial an Angel” wherever they appear in the order, with the words “Dial an Angel or such other supervisor or supervisors as might be approved from time to time by the Independent Children’s Lawyer”.

3. The mother’s interim application adjourned by Federal Magistrate Jarrett on 31 May 2010 be dismissed.

4. The oral application of the mother to vary order 4(d) made by Federal Magistrate Jarrett on 31 May 2010 be dismissed.

IT IS FURTHER ORDERED THAT

1. 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.

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

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

Minutes of Consent

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:-

1. That leave be granted to the Independent Children’s Lawyer to issue subpoena to the following:-

   Dr K ( T Organisation)

   Relationships Australia

   Department of Communities and Child Safety

   Queensland Health

   F Pre-School

   M Medical Centre

2. That leave be granted to all parties to inspect and for the Independent Children’s Lawyer to copy documents produced pursuant to subpoena, save in respect of any document of which a claim for privilege attaches and/or in respect of which confidentiality is claimed in which case an application is to brought before Justice Murphy to inspect such documents.

1. That this matter be adjourned to the Magellan Registrar at 12^th January 2011 at 10am by telephone in the Brisbane Registry of the Family Court of Australia for the making of directions and listing the matter to final hearing and it is requested that the parties communicate with the Magellan Registrar electronically at least two clear days prior to the directions hearing date and provide details of the legal practitioner whom will be attending the directions hearing and the telephone number that they can be contact on.

1. That the parties attend for psychological (or psychiatric) testing as directed by the Independent Children’s Lawyer.

1. That counselling for the child T born … April 2007 at Bravehearts be discontinued. 

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2477 of 2008

MS HUNTER

Applicant

And

MR MARSAILLE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me for the first time in the Magellan directions list.  It was originally filed in the Federal Magistrates Court.  On 31 May 2010 Jarrett FM dealt with the matter and transferred the matter to this Court.

2. It is plain, from the nature of the allegations and counter-allegations contained within it, that the matter was considered by the Federal Magistrate as a matter to be considered for inclusion in this Court’s Magellan list, and his Honour made an order contained in minutes of consent to that effect.

3. At that time, Jarrett FM made a number of orders.  It is to be noted that each and all of the orders made by Jarrett FM were made by consent.  Those orders were made barely three months ago.

4. Included among the orders made by consent, were orders designed to facilitate supervised time, pending the hearing and determination of the parenting issues in this case, which have at their heart the allegation of sexual abuse earlier referred to.  The orders contained in that respect, supervision by a private agency called Dial-An-Angel.

5. The father advises from the bar table today (as to which, see Division 12A) that enquiries made by him of the contact centre commonly known as the Logan West Contact Centre, indicated that the waiting list there is such that no time can be offered at that contact centre for a period of about six months.

6. That information accords with information of which this Court is well aware (as to which, see s 144 of the Evidence Act) that there are many more calls upon contact centres than there is the capacity of contact centres to deal with. 

7. It is in those circumstances that time is supervised.  The supervision occurs by reason of allegations having been made that are as yet undetermined.

8. During the course of proceedings today, further orders were made by consent, varying the terms of the orders made by Jarrett FM, such that in addition to supervision by Dial-An-Angel, there can be supervision by such supervisor or supervisors, as approved by the independent children’s lawyer.

9. Within that context, an oral application is made without notice – without notice certainly to the independent children’s lawyer - that subparagraph (d) of paragraph 4 of the orders made by Jarrett FM ought be varied.  That order provides:

   The Dial-An-Angel level 2 of supervision is to be arranged and paid for by the respondent father.

10. The father asserts – and it seems to me plain on the face of the orders that he must be right – that the orders, and that order in particular, were proposed by the mother and agreed to at the time by him before Jarrett FM.

11. The orders to which I have just referred refers, it might be noted, to a specific level of supervision.  That order of itself means nothing to me, but it was explained from the bar table that level 2 supervision is distinguished, relevantly, from level 5 supervision, by that commercial agency.

12. Level 5 supervision, I am told, involves, for example, the ability of the supervisor to intervene if inaudible conversations occur between child and parent, and other such strict supervisory circumstances.

13. It is said that the mother was unaware of what “Level 2 supervision” involved, at the time that she consented to those orders.  I note in that respect that the mother was represented by an experienced counsel at that time.

14. The father asserts – and it does not appear to be contradicted – that it was the mother who proposed orders of the general type, and which contained the specifics that were agreed to by him at the time.  The father was also represented by a solicitor at the time.

15. If the order is to be varied by substituting “level 5”, then it seems to me that a conclusion ought be drawn, on an interim basis (before any allegations of any type or description have been properly ventilated in affidavit material, let alone tested), that the degree of risk is so high (or so “unacceptable”) that the level 2 supervision should be discarded in favour of the level 5 supervision earlier referred to.

16. It is axiomatic that, in circumstances such as the present, the Court is unable to arrive at a decision by reference to findings made on the facts, after a careful examination of affidavit evidence, and more particularly, the testing of that affidavit evidence, both by cross-examination and by reference to other independent evidence, including expert evidence.

17. Within that context then, the Court needs to be satisfied about a number of matters.  Importantly though, the context within which the allegation is made, and within which the allegation of the unacceptability of risk is made, needs, in my view, to be carefully considered.

18. The allegation of unacceptability of risk does not occur in a vacuum.  The allegation occurs in circumstances where:

    a)The father vehemently denies that the alleged, or any sexual harm of any type or description, has occurred at his instance to his child.

    b)Where time is, in any event, supervised by a commercial agency specialising in the supervision of time.

    c)Where the father knows, and cannot be under any doubt whatsoever, that the mother’s concerns about what the child has allegedly said, are such that every movement, word and action of his will be carefully scrutinised.

    d)Where the father knows that a trial of this action will take place in some months.

    e)Where the father knows that the allegations made against him will be examined by expert evidence, including psychological and other expert evidence.

    f)Where the father knows that all actions and words directed by him toward the child will be the subject of scrutiny by a court.

    g)And finally, but by no means least, where the father knows, and can be under no doubt, that the supervisors who are independent of the parties, who have supervised the time between he and the child, are likely to give evidence at a trial.

19. To suggest then, that an unacceptable risk beyond that accommodated by the time as currently supervised, is, it seems to me, tantamount to suggesting that the father is such an out of control paedophile, and so utterly incapable of controlling his alleged urges towards his child, that notwithstanding his cognizance of each and all of the matters to which I’ve just referred, that he would nevertheless do things or attempt to do things sexually improper to the child.

20. In that respect, it is said that the risk of “grooming” should be such and requires that level of supervision.  I regard that argument; such and all of the factors enumerated above apply equally to that assertion.

21. I am not persuaded that, in the circumstances of this case, any risk can be present on the facts and in the circumstances before me justify that finding or the order sought.

22. The oral application for variation of the order to change subparagraph (d) of paragraph 4, from level 2 to level 5 is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 8 September 2010.

Associate: 

Date:  30 September 2010