KATT & PATERSON

[2011] FamCA 644

FAMILY COURT OF AUSTRALIA

KATT & PATERSON [2011] FamCA 644

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the mother makes allegations of physical and sexual abuse against the father – where the matter has a long history – best interests – orders that the child commence spending supervised time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Ms Katt

RESPONDENT: Mr Paterson

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: ADC 4876 of 2010

DATE DELIVERED: 18 July 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Burr J

HEARING DATE: 18 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Lee
SOLICITOR FOR THE APPLICANT:	B C O'Leary & Assoc.

COUNSEL FOR THE RESPONDENT:	Mrs Read
SOLICITOR FOR THE RESPONDENT:	Hemsley, Gilbert & Mattner

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Barr
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Barr Lawyers

Orders

1. Further consideration of the proceedings be adjourned to 10.00 am on Tuesday 17 January 2012 before the Honourable Justice Burr.

2. The father forthwith complete all such actions and undertakings as are necessary to conclude his enrolment at the Children’s Contact Centre (CCS) in order to use their services as a supervisor of his time spent with the child B (“the child”) born in 2005.

And it is further ordered, during the period of the adjournment, that:-

1. B live with the mother who shall have sole parental responsibility for her.

2. The father spend time with the child:-

   (a)    from 10.00 am until 12 noon each alternate Saturday, commencing on Saturday 23 July 2011 UPON CONDITION that such time is supervised at all times by the paternal grandmother at the home of the paternal grandmother;

   (b)    as and when the services of the CCS become available to the parties, the father spend additional time with the child supervised at the CCS for a period of two [2] hours each alternate weekend at times which are able to be made available to the parties by the CCS to the effect that the father is to spend weekly time with the child.

3. All handovers at the commencement and conclusion of each period of time spent by the father with the child be conducted as the first priority at the CCS and in the event that CCS is not available, inside the C Town Police Station.

4. The Independent Children’s Lawyer do secure, file and serve a report from the CCS at the conclusion of the periods of time spent by the father with the child at that facility.

IT IS NOTED that publication of this judgment under the pseudonym Katt & Paterson 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 4876 of 2010

Ms Katt

Applicant

And

Mr Paterson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. There is before the Court a dispute between the parents of a young girl the child B (“the child”) born in 2005 and who is thus some 5 ½ years of age.  The matter was attracted to the Court’s Magellan Project because of some allegations made by the mother of serious physical abuse and sexual abuse of the child by the father, his partner and his partner’s son.  As a consequence, it was necessary to tread very cautiously whilst some preliminary enquiries and investigations were undertaken.  Part of that process involved an order made by me for the preparation of a Family Report and such a report was duly concluded by a very experienced Family Court counsellor in Ms D and that report is dated 14 June 2011.

2. The matter has had a regrettably long and unpleasant history, a history which has not assisted in supporting the child’s needs in her short life.  There are a number of less than flattering findings made by Ms D in her report in relation to both parents and I note, at paragraph 77 of her report, she says:-

   Neither parent impressed as being plausible in their respective explanations as to their seeming lack of effort or endeavour in reclaiming their respective parental roles in the child’s life, prior to the commencement of these proceedings, with both apportioning blame to the other, or to Families SA for their inaction.   It is difficult therefore to view either parent as genuinely child focussed or having the child’s best interests at heart.  Neither parent demonstrated a modicum of insight as to the child’s likely lived experience of loss or grief from disrupted relationships with the primary caregivers in her maternal and paternal households.

   She then observed that, in her view, the father appeared to demonstrate the more attuned attitude to the child’s needs.

3. After indicating a number of other reservations generally about the past performance by the parties as parents for the child, she then formed the view that the child should appropriately begin to spend time with her father, step mother, step brother and half sister.  In the preparation of that report and in reaching those recommendations contained in the report, she observed though that a period of observed interaction by her between the child and the paternal grandmother would perhaps assist in forming further recommendations that would benefit the child.  As a consequence I made an order on 18 July 2011 that there be such a period of observed interaction between the child and the paternal grandmother and ordered the preparation of an addendum report.  That addendum report has now been received and is dated 8 July 2011.

4. Ms D makes reference to her earlier report and reiterates some of the observations and recommendations she made at that time, all of which supported the view that it was necessary for the child to begin commencing time with her father and extended paternal family.  The addendum report confirms preliminary views and recommendations made by Ms D in her first report and which resulted in her concluding and making a recommendation to the effect that the child’s commencement of time spent with the father and extended paternal family be in a situation supervised by the paternal grandmother in her home.

5. The mother has resisted the recommendations of Ms D and indicated that she supported the father commencing spending some time with the child but in the supervised environment of the CCS.  Regrettably, as appears to be the case around most of the country, the various CCS’s are significantly overloaded and there are lengthy delays before parties can access those facilities and services.  I am told today, and I certainly accept from general experience of this Court, that it would be some 12 – 16 weeks before the CCS would be able to assist the parties, but particularly the child, in being able to supervise any time between the father and the child. 

6. For his part, the Independent Children’s Lawyer supports the resumption of the father’s time with the child but on a supervised basis.  It was his preference that initially such supervised time be conducted at the CCS but acknowledged that the lengthy delays that that would entail would not necessarily represent the child’s best interests.  He recommended that a “softly, softly” approach be adopted and it was his recommendation that the child spend two [2] hours on alternate weekends with the father supervised by the paternal grandmother.

7. In addition to the quite firm recommendations that I have from Ms D as to the paternal grandmother’s suitability to supervise the father’s time with the child, I took the opportunity today of taking some brief evidence from the paternal grandmother in order to impress upon her the importance of her role as a supervisor.  I also afforded to Counsel for the mother and the Independent Children’s Lawyer an opportunity to ask some questions of her.

8. I am satisfied that the paternal grandmother well and truly understands her role and the significant importance of her role in protecting the child from inappropriate or potentially harmful behaviour by her son.   I accept that she does not believe the allegations that have been made but nonetheless I am satisfied that she well and truly understands that her obligation in her role of supervisor is to the child and not to her son.  I am also satisfied that she understands the needs to be patient whilst the Court is afforded the opportunity to hear all of the evidence and make findings in relation to the allegations.

I certify that the preceding eight (8) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 18 July 2011.

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