Jell and Mackillop

[2008] FamCA 229

FAMILY COURT OF AUSTRALIA

JELL & MACKILLOP [2008] FamCA 229

FAMILY LAW  -  CHILDREN  -  Magellan  -  interim parenting orders  -  supervision

Family Law Act 1975 (Cth)

FATHER: Mr Jess

MOTHER: Ms Mackillop

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2934 of 2007

DATE DELIVERED: 1 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 1 February, 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Ms M. Vohra

SOLICITOR FOR THE FATHER: Donald S. Lampe

COUNSEL FOR THE MOTHER: Ms J.S. Elleray

SOLICITOR FOR THE MOTHER: Victoria Legal Aid

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr G.L. Meehan

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Septimus Jones & Lee

Orders

1. That within 48 hours hereof the parties do all things and sign all documents necessary to apply to use the supervised contact facilities at G Contact Centre in regional Victoria and thereafter attend any intake interview and abide by any other request of G Contact Centre and that the father commence to spend time with the child … (“the child”) born … July, 2002  at G Centre as soon as practicable thereafter, such time to occur on a Saturday or Sunday in each week (if possible) at times to be nominated by G Centre and to be for the maximum number of hours which can be accommodated by G Centre. 

1. That  IT IS REQUESTED  G Centre prepare a report in relation to the father’s time with the child and such report be filed by the independent children’s lawyer on or before 13 June, 2008. 

1. That a copy of Dr. K’s report be provided to the Department of Human Services by the independent children’s lawyer. 

1. That IT IS REQUESTED the Magellan registrar liaise with the Department of Human Services and enquire as to its capacity to assess the suitability of the father’s mother, …, and Mr N to supervise the father’s time with the child pending trial and in the event the Department of Human Services is able to comply with such assessments, they be completed by 30 May, 2008. 

1. That the further hearing of all extant applications be adjourned before the Honourable Justice Bennett and the Magellan Registrar on 20 June, 2008 at 10:00 am. 

1. That the reasons for judgment be transcribed and copies be made available to the parties. 

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2934 of 2007

MR JELL

Father

And

MS MACKILLOP

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties in this case lived together for about a year, until a few days before the birth of their son (“the child”), who was born in July 2002.  The child is five and a half.  After the child’s birth, arrangements were made, apparently in a cooperative way, which provided for his father to spend time with the child while the child lived with the mother.  At some point that broke down.  In December 2004, proceedings were commenced by the father in the Federal Magistrates Court, seeking parenting orders in respect of the child.

1. In the course of those proceedings a family report was prepared by Ms F.  That was in July 2005.  At that stage the mother lived in the outer eastern suburbs and the father lived in the inner eastern suburbs.  Ms F was comfortable about the child’s attachment with both his parents, and about his relationship with both his parents.  She made certain recommendations.  In due course, the parties agreed on arrangements and final orders were made, by consent, on 16 November 2005. 

1. Pursuant to those arrangements responsibility for long-term issues was shared.  The child was to live with the mother.  He was to spend time with his father from 8.30 am. on Tuesday until 1:00 pm. on Thursday in each week, plus a number of additional periods in each year and on special occasions.  Orders provided that both parties were to reside in the Melbourne metropolitan area.

1. The mother's evidence is that on 30 June 2007 she observed

   
   

   the child trying to put his fingers in his younger half-brother's bottom, when the children were in the bath.  The child said that his father did it to him.  She took him to a GP who observed no physical symptoms (which is not of itself inconsistent with abuse) and recommended the involvement of the Department of Human Services, which occurred.  On DHS advice the mother stopped contact between the father and the child.  The father has not seen the child since 28 June 2007.

1. The mother then filed an application on 16 July, 2007 seeking that the final parenting orders be reconsidered.  She also filed a form 4 on 16 July, in which she said the father had sexually abused the child by placing his fingers into his bottom and touching his genitals. 

1. The Department of Human Services conducted extensive investigations.  Police were involved and there was a VATE taped interview with the child. 

1. VATE tapes can rarely be determinative with children of his age.  The initial disclosure, alleged by the mother, arose, she said when the child "put his fingers into his half brother's bottom lots of times”.  She said the child said he “told him to stop but he doesn't;  he tricks me and says it's a game”.  She reported the child saying “that his father grabbed his willy and that he was frightened."

1. It was her evidence that on the previous 12 occasions on which the child had spent time with his father, he had begged his mother to let him hide in a cupboard so he did not have to go to his father's house.  There is no explanation as to why, if the child were exhibiting that degree of fear, swift action was not taken at that stage.  Perhaps that will be explained in due course.  She also alleged that the child had complained of soreness to the genital and anal areas;  again, there is no evidence of action responsive to this.

1. The child made similar disclosures to those allegedly made to this mother to DHS workers, police and CASA workers.  Police took the matter no further. 

1. The father's position from the outset has been that the allegations have no substance, that, historically, the mother has been unreasonable about him spending time with his son and that the allegations must be the result of her coaching the child.  It must be said that his confidence must have been dented by the fact that in mid-July the mother, to use her word, "fled" to regional Victoria, given she had foreshadowed a move to that very area when the family saw Ms. F in mid-2005.

