Kempsey and Bates

[2009] FamCA 1232

FAMILY COURT OF AUSTRALIA

KEMPSEY & BATES [2009] FamCA 1232

FAMILY LAW – CHILDREN – Magellan – Supervision – Interim orders

Family Law Act 1975 (Cth)

FATHER: Mr Kempsey

MOTHER: Ms Bates

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2571 of 2006

DATE DELIVERED: 10 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 10 November, 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Ms. Gordon

SOLICITOR FOR THE FATHER: Nevett Ford

COUNSEL FOR THE MOTHER: Ms. Vogel

SOLICITOR FOR THE MOTHER: Rigoli & Associates

INDEPENDENT CHILDREN’S LAWYER Forster & Associates

Orders

1. That until further order the father spend time with the child M born … October, 2002 as follows :

   (a)for a period of not less than five hours on each third Sunday, commencing on 15 November, 2009;

   (b)if M would not otherwise spend time with the father on Fathers’ Day, for a period of not less than five hours on Fathers’ Day;  and

   (c)at such other times as the parties agree. 

2. That until further order in the event Mothers’ Day falls on a day when M would otherwise spend time with the father, the father shall spend time with M on the preceding Sunday, in lieu. 

3. That until the commencement of February, 2010 the father’s time with M be supervised by the father’s cousin, K KEMPSEY or his wife D KEMPSEY, and the supervisor ensure that no fewer than one of their children be present during periods of time the father spends with M. 

4. That as and from the commencement of February, 2010 until further order and save if the parties and the independent children’s lawyer agree to the contrary, the father’s time be supervised by :

   (a)the father’s cousin, K KEMPSEY or his wife D KEMPSEY;  or

   (b)the father’s sister N KEMPSEY;

   and whoever supervises the time ensure that no fewer than one of his or her children be present during periods the father spends with M. 

5. That the mother deliver M to the home of K and D Kempsey or such other place as is agreed between them at the commencement of each period of time PROVIDED THAT if time is to be supervised by the father’s sister, the mother liaise with K and D Kempsey about arrangements for M’s delivery. 

6. That at the conclusion of a period of time with the father, the person supervising contact return M to the mother at the McDonald’s restaurant at C. 

7. That paragraph (6) of the minute of consent orders attached to the order made herein on 13 November, 2007 continue in full force and effect until further order, and that subject to compliance with that paragraph, relatives of the father may be present during a period of time with M. 

8. That until further order if M requires assistance with bathing, dressing or toileting during a period of time with the father, such assistance be provided by the supervisor. 

9. That pursuant to section 65L(1) of the Family Law Act 1975 (“the Act”) :

   (a)compliance with these orders be supervised, as far as practicable, for a period not exceeding 12 months by a family consultant nominated by the Manager, Child Dispute Services of this Registry of the Court;  and

   (b)the nominated family consultant give the parties such assistance as is reasonable requested in relation to compliance with, and the carrying out of the parenting orders; 

   and that such supervision be reportable.

10. That the competing applications for final parenting applications be otherwise adjourned for mention before the Honourable Justice Bennett on 3 September, 2010 at 9:30 am. by telephone, and the solicitors for the parties and the independent children’s lawyer advise the court no later than 4:00 pm. on 1 September, 2010 of a landline number at which he or she can be reached for that purpose. 

11. That the reasons for judgment this day be transcribed and copies made available to the parties. 

12. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

13. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2571 of 2006

MR KEMPSEY

Father

And

MS BATES

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter was listed today as it could not proceed last Friday.  Before the court are the most recent affidavit sworn by the father, filed on 6 November;  an affidavit of his sister, N Kempsey;  a responsive affidavit of the mother, filed with leave;  a report about supervised contact which is annexed to an affidavit prepared prior to the trial in November 2007 sworn by Ms Forster and filed on 2 November;  and the family report of Ms. H.

2. The parties are well aware of the history of the matter but I will summarise it briefly so there is a record which may assist if another judge deals with the case in the future.  Much of it is non-contentious.

3. The parties have one daughter, M, who was born in October 2002.  The mother has another daughter, S, who lived with the parties.  The parties separated in about September 2005.  The initial application in the case was filed by the father in the Federal Magistrates Court on 30 March, 2006.  He sought that M live with the mother and spend time with him on alternate weekends and on Wednesday evenings. 

4. On 3 July 2006 the mother filed a response seeking that M live with her and that the father’s time with M be reserved.  She also filed a Form 4 alleging sexual abuse of her daughter, S, then aged seven.  The matter was transferred to this court on 21 June 2006, assessed as appropriate for the Magellan list. 

5. A Department of Human Services report was prepared dated 18 October, 2006.  The department’s recommendation at that stage was neither time nor supervised time;  it proposed the father undergo a sexual offenders program.  As noted previously in this list, such recommendations tend to be made by workers who are used to criminal proceedings and who may not consider the availability of such programs where abuse has neither been found to have occurred by a court, nor admitted by the alleged perpetrator.

6. The matter came before me on 27 October 2006.  Interim orders were made providing for M to live with her mother and for the father to have some supervised time at a contact centre.  Dr B then completed a psychiatric assessment of the father.  He recommended that time between the father and M be supervised with the potential for some “independent” time later. 

7. The case came back before me on 9 February, 2007.  I ordered the preparation of a family report.  Supervised contact was to continue until the trial, scheduled to follow the family report. 

