Hurne and Tolle

[2010] FamCA 953

FAMILY COURT OF AUSTRALIA

HURNE & TOLLE [2010] FamCA 953

FAMILY LAW – PROCEDURE – Adjournment – Magellan and property proceedings

APPLICANT: Mr Hurne

RESPONDENT: Ms Tolle

INDEPENDENT CHILDREN’S LAWYER: Mr P Lynch

FILE NUMBER: MLC 8575 of 2009

DATE DELIVERED: 15 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 15 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Delidis

SOLICITOR FOR THE APPLICANT: Stynes Dixon Lawyers

COUNSEL FOR THE RESPONDENT: Mr Collins

SOLICITOR FOR THE RESPONDENT: Westminster Lawyers Pty Ltd

INDEPENDENT CHILDREN’S LAWYER Peter Lynch

Orders

IT IS ORDERED:

1. That this matter be adjourned before Senior Registrar FitzGibbon and the Magellan Registrar on 21 July 2010 at 10.00 am (“the adjourned date”) for determination of any outstanding applications for the immediate return of the children M born … July 2004 and N born … July 2005 and J born … September 2006 to Victoria and for the father to spend time with the children pending the final hearing.

2. That the respondent mother appear personally on the adjourned date.

3. That within 7 days each parent do all acts and things necessary to facilitate the acceptance of the family for supervised time between the father and the children at Berry Street Children’s Contact Service at both Richmond and Watsonia and forthwith send to the independent children’s lawyer any documents so submitted.

4. That within 7 days each parent do all acts and things necessary to facilitate the acceptance of the family for supervised time between the father and the children at Angelico Community Services Contact Service and forthwith send to the independent children’s lawyer any documents so submitted.

5. That for the avoidance of doubt, no order has yet been made which entitles the father to spend supervised time or other face to face time with any of the children but that matter will be considered on the adjourned date.

6. That the father do all acts and things necessary to undergo a psychiatric assessment by Dr D at the father’s expense, including attending for an assessment on 24 August 2010 or such other time as Dr D my direct.

7. That the independent children’s lawyer cause to be forwarded to Dr D by not later than 14 August 2010 a copy of:-

   a.      The Children and Parent’s Issues Assessment dated 27 November 2009; and

   b.      The Department of Human Services Report dated 14 May 2010.

8. That the independent children’s lawyer forthwith advise the mother and the father, in the event that he forms the view that the mother ought to be reassessed by Dr D, having regard to the fact that Dr D’s assessment of the mother preceded the release of the Department of Human Services confidential court report. In the event that the mother does not agree to attend upon Dr D for a further assessment the independent children’s lawyer is at liberty to have the matter mentioned before me forthwith and for that purpose to seek that my Associate appoint a date with notice to all other parties.

9. That in anticipation of the adjourned date:-

   a)      by not later than 4.00 pm on 22 June 2010 the father file and serve any application for the return of the children to Victoria and/or to spend time with the children;

   b)      by not later than 4.00 pm on 6 July 2010 the mother file and serve any response to the father’s said application;

   c)      by not later than 4.00 pm on 13 July 2010 the independent children’s lawyer publish to the parties and to my Associate, his preliminary view of what parenting orders should be made on the adjourned date.

10. That the response of the mother filed 13 January 2010 and the amended response filed 26 February 2010 be struck out and the mother have until 4.00 pm on 19 July 2010 to file any response upon which she proposes to rely. In the event that she seeks to join a third party to the proceedings under Part VII, her response include a statement of claim inclusive of the orders sought against the third party and the causes of actions relied upon.

11. That the reasons for judgment this day be transcribed and, when settled, copies be made available to the parties.

AND THE COURT NOTES the recommendations of the Department of Human Services in relation to the participation of the parties in post-separation parenting courses and other courses and that the father asserts that he has completed an anger management course.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8575 of 2009

Mr HURNE

Applicant

And

MS TOLLE

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Magellan duty list for directions for hearing.  It concerns the three children: M born in July 2004 and N born in July 2005 and J born in September 2006.  The mother and father resided in a relationship from approximately 2003, until August last year. 