1. The matter was assessed as a Magellan matter and placed in this list on 19 October 2007.  It was after that the DHS report was provided;  it is a very detailed report. The recommendations of DHS as at 27 November were that the child live with the mother, have no contact with the father, and the father complete a psychological or psychiatric assessment.  DHS recommended that the child continue to attend counselling. 

1. It is clear that DHS was unaware that the father and mother had already attended upon a psychiatrist, Dr K, for the purpose of a psycho-sexual report.  He saw the parties prior to the DHS report being prepared.  His own report is dated 23 November but it was not filed until 20 December.  I am not critical of DHS but workers did not have access to that assessment, and it is of importance.

1. Dr K’s evidence is of finding no evidence of any risk factors that would predispose the father to sexually abuse his son or relate to him inappropriately.  Prolonged evaluation found him to be well functioning.  There was evidence of any mental health problem or significant emotional behaviour issue.  Indeed, in contrast, his personality features suggested someone well suited to active involvement in parenting.  Nothing in the father’s presentation caused Dr K any concern. 

1. In relation to the mother, Dr K had a number of concerns.  Some related to her own experiences as a child which must have been very, very difficult for her.  He adverted to the potential for people who have endured such experiences to interpret a child's behaviour or statements in ways suggestive of sexual abuse, and inadvertently lead to reiteration of statements.  He noted that she has no specific psychological disorder but had some concerns about her account of the relationship between herself and the father, and expressed a view that her thought processes were somewhat unusual. 

1. Dr. K formed the view that it was entirely possible that the mother was consciously attempting not to present potentially problematic information (such as why a more recent relationship had ended) and that her presentation raised questions about the validity of the allegations in question, and the hypothesis that there may be a mixture of conscious and unconscious motivations associated with them.

1. Dr K has not been cross‑examined;  nor have either of the parties.  This is an interim hearing and the court must do the best it can with the material before it.  The court's obligation is to balance the importance to the child of having a meaningful relationship with both parents, with the need to ensure that the child is protected from the potential for physical or emotional abuse. 

1. It is clear that the mother is categorically opposed to the father having any contact whatsoever with the child.  Her primary position is that there should be no contact.

1. That father seeks contact, phased in, to become overnight contact.  He has proposed two supervisors. One is his mother.  The other is a friend of 20 years, Mr N, who has his own children and partner.  Each has sworn an affidavit in which he or she deposes, frankly, that they have difficulty in accepting the truthfulness of the allegation. The grandmother deposed to understanding the need for vigilance and to terminate the contact if problems arose. Mr N deposed to an understanding that the allegations are serious and cannot be ignored.

1. The mother seeks that the court direct, or request, the Department of Human Services to vet the proposed supervisors.  The court has no power to direct them to do that.  It could make a request DHS might or might not comply with the request.  If DHS had significant concerns they could have intervened in these proceedings, as requested by this court.  DHS retains the capacity to file a protection application, in which case this court would no longer have any jurisdiction.

1. Counsel for the mother was unable to say that were DHS to assess these supervisors, and find them to be perfect supervisors, her client would be comfortable with them supervising the father’s time with the child.  That illustrates the inappropriateness of the court making a request.  It also raises concerns about the mother’s state of mind.  The independent children's lawyer put instructions, through counsel, supporting the reintroduction of contact, supervised, but not overnight.  It was submitted there should initially be four hours contact, extending to a longer period on one day and then the weekend, with changeovers at a contact centre. 

1. Pursuant to an earlier order, enquiries were made about using G Centre.  G Centre would be available for supervision but not for some six weeks after the parties complete intake procedures.  The court's experience is that changeover spots are more readily available at contact services.  Further, some services, which will not supervise where allegations of sexual abuse have been made, will provide changeover facilities in those cases.

1. Asked whether there was any matter on which she could provide expert opinion, Ms H (in my view, appropriately) referred to the mother's capacity to prepare the child psychologically and emotionally to go on a contact visit, if she has no confidence in the supervisor.  It is clear she has no confidence in the supervisors proposed.  Her counsel suggested that she did not have confidence in G Centre supervision either, I say nothing about that save that, in the absence of some convincing evidence, it says more about the approach of the mother than about the quality of professional supervision at G Centre. 

1. I am mindful of the independent children's lawyer's support of supervised contact outside a contact service.  In my view it is appropriate at this stage for there to be some initial supervised contact at G Centre initially.  I propose to require the parties to do everything necessary for intake.  Contact is to commence there as soon as practicable.  The parties will have 48 hours to fill in the intake documentation and as soon as practicable, the father should see the child there for the maximum number of hours available on a Saturday or Sunday in each weekend. 

1. I propose to request a report from G Centre and list the matter again on 20 June.  An earlier date will not allow enough time for the father to re-establish his relationship with the child.  I will order a copy of Dr K’s report be provided to DHS and request the Magellan registrar to contact DHS and request an assessment of the suitability of the grandmother and Mr N as supervisors, to be compiled by 30 May. 

1. I make it clear that if DHS is prepared to do that, and if DHS finds one or both suitable, the court would be looking towards moving to supervision by them, outside a contact service.  So this is a temporary arrangement.  I appreciate it will cause distress to both parties.  Each must realise that the obligation of the court is to focus on the best interests of children.  At this stage, it must err on the side of caution, however distressing that is for the father who seeks far more time with his son.

I certify that the preceding
25 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.