Hutchinson and Hutchinson

[2010] FamCA 827

FAMILY COURT OF AUSTRALIA

HUTCHINSON & HUTCHINSON [2010] FamCA 827

FAMILY LAW – CHILDREN – Interim parenting orders – Magellan proceedings – Allegations of child sexual abuse – Father proposes the children spend time with him on a supervised basis – Mother proposes that the children spend no time with the father – Dispute as to whether a previous interim order precluding counselling for one of the children be discharged – Father’s application for supervised time with the children dismissed – Previous interim order precluding counselling for child discharged

Family Law Act 1975 (Cth)

APPLICANT: Ms Hutchinson

RESPONDENT: Mr Hutchinson

INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke, Legal Aid NSW

FILE NUMBER: NCC 1716 of 2007

DATE DELIVERED: 6 September 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 6 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamilton

SOLICITOR FOR THE APPLICANT: Manning Valley Legal and Conveyancing

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Garrick as agent on behalf of Merrick Spicer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke, Legal Aid NSW

Orders

1. The father’s application for the interim parenting orders set out within his Response filed on 21 June 2010 is dismissed.

2. Any and all outstanding applications for interim orders are dismissed.

3. No orders as to costs.

4. Order 3 made on 9 July 2010 is discharged.

BY CONSENT, IT IS FURTHER ORDERED THAT

1. With the consent of the parties and the Independent Children’s Lawyer, it is ordered in accordance with the document entitled “Minute of Proposed Orders” signed by the parties and/or their legal representatives and the Independent Children’s Lawyer, dated 6 September 2010, which is marked Exhibit A and placed with the Court file.

   5.1The father must submit himself to random urine analysis within 48 hours as directed by the Independent Children’s Lawyer with the Independent Children’s Lawyer to notify the father’s legal representative and father in writing of such request with such urine analysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: procedure for the collection, detection and quantisation of drugs of abuse in urine, on receiving notice the father must obtain a referral to a pathology laboratory from his treating general practitioner and arrange for all authorizations to immediately provide random samples and to forward copies of each report to the Independent Children’s Lawyer and the mother’s legal representative within 72 hours.

2. The Independent Children’s Lawyer shall file a typescript of Exhibit A within seven days.

IT IS FURTHER ORDERED THAT

1. The trial of this matter is listed before Justice Austin at 10:00 am on Tuesday, 14 December 2010, for a period of four days.

2. The trial fee shall be paid by the parties in the shares and within the time determined by the Registrar.

3. The applicant mother shall file and serve any Amended Application by Friday, 17 September 2010.

4. The respondent father shall file and serve any Amended Response by Friday, 1 October 2010.

5. The parties shall file and serve the affidavits upon which they rely by Friday, 29 October 2010.

6. Leave is granted to the applicant mother to file and serve one affidavit for each of the following persons:

   a.Herself; and

   b.The maternal grandmother.

7. Leave is granted to the respondent father to file and serve one affidavit for each of the following persons:

   a.Himself;

   b.The paternal grandmother; and

   c.Dr S, psychologist.

8. The witness relied upon by the Independent Children’s Lawyer will be the Family Consultant.

9. Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any other affidavits, without the leave of the Court.

10. The parties and Independent Children’s Lawyer are granted leave to issue update subpoenae to any person or entity to whom subpoenae have been issued in the past.

11. Leave is granted to the respondent father to issue subpoenae to:

    a.The Proper Officer of T Hospital;

    b.The Proper Officer of F Hospital; and

    c.The Proper Officer of N Medical Centre,

12. Leave is granted to the parties and the Independent Children’s Lawyer to inspect the documents produced on subpoena by:

    a.N Medical Centre; and

    b.Telstra.

13. The parties shall by Thursday, 9 December 2010, file with the Associate of Justice Austin an Agreed List of Documents.

14. The parties shall by Thursday, 9 December 2010, file with the Associate of Justice Austin, and serve upon one another, a Case Outline Document containing:

    a.Chronology;

    b.Summary of Argument; and

    c.List of Authorities.

