Hussen and Tuender (No. 2)

[2012] FamCA 832

FAMILY COURT OF AUSTRALIA

HUSSEN & TUENDER (NO. 2) [2012] FamCA 832

FAMILY LAW – CHILDREN – interim orders – application by the father seeking orders to spend supervised time with the child – where the mother alleges that the child has been sexually abused by the father – where the father alleges that the child has been coached by the mother – where the child has not spent time with the father for a considerable period of time – best interests – where the Court held that it was inappropriate to make orders for the child to spend time with the father due to the risk to her emotional and psychological health – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Husson

RESPONDENT: Ms Tuender

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: ADC 3639 of 2011

DATE DELIVERED: 20 September 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dixon

SOLICITOR FOR THE APPLICANT: A K Reeves & Associates

COUNSEL FOR THE RESPONDENT: Ms Reed

SOLICITOR FOR THE RESPONDENT: Legal Services Commission of SA

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Hemsley

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Barr Lawyers

Orders

UPON NOTING

1. The matter is in the trial pool list awaiting a trial listing.

1. An updated Family Consultant report should be prepared when the Court is able to allocate a date for the trial with a view to that report being available and that report taking into account (if possible) a report from CAMHS of the information available from CAMHS any updated material from the parties and if necessary an interview with the child.

IT IS ORDERED THAT

1. The Application in a Case filed by the father on 21 August 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Husson & Tuender (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3639 of 2011

Mr Husson

Applicant

And

Ms Tuender

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an interim application brought by way of an Application in a Case by the father seeking that he has supervised time with the child, B.  The proceedings have been on foot for considerable time since September last year and were transferred from the Federal Magistrates Court.  During that time, the Court has considered interim orders on previous occasions.  In particular, the matter has been in the Magellan List.  Justice Burr made previous orders and the matter has also been before me recently. 

2. The Court has the benefit of the affidavit of the Family Consultant which was completed on 15 March 2012.  It sets out in some detail the results of the interviews and observations. 

3. The Court also has the reports of the Department for Families and Communities and the Child Protection Services dealing with the allegations made that the child has been seriously sexually abused by the father.  This included reports of the forensic interview. 

4. Taking those matters into account, it is clear that there are serious allegations to be determined at the final hearing of this matter, in particular, whether the allegations made that the child has been sexually abused by the father are correct or whether the alternative allegation is correct namely, that the mother has seriously and abusively manipulated the child to make false reports in relation to the father.

5. The Family Consultant’s report is clearly now some months old, having been completed in March 2012.  The Court has also before it further affidavit material filed by the father, Independent Children’s Lawyer and the mother. 

6. The child has apparently undertaken some sessions with CAMHS by way of therapy.  It is accepted that is now a considerable period of time namely, February 2012 since the child has spent time with the father.

7. The submissions made on behalf of the father this morning are that the time to be spent between the father and the child should take place at the T Contact Centre.  It is submitted that would provide the child with protection, it being a time which would be supervised at all times, and would also provide the Court with a report in evidence which would assist in determining the issues when the matter reaches a conclusion.

8. The matter has been referred to the trial list for preparation for trial when there is time available. 

9. The mother opposes that application.  The submissions on behalf of the mother and the affidavit of the mother are based upon the need to determine the actual basis of the best interests of the child first before directing that there be any supervised time between the child and the father.

10. The Independent Children’s Lawyer does not support the father’s application at this stage. 

11. CAMHS have indicated that they would not prepare a report for the Court, so the Court only has available to it the mother’s affidavit setting out what she sees to be the more recent dealings with the CAMHS offices and the child’s response. 

12. The significant factor that the Court has to determine is what is in the best interests of the child.

13. B was born in February 2006 (“the child”) and is therefore a young child of just over six years of age.  The allegations in relation to the alleged behaviour of the father and the alleged behaviour of the mother are both serious.  At this stage, the Court, however, has before it the affidavit of the Family Consultant which includes the child making significant statements but to both the Consultant and to the father.

14. It is also significant that at the end of paragraph 49, when the father spoke to the child about spending time with him again, the child initially seemed hesitant, but when offered by the writer the possibility of seeing him again in a similar, supervised environment to that of the Court child care namely, at the Children’s Contact Service, the child expressed her willingness to do so.

15. The evaluation, however continues in paragraph 51 and following and comes to conclusions that in paragraph 57 it is the writer’s belief that:

    [T]here is a heightened risk of future emotional harm to [the child] from [the father] in the context of the current allegations against him, both in regard to physical violence and also sexual abuse.

16. The writer was filled with misgivings when observing the father’s repeated denials of the child’s lived experience, his violence towards the mother and without considering the sexual allegations against him:

    57. …It is [the child]’s vulnerability and concomitant susceptibility to influence that places her at risk in her father’s unsupervised care at this point in time.  In the meantime, [the child] would benefit from therapeutic intervention to assist her to integrate and apply meaning to some of her malevolent experiences of her father.

    58. In conclusion, in the event that the Court does make provision for [the father] to spend time with [the child], that such time needs to be supervised and take place at a Children’s Contact Service (CCS) and that a report from that service along with an update family report be considered before consideration is given to continuing visits away from this structured environment.

17. The report then continues to recommend ongoing counselling for the child in relation to the family violence she has witnessed and her disclosures of inappropriate touching as well as to teach her protective behaviours.  The recommendations then continue and at paragraph 8 is: 

    That should the court support visits between [the child] and her father that these visits occur in a safe and structured environment of a CCS with a report from that Service and an update family report being made available before any decisions are made about final parenting arrangements..

18. What the Court has to consider, however, is obviously whether those supervised visits should take place at this stage and whether that is in the best interests of the child, B.  The Court’s concern is not only about the physical safety of the child but the emotional and psychological safety of the child. 

19. Taking into account all of the matters contained in the Family Consultant’s report, the Department of Families and Communities reports and the Child Protection Services report, there are significant matters which need to be determined in relation to the child’s emotional and psychological health which make it inappropriate at this stage to make an order for any time to be spent between the child and the father because there is a risk that may bring about some emotional or psychological difficulties for the child.  That is an emotional or psychological difficulty which may occur, regardless of whether the child has been sexually abused by the father or whether the child has been emotionally manipulated and psychologically manipulated by the mother.

20. This Court is concerned with the welfare of the child as the paramount consideration.  I therefore decline to make any order for supervised time and dismiss the Application in a Case filed by the father.  I note the matter is already in the list to prepare the matter for trial. 

21. I consider that it would not be in the child’s best interests for there to be an updated Family Consultant’s report prepared now, and then if the matter does not get listed for trial in the immediate future, there is a need for her to be interviewed yet again.  I will have it noted that an updated Family Consultant’s report should be prepared when the Court is able to allocate a date for the trial with a view to that report being available and with that report taking into account, if possible, a report from CAMHS, or at least all the information available from CAMHS, together with any updated material from the parties and, if necessary, an interview with the child.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 September 2012.

Associate: 

Date:  2 October 2012