McFadden and Shinners (No. 2)

[2017] FamCA 1055

FAMILY COURT OF AUSTRALIA

MCFADDEN & SHINNERS (NO. 2) [2017] FamCA 1055

FAMILY LAW – CHILDREN – Magellan List – interim orders – orders that provide for the restoration of regular time between the child and the father – the time the child spends with the father to be supervised – order for updated family report – notation that the mother is not pursuing a finding that the father is an unacceptable risk to the child.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr McFadden

RESPONDENT: Ms Shinners

INDEPENDENT CHILDREN’S LAWYER: Taft Lawyers

FILE NUMBER: MLC 8582 of 2016

DATE DELIVERED: 21 November 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 20 & 21 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tesoriero

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

COUNSEL FOR THE RESPONDENT: Mr Robertson

SOLICITOR FOR THE RESPONDENT: Harper Buscombe & Madden Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms O’Connell
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Taft Lawyers

Orders

By Consent

1. The parties have equal parental responsibility for the child D born … 2007 (“the child”)

2. The child spend time and communicate with the father as follows;

   (a)For a period of 5 visits at the F Town children's Contact centre, at times and dates as directed by the staff of the contact centre.

   (b)Thereafter, for a period of 8 weeks, each alternate Sunday from 10am until 2pm, with such time to be supervised by Ms K. No other persons are permitted to attend during this time.

   (c)Thereafter, each alternate weekend from 10am until 7pm on Saturday and from 9am until 2pm on the Sunday.

3. For the purposes of changeover pursuant to paragraph 2 (b) above, the father shall meet with Ms K at IGA (L Street, H Town)  at the commencement of each visit.

4. For the purposes of changeover pursuant to paragraph 2 (C) above, the parties will meet at IGA (L Street, H Town) at the commencement and conclusion of time.

5. Each party be and is hereby restrained from; discussing the proceedings with the child, showing any court documents to the child, denigrating the other party or any family members in the presence of the child, or allowing any other person to do so.

6. Both parties keep the other informed of any significant illness or injury suffered by the child whilst she is in their respective care.

7. The mother ensure the child regularly sleeps in her own bed, and use her best endeavours to ensure that is occurring within 28 days of the date of these orders.

By the Court

1. That the parties attend upon Ms C for the purposes of the preparation of an update family report (noting Ms C prepared the current family report in this matter and is now in private practice) the preparation of such report to commence no later than 16 April 2018, AND IT IS REQUESTED that Victoria Legal Aid provide funding for the parties to facilitate preparation of their updated family report.

By Consent

1. The matter be listed for mention on 31 May 2018 at 9:30am before Justice Johns.

2. Usual orders pursuant to 65DA2 and 62B

Notation:

(1)It is noted the mother is not pursuing a finding that the father is an unacceptable risk to the child.

(2)It is noted the purpose of the family report is to address the issue of the child spending overnight time with the father.

(3)Pursuant to s68P to the extent these orders are inconsistent with an existing Family Violence order, these orders shall prevail.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McFadden & Shinners (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8582  of 2016

Mr McFadden

Applicant

And

Ms Shinners

Respondent

REASONS FOR JUDGMENT

1. The matter of McFadden & Shinners comes before me this week for final hearing, in relation to parenting issues, with respect to the child, the child, who is aged 10 years. 

2. This is a Magellan matter, there being allegations made against the father that he has sexually abused the child.  The parties have had the benefit of a family report from Ms C.  That report is dated 18 April 2017.  There is also additional evidence provided from Dr B, who has prepared a psychosexual report, with respect to the father.  That evidence is set out in Dr B’s affidavit, which was filed on 25 July 2017.

3. The trial commenced before me yesterday.  The parties, for the first time, had the opportunity to view the VARE interview of the child by the Police in relation to the allegations raised.  That interview of the child occurred in August 2016. 

4. The parties commenced discussion at the commencement of the hearing today.  There is agreement between them now that it is appropriate that interim orders be made, that will have the effect of commencing the restoration of regular time between the child and her father.  Initially, that time will occur in a supervised environment, and that will continue for some considerable period, initially, at the F Town Children’s Contact Centre, and then moving into a private environment, with supervision to be provided by the mother’s sister, Ms K.

5. Having had the opportunity of reading all of the trial affidavit material, including the expert reports and having heard submissions by counsel, representing each of the parties, I am satisfied that the proposed interim orders are appropriate and in the child’s best interests.  I am also satisfied as to the necessity for there to be an updated family report, that report to be prepared at a time when the child has had an extended opportunity to resume regular time spent with the father.

6. D is a child who has been exposed to a number of interventions as a result of the alleged disclosures made.  She has been interviewed by police.  She has had engagement with Ms C, as well as other therapeutic intervention at CASA.  Given that background, in my view, it is important that, if practicable, Ms C be engaged to prepare an updated report, in respect of this matter.  She has previously met with the parties and the child.  It would be contrary to the child’s best interests if she was to have to engage with another report writer, to enable an updated report to occur.

7. For that reason, I am satisfied that it is appropriate that I make an order that the parties attend upon Ms C, for the purposes of the preparation of an updated report.  Ms C is no longer an employee of the Court.  She is in private practice.  I therefore consider that it is appropriate, in circumstances where both parties are assisted by Victoria Legal Aid, that a request be made to Victoria Legal Aid to provide the necessary funding for that updated report.  Otherwise, this matter will remain in my docket.  I propose to list the matter for further mention before me, at 9.30 on 31 May 2018.  At that time it is anticipated that there will have been a significant opportunity for the child to spend regular time with the father.  The parties will also have the advantage then of the updated family report.  Consideration can then be given as to what direction these proceedings should take, once that material is to hand.

8. I therefore make orders in the terms of the minute that is signed by the parties, and dated this day.  That minute will remain on the Court file.  It will be marked with the letter A.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 November 2017.

Associate: 

Date:  21 November 2017