KEST & OLSSON

[2011] FamCA 222

FAMILY COURT OF AUSTRALIA

KEST & OLSSON [2011] FamCA 222

FAMILY LAW - CHILDREN – interim orders – where previous consent orders provided that the children live with the mother and spend time with the father – application by the mother seeking that the orders providing that the father spend time with the children be suspended – where the mother makes allegation of sexual abuse against the father – best interests – orders that the parties make arrangements for the father to spend time with the children at a Children’s Contact Service

FAMILY LAW - PRACTICE AND PROCEDURE – orders for the appointment of an Independent Children’s Lawyer – orders requesting the intervention of the Minister pursuant to s 91B – orders that the matter be adjourned

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 68L & 91B

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Kest

RESPONDENT: Mr Olsson

FILE NUMBER: NCC 278 of 2008

DATE DELIVERED: 24 March 2011

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 24 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Giacomo

SOLICITOR FOR THE APPLICANT: Ward Keller Lawyers

COUNSEL FOR THE RESPONDENT: Mr McDonald

SOLICITOR FOR THE RESPONDENT: Gianacas McDonald

Orders

UPON NOTING:

1. Supervision of the children by the father’s proposed supervisor or any other supervisor will need to be considered by the Court and the mother when the affidavit material has been filed.

2. On the adjourned date the parties will be attending by either telephone or video link from the Darwin Registry and the father’s solicitor has permission to attend by telephone link from Newcastle.

IT IS ORDERED THAT:

1. Leave is given to the father to file and serve answering documents to be served forthwith upon the mother’s solicitors.

1. These proceedings be accepted into the Court’s Magellan Project and adjourned for further consideration to Monday 9 May 2011 at 12.30 pm before the Honourable Justice Burr in the Magellan Directions List.

1. Pursuant to Section 68L of the Family Law Act 1975 as amended the children K born on … December 2005 and J born on … May 2007 be independently represented and that such representation be arranged by the Northern Territory Legal Aid and that to expedite the appointment of the Independent Children’s Lawyer within seven [7] days of the date hereof each party do cause to be furnished to the said Commission copies of all documents filed in the proceedings since the initial proceedings commenced in February 2008.

1. Pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for the Department of Health and Families Child Protection Unit in Darwin be invited to intervene in these proceedings and the Court requests the Minister’s representative to file and serve an affidavit indicating whether the Minister intends to intervene or not and the reasons for the Minister’s decision.

1. That the Department of Health and Families Child Protection Unit in Darwin are requested to prepare a report as to the allegations of the mother contained in her affidavit and Notice of Child Abuse filed on 21 March 2011 in these proceedings and the general circumstances of the children and that such report be filed in this Court (if possible) no later than four (4) weeks from the date hereof UPON NOTING that if there is any report from upon which the Minister for the Department of Health and Families Child Protection Unit in Darwin seeks to rely a copy of the same be provided to each of the parties and to the Independent Children’s Lawyer.

1. Until further order the mother not take any steps to provide the child J with counselling from sexual assault services or any similar entity or body which provides counselling to the child J on the assumption that she has been sexually abused.

1. During the period of the adjournment paragraphs 3, 4, 5 and 6 of the orders made on 25 February 2010 are suspended.

1. Within forty-eight [48] hours from today both parties do all things and take the necessary steps to register and make arrangements for the father to spend time with both children K and J under the supervision of staff of Contact Centre 1 each Friday from 3.00 pm until the close of the service on the Friday.

1. Any further affidavit material to be filed and served by 4.00 pm on Tuesday 3 May 2011.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: NCC 278  of 2008

Ms Kest

Applicant

And

Mr Olsson

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I will place this matter in the Magellan list. Obviously the allegations raised bring the matter within the Magellan program. In view of the allegations and the issues to be determined, it is also appropriate for the usual order to be made, pursuant to section 68L, for the appointment of an Independent Children’s Lawyer for the children and the usual order will be directed to the Northern Territory Legal Aid, which will provide for each of the parties to expedite the appointment by sending to the Northern Territory Legal Aid copies of all of the documents which have been filed in this matter.

