Ledru and Alesia

[2009] FamCA 1311

FAMILY COURT OF AUSTRALIA

LEDRU & ALESIA [2009] FamCA 1311

FAMILY LAW  -  CHILDREN  -  Magellan  -  allegations of sexual abuse  -  renewed allegations after final orders made in earlier litigation  -  DHS purports to “suspend” orders of this court  -  interim orders maintained

Family Law Act 1975 (Cth)

FATHER: Mr Ledru

MOTHER: Ms Alesia

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11685 of 2008

DATE DELIVERED: 11 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 11 December 2009

REPRESENTATION

COUNSEL FOR THE FATHER: Ms. Williams

SOLICITOR FOR THE FATHER: Hughes Legal Pty. Ltd

SOLICITOR FOR THE MOTHER: Bowlen Dunstan & Associates Pty

INDEPENDENT CHILDREN’S LAWYER Lampe Family Lawyers

Orders

IT IS DECLARED

1. That the order made herein on 16 October, 2009 pursuant to which the father is to spend time with the children F born … May, 2001 and L born … August, 2004, remains in full force and effect.

IT IS ORDERED

1. That notwithstanding any advice to the contrary by an employee of the Department of Human Services and subject always to any order made in respect of F and/or L in the Children’s Court (Victoria), the mother provide F and L to spend time with the father pursuant to the orders made herein on 16 October, 2009. 

2. That each of the parties attend upon Dr. E when requested by the independent children’s lawyer or Dr. E to do so for the purpose of preparation of psychiatric assessments and the costs of attendance and assessments be borne in the first instance by the father and the question of ultimate responsibility for such costs be reserved to the trial judge.

3. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 31 March, 2010.

4. That the parties attend a Trial Notice Listing with the Magellan Registrar on 7 April, 2010 at 2:15 pm.

5. That the independent children’s lawyer be at liberty to provide Dr. E with all previous professional reports which relate to F and L and all material produced pursuant to subpoena filed herein, and to facilitate this, the independent children’s lawyer be at liberty to copy material produced pursuant to subpoena.

6. That documents produced pursuant to a subpoena directed to Ms. Z be released for inspection and copying  PROVIDED THAT  no copy be made available to anyone other than Dr. E or a legal representative of a party, save with the leave of the court. 

7. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

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

9. 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:       MLC 11685 of 2008

MR LEDRU

Father

And

MS ALESIA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter has a long history in this court as well as a history in the Children's Court;  the Department of Human Services (DHS) has been involved with the family.  The parties were in a relationship between 1996 and 2005.  They have two daughters;  F was born in May, 2001 and L was born in August, 2004.  When F was four, it was alleged that she reported that a boy at kindergarten tickled her.  Subsequently, other allegations were made about inappropriate behaviour directed at her by her father.

2. Those allegations resulted in DHS involvement and the filing of a protection application in November 2005.  The children, who were very young, were seen by SOCAU and various other agencies.  When this court became involved, the protection application was withdrawn.

3. There was then lengthy litigation between the parties in this court.  It is clear from material before the court that a number of experts were involved.  A trial commenced before Cronin J. in early 2008 and ran for some five days, prior to the parties agreeing on final orders.

4. By that time a family report had been prepared by Ms. F.  The father had been seen by Dr. K for a psycho-sexual and psychological assessment.  The mother had been seen by Dr. E for a psychiatric assessment.  F had seen a number of professionals, including DHS protective workers. 

5. In the course of his submissions to me, counsel for the father made a number of comments about the proceedings before Cronin J.  For example, it was put that Dr. E had some concerns about the mother’s presentation and put forward a number of alternative explanations for F’s presentation.  It was also put that Dr. E queried the utility of maternal supervision of the father's time with the girls. 

6. The orders the parties agreed to on 21 February, 2008 set in place a regime of graduated time between the father and his daughters, commencing with five hours a day on each Saturday and concluding with time on alternate weekends and for half school holidays.  The children were to live with their mother.  The orders also provided for the father's partner, Ms. G, to be involved in supervision;  the role was to evolve over time and require her only to be in substantial attendance.  A number of other orders were made;  for example, the girls were to share a room and were not to be left alone with named people. 

