Husson and Tuender

[2012] FamCA 238

FAMILY COURT OF AUSTRALIA

HUSSON & TUENDER [2012] FamCA 238

FAMILY LAW - CHILDREN – interim orders – consideration of whether the father should commence supervised time with the child – best interests – where the Court was not satisfied that supervised time would sufficiently protect the child from the risk of emotional or psychological abuse – no orders made for the child to spend time with the father.

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Mr Husson

RESPONDENT: Ms Tuender

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 3639 of 2011

DATE DELIVERED: 12 April 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 12 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dixon

SOLICITOR FOR THE APPLICANT: A K Reeves & Associates

COUNSEL FOR THE RESPONDENT: Mrs Lindsay

SOLICITOR FOR THE RESPONDENT: Legal Services Commission

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Barr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Barr Lawyers

Orders

UPON NOTING that the Independent Children’s Lawyer will forward a letter to the Child Protection Service (“CPS”) requesting an update of their report taking into account the Hospital 1 records.

BY CONSENT IT IS ORDERED DURING THE PERIOD OF THE ADJOURNMENT THAT

1. The child B live with the mother.

2. The mother have sole parental responsibility for the child B.

IT IS FURTHER ORDERED THAT

1. The mother with the assistance of the Independent Children’s Lawyer make arrangements for counselling for the child B to take place as directed by CAMHS and as available by CAMHS.

2. The affidavit of the Family Consultant and the annexed report together with the CPS report and the Magellan Report be released by the Independent Children’s Lawyer to the therapist who conducts the therapy for the child.

3. Paragraph 5 of the Orders made by the Honourable Justice Burr dated 17 January 2012 is discharged.

4. Within fourteen [14] days from today the mother to sign all such documents, pay all such fees, attend all such intake interviews and do all such things as necessary for her to enrol to use the services of the T Contact Centre in the event that the Court in the future orders that the father spend some supervised time with the child B AND UPON NOTING that this is not an implication that the Court is going to order such supervised time on the next occasion.

5. Matter is adjourned to the Registrar for directions at a date to be fixed not before August 2012 to prepare the matter for final hearing.

6. Liberty to all parties to apply for interim orders upon giving the other parties fourteen [14] days notice such application to be after the confirmation that the mother has registered with the T Contact Centre and after the therapy for the child has commenced.

7. That 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 NOTED that publication of this judgment by this Court under the pseudonym Husson & Tuender has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

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 the interim hearing of a matter which was adjourned to me by Burr J when he made the orders of 17 January 2012.  The proceedings relate to the welfare of the child of the parties, B, who was born in February 2006, and is therefore just aged six.  The submissions of Ms Dixon for the father, and Ms Lindsay for the mother, and Mr Barr as the Independent Children’s Lawyer, have been heard.  The most significant development since the matter was before Burr J is the release of the Affidavit of the Family Consultant, to which is annexed the Family Consultant’s Report of 15 March 2012, which was prepared after the Family Consultant had perused material on the file and conducted interviews with the mother, the father, and an assessment of the child, together with observations of the child with each of the parents and some further information obtained from the half-siblings of the child who are now adults.

2. The report is of some 18 pages.  The main issue that is before me today is the question of whether the father should now commence time with B in accordance with arrangements to have that time spent supervised at the agency.  It is submitted on behalf of the father that he has registered with the agency but there may be a two to three month wait.  It is not clear from the mother’s counsel whether she has registered with the contact service, but it appears there is a risk that she has not.  In any event, the mother is not supporting any order which would provide for the father to spend any time with the child at this stage.

3. There arise issues about the correct interpretation of the orders that were made by Burr J directing the parties to register for the contact service.  I am now hearing the matter.  I am not prepared to act upon any assumption that might have been made as a result of that order directing the parties to register with the T Contact Centre.  The Court is required now to assess what is in the best interests of the child, in accordance with the provisions of Goode and Goode (2006) FLC 93-286, and obviously in accordance with the provisions of the Family Law Act 1975 (Cth) (‘the Act’), which emphasise, as primary considerations, maintaining a meaningful relationship with both the child’s parents, but also protecting the child from any abuse, which may include psychological or emotional abuse.

4. The proposal to have time spent between the child and the father supervised is clearly likely to protect the child from any physical or sexual abuse, if there were such a risk.  However, in view of the Family Consultant’s Report, I am not, at this stage, sufficiently satisfied that such time would protect B from the risk of emotional or psychological abuse.  I am not making any finding that there has been, or would be, such abuse, but it is the possible risk to which I must refer.  In particular, the evaluation of the Family Consultant refers to B’s age and vulnerability and the naivety and innocence of the child in her readiness to be persuaded by the father (paragraphs 51 and 52 of the Family Consultant’s Report).

5. The Family Consultant’s Report refers to the risk of future emotional harm to the child in relation to contact with the father.  At this stage, without specific indication from an expert counsellor, until the issues outstanding between the parties can be clearly ascertained and resolved, I am not satisfied that it is in the best interests of the child for there to be any order that the child spends supervised time with the father. 

6. The recommendations of the Family Consultant conclude with the recommendations that:

   [B] live with the mother… she have sole parental responsibility… and that the father be restrained from attending at the mother’s home or the child’s school, that the mother be restrained from inviting the father into her home, and that the father be at liberty to obtain information from the school about [B’s] progress.

7. Significantly, it says that:

   …[B] commence therapy with an experienced therapist as soon as possible.

   The Report then refers to the recommendation of the Child Protection Services, and that such therapists be provided with copies of the CPS Report and the assessment.  The final recommendation is:

   ...that should the Court support visits between [B] 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.

8. That recommendation is clearly phrased on the condition that the Court actually supports those visits.  As previously indicated, the rest of the Family Consultant’s Report does not promote that supervised visits take place immediately.  For the reasons I have given, I am not satisfied that at this stage it would be in the best interests of the child’s emotional and psychological health.  I therefore make the orders to which I have already referred, which discharges paragraph 5 of the order of Burr J of 17 January 2012, and direct that the mother, with the assistance of the Independent Children’s Lawyer, make arrangements for the child to have counselling at CAMHS as recommended by CAMHS.  I further order that the affidavit of the family consultant and the annexed report, together with the CPS report and the Magellan report, be released by the Independent Children’s Lawyer to the therapist who conducts the therapy for B.

9. The other relevant orders are continued, which includes the order which required the mother to register with the T Contact Centre.  Again, it is noted that that order is in existence and that the mother should comply with it if she has not, but that that does not imply that on the next occasion there will necessarily be an order providing for such supervised time.  What it does is overcome the delays.  The Court will, on the next occasion, consider, in accordance with the best interests of the child, what order should be made. 

10. The issue has been raised by the Independent Children’s Lawyer about the CPS interviews and conclusions taking place when those reporters were unaware of physical examination of the child, including an internal rectal examination of the child which took place a short time before the assessment.

11. It is a factor which the persons preparing the report would normally have knowledge.  Although necessarily convinced that it would alter their findings in this particular case, I think it would be appropriate to ensure that all of that information is made available to the assessors to see if they wish to alter their opinion.

12. I will have it simply noted that the Independent Children’s Lawyer will forward a letter to the CPS requesting an update of their report, taking into account the Hospital 1 records. 

13. The matter stands referred to a Registrar on a date to be advised to make directions to prepare the matter for final hearing.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 April 2012.

Associate: 

Date: