LLOYD & JENKINS

[2015] FamCA 220

FAMILY COURT OF AUSTRALIA

LLOYD & JENKINS [2015] FamCA 220

FAMILY LAW – CHILDREN – Interim orders made for the father to progress from supervised to unsupervised time with the child – father assessed as a low risk of inappropriate sexual contact – no findings of fact made

Family Law Act 1975 (Cth)
APPLICANT:	Ms Lloyd

RESPONDENT: Mr Jenkins

INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon & Associates

FILE NUMBER: MLC 2364 of 2007

DATE DELIVERED: 10 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 10 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchings

SOLICITOR FOR THE APPLICANT: Altavilla Vessali

COUNSEL FOR THE RESPONDENT: Mr Eidelson

SOLICITOR FOR THE RESPONDENT: James McDermott

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Clark
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Cathleen Corridon & Associates

Interim Orders

IT IS ORDERED

1. That paragraph 3 of the Orders made 3 December 2014 be and is hereby discharged. 

2. That until further order the child B born … 2006 spend time with the father as follows:

   (a)One unsupervised visit at the C Contact Centre, Suburb D on such dates and times as can be facilitated by the Centre; then

   (b)Each alternate Saturday from 9.00am until 5.00pm with changeover to occur at and be facilitated by C Contact Centre; and

   (c)As otherwise agreed in writing between the parties’ respective solicitors.

3. That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

Trial Orders

IT IS ORDERED

1. That all applications for final orders be adjourned for hearing before Justice Johns on 9 June 2015 at 10 am as a three-day matter and that the evidence in chief of all witnesses be given by affidavit.

2. That the matter be listed for mention before Justice Johns at 9.30am on 13 May 2015.

3. That by 4.00 pm on 2 April 2015 the applicant file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

4. That the applicant pay all setting down and trial fees by 4.00pm on 2 April 2015.

5. That by 4.00pm on 1 May 2015 the respondent file and serve upon all other parties the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

6. That by 4.00pm on 8 May 2015 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

7. That by 4.00 pm on 8 May 2015 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

8. That no party file any further material other than as provided by these orders without leave of the Court.

9. That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

10. That pursuant to s 62G (2) of the Act, the parties and the child attend upon and at the direction of a Family Consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a Family Report to be completed and released by 12 May 2015 if practicable AND IT IS REQUESTED that if available, Mr E be appointed as Family Consultant.

11. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

12. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

13. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

14. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

15. That the practitioners for the parties file and serve electronically to …  by 4.00pm on 3 June 2015 the following:

    (a)      a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)      a list of objections to evidence upon which rulings are required; and

    (d)      a bullet-point summary of argument in relation to the issues in dispute.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lloyd & Jenkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2364 of 2007

Ms Lloyd

Applicant

And

Mr Jenkins

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.

2. The matter of Lloyd & Jenkins comes before me today as a First Day Hearing.  It is a matter that relates to the determination of what is in the child B’s best interests (s.60CA of the Family Law Act 1975). The interim issue for determination is the time the child is to spend with his father and on what basis.

3. The proceedings have a long history.  Final orders were made by consent on 21 March 2011.  Those orders provided that the child live with his mother and that he spend time with the father.

4. In 2013, those arrangements broke down as a result of a disclosure alleged to have been made by the child to his mother to the effect that the father had sexually abused him.

5. As a result of that disclosure, this family has had engagement with the Department of Human Services who have prepared a report in this matter, that report being dated 14 May 2014.

6. Further to that report, the parties have been psychiatrically assessed by Dr F and the father has participated in a psychosexual assessment which has been released to the parties this day.

7. On 3 December 2014, the matter came before Senior Registrar Fitzgibbon.  That day, the Senior Registrar made orders providing for the child to spend time with the father on a supervised basis at C Contact Centre.

8. In addition, further orders were made for the preparation of this First Day Hearing.  As part of that preparation, directions were made requiring each of the parties to file amended applications and brief outlines as to the issues required to be determined.

9. The mother, in her case outline, amended her original position in terms of the time she proposed that the father spend with the child.  Paragraph three of the final orders sought by the mother, as contained in the outline filed on 3 March 2015, provides that the father spend time and communicate with the child as follows:-

   3.1For one further supervised visit at C Contact Centre, Suburb D, on such date and time as can be facilitated by C, Suburb D;

   3.2Two unsupervised visits at the C Contact Centre, Suburb D on such dates and times as can be facilitated by [that centre]...;

   3.3From the date of the final unsupervised visit at C, or 30 April 2015, whichever the sooner until 31 October 2015 as follows:

   (a)From 9.00 am until 5.00 pm each alternate Saturday commencing 31 October 2015 at the latest;

   3.4      Each alternate weekend, commencing 31 October 2015 as follows:

   (a)From after school, or 3.00 pm on Friday until 4.30 pm the next day, Saturday.

