Krach & Krach

[2008] FamCA 1195

FAMILY COURT OF AUSTRALIA

KRACH & KRACH [2008] FamCA 1195

FAMILY LAW  -  CHILDREN  -  Magellan  -  interim parenting orders

Family Law Act 1975 (Cth)

FATHER: Mr Krach

MOTHER: Ms Krach

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2897 of 2008

DATE DELIVERED: 12 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 December, 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Ms. Agresta

SOLICITOR FOR THE FATHER: Hall & Wilcox

THE MOTHER: In person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr. Williams

THE INDEPENDENT CHILDREN'S LAWYER Robert Halliday & Assoc

Orders

1. That subject always to GordonCare’s consent, the father be at liberty to bring his wife and/or his mother to all periods of supervised time with the children L born … August, 2000 and S born … November, 2001, pursuant to the orders made herein on 17 October, 2008. 

2. That pursuant to s.62G(2) of the Family Law Act 1975 an updated Family Report be prepared and released before 4 February, 2009.

3. That the parties attend a Trial Notice Listing with the Magellan Registrar on 4 February, 2009 at 2:15 pm.

4. That the GordonCare report of 3 December, 2008 be indexed on the court file.

5. IT IS REQUESTED  that the independent children’s lawyer funding be extended to cover the provision of an updated report from GordonCare prior to the trial date.

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

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

AND THE COURT NOTES

1. That the court was advised that the psychiatric appointment with Dr. D remains available and advised the mother of the importance of complying with the order that she attend for psychiatric assessment.

2. Counsel for the independent children’s lawyer confirmed that a report will be obtained from the psychologist treating the children and filed prior to the trial. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2897 of 2008

MR KRACH

Father

And

MS KRACH

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties to the litigation married in 1998, and separated in August 2002.  As I understand it, they were divorced in mid-2004 and the father remarried in about March 2006.

2. The case concerns their two children - L is eight and S is six.  Both children have lived with the mother since the parties separated.  On 27 October, 2004, parenting orders were made, by consent, providing for the children to live with the mother and for the father to have regular and frequent time with them.

3. The father's evidence before this court is of a process of erosion and undermining by the mother, in (he asserts) an attempt to reduce the time he is able to spend with the girls under those orders.  In August 2006, some months after the father's remarriage, the mother made an allegation that the father had sexually abused S.  The Department of Human Services investigated and the file was closed.  No further action was taken at that point.

4. The father filed the proceedings now before the court on 1 April this year, seeking that the children live with him and that the mother have time with them in not dissimilar terms to the time they spent with him under the earlier orders.

5. In a response filed on 2 May, the mother sought to discharge the existing orders.  She sought that the parties have equal shared parental responsibility, the children live with her and the father's time be based upon a report of a psychologist the children were consulting.  The mother alleged that the parties separated in 2002 due to dissension about what she referred to as the father's “obsession with pornography”, and other sexual matters.  She denied he has spent as much time with the children as he deposes.

6. It is her case that S’s disclosures in 2006 were made to a daycare worker, who had expressed concerns about the child's behaviour.  The children have been in therapeutic counselling for some time. 

7. On 14 May this year, the mother filed a form 4, alleging the father had abused both girls.  Riethmuller FM then suspended the father's time with his daughters and transferred the case to this court.  The following month it was assigned to the Magellan list.  DHS prepared a report, which is before the court, dated 7 July.  It does not deal at any length with the most recent allegation but sets out a long history of departmental previous involvement, from 2003.

8. The evidence is that the mother and children attended an interview with SOCAU following the alleged disclosures;  neither child made any specific disclosure to police.  There is some suggestion that one or other of the children made disclosures to counsellors, but at this stage the evidence before the court is of no disclosures to police members or child protection workers.