8. Ms H prepared the family report, dated 3 July 2007.  She recommended that M’s time with her father be managed over a period of a year and then reassessed.  She recommended that no gifts be provided to M by the father and that at the end of a 12-month period progress (including S’s response to the contact) should be reviewed by the family consultant.  Amongst the recommendations of Ms H were that the mother and S continue to receive counselling, that M attend a protective behaviours program, and that the father engage in a parenting program. 

9. The Magellan registrar conducted a pre-trial conference on 10 October 2007.  The parties had filed trial material but were considering suitable supervisors to implement at least some of Ms. H’s recommendations.  Those discussions continued, and when the matter was listed for trial before Bennett J in November 2007, further interim orders were made, by consent, for supervised time.  The case was adjourned for two years and an order was made for Ms H to provide s.65L supervision.

10. As I understand it, the mother advised Ms H of a change of address at one point, which was a responsible thing to do.  Save for that, neither parent has sought to avail him or herself of assistance from Ms H. 

11. The father has spent supervised time with M for many, many months.  Supervision has been through Angelico Community Services.  Initially, the father spent four hours with M every three weeks, and then five hours every three weeks. 

12. On 9 October, 2009 an affidavit was filed by the supervisor and a further report of supervision is before me.  It appears that contact has progressed well.  Both parents deserve credit for the maintenance of this arrangement.  It is not easy.  Supervision can be difficult for both parents and for a child to prosper, as M has, parents have to focus on the child’s best interests, rather than their own.  I commend them both.

13. The parties agree that M has really outgrown the centre where the father has spent much of his time with M and the supervisor.  They have undertaken other activities but that can be expensive and supervision itself is expensive. 

14. There has been some discussion about family members taking over the supervisory role.  The mother has concerns, having regard to M’s age.  She is concerned that family members may not necessarily be as vigilant as an independent supervisor, particularly if they are sceptical or downright unbelieving of the allegations, or if they are subjected to pressure – subtle or unsubtle – from the parent who is exercising the contact. 

15. Both parties agree that they could move to supervision by a family member but they cannot agree on which family member.  The mother would not oppose an order that allows one of the father’s cousins and his partner to supervise.  Indeed, she is very complimentary about them in her affidavit;  again, that does her credit. 

16. The mother is not so complimentary about the father’s sister, who he would like to play a role.  The mother raises a number of concerns about his sister’s husband (relating to alleged criminal convictions).  She refers to problems the sister had as a teenager with her own father, which counsel has fleshed out a little.  She is concerned M might not be properly protected if the sister were overborne by the father or other family members. 

17. The independent children’s lawyer supports a move to family supervision.  It is a normalising environment for a child;  a child in those circumstances may not even realise she is being supervised;  from her perspective, she is with family members who are reliable and trusted.  What is most important for M is security and stability, and protection.  I have heard what Ms Forster said about Ms H’s assessment of the capacities of children of eight.  Ms. Forster was not suggesting that a child of eight is old enough to be responsible for her own protection.  That is not the case.  As Ms. Forster made clear, it is adults who must be responsible for a child’s protection.

18. The court’s focus must be on the best interests of the child, not on parents’ wishes or desires, but the court will consider those wishes and desires and their foundation.  On the one hand the court has to consider the importance of a child maintaining a meaningful relationship with both parents and other family members of importance to him or her, to the extent consistent with the child’s best interests.  On the other hand, the court must place weight on the need to protect the child from physical or emotional abuse. 

19. The allegations in relation to S have never been tested in this court or any other court.  They are still live.  The mother maintains her conviction of abuse.  I say nothing more about that as that matter may need to be determined in this court on some other occasion. 

20. I am satisfied that the existing orders should be varied to provide for family supervision of the father’s time with M.

21. I propose that, for a period of three months, the father’s cousin and/or his wife be the supervisors.  That will be a bridge, if you like, between the more formal environment in which M has spent time and the next step.  It is important that the mother is comfortable about the initial supervisors.  After three months, the father’s sister may also supervise time. 

22. I will order that no fewer than one of the supervisor’s children be present during the time.  I appreciate that that is a restriction on the family life of the supervisors.  By putting their hands up to do this they are generously offering to help M and they are content to arrange their weekends to accommodate this arrangement.  I do place weight on the mother’s relative comfort with them as responsible supervisors.

23. On my assessment, if time starts this weekend (15 November) there will be one further period followed by time on 27 December, which is the day after Boxing Day.  In my judgment, this is the most practical Christmas arrangement for M.  She does not need to be driven half way across Melbourne on Christmas day to spend a short additional period on Christmas Day with her father.  The actual day is not so vital for a child;  if she celebrates Christmas again with her father and members of her father’s family on the Sunday, that will double the fun.

24. In terms of delivery, I will order that the mother deliver M to the home of the father’s cousin.  If a period of time is to be supervised by his sister, the mother can liaise with them about changeover arrangements.  The mother is content with that arrangement. 

25. At the end of a period of time one of the supervisor’s will need to accompany M to C, McDonalds, where the mother will collect her. 

26. I will maintain the order for s.65L supervision for another year.  The parties have heard me express concern about a further adjournment.  However, the Family Law Act 1975 places weight on the importance of parents agreeing on the upbringing of their children and in a case as sensitive as this, that can only be in M’s best interest.

I certify that the preceding 26  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of         2009.

…………………………………………
Associate.