2. Obviously a lot of the documents filed were subpoenas or Court orders, so I will make that direction in relation to all of the affidavits of each of the parties filed in the proceedings since the initial proceedings commenced in February 2008 to go to the Northern Territory Legal Aid.

3. I also propose to make and do make an order that, pursuant to section 91B of the Act, the Minister for the Department of Health and Families Child Protection Unit be invited to intervene in these proceedings.

4. I request that the Department Child Protection Unit prepare a report as to the allegations of the mother contained in her affidavit and Notice of Child Abuse, filed on 21 March 2011 and on the general circumstances of the children;  that such report be filed in this Court, if possible, no later than four weeks from this date.  If there is any report from the Child Protection Services Unit, upon which the Minister seeks to rely, a copy of the same be provided forthwith to each of the parties and the Independent Children’s Lawyer.

5. I now turn to consideration of the interim orders to be made.  The matter comes before me this morning when both the mother and father are present and are represented, the father being represented by his counsel on telephone link.

6. The context of the matter is that in February 2010, after some proceedings before the Federal Magistrates Court, consent orders were made, which provided for the parents to have equal shared parental responsibility for the children, K, who was born in December 2005 and is, therefore, aged five, and J, who was born in May 2007, who is, therefore, aged three, (four in May this year).

7. The orders provided that the children live with the mother and spend time with the father on specific times, increasing from alternate weekends and to further times, commencing on 5 March, until J attended school, to include from Thursday at 5.00 pm to Monday at 7.30 pm each alternate weekend and, once J commenced school, each alternate week from Tuesday at 5.00 pm to Monday at 7.30 pm, provided the parties lived within 15 minutes from each other.

8. There were specific orders for the father to spend substantial time with the children in school holidays and on special occasions.  There were other ancillary orders made, providing for exchange of information and other conditions.  That order was made on 25 February 2010. 

9. The application of the mother which initiated these proceedings, filed on 21 March 2010, seeks orders that the time the father spends with the children be suspended.  In support of that application, the mother has filed an affidavit and a Notice of Child Abuse, setting out statements the mother says that the child J made to her on 11 March 2011.

10. There is also referred to in the affidavit of the mother’s current partner, statements made to the current partner.  The affidavits also include statements reported to have been made by J to Senior Constable E of the Police Department, who has interviewed J.

11. The father has filed responding material in which he strenuously denies any allegation of any improper behaviour whatsoever in relation to J or any of the children.  On an interim basis he seeks that the current orders continue.  In the affidavit material filed by the father it is asserted that the Police Department are not proposing to take any further action and that there is no indication of any other steps being taken in relation to the matter.

12. The Court is, therefore, faced with an allegation which raises the possibility that the child has been the subject of sexual abuse and the strong denial of the father that there is any basis for such an allegation, raising the issue of improper behaviour by the mother. 

13. Submissions have been made by counsel in support of each of their client’s position.  This morning the Court is, therefore, dealing with the matter only on the papers, it being the first return date for the matter.

14. I am told from the bar table that the reference to the proposal for the child, J, to attend counselling is a reference to the child attending counselling at the Sexual Assault Unit, on the basis that it would be assumed that the child has been sexually abused. 

15. In view of the past history of matters that are of a similar nature to this, I consider it inappropriate for a child of J’s age, in particular, to receive counselling on an assumption that sexual abuse has occurred, until such time as all possible investigations have been concluded as to whether or not the child has been the subject of the abuse.  This would avoid any possibility of the child’s understanding of her own situation being contaminated by the process of counselling.

16. I, therefore, propose to injunct the mother and order that, until further order of this Court, she not take any steps to provide the child with counselling from the Sexual Assault Service or any similar entity or body, which is providing counselling to the child on the assumption that she has been sexually abused.  Pending the receipt of a report from the Child Protection Unit of the Department of Health and Families, that order should remain in place.