10. Further orders were proposed in relation to school term holiday time, Christmas holidays and the like.

11. The psychosexual assessment prepared by Psych Group provides an assessment of the father.  In the concluding paragraphs of that assessment, there are recommendations.  Paragraph 92 of that report provides as follows:

    Based on available information, [Mr Jenkins] is considered to have little risk related to sexually abusing [B].  However, Mr Jenkins should be supported to develop clear personal boundaries and expectations of developmental milestones with reference to [the child’s] age should it be deemed acceptable for access to occur.  He is likely to benefit from developing his parenting skills as [the child] ages, however his risk of inappropriate sexual contact with [the child] is considered to be low.

12. It has been submitted on behalf of the father that low is indeed the lowest level of risk that such an assessment can produce.  It is further submitted on behalf of the father that, in circumstances where that assessment has been provided and where the mother has, in effect, conceded through her proposals as contained in her case outline that unsupervised time should occur, such unsupervised time should commence forthwith.

13. The father’s counsel submits that in order to ensure a meaningful relationship between father and son, a resumption of unsupervised time should commence without further delay.  He raises significant concerns as to the mother’s conduct through the course of these proceedings insofar as her ceasing to make the child available for time in the aftermath of the alleged disclosures and her conduct through the course of these proceedings with her staunchly opposing the reintroduction of that time before the Senior Registrar as recently as December 2014.

14. It is said on behalf of the mother, that there should be unsupervised time but only after there has been an opportunity of some unsupervised time at the C Contact Centre.

15. It is said that the child is familiar with that centre and that it is best placed to support the reintroduction of unsupervised time before the movement away from that centre.

16. The Independent Children’s Lawyer supports the position of the father.  Given the travel that must be undertaken by the father, he living some 45 minutes away from the contact centre, she submits that it is important that the child be given the opportunity of spending time and engaging in activities with his father and that to do anything other than provide a more extended period of time would be to deprive the child of the opportunity of engaging in activities which he clearly enjoys with his father.

17. I cannot make any findings of fact at this interim hearing.  The relevant principles in relation to the determination of interim parenting proceedings have been settled by the Full Court in Goode and Goode (2006) FLC 93-286. Accordingly in determining the matter I rely upon the independent evidence that is before me and the common ground between these parties in order to formulate a determination that is in the child’s best interests.

18. Having heard the submissions of each of counsel appearing on behalf of the parties, I am satisfied that the time that the child should spend with his father should be of a more extended nature and I have regard to the fact that the mother, in her own proposals filed within the last few weeks, indeed proposed that such time occur between 9.00 am and 5.00 pm each alternate Saturday.

19. I am also mindful of the concerns raised by the mother.  I am not in a position to make any findings at to what her motivations may be in terms of how the allegations have come to light and what action she has taken in the aftermath of what are the alleged disclosures.

20. The father seeks to criticise the mother.  I am not in a position to make any findings in relation to those matters. 

21. I am mindful that the mother is the child’s primary care giver.  I am mindful that she clearly has concerns which she seeks to ventilate in the Court.

22. Taking those matters into account and having regard to the primary and additional considerations set out in s.60CC of the Act, I will make orders that there be one further unsupervised visit to occur at the contact centre.  I consider that to be appropriate in the circumstances of the very serious allegations that have been raised in this matter.

23. I note that there are continuing intervention order proceedings which will be determined in another court. Those proceedings, together with the very nature of the alleged disclosures, indicate to me that it is appropriate that the mother be provided with some comfort and some assurance as the child transitions from supervised to unsupervised time and it is with that in mind that I will make orders for the first of the unsupervised visits to occur at the contact centre.

24. Thereafter, the time will occur on an unsupervised basis from 9.00 am to 5.00 pm with the changeovers to occur at that contact centre.  That will ensure that changeovers for the child occur in a safe setting, but will also enable him to enjoy uninterrupted time on alternate Saturdays with his father so that they can engage in the types of activities that they have previously enjoyed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 10 March 2015.

Associate:

Date:  10 March 2015