2. The proceedings are in this list arising out of notices of risk of child abuse filed by the mother.  There was a Parent and Childrens Issues Assessment prepared by Ms L, family consultant, on 27 November 2009.  Various orders have been made. 

3. A report pursuant to section 91B was released by the Department of Human Services on 14 May 2010.  It appears to be a report of a thorough investigation.  It is a thoughtful report and I find it of assistance in these proceedings.  I give it weight.  It deals with the mother’s complaints, the mother’s reports of the children engaging in sexually inappropriate conduct;  vaginal/oral contact between each other, licking the lips and tongues of each other and various adults, sticking fingers in their bottoms and sticking fingers in each other’s bottoms and trying to stick their fingers in the bottoms of other people including adults.

4. The Department of Human Services reaches various conclusions, which have not been tested in cross-examination as yet but I find to be of assistance.  The conclusions include:-

   “Whilst the Department of Human Services believes that the sexualised behaviours exhibited by [M] and [N] are concerning it is not possible to, when assessing these behaviours, exclude the likelihood that the children’s disclosures pertaining to these behaviours have been significantly influenced by their exposure to significant and ongoing family violence, the reactions of the adults around them, the age and stage of the children’s development and the vulnerability to being ‘coached’ whether deliberately or accidentally.  It is noted that there has been an absence of historical information suggesting that the children have been ‘groomed’ or been sexually abused.  Given the abovementioned information the DoHS is unable to assess if the oral/vaginal and oral/digital contact between [M] and [N] and their subsequent disclosures are the result of sexual abuse.

   The DoHS acknowledges the children’s behaviour appeared to deteriorate at access times.  The DoHS assesses that it is likely this was due to the behaviour of both parents at these times, the interest and reactions to the adults around them following access and the children’s inability to seek protection from these factors.

   The DoHS remains concerned that the children will be exposed to ongoing harm due to [the father’s] inability to display any insight into the protective concerns and his inability to display any insight into the impact his behaviour has had on the children.  It is of further concern that whilst paternal family members met with Protective Workers the DoHS is unclear whether [the father] or [Mrs Hurne] were able to provide the DoHS with accurate accounts or if this information was filtered by themselves to present a version of events which they believe to be in their best interests. This raises concerns regarding their willingness to prioritise the children’s needs.

   The DoHS remains concerned that [the mother] advised Protective Workers that it is her belief that [the father] has sexually abused the children, will abscond with them to Lebanon and is likely to physically abuse them whilst advising that the children should reside in Tasmania with her and travel to Victoria to reside with [the father] on school holidays.  It is unclear how [the mother] has assessed this arrangement is in the children’s best interests. Whilst it is acknowledged that it is likely [the mother] has suffered abuse and trauma in her relationship with [the father] the DoHS remains concerned regarding her ability to assess the ongoing safety and well being of the children in [the father’s] care.  Concerns exist that both [the father] and [the mother] have prioritised their own needs above those of the children and without adequate intervention it is assessed as highly likely the children will be exposed to ongoing harm of this type.

   Whilst the DoHS has been unable to substantiate the concerns regarding the likelihood that the children have been sexually abused the substantiation of the likelihood that the children have been physically, emotionally and psychologically abused raises significant concerns regarding the ability of both [the father] and [the mother] to protect the children from future harm of this type if they were to reunite.

   Given this matter is currently being addressed in the Family Law Court with [the mother] being assessed by DoHS as having acted protectively by separating from [the father] the DoHS does not believe there is a need for an ongoing role in these proceedings.

   In relation to ongoing concerns regarding the children’s safety and well being the DoHS respectfully requests that the Family Law Court consider the DoHS assessment that neither [the father] or [the mother] appear willing to prioritise the children’s best interests by refraining from displaying their hostility to each other in their interactions with the children.

   Given the above information it is assessed issues pertaining to custody and access issues are best mediated via the Family Law Court.

5. Today, the matter was listed for further directions for trial.  A family report would have been ordered and the matter would have been heard as soon as it was ready in the Magellan list of cases in our defended sitting.  However, the mother is not here today.  She has gone to live in Tasmania, taking with her the three children. 