17. In relation to the orders that should be made for the child pending the receipt of the further information and possible determination of the conflicting evidence before the Court, the Court is required, under the decision of Goode & Goode (2006) FLC 93-286 to give careful consideration to the provisions of the Family Law Act1975 (Cth) particularly the provisions of section 65DAA and section 60CC, bearing in mind that at all times the best interests of the children are the Court’s paramount consideration.

18. The orders of 25 February 2010 provided for the parents to have equal shared parental responsibility and, therefore, it is necessary to consider the provisions of section 65DAA, which require the consideration of substantial time for the parties, unless those exceptions prevail. In this case, however, with the allegation made by the mother yet to be determined that the child J has been sexually abused by the father, I consider that the exceptions to the provisions of section 65DAA prevail and that it is, therefore, primarily necessary to consider provisions of section 60CC.

19. The primary considerations of section 60CC are that the children should maintain a meaningful relationship with each of the children’s parents and that the children should be protected from abuse. In this case it is not possible to determine whether there is a necessity for the children to be protected from abuse because of the clearly conflicting conclusions which can be drawn from the evidence presented in writing, that evidence being yet to be tested.

20. It is therefore the conclusion of the Court that the primary consideration requiring the protection of the children must weigh heavily in considering what is in the best interests of the children during the period of the adjournment.  This is clearly not made on the basis of any finding that there has been abuse, merely on the basis that the Court is required to err on the side of caution when considering what is in the best interests of the children. 

21. It is, therefore, necessary to suspend the provisions of the order of 25 February 2010 during the period of the adjournment (that is suspending the provisions of paragraphs 3, 4, 5 and 6 of the orders of 25 February 2010).

22. I have heard submissions this morning about the possibility of there being arrangements for supervised time being made at the centre called “Contact Centre 1”.  However, their services are only available during business hours Monday to Friday from presumably 9.00 am to 5.00 pm.  Due to the work commitments of the parents and K’s school attendance, such service would only be available to the parties between 3.00 pm and 5.00 pm on Friday of each week, which would be a significantly limited time, bearing in mind the amount of time the father was previously spending with the children and the proposals in the orders of 25 February 2010 to increase his time with the children.

23. I will, however, make an order that both parties do all things and take such steps to register with and obtain arrangements for supervised time for both children to spend with the father under the supervision the staff of “Contact Centre 1” each Friday from 3.00 pm until the close of the service on the Friday.  If that is 5.00 pm, so be it, but they may extend it to 5.30 pm or until the conclusion of the service on each Friday afternoon.  The parties are to take those necessary steps to register and request the time from the service within 48 hours from this order.  Those steps need to be taken clearly as a matter of urgency.

24. The Court is aware that if that service is not available, then further consideration will need to be given to the children maintaining their meaningful relationship with the father in circumstances where that protection can be provided.  There has been an indication of a proposed supervisor, who is has medical qualifications, being available each week on Sunday mornings.

25. The comments I am making today, of course, do not prevent the parties or their legal representatives coming to some sensible arrangement, which would overcome the need for argument about this matter on the next occasion.

26. In view of the timeframes that I have indicated, the appointment of the Independent Children’s Lawyer and a report from the Child Protection Unit, I would be proposing to bring the matter back in the Magellan directions lists. The next available date and time before the Magellan List Judge is in early May, which would be sufficient time for the Court to have received the report from the Child Protection Unit, for Legal Aid to have appointed the Independent Children’s Lawyer and for the parties to file their further material.

27. I am proposing, therefore, to adjourn the matter by way of telephone link to Monday, 9 May at 12.30 pm.

28. Subject to what counsel have to tell me, any further affidavits are to be filed and served by Tuesday, 3 May.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 March 2011.

Associate: 

Date:  4 April 2011