Kendall and Chandler
[2009] FMCAfam 527
•1 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KENDALL &CHANDLER | [2009] FMCAfam 527 |
| FAMILY LAW – Interim parenting – child’s disclosures – supervised time – appointment of an Independent Children’s Lawyer. |
| Re K [1994] FLC 92-461 |
| Applicant: | MS KENDALL |
| Respondent: | MR CHANDLER |
| File Number: | SYC 2933 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 26 March 2009 |
| Date of Last Submission: | 26 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cumming |
| Solicitors for the Applicant: | Antwan Lawyers |
| Counsel for the Respondent: | Ms Atalla |
| Solicitors for the Respondent: | Champion Legal |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The previous order for the child, [X] born in 2003, to spend with the father be suspended, Order 1 made 3 March 2009, continue.
THE COURT ORDERS THAT:
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and the Legal Aid Commission of NSW is requested to provide such representation.
The parties provide to the Legal Aid Commission, of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
The matter be adjourned to 29 April 2009 at 9.30am for mention.
The interim hearing be adjourned to a date to be fixed.
The parties have liberty to apply on 72 hours notice.
IT IS NOTED that publication of this judgment under the pseudonym Kendall & Chandler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2933 of 2008
| MS KENDALL |
Applicant
And
| MR CHANDLER |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
[X] is five years old. She has made a disclosure to her mother and to JIRT that she has been sexually abused by her father. [X]'s mother is the applicant in these proceedings and her father the respondent. He denies that he has done anything in any way inappropriate to or with [X]. By consent, all contact was suspended by way of order made
3 March 2009.
The father now seeks supervised contact. The mother says that contact should be suspended and that these proceedings be adjourned pending [X] receiving treatment from [S], the name by which the integrated violence prevention and response service at Penrith is commonly known.
The matter is obviously very serious, particularly in view of [X]'s clear disclosure in consistent terms to both her mother and to JIRT. I can make no finding of abuse, but I cannot rule it out either.
Even the father has taken the very sensible step of conceding that pending further order contact should be supervised. He does not say this, but I infer that he would agree that, at least on an interim basis, I would find there to be an unacceptable risk of abuse if [X] were to have contact with her father on an unsupervised basis. But [X]’s mother strongly opposes even supervised contact because she asserts [S] has advised her they will not provide counselling to [X] if there is to be even supervised contact with the father. Hence, the mother's preference is to adjourn these proceedings for a period of up to 12 months with leave to restore before the Court pending this counselling.
[X]'s father says this is not appropriate for a number of reasons. Firstly, it assumes the father's guilt and assumes that [X]'s disclosure was a disclosure of actual abuse. These are matters in respect of which no finding has been made by any court of law. He also asserts that the counselling may in fact cause further harm to [X] given that it might be predicated on abuse having actually occurred if it turns out that it did not occur. Indeed, his counsel, Ms Knox, pressed for the appointment of an Independent Children's Lawyer and the appointment of a Part 15 expert to report on the family, including the sexual abuse allegations. For the mother, her counsel asserts that neither is in fact necessary.
The main issue I have to deal with, in my opinion, is whether I allow supervised contact or whether [X] has counselling in relation to the sexual abuse allegation. I understand that these are two mutually exclusive alternatives. If supervised contact occurs, counselling cannot. The benefits to [X] of counselling are self-evident, provided she was sexually abused. As I indicated before, the fact of consistent disclosures is weighty evidence but certainly not conclusive evidence. There is no evidence of a physical examination. There is no evidence of alternative explanations for the disclosure having been explored. Indeed there is no evidence of any reality testing of these disclosures.
Nonetheless, [X]'s safety and welfare remain first and foremost in the Court's mind and certainly prevail over any competing considerations about having a meaningful relationship with her father. For the time being, I do not intend to allow supervised contact. I intend to appoint an Independent Children's Lawyer and to request that this appointment be expedited by the Legal Aid Commission of New South Wales. The case clearly falls within the Re K [1994] FLC 92-461 guidelines. Not only are the parties but also their legal representatives polarised over this issue and the presence of the quiet voice of reason that an Independent Children's Lawyer brings to these difficult cases can not only assist the Court but the parents themselves.
This means that I have not ruled out supervised contact and indeed I intend to adjourn this interim hearing pending the appointment of an Independent Children's Lawyer. I do voice and record a concern, however, about [X] commencing counselling at [S]. Exhibit A3 is a letter from that unit that is dated 20 March 2009. It makes it quite clear that it is their policy not to provide counselling to children who are having an ongoing contact with the alleged abuser. However, of greater significance in the present context is paragraph.7 of the said letter which says:
If a child is safe from the identified abuser only in the short term, New South Wales Sexual Assault Services do not consider this child to be safe enough for counselling to commence. For example, if there is the ongoing psychological risk of supervised contact with the alleged sex offender who has not had a recognised form of treatment or if the child is experiencing other forms of abuse. This does not mean that the child is in actuality safe.
In effect, this means that if it is possible that there will be supervised contact counselling should not begin. As I have not ruled out supervised contact and as I have adjourned these proceedings pending the appointment of an Independent Children's Lawyer, it may well be contrary to [S]'s own policy for counselling to begin. As much as there is benefit to [X] in receiving therapeutic counselling, there is also a risk of harm to her if it turns out that there is no substance to the claim that she has been abused. Just for the time being I think it is necessary to at least explore whether there should be a greater investigative response. It is in this respect that the Court will be greatly assisted by the appointment of an Independent Children's Lawyer.
Accordingly, I appoint an Independent Children's Lawyer. I intend to allocate a date to which this matter is stood over for mention, being the date on which the Independent Children's Lawyer can appear for the first time. Thereafter, I intend to adjourn this date for an interim hearing on a date to be fixed. In the meanwhile, I simply grant leave to relist this matter before me on 72 hours' notice. So 29 April 2009 at 9.30, that will be for mention only. So that will be the first appearance by the Independent Children's Lawyer. I note that the father is in court, the mother is not in court.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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