Lenswood and Marcus

[2010] FamCA 328

FAMILY COURT OF AUSTRALIA

LENSWOOD & MARCUS [2010] FamCA 328

FAMILY LAW – CHILDREN – application to appoint alternate supervisor – consideration of capacity to be vigilant – proposed supervisor deemed unsuitable – application declined

Family Law Act 1975 (Cth) s 60CA

APPLICANT: Mr Lenswood

RESPONDENT: Ms Marcus

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 1015 of 2009

DATE DELIVERED: 7 APRIL 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 7 APRIL 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS LEE
SOLICITOR FOR THE APPLICANT:	JOHNSTON WITHERS

COUNSEL FOR THE RESPONDENT:	MRS LINDSAY
SOLICITOR FOR THE RESPONDENT:	BARR LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MR KENT
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

1. The father’s application that Ms A be permitted to act as a supervisor of the father’s time to be spent with the children C born … June 2004 and M born … March 2006 is declined by the Court.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1015 of 2009

MR LENSWOOD

Applicant

And

MS MARCUS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this matter allegations have been made that the father has sexually abused the child M born in March 2006 and who is aged 4 years.  There is a Child Protection Services (“CPS”) report which is dated 10 September 2009 which is inconclusive with respect to those allegations.  The CPS assessment was then followed by a Family Report which is dated 10 February 2010.

2. Up until the preparation of that Family Report the father had been spending regular time with the child M and the child C born in June 2004 and who is hence aged 5 years.  However, as a consequence of concerns raised by the Family Report and the recommendations contained in that report, the father’s time with the children on an unsupervised basis was suspended.  It was ordered, in line with the recommendations contained in the Family Report, that the father spend supervised time with the children at the Children’s Contact Service (“CCS”).  I am informed that the parties have completed all intake procedures and that they are now awaiting an intake interview before they can commence to use that Service.  I am informed by the Independent Children’s Lawyer that the parties are unlikely to secure an intake interview until late May 2010 and there would then be a further 3 – 4 week delay before the first supervised sessions could be made available to them.

3. On the last occasion the matter was before the Court I granted to the father the opportunity to present other potential supervisor(s) of his time to be spent with the children.  The Court, at times, accedes to alternative supervisors in order to ensure that important relationships in a safe and secure environment may be maintained and because, at times, the CCS environment is not necessarily ideal.

4. All allegations of sexual abuse of children are taken seriously by this Court and the Court is obliged to exercise considerable caution prior to the ultimate determination of the matter in a trial of the proceedings when all evidence can be presented and tested.  This matter has its 1^st Day Hearing before the Honourable Justice Dawe on 19 July 2010.  Hence it is well and truly on the path to final determination by trial proceedings.

5. In accord with the leave that I granted to him the father presented as an alternative supervisor of his time with the children, Ms A.  Ms A filed an affidavit on 24 March 2010 and today gave evidence before the Court as to both her willingness to undertake that role and her qualification in a number of senses to do so.  The Independent Children’s Lawyer does not support Ms A as a supervisor of the father’s time with the children.  He does not query her academic and professional qualification to undertake the task.   I agree with his assessment in that regard. 

6. The question which always arises when someone other than a professional organisation is being considered as a supervisor of time is as to whether or not they retain a sufficiently open mind about the possibility of abuse to remain significantly vigilant and appropriately vigilant in their role as a supervisor.  In many instances the close scrutiny that a proposed supervisor has to undergo in circumstances like this is particularly unfair.  It would no doubt seem to them at times that they themselves are on trial rather than the individual whom they have offered to help.  I would not be surprised if Ms A formed the view today that she was the one who was being questioned in terms of integrity and dedication to her task in keeping the children safe.  I am keen for her to understand that any determination the Court makes today as to her suitability to act as a supervisor in respect of the children does not reflect any adverse views that the Court might have of her, either in her professional capacity or as a person. 

7. However, in my view it is not appropriate to approve Ms A at this point in time as a supervisor of the father’s time with the children and it is for a number of quite clear reasons.  I will not bother to enumerate all of them but important among them are:-

   –    she is quite clearly in a very close and friendly relationship with the father in these proceedings;

   –    her daughter is in a romantic relationship with the father in these proceedings;

   –    no mention was made of that fact in the affidavit material that was filed by her in these proceedings although I do not draw any adverse inference as against Ms A in that respect and I accept her evidence that she simply did not believe that it was important and that her task was rather more in keeping the children safe;

   –    despite her intimation that she has the capacity to be vigilant in respect of the care of the children, if indeed the allegations of abuse as against the father are supported on the evidence tendered in the trial of the proceedings, then that abuse occurred during a period of time when she indicated that she was in very close contact with the family and spent nearly every occasion with the children when they were in the presence of the father.  I accept that she may indeed be rather more vigilant now given the allegations which have emerged since but the Court’s role is to ensure as an absolute the safety of the children and not engage in any form of risk taking.

8. The other matters which in my view militate against Ms A being accepted today as a supervisor of the father’s time are reflected in various aspects of Dr Q’s report and in particular the observations made in paragraphs 42 and 47 of that report.  Ms A was asked as to her view of a number of reported comments made by C in that Family Report.  C made a number of remarks which could constitute allegations as against the conduct of the father, Ms A’s daughter and Ms A’s partner.  It was Ms A’s view that C was not to be believed on any of those allegations that had been made.  Time may well demonstrate that C was not being truthful in relation to those matters raised but to place him in an environment where he is to be supervised by somebody who does not believe any of those matters that he put to the Family Report writer places him in a very difficult position and could well add to the stress that the children are suffering, stress which has been clearly noted in the CPS report and the Family Report.

9. Thus, given my obligation under Section 60CA of the Family Law Act to treat the children’s interests as being the paramount consideration, I decline at this stage to approve Ms A as supervisor of the father’s time.  As I said earlier, this is in no way a reflection upon the character of Ms A but rather out of an abundance of caution given her close relationship with the father and other members of the family which may impact upon her capacity to demonstrate the hyper-vigilance which is required of supervisors in these circumstances.  The very highest possible standards are imposed upon supervisors in this role in order to ensure the safety of children.

I certify that the preceding nine (9) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  7 April 2010