6. The father through Ms Delidis makes an oral application for the immediate return of the children to Victoria and for supervised time with the children to be supervised initially through a private contact agency which would provide a supervisor to follow the children and the father and to accompany the children and the father.  Otherwise, he seeks that there be supervised time at a contact centre, as and when that comes on-line either from Berry Street or a centre in Watsonia.

7. All of the father’s applications are made orally.  They are necessarily made without any written notice to the mother, and she is not at court today.  Appearing on her behalf is Mr Collins, who has confirmed that he is not in a position to respond to all matters today and his client has not had an opportunity to consider her position, and nor, most significantly, to place on affidavit or provide evidence to the Court which is relevant to the Court’s disposition of the father’s oral application. 

8. It seems to me that the mother must be accorded procedural fairness and must have an opportunity to put evidence before the Court.  That said, I note that on 1 October 2009 an order was made by the Court (not by consent) before Senior Registrar Fitzgibbon which provided:

   “That until further order, the mother and the father be and are hereby restrained from removing the children’s places of residence more than 10 kilometres from [E] in the State of Victoria, noting that both deny the necessity for such an order.”

9. The mother’s removal of the children to Tasmania appears to be in breach of that injunction.  Her proposed move to Tasmania was a matter discussed by Department of Human Services in their report and viewed somewhat critically because of its lack of forethought on the mother’s part. 

10. Ms Delidis, for the husband says that the mother need not be accorded much notice of her application;  she is in breach of an order and it is indeed for her to put material before the Court today which would justify the actions that she has taken.  I do not agree with that.  I agree that the father’s application for the immediate return of the children may ultimately be a compelling one, but at the moment the wife deserves to have an adequate opportunity to put evidence before the court.

11. I will therefore adjourn the matter to 21 July 2010.

12. Mr Collins has said on several occasions that he hopes by that stage to be able to advise the court of the practicalities that his client faces if she has to return to Melbourne on each occasion.  I have tried to impress upon Mr Collins that if the mother is not back in Melbourne with the children and residing here by 21 July 2010, he and his client must expect that an application will be made on that day for the immediate return of the children.

13. In the meantime, there are a number of things that can be done, without prejudice to anyone, that would set the matter up to be constructively dealt with by the Senior Registrar on the next return date.  That includes requiring the mother to appear personally on the adjourned date, for the parents to each make applications or doing all such acts and things as are necessary to facilitate the acceptance of the family for supervised time by two agencies nominated by the father and various contact services.

14. The father is also to undergo, by agreement, an assessment by Dr D, psychiatrist. Dr D has previously assessed the mother, although I am concerned that he did so without the thorough report of the Department of Human Services dated 14 May 2010, and it is more likely than not, in my view, that after seeing the father and reading the report, the mother may have to go for some reassessment. 

15. The orders which I am declining to make today as sought by the father are that the mother produce the children at the child-minding centre on the adjourned date, and that there be a formulation of what time the father should spend with the children after 21 July 2010, in the event that he is to spend time with them at all.  I am also declining to make an order that the mother re-enrol M, who is the only school-aged child of the parties, in school in Victoria.

16. In refusing to make the order that the children attend on the return date, apart from issues of procedural fairness, I am cognisant of the fact that the parties will be at court for most of 21 July.  If the father is to spend time with the children very shortly after 21 July, and even in that week, they can simply be put on a plane and brought here for that purpose.  It does not require them to spend half a day or a day in the child-minding centre of this building.

17. There is the issue of property proceedings.  The father makes an application for final alteration of property interests.  The mother has filed a response on 13 January and an amended response on 26 February.  At least in the latter, if not the former, she seeks to join a company called Q Pty Ltd as a third party.  It is an inappropriate course to adopt in a response.  More significantly, however, the mother does not specify what orders she seeks against the husband, let alone the company. 

18. Those responses will be struck out and she will have until 19 July 2010 to put in a response in proper form.  In the event that she seeks to add a third party, that response should be accompanied by a statement of claim setting out the basis of and the orders sought against the third party.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 15 June 2010.

Associate:

Date: