MCFADDEN & SHINNERS

[2017] FamCA 645

FAMILY COURT OF AUSTRALIA

MCFADDEN & SHINNERS [2017] FamCA 645

FAMILY LAW – PRACTICE AND PROCEDURE – where the matter was not ready to proceed on the first day of trial – where there is a lack of information as to the child’s current circumstances – trial date vacated – procedural orders made.

FAMILY LAW – CHILD ABUSE – Magellan list – interim orders – consent order made for the child to spend supervised time with the father through a private contact service – order made that the mother and father jointly share the cost of the contact service.

Family Law Act 1975 (Cth)

APPLICANT: Mr McFadden

RESPONDENT: Ms Shinners

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8582 of 2016

DATE DELIVERED: 7 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tesoriero

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

COUNSEL FOR THE RESPONDENT: Mr D. 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 THE COURT IT IS ORDERED

1. That all extant applications be listed for mention before me at 10 am on 8 September 2017.

BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER:

1. That the Independent Children’s Lawyer provide a copy of the psycho-sexual assessment of Dr B (in relation to the Father) dated 7 June 2017, to the Family Consultant Ms C.

2. That The Independent Children’s Lawyer issue subpoenas as follows :

   a)to the child’s (D born … 2007 (“the child”) school, to obtain all current documentation as to the child’s progress and to require the attendance at Court of the school’s welfare officer to whom the child allegedly made a disclosure of sexual abuse;

   b)to the Department of Health and Human Services to require the attendance at Court of the author of the Magellan Report prepared by the Department of Health and Human Services for these proceedings;

   c)to the Victoria Police to require the attendance of Detective E at Court and the production of her notes.

3. That the Mother forthwith provide to the Independent Children’s Lawyer :

   a)the name and address of the doctor to whom the Mother took the child the child for a physical examination on or around 16 September 2016, as well as the name and address of the paediatrician to whom the child was referred and the date upon which the child attended upon that paediatrician;

   b)the name and address of the psychologist to whom the child D was referred in late 2015;

   AND the Independent Children’s Lawyer issue a subpoena to each of the medical practitioners and the psychologist requiring the production of their records to the Court.

4. That the Mother forthwith complete the application form for the F Town Children’s Contact Centre and notify the Father and the Independent Children’s Lawyer once she has provided a copy of that application to the Contact Centre.

5. That as soon as is practicable the Mother comply with paragraph (1) of the Orders made by consent on 18 January 2017.

6. That pending the availability of the F Town Children’s Contact Centre the parties engage G Family Contact Service at their joint cost to supervise the Father spending time with the child D born … 2007 (“the child”), the first such time to occur as soon as is practicable in F Town for a period of 2 hours and thereafter on each fourth weekend.

7. That the Independent Children’s Lawyer seek a report from each of G Family Contact Service (to be at the joint expense of the Mother and the Father) and the F Town Children’s Contact Centre prior to the adjourned final hearing and file and serve such reports.

8. That the Applicant Father file and serve his affidavit and any witness affidavits to be relied on at trial no later than 25 August 2017.

9. That the Respondent Mother file and serve her affidavit and any witness affidavits to be relied upon at trial no later than 4 September 2017.

10. That pursuant to s65DA(2) and s62B of the Family Law Act 1975, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow should a person contravene these orders are set out in annexure “A” herein and are included in these Orders.

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 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

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of McFadden & Shinners is listed before me today for final hearing in relation to future parenting arrangements for the child of the relationship, D (the child), who was born in 2007 and is aged almost 10 years.  The background to the matter is as follows.

2. The child is the child of the applicant father, Mr McFadden, who resides in H Town and is aged 29 years.  He is in receipt of a disability support pension. 

3. The mother is Ms Shinners.  She resides in the J Town district.  She is aged 26 years and is employed full time. 

4. The parties commenced cohabitation in about 2005 and separated in 2010.  Following separation, the parties managed to negotiate parenting arrangements in respect of the child, such that she was able to live with her mother and spend regular time with her father.  The parties entered into two separate parenting plans with respect to those arrangements. 

5. In mid-2016 it is alleged that the child made a series of disclosures that she had been subjected to sexual abuse at the hands of her father.  Those disclosures are alleged to have been made to a cousin, to police, and to authorities at her school. 

6. As a result of those allegations, the Department of Health and Human Services became involved.  The mother ceased making the child available to spend time with her father following the child’s disclosures.  There have also been intervention order proceedings. 

7. As a result of all of those matters, the father filed an application in this Court seeking the restoration of his time with the child, it being his position, maintained throughout these proceedings, that he has not behaved in any inappropriate manner towards his daughter.  He denies all allegations that he has behaved in a sexually inappropriate manner towards the child. 

8. Given the nature of the allegations, this proceeding has been afforded priority by this Court.  Orders were made placing the matter in the Magellan list of cases, it being the list of cases maintained by the Court which specialises in the expeditious conduct of these matters to ensure that there can be a consideration as to the allegations made and assessment and determination of the risks, if any, to the child; including, whether a parent poses an unacceptable risk to a child.

9. When the matter first came before the Senior Registrar on 19 September 2016, the matter was designated as a Magellan matter.  The Senior Registrar then made orders for the appointment of an Independent Children's Lawyer (“ICL”). The role of the ICL is to assist the Court to ensure that all relevant evidence is placed before the Court to enable the Court to make a decision in the child’s best interests.  Otherwise, the proceedings were adjourned for further hearing before the Senior Registrar on 9 November 2016. 

10. Ultimately, the matter came before the Senior Registrar on 24 January 2017.  That day, the Senior Registrar made orders listing this matter for a final hearing before me.  Originally the matter was fixed for hearing on 22 May 2017.  A further provision was made for a mention hearing before me on 19 April 2017.  Directions were made for each party to file trial affidavit material.  A timetable was set for the applicant to file material by 14 February 2017, the respondent to file by 7 March 2017, and for the preparation of a Family Report. 

11. When the matter came before me on 19 April 2017 for mention, it became apparent that all that was needed to be done had not been attended to, to enable the trial to proceed in May 2017. 

12. In particular, it emerged from the Family Report that a psychosexual assessment of the father that was recommended in that report had not been attended to.  As a result, that day I made orders vacating the original trial date, and I fixed this matter for a final hearing to commence today.  I also extended time for compliance with the original trial directions because, as at that date in April 2017, no trial affidavit material had been filed by either the applicant or the respondent in compliance with the original trial directions.  In addition to those matters, orders were made for the parties to commence supervised time, that is, for the father to commence having supervised time with the child at a contact centre in F Town.  What might be described as machinery orders were made to enable the supervised time to commence. 

13. What is clear from the Court file is that very little has been done by the lawyers engaged in this matter to ensure that this matter is ready to proceed today.  As a result, the matter is again to be vacated.  The trial cannot proceed because there is a dearth of information as to what are the child’s current circumstances.  There has been no attempt at compliance with orders previously made by the Senior Registrar or me, requiring the mother to make application to the F Town contact centre.

14. As a result, the child has not yet commenced spending supervised time with her father, as was anticipated when orders were made in April 2017.  It is clear from the material that the child has been subject to a medical examination.  She has been referred to a paediatrician.  Yet there is no evidence before me as to the outcome of those assessments. 

15. There is no current information put before the Court as to the child’s progress at school.  There is no current information put before the Court as to the counselling that has been undertaken by the child in the aftermath of the disclosures said to have been made by her. 

16. No arrangements have been made for the workers from the Department of Health and Human Services who prepared the Magellan report, to be available to give evidence this week.  No arrangements have been made to ensure that the police officers who have been involved in the investigation of the allegations are available to give evidence at Court this week.  No arrangements have been made to ensure that the school welfare officer, to whom it is said a disclosure was made, is available to give evidence at Court this week. 

17. That so little has been done in the preparation of what is such a serious matter is disturbing.  An ICL has been appointed to represent the interests of the child and to ensure that all relevant information is before the Court.  On the face of the Court file, not even the bare minimum has been attended to by that ICL to ensure that this Court is in a position to make a determination as to what is in the child’s best interests.  That this is so is evident from the minute of order that I am now asked to make.  It, essentially, provides a checklist of things to be done in preparation for trial, things that should have been done well prior to today. 

18. I am left with little option but to adjourn the hearing of this matter, because to proceed today without all of this essential and relevant material would undoubtedly compromise my ability to make an assessment of what is in the child’s best interests. 

19. The parties, too, have been complicit.  The father has filed no trial affidavit material in compliance with previous orders.  No explanation is proffered as to why this is so. 

20. The mother, for her part, did not file a case outline document in compliance with Court orders and provides little current evidence in the form of trial affidavit material that would assist the Court. 

21. Further, the mother’s position is compromised by her failure to comply with Court orders requiring her to make application to the F Town Child Contact Centre and requiring her to cooperate with the process that would enable supervised time to commence, as has been ordered. 

22. It is difficult for the Court to fathom why it is that there has been so little done to ensure that the Court is in a position to finalise the matter.  This is the second occasion upon which the Court has had to adjourn the final hearing of this matter.  The Court has afforded these parties absolute priority to enable an expeditious determination of these very serious matters. 

23. Nonetheless, it is necessary that these proceedings be adjourned, for the reasons I have already identified.  That being the case, I make an order that all extant applications be listed for mention before me at 10:00am on 8 September 2017.  I otherwise make orders in the terms of the minute of proposed order dated 7 August 2017, which is an order agreed to by the parties, save that I have been required to rule as to how supervised time should be funded in the period during which private supervision is necessary whilst the parties move through the system at the F Town Child Contact Centre. 

24. I have ruled that the costs associated with such supervision should be shared equally between the parties.  I am satisfied that that is an appropriate order in circumstances where both parties are in difficult financial circumstances.  The father, for his part, as I have already noted, is a disability pensioner.  The mother is in employment.  I am told that she earns something in the order of $600 per week.  I have no doubt that a requirement that she contribute to the supervised time will place a significant burden on her.  Nonetheless, I am satisfied that an order in those terms is appropriate, particularly in circumstances where the necessity for the engagement with private supervision is very much a circumstance that has arisen because of her non-compliance with previous orders of this Court.

25. I otherwise direct that the orders be engrossed and filed at Court by the ICL.  I will further order that my reasons for judgment be transcribed, to be placed on the Court file. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 August 2017.

Associate: 

Date:  7 August 2017