Kings and Murray

[2008] FamCA 1104

FAMILY COURT OF AUSTRALIA

KINGS & MURRAY [2008] FamCA 1104

FAMILY LAW – CHILDREN – INTERIM – Allegations against the father of sexual interference with two year old child – Orders for supervised time with the child pending the outcome of the final proceedings

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Kings

RESPONDENT: Mr Murray

INDEPENDENT CHILDREN’S LAWYER: Mr Tallarita

FILE NUMBER: CAF 509 of 2006

DATE DELIVERED: 10 December 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Tallarita

Orders

1. There be a transcript of today’s proceedings taken out and that copies be supplied to each of the parties, to Mr Tallarita the Independent Children’s lawyer with the facility for him further to provide a copy to the single expert witness appointed in accordance with the orders hereafter and to the Legal Aid office for the purposes of their determining;

   (a)whether funding should occur in relation to the single expert witness; and

   (b)to assist them in assessing any application by either the father or the mother for Legal Aid in his or her own right.

2. Either Dr M or Dr W be appointed as a single expert witness in this matter for the purposes of considering whether the comments reported to have been made by the child are;

   (a)comments that are likely to have been made by a child of the child’s age;

   (b)whether the child is typical of a child of her age and whether that affects any determination about whether the child is likely or not to have made the comments;

   (c)if a child of the child’s age were to make such comments, whether it is likely or not that such comments were reflective of some physical experience of the child or whether they may or may not have been a product of that child’s imagination;

   (d)whether the child as a child individually might be different from a child of her age in respect of the assessment of the matters contained in (c);

   (e)whether the circumstances proposed by the father about any supervised time that the child might spend with him pending the final determination of issues before this Court are appropriate for the circumstances in the opinion of the expert if the expert wishes to express an opinion and feels that he is able to do so;

   (f)Any other matter that the expert considers to be appropriate or any further investigations that the expert believes ought to be undertaken;

   (g)For reaching a determination about the matters before the Court, each of the parties will do such things as may be necessary to provide to the expert an opportunity to discuss matters with the child and if the expert so requires, have such discussions and consultations with the expert as the expert may require;

   (h)The expert will advise whether he or she is able to do so on the evidence and after conducting the consultations before him, whether there should be further or different forms of time that the child might spend with her father pending finalisation of matters before the Court.

   (i)If the expert relies upon information referred to him or her from any external source, either by way of report or telephone conversation or material that is read by the expert, then the expert will identify that external source during the course of his report and indicate the degree of reliance placed by the expert upon such material

   (j)There be liberty to apply through the Independent Children’s Lawyer by the expert if there are any other matters upon which he seeks assistance from this Court by way of order or direction.

3. Each of the parties will attend as required on the expert as soon as such arrangements can be made and will do everything in his or her power to facilitate the early as possible preparation of the report.

4. I note that the father has indicated that he would not avail himself of my foreshadowed order that there be some form of supervised time for the child with him through Centacare and would not avail himself of an earlier order made by me facilitating telephone contact with the child.  I recognise that he does so out of what he considers to be in the child’s best interests however, I reserve to him leave to apply if he wishes to do so between now and the next time the matter is nominated to be before the Court for an order that would provide that he would have supervised time with the child through the intervention of Centacare and that he resume an arrangement for spending time on the telephone with the child as had been previously ordered.

5. In the light of the father’s declared attitude as set out in the last mentioned order any other contact or time for the child to spend with her father is suspended until further order.

6. The matter is adjourned to me in Chambers on 29 January 2009 to determine progress that has been made with the report.  The parties or the Independent Children’s Lawyer need not attend on that day however, from Chambers I will nominate a day in the light of progress that has been made with the report for the matter to be next before the Court to enable the parties to have an opportunity to consider the contents of the report and for any additional legal representation to obtain such information as he or she may reasonably require.

7. This order finalises the interim matter before the Court and the primary matter will next be before the Court as I indicate through the Chambers mention before me on 29 January 2009.

IT IS NOTED THAT:

1. It is noted in regard to order 2(g) that if the expert requires attendance upon him of the father’s partner C (whose surname has not yet been disclosed) then such will occur by the husband’ facilitating that contact.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 509 of 2006

MS KINGS

Applicant

And

MR MURRAY

Respondent

REASONS FOR JUDGMENT

1. I do not propose to go through all of the particular matters set out under s 60CC of the Family Law Act to resolve this particular dispute.  A recent Full Court decision has made it clear that it’s not necessary for a Judge in making an interim determination of very limited matters to elaborately go through each provision of the Act to demonstrate that the requirements set out by the Full Court in Goode v Goode[1] have been complied with.

   [1] (2006) FLC 93-286

2. In this matter the question of who should be the supervisor is before me in the circumstances I have outlined previously.  It seems to me that there are a number of factors associated with this.  The first is, and the most important, is the protection and the best method of protecting the child from any risk of harm.  A second and appropriate concern is to ensure that there is no aggravation making worse off the present situation pending some determination of the matters that need to be decided by me.

3. I would remain, at least to some extent, concerned that if someone who admittedly and because of this directly associated with the father was involved that this would still mean that there was a suggestion that if something was reported that it had been done in circumstances which might not necessarily, and this is no way a suggestion Ms C (whose surname we do not have) would in any way be dishonest but it may reflect on her credibility as well as the protection of the partner, the father, if she were involved.  So at least until we have the report from the expert it seems to me that the proposal which in many other respects may be a sensible proposal by the father should be postponed.

4. What I would propose, and I do that based on in part the advice of the family consultant and also the Independent Children’s Lawyer, I do not necessarily say that I would have done this simply on the fact that the mother did not agree.  What I would propose is that the terms of reference for the expert would include whether in the circumstances as the expert sees it, it would be appropriate for supervision (if there were to be any on a continuing basis until the finalisation of the proceedings before the Court should occur) through a professional supervisor as is presently proposed and as I propose to order on an interim basis or whether it would be in the child’s best interests as the father suggests that that should occur in the less formal context as he proposes.

5. I have indicated that I will order a transcript of today and the transcript will be made available to the single expert witness who will be aware of what has been said by the parties as a consequence and will have an opportunity to understand the nature of what I am asking and how it will happen in the future.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date: