Kempsey and Bates

[2007] FamCA 98

FAMILY COURT OF AUSTRALIA

KEMPSEY & BATES [2007] FamCA 98

FAMILY LAW - CHILDREN - Magellan - Parenting - Interim

Family Law Act 1975 (Cth), s.61C(1)

FATHER: Mr Kempsey

MOTHER: Ms Bates

INDEPENDENT CHILDREN’S LAWYER: Independent children's lawyer

FILE NUMBER: MLF 2571 of 2006

DATE DELIVERED: 9 February, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 9 February, 2007

REPRESENTATION

COUNSEL FOR THE FATHER: Mr James

SOLICITOR FOR THE FATHER: Pearsons, DX 436, Melbourne

COUNSEL FOR THE MOTHER: Ms Brooks

SOLICITOR FOR THE MOTHER: Rigoli & Associates, P.O. Box 778, Werribee, 3030

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Forster

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Forster & Associates, DX 95304, Carlton

Orders

1. That in the event the family is assessed as suitable to use the facilities at W Contact Service (“the Service”), the father spend time with the child M born in October, 2002 for two hours a fortnight on a day and at times to be nominated by the Service  PROVIDED THAT  such time be between the father and M alone and no other family members or friends of the father attend any session at the Service. 

1. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 22 June, 2007.

1. That the further hearing of all extant applications be adjourned before Justice Bennett and the Magellan registrar at 10:00 am. on 27 July, 2007. 

1. That all interim applications be dismissed and removed from the list of cases awaiting finalisation.

1. 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.

1. That the reasons for judgment this day be transcribed and copies 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 and a solicitor appearing as counsel

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 is a delicately balanced matter.  The parties have one daughter, M, who was born in October 2002.  The mother has another daughter, S.  The parties separated in September 2005 and there was then some contact between the father and M.  In late 2005, the mother became concerned about remarks made by S, suggestive of sexual abuse.  The Department of Human Services became involved.  This court was not involved at that time.

1. The DHS report dated 18 October sets out its actions in respect of that notification, which was of very significant abuse, including digital and oral penetration.  S was seen by SOCAU police and a VATE taped interview with her was undertaken on 16 May.  She said she was touched by the father on the outside of her "ninny", rubbed on the chest, when her mother wasn't home, and alleged that her paternal grandfather had done the same thing.  S then repeated that account to workers at Gatehouse. 

1. There is no evidence of any alleged offending against M.  Reasonably, the mother takes the view that if this has happened to S, her younger daughter is at risk.  There is no doubt that, were there to be a finding of sexual abuse by the father of S, that would have a profound effect upon the nature and extent, if any, of the father's time with M. 

1. The father has spent no time with M since late 2005.  The case came to this Court in June 2006.  When the DHS report was obtained, it recommended “that the children have no or supervised (at a minimum) contact with [Mr Kempsey]”.  It recommended that the father undergo a sexual offenders program, for a further assessment. 

2. The father then saw a psychiatrist, Dr B.  Dr B made it clear that, in the absence of clear psychiatric indications or admissions, one can never be absolutely sure.  But, as the independent children's lawyer submitted, he was reasonably comfortable about the father and opined that "unless there was clear information that he had behaved inappropriately, some relaxation of control in relation to his time with M would be warranted".  Dr B said it would be worth considering time with M, with "if necessary, initial supervision, but later, independently". 

1. I understand that the mother is very distressed at the prospect of the father spending any time with M.  She is entitled to take that stance, having regard to her understanding of S’s experiences and conviction of abuse.  I make it clear that an order for supervised time with a child does not inexorably lead to unsupervised time.  There are many cases in this list where that does not happen.  In the trial the Court has the opportunity to hear all the evidence, and have the evidence tested.  On occasions, the Court orders that a parent have no time with a child, notwithstanding earlier supervised contact.  One cannot speculate as to the final outcome from the fact an order for supervision has been made.

1. While this is an interim application, I must consider the principles and objects set out in the Family Law Act 1975, and whether the presumption of equal shared parental responsibility should be applied.

1. In this case I do not find it appropriate to apply the presumption at this time.  At the trial the Court will consider whether it applies and, if so, whether the evidence means it should be rebutted.  Until findings can be made about the alleged sexual abuse it would be premature to do otherwise.  The Court’s focus now must be on balancing the need to protect M from possible abuse (sexual and emotional) and the importance of maintaining a relationship with her father, if that can be done in a way which is consistent with her safety.  Until an order is made, parental responsibility remains as set out in s.61C of the Act.

1. Balancing all matters I am satisfied the father should spend some time with M.  The father’s family are not to be present.  The contact will be between him and M.  It will be in a highly protective environment and will be stopped by those who supervise if M becomes upset or distressed.

1. In making this order, I do not suggest that what is alleged to have happened to S is not relevant to orders about M’s time with her father in the long term.  Were the Court to find that the father has sexually abused S as alleged, that would be a finding of significant weight.

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

Dated the          day of           2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KEMPSEY & BATES