7. On 28 September this year, the father filed an application seeking that the girls live with him and that the mother's time with them be reserved.  In an affidavit filed at that time he set out the historical background and matters relevant to the earlier proceedings.  It is clear on that material, and on material filed by the mother, that the mother asserts that L made a number of disclosures in late July 2009.  These involved allegations that her father had put his finger into her anus;  that Ms G’s son, J, put his finger in her vagina in Ms G’s presence and that abuse was perpetrated on her by the paternal grandmother when she visited from Scotland, which was observed with “some mirth” by her husband, the paternal grandfather.  It is also alleged that L said that Ms G’s father was involved in some form of inappropriate touching. 

8. The evidence is that Ms. G’s father died well over 20 years ago.

9. The allegations led to another round of interviews of the children by DHS workers, and police at SOCAU and a forensic examination. 

10. On 16 October, 2009 the mother filed a response in which she sought that she have sole parental responsibity and that F and L live with her and see their father at a contact centre. By that time she had filed a form 4 notice of child abuse, alleging that when the children commenced spending overnight time with their father pursuant to the earlier orders, he inserted his fingers into their anuses, and fondled L inappropriately by sitting her on his knee, and that his de facto stepson, J, abused L by inserting his finger into her vagina.  

11. The matter came before Senior Registrar FitzGibbon on 16 October, 2009. He assessed it as suitable for the Magellan List and made what might be called the usual orders, including a request to DHS, pursuant to s.91B of the Family Law Act (1975) that it intervene in the proceedings.  Orders provided for the DHS file to be subpoenaed and DHS was asked to prepare a report of its investigations into the allegations made in the form 4. 

12. On that day, with both parties represented, interim orders were made, by consent, which provided for the father and the girls to spend time together on each Sunday between 10:00 am. and 4:00 pm., supervised by Ms. G, who gave a written undertaking to the court. 

13. Despite that order, the father has not seen the children, as DHS intervened.  When I say “intervened” I do not mean that DHS commenced proceedings in the Children’s Court.   I do not mean that DHS accepted this court’s request to intervene in these proceedings.  I mean that DHS, through a worker or workers, unilaterally took it upon itself to, to use the words of the DHS report, “suspend access”. 

14. The evidence is that within a very few days of orders being made by consent on 16 October, 2009, the mother told departmental workers (on 22 October) that she did not believe Ms. G was an appropriate person to supervise.  There is no evidence that anything happened between 16 October and 22 October to bring about that change of position.  It should be remembered that the mother was represented when orders were made by consent on 16 October, 2009, including the order for supervision. 

15. DHS has prepared a report dated 27 November, 2009.  It is not a lengthy report and it sits very uneasily with some of the source material upon which conclusions and recommendations in it are allegedly based.  In particular, it sits uneasily with the report of the forensic medical examiner, Dr. R (a paediatrician) and the report prepared by investigating police in which a recommendation is made that no brief against the father be authorised.  In her report Dr. R noted that L’s style of recounting the alleged events led her to question whether her responses might have been rehearsed.  Dr. R gave an example :  when she asked the child : “Do you know why your have come to see me today” the child replied : “because my heart’s broken”.  There is no mention of this in the DHS report. 

16. Nor is it mentioned in the DHS report that the investigating police member who prepared the brief and recommended against prosecution referred to the potential for the allegations to be rehearsed. I add that the report from DHS is not only silent about Dr. R’s scepticism but records that Dr R reported that she held significant concerns for the children's safety, given L’s disclosures.

17. The father seeks that the orders made on 16 October remain in full force and effect and that the mother complies with them.  He is not seeking an extension of his time with the children or the removal of the requirement for supervision.  He is not seeking the reinstatement of the orders which provided for liberal time with the children, made in 2008.    

18. Counsel for the mother has submitted that, having regard to DHS’ stance, the interim orders should be suspended until DHS had an opportunity to undertake a protective capacity assessment of Ms. G and a forensic risk assessment of the father. 

19. I have heard what his counsel says about the forensic risk assessment.  After long experience in this list, I am aware that such recommendations, routinely made by DHS workers, often cannot be put into effect as the forensic assessments proposed are only available if there is either an admission of inappropriate behaviour or a court finding of inappropriate behaviour.

20. That said, some form of assessment may be available and DHS assert that a referral has been made to achieve that.  DHS cannot conduct any form of protective capacity assessment of Ms. G until 20 January, 2010.  The report gives no indication of when a forensic risk assessment could be done.  The report concludes, and I quote :

    Until the outcome of this assessment  (the preceding paragraph refers to both proposed assessments)  is known, Child Protection are unable to confirm the level of risk for [L] and [F] in the care of [the father], and would recommend that any contact [the father] have with the children be fully supervised.  Until the outcome of the assessment Ms [G] is not assessed as suitable to supervise this contact.

21. What is clear from the report is that Ms. G has not been assessed as unsuitable;  she has not been assessed at all. 

22. From the mother's perspective, DHS has intervened. DHS decided to “suspend” contact and she has done that.  No doubt the father is sceptical about attribution of responsibility to DHS;  the mother would say she was put in a difficult position by the DHS demand.  That is a matter that can be teased out in due course.

23. I should say that, by arrangement between the parties, the mother has been supervising some time between the father and their daughters.  That has occurred on three occasions and the mother is prepared to continue to supervise his time.   The difficulties and problems associated with maternal supervision were noted by Dr E in his report in the earlier proceedings.   This court not infrequently hears evidence of the undesirability of such supervision, particularly in circumstances where there is high conflict, significant parental disagreement and long running litigation.

24. The ICL, who was also the ICL in the lengthy previous bout of litigation, supports a resumption of time pursuant to the orders of 16 October, 2009.  The ICL had the opportunity see Ms G cross-examined in the earlier proceedings before Cronin J., prior to that case concluding.  He is satisfied she is a suitable supervisor, and satisfied with the undertaking she gave on 16 October, 2009. 

25. In terms of the law, I say only that the court must be cautious at this time.  The court must balance, on the evidence before it, the need to maintain a meaningful relationship between a parent and child with the need to protect the child from physical and psychological harm. 

26. Balancing all matters, mindful of the fact that no final determination has been made and that the court will need to hear all the evidence;  aware of the need for a trial;  bearing in mind the DHS recommendation (which is just that, a recommendation) I am satisfied the existing order for supervised time should remain in force, being satisfied that is in the children’s best interests. 

27. I add that there is in force a protocol between DHS and this court.  The initial protocol was signed in 1995.  After lengthy discussions, an updated version was agreed in 2009 which took into account the existence of the Federal Magistrates’ Court and legislative changes in State and Federal jurisdictions since 1995.  Part 14 of the protocol deals with DHS responsibilities in relation to a person’s compliance with court orders.  The protocol makes it clear that a decision not to comply with an existing court order must be made “entirely by the party”.  It provides :

    The Department of Human Services has no legal authority to authorise or compel non-compliance with a Family Court or Federal Magistrates’ Court order.  Although a Protection Application before the Children’s Court has the effect of suspending (such an order), accepting a report or conducting an investigation does not.

    [ . . . ]

    The Department of Human Services will not provide legal advice to a person about their obligations under the Family Law Act 1975 or whether their situation falls within s.70NAE.

28. The court welcomes DHS intervention in proceedings.  It requested such intervention in this case, in vain.  If DHS workers form a view that an existing order of this court exposes a child to risk, DHS should either intervene or bring proceedings in the Children’s Court.  What it should not do is direct a party to breach an order or – as reported to this court by DHS – purport to “suspend” an existing order.

29. An order is sought for psychiatric assessment of both parties by Dr. E.  I will order that the father pay for those reports at first instance;  the question of ultimate responsibility can be determined by the trial judge.  It is important it is done and the case not derailed because one party cannot or will not pay. 

30. I make it clear that the order which allows Dr. E to read subpoenaed material does not require him to do so, or to read every word.  It will be a matter for him to determine what material is or may be useful.

31. Counsel for the father has sought that a transcript be ordered of the earlier hearing before Cronin J.  I do not propose to do that.  That aspect can be considered when the matter comes on for a trial notice.  An application for Cronin J. to hear the trial was foreshadowed but that can be determined if and when made. 

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

Dated the         day of         2010.

…………………………………………
Associate.