15. If any party should default in the compliance with these orders any other party may contact the Associate of Justice Austin, on notice to the other parties, to seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

16. Liberty to restore the matter to the list on seven days notice for further procedural directions.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1716 of 2007

MS HUTCHINSON 

Applicant

And

MR HUTCHINSON 

Respondent

And

INDEPENDENT CHILDREN’S LAWYER 

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that should be made for the two children of the applicant mother and respondent father.  Those two children are H, born in May 2001, and C, born in January 2006.  The children are now respectively nine and four years of age.

2. Allegations of sexual abuse of the children by the father were made by the mother in May 2010.  Those allegations arise out of disclosures allegedly made to the mother by the children across the period between January and May 2010.  Those disclosures caused the mother to terminate the arrangements for the children to spend time with the father under existing parenting orders.

3. This matter is to proceed to a final hearing and the trial will be fixed within the next few months.

4. In the interim period the father seeks reintroduction of the arrangement for the children to spend time with him on a supervised basis.  He abandons the application in his Response, filed on 21 June 2010, for the time spent by the children with him to be re-introduced on an unsupervised basis.

5. To that extent, the father has obviously abandoned the attitude that he made plain to the Family Consultant, namely that he would not accept an order for supervised time, particularly if that meant attending a supervision centre, because he would not be comfortable with that.[1]

   [1] Family Report, par 83

6. The mother opposes the children spending time with the father under any conditions.

7. The pre-eminent issue that confronts the Court is whether the meaningful relationship that previously existed between the children and the father needs to remain in suspension so as to avoid the risk of their emotional abuse posed by the father.

Evidence

1. In support of his application, the father relies upon:

   a)His affidavit filed on 21 June 2010; and

   b)The affidavit of Ms P filed on 22 June 2010.

2. In support of her position, the mother relies upon her affidavit filed on 11 May 2010.

3. Both parties and the Independent Children’s Lawyer rely upon the Magellan Report, dated 15 June 2010, and the Family Report prepared by the Family Consultant, dated 30 August 2010.

Background

1. The parties separated in 2007.  They reached an agreement on final parenting orders that would apply to the children, with those orders being made by the Court by consent on 18 November 2008.  In summary, those orders provided for:

   a)The mother to have sole parental responsibility for the children;

   b)The children to live with the mother;

   c)The children to spend time with the father each alternate weekend and for portions of school holiday periods.

2. Those orders were implemented, apparently uneventfully, until about January 2010.

3. In January 2010, a disclosure was made to the mother by the child H.  Her disclosure was reported to the Department of Human Services.  In essence, the child’s disclosure was that the father had been inappropriately touching and kissing her on the genitals.

4. The matter was investigated by JIRT and the child was interviewed by JIRT caseworkers on 13 January 2010.  The child made no disclosure during that interview that the father had touched her genitals inappropriately, but did disclose that someone had kissed her on the stomach twice, although the child refused to identify that person. The child was referred to sexual assault counselling and apparently it was during the course of that counselling that the child disclosed that a person had kissed her on the genitals. As a consequence of that disclosure, JIRT caseworkers decided that the child should be re-interviewed with the sexual assault counsellor present.  A second interview with the child was convened on 18 January 2010, at which time the child presented as unhappy and reluctant to engage with the process.  At that time, the child disclosed that her father had kissed her on the stomach.  When the father was questioned by JIRT police he denied the allegations.[2]

   [2] Magellan Report, page 3

5. In February 2010, a further disclosure was allegedly made by the child H to the mother.   The child said to the mother “Daddy said you had nice little boobies like mine when you first met”, and also “When [C] showers with daddy, she pulls on his doodle and says snake daddy”.[3]

   [3] Mother’s affidavit, pars 121-122

6. In March 2010, the child H made a further disclosure to the mother telling the mother “Dad puts his doodle between his legs and says ‘look I’m a girl’”.[4]

   [4] Mother’s affidavit, par 128

7. In April 2010, a further disclosure was made by the child H to the mother, at which time she said “Dad says he loves kissing me, because it’s just like kissing you, he told me to tell you that”.[5]

   [5] Mother’s affidavit, par 132

8. It should be observed that, across the months between January and April 2010, the mother had observed that H had been frequently masturbating.  It could not be said that that was a fabrication on the part of the mother because that behaviour of the child was also witnessed by the paternal grandmother.  The paternal grandmother told the Family Consultant that she had herself noticed that H was touching herself, but it was the opinion of the paternal grandmother that the best thing to do in that situation was to simply ignore the behaviour in expectation that it would stop.[6]

   [6] Family Report, par 93

9. In April 2010, a disclosure was made to the mother by the child C who reported to the mother that she “had a secret” and that the secret was “Daddy said ‘touch my doodle’”.  That disclosure was also reported to the Department of Human Services and was investigated by JIRT.  C was interviewed and during that interview was unable to articulate an understanding of the distinction between truth and lies, and did not appreciate the consequence of lying.  It transpired that the child’s disclosure was in the context of seeing the father’s penis while he was urinating with the toilet door open.  The child said to JIRT officers that she had not touched the father’s doodle, but she did not resile from the disclosure that she had been asked to do so by the father, and she obviously maintained that she had seen the father’s naked genitals.[7]

   [7] Magellan Report, pages 3 - 4.

10. In May 2010, a further disclosure was made by the child H to the mother concerning an allegation that the father had touched her private parts, which she did not like.  That disclosure was also reported to the Department of Human Services but the authorities made a joint decision not to re-interview the child.[8]

    [8] Magellan Report, page 4

11. At this juncture it should be noted that none of the reports of sexual abuse made to the Department of Human Services are the subject of current investigation.

12. The mother’s response to the disclosures made by the children between January and May 2010 was to terminate the arrangement for them to spend time with the father and to file an Application and a Form 4 Notice of Child Abuse and Family Violence in May 2010.  The mother took that action on legal advice.[9]

    [9] Family Report, par 59

13. Following the institution of these current proceedings by the mother, interim orders were made by consent on 20 May 2010 suspending those parts of the orders made in November 2008 providing for the children to spend time with the father. 

14. At that point in time the matter was identified as a Magellan matter because of the nature of the allegations being raised by the mother and the Magellan protocol was applied to the litigation. 

15. As a consequence, a Magellan Report was ordered and, as I have indicated, the Department furnished the Court with a Magellan Report dated 15 June 2010.  The ultimate recommendation in the Magellan Report is:

    “JIRT has agreed that it is in [H’s] best interest at present to continue counselling and have the opportunity to engage in counselling while not having contact with the father and being exposed to possible harm”.[10]

    [10] Magellan Report, page 4

16. The parties also recently attended upon a Family Consultant for the purposes of the preparation of a Family Report dated 30 August 2010.  The ultimate recommendations of the Family Consultant may be shortly stated as follows:

    “It is the opinion of the Family Consultant that the father poses an unacceptable risk of harm to his children and that he should not spend any time with them (or have any form of communication with them) until such time as this matter has been fully resolved.

    The mother proposes that the father spends no time with the children.  The father proposes that his time with the children be unsupervised and that it should include overnight time and block periods of holiday time. [Although I note that the father has now changed his position to seek only supervised time].

    The Family Consultant supports the mother’s proposal on the basis that the father poses an unacceptable risk of harm to both the mother and the children.  The father does not appear to have the capacity to separate out his needs from the needs of the children and he appears to present as a threat to their physical, emotional and psychological well-being.  There are several indications that these children have been exposed to harm, the most obvious of these is the reluctance of the children to spend time with the father.  There is nothing to suggest that the mother has overtly tried to influence or align the children in such a way as to alienate the father from their affections…”[11]

    [11] Family Report, pars 141, 135 & 136

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s.60CC).