9. On 18 July the matter was in the Magellan list before Bennett J.  The mother failed to appear.  The parties were ordered to complete the necessary forms to use a contact centre, and various other orders were made, including an order for the preparation of a family report.  Mr N prepared that report.  It indicates that the children did not exhibit any fear or concerns about their father;  their interaction with him was positive, despite him having been effectively absent from their lives for some 18 months.

10. There is evidence that the mother has been working through South-East CASA  on her problems with anxiety.

11. When the case was back at court on 17 October, orders were made for the father to spend time with the girls at GordonCare.  He was not able to commence that time until November and thus has had only four periods of supervised time with them.

12. The GordonCare report is very positive in terms of observations of interactions between the father and the girls.  There are, however, a couple of points in the report, indicative of some concern about time alone with the father.  For example, there is mention of L appearing to be relieved when she saw workers, and of appreciating a secure environment.  That may well be what the mother was referring to in the brief submission she made to me earlier, when she spoke of concerns about the children’s time with their father.

13. It is clear that the issue of the children’s time with extended paternal family is also important.  I cannot say why the father’s wife and mother have not been able to see the children at GordonCare.  GordonCare’s primary focus is always contact between a parent and a child, and it is a matter for GordonCare as to how they run the service, not the court.  They may operate on the basis they need the consent of all parties before third parties can attend, if the court does not order it.  They may also lack facilities to supervise extra people.  The court can make it clear that specific people can attend, if that suits GordonCare.  I make it very clear that I make no criticism of GordonCare and that it may simply not be possible for paternal relatives to attend, even briefly. 

14. In his report, Mr N said that while it is difficult to unequivocally determine whether the girls have or have not been sexually abused by their father, there is another potential hypothesis which is, in essence, innocent dealings construed as sinister, because seen through a lens of conflict and suspicion.  Mr K made a similar observation.  Both girls told Mr N that their father touched them, on one occasion, on the vagina, which appears to be the extent of the information conveyed to DHS or SOCAU.  It is in that context he posited real potential for an innocent explanation.

15. The father's application is for the immediate introduction of unsupervised - in the sense of a contact centre - time with the children on alternate weekends from Friday to Sunday.  Whilst not his starting point, he is comfortable about the court ordering that his wife be in attendance or, indeed, supervise his time with the children.  They are married, they live together, and her attendance would not impose an onerous obligation on her.

16. The independent children's lawyer supports the introduction of time on either a Saturday or Sunday, from 10:00 am. to 4:00 pm., unsupervised.  The ICL does not support overnight time.  If the ICL is confident that the children will be safe with their father for six hours at a time, I am unsure why there would be a problem with them sleeping at his home.  Opportunities for child abuse are not limited by time or place;  if a child is vulnerable to abuse, the child must be protected 24 hours a day.

17. Mr N’s recommendation was that after three months of supervised time, he (Mr. N) have an opportunity to see the family again.  He could obviously look at any report from GordonCare and make recommendations based on that information.

18. The legislation is posited on two principles:  the first is the importance of children maintaining, as far as possible, a meaningful relationship with both their parents and with other people of significance to them; the second is the importance of protecting children from physical or psychological harm.  There is often a tension between those principles, and it is demonstrated in a case like this.

19. Parents can feel that a court making interim orders is not respectful of their concerns, and not respectful of their wishes.  The court's obligation is to focus on the best interests of the children;  parents' wishes and desires have to give way to those best interests.  In my view, what this case needs is a judicial determination.  The court cannot put a number of professional reports on one side of the scales, and a little untested evidence on the other, and say that children can take their chances in the interim.  What is most important is that the father's time with the children continue.  He has been able to re-establish the relationship and they are obviously happy seeing him.  I am concerned about aspects of the mother's affidavit, particularly about the potential for the children to be interrogated about her concerns.  But that is not a matter that I can deal with at this time.  That, and other issues in dispute, will be determined at the trial.  The father will continue to see the children at GordonCare pursuant to the orders of 17 October, 2008. 

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

Dated the           day of            2009.

…………………………………………
Associate.