Parental responsibility & living arrangements

1. It would not be appropriate at this interim stage to apply the presumption of equal shared parental responsibility for a number of reasons.  Firstly, when the parties agreed on final parenting orders in November 2008 they agreed to allocate parental responsibility solely to the mother.  Secondly, there are unresolved allegations in these proceedings of family violence and sexual abuse.  Thirdly, the father concedes that for the time being the previous order of sole parental responsibility in favour of the mother and the living arrangements of the children with the mother should not be disturbed. 

2. For those reasons there is no need for the Court to consider living arrangements of equal time or the children spending substantial and significant time with the father. The manner in which the case has been conducted by the parties manifests an acknowledgement of that situation.  The parties have confined their interim dispute to the narrow issue of whether the children should spend supervised time with the father or not.

Analysis of Evidence

1. In the context of an interim hearing, the Court is required to act upon agreed facts or inferences that fairly and properly arise.  Since none of the evidence is tested, the Court is prohibited from making findings of fact.  As a consequence, controversial evidence is of no utility to the outcome of the proceedings.

2. It is undisputed that the children spent time with the father pursuant to the orders made between the parties in November 2008, and that the children ceased spending time with the father pursuant to those orders in or about April 2010 following a series of disclosures by the children to the mother.

3. It also seems undisputed that up until the time that those disclosures were allegedly made, the children enjoyed a meaningful relationship with the father. 

4. That does not now necessarily seem to be the case.  On the observations of the Family Consultant, the child H was quite anxious and avoidant of the father at the observation sessions.  When H was interviewed by the Family Consultant she was asked whether she was missing the father and whether she would like to see him and the child’s emphatic answer was “no”.[12]

   [12] Family Report, par 100

5. As a consequence of conversation with the child and observations of her, the Family Consultant concluded in respect of H:

   “She is clearly unwilling to spend time with the father and appeared very angry with him.  He, on the other hand, did not appear to acknowledge that she was angry with him and overtly attempted to assert his authority over her in an attempt to make her respond to him in an affectionate way”.[13]

   [13] Family Report, par 105

6. As for C, she seems both less anxious and less avoidant of the father than her older sister, but nonetheless still seems somewhat disengaged from the father. 

7. Those facts are not contentious because the father was specifically asked by the Family Consultant about his perception of the children’s reaction to him in those consultation sessions.  The father conceded that the children had been “a little bit standoffish” but he inferred that was as a consequence of them not having seen him for the last few months.[14]

   [14] Family Report, par 79

8. Presently, there is no evidence before the Court of the mother deliberately aligning the children against the father as the father asserts.  The Family Consultant specifically offers an opinion that the mother has not aligned the children against the father but, of course, it may be the case that she is mistaken.  In any event, the meaningful relationship that the children formerly had with the father seems to have suffered from a certain degree of deterioration.

9. In considering the best interests of the children s 60CC of the Act prescribes primary and additional considerations for determining that issue.

10. The first of those primary considerations, being s 60CC(2)(a), is concerned with the prospective value of the children’s relationships with their parents. At this stage it is a little difficult for the Court to make any prediction about the prospective value to the children of having meaningful relationships with the father into the future. To a large extent, the answer to that question lies in the resolution of the untested sexual assault allegations.

1. Allegations of that ilk are the subject of the second primary consideration, namely s 60CC(2)(b), which requires the Court to take steps to ensure the safety of children. In the determination of these interim proceedings I make it abundantly clear that I have made no finding of sexual abuse. Those allegations will be thoroughly tested at the trial in months to come.

2. Submissions have been directed to the fact that neither the Department of Human Services, JIRT, nor the Director of Public Prosecutions, have initiated any prosecution of the father in relation to the allegations of his sexual abuse of the children. He should understand that the administrative decision not to prosecute him in respect of those allegations does not mean that the allegations are untrue. It simply reflects an administrative decision on the part of authorities not to prosecute as the available evidence is insufficient to support a conviction according to the criminal standard of proof.  The standard of proof that will be applied in these civil proceedings is different.

3. In the face of serious allegations and the clear recommendations in both the Magellan Report and Family Report against a re-introduction of the regime for the children to spend time with the father, I am persuaded to dismiss the father’s application. The Court should tread cautiously until the evidence is properly evaluated.  As I have already mentioned, the trial will be heard within the next few months.  Any orders for the children to spend supervised time with the father would have had an extremely short period of operation in any event, allowing for a lag time in the proposed Contact Centre undertaking its intake procedure and then implementing the orders.

4. There is another consideration, although it carries significantly less weight than the best interests of the children.  The mother is fearful of the father.  She purports to have such fear of him that she has relocated herself and the children from the mid north coast of NSW to the Hunter Valley area of NSW.

5. If orders were made in the terms proposed by the father and Independent Children’s Lawyer, requiring the children to spend supervised time with the father at the Port Macquarie Contact Centre, it would have necessitated the mother travelling from Newcastle to Port Macquarie and back to enable those orders to be implemented.  The submission of the mother’s counsel, which I accept, is that such travel would have left the mother vulnerable to the stalking and intimidation of the father that she fears.

6. I accept that the father denies many of the allegations of family violence which have been made by the mother, but that is not determinative of the issue.  The father is no longer bound by the terms of any apprehended violence order, the last of which apparently expired in May 2010. 

7. The submission of the solicitor on behalf of the father was that any such problem could have been cured or attenuated by appropriate injunctive orders against the father.  I do not accept the veracity of that submission.  History weighs against it.

8. The unchallenged evidence in relation to the father’s past intimidation of the mother is as follows:

   a)On or about 7 November 2007 the father was charged with some 20 offences relating to breaches of the AVO that was made in favour of the mother against the father.  As a consequence of those proven breaches, in February 2008, the father was sentenced to four months imprisonment and 100 hours of community service, although it is unclear as to whether those sentences relate to breaches of the AVO, assaults upon the wife, or both.[15]

   b)Moreover, on 17 February 2009, the father was charged with contravening another apprehended violence order made against him for the protection of the mother.  For that contravention he was convicted and placed on a 12 month good behaviour bond.[16]

   [15] Family Report, pars 8 & 10

   [16] Family Report, par 16

9. With uncontested conduct of that sort spanning the period between 2007 and 2009, the Court could have little confidence that the father would abide by any injunctive order made by this Court.

Resumption of counselling

1. A supplementary issue arose between the parties about a previous interim order precluding H from seeing a counsellor. The mother orally sought discharge of that order, which was opposed by the father.

2. The sexual assault allegations remain contentious.  H was directed to sexual assault counselling with Ms A by JIRT caseworkers following one of her disclosures to the mother.  That counselling transpired until a consent order was made by the Court on 9 July 2010, at the request of the Independent Children’s Lawyer, ceasing that counselling.  Since that order was made the Family Report has been published.

3. Contained within the Family Report is evidence from the Family Consultant to the effect that the child told the Family Consultant that she liked the counsellor and missed talking to her.  The child specifically asked the Family Consultant whether she could “fix it”, so that the child could begin seeing the sexual assault counsellor again.

4. I divine from that evidence that the child enjoys the therapeutic relationship she has established with the counsellor.  I do not accept the submission that by attending upon a counsellor the child is necessarily having the allegations of sexual assault confirmed in her mind.  It may be the case, as the father contends, that the sexual assault allegations are spurious.  Even if that is so, I see no detriment to the child in re-establishing her relationship with the counsellor whose company she clearly enjoys.

5. The Independent Children’s Lawyer, who initially moved the Court to make such an order, neither consented nor opposed the mother’s application to discharge the order. 

6. In the circumstances, I am persuaded on the available evidence that that order ought be discharged so that the child is able to resume her counselling relationship with Ms A.

I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 6 September 2010.

Associate: 

Date:  6 September 2010