Meredith and Mayes

[2007] FamCA 1577

FAMILY COURT OF AUSTRALIA

MEREDITH & MAYES [2007] FamCA 1577

FAMILY LAW – CHILDREN – Magellan – Supervised time

Family Law Act 1975 (Cth)

HUSBAND: Mr Meredith

WIFE: Ms Mayes

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 3132 of 2007

DATE DELIVERED: 14 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 14 December 2007

REPRESENTATION

COUNSEL FOR THE WIFE: Ms M. Sevdalis

SOLICITOR FOR THE WIFE: Victoria Legal Aid

COUNSEL FOR THE HUSBAND: Mr M.J. Leeton

SOLICITOR FOR THE RESPONDENT: Paul Maginn

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr G.F. Holmes

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

T.J. Mulvany & Co.

Orders

1. That the husband and wife do all things reasonably necessary to apply to use the supervised contact facilities at S Contact Service or such other contact service as the independent children’s lawyer recommends.

2. That upon a place becoming available at S Contact Service or such other contact service as the independent children’s lawyer recommends, the husband have contact with the child … born … August, 2001 for two hours on each alternate weekend on a day and at a time to be determined by the contact service and save pursuant to this order the husband not spend time with the child.

3. That the independent children’s lawyer provide a copy of the Department of Human Services court report to the contact service as soon as practicable. 

4. That the wife have leave to provide to CASA a copy of the Department of Human Services court report together with the name and address of the independent children’s lawyer, and the independent children’s lawyer be at liberty to discuss the child’s assessment, treatment and progress with staff at CASA. 

5. That until further order the wife authorise the principal of the school attended by the child to provide to the husband at his expense, if any:

   (a)a copy of each school report for the child;

   (b)a copy of each school photo order form;

   and such items shall be posted by the school to an address provided by the husband.

6. That as soon as practicable the wife serve a sealed copy of this order on the principal of the child’s school.

7. That until further order the husband be at liberty to forward by ordinary prepaid mail, a small gift at Christmas, Easter and on the child’s birthday, and cards and letters at other times. 

8. That the further hearing of all extant applications be adjourned to the Magellan List on 20 June, 2008  PROVIDED THAT  in the event :

   (a)a place has not become available at a contact service;  or

   (b)the father has not had at least two periods of time with the child at the contact service;

   the parties liaise with the Magellan Registrar to fix a later date.

9. That either party have liberty to apply on short notice to the other party and by application to the Magellan Registrar.

10. 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.

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

12. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. That the independent children’s lawyer has received advice from S Contact Centre that waiting times are in excess of six months. 

2. That it is the wife’s belief that the husband has requested the material referred to in paragraph (5) hereof from the child’s school and the school has been forwarding that material to him. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3132 of 2007

MR MEREDITH  

Husband

And

MS MAYES  

Wife

REASONS FOR JUDGMENT

1. The parties married in November 2000 and separated in December 2006, so the separation occurred just on one year ago.  They have one son, the child, who was born in August 2001. The mother has two children from an earlier relationship, who are 13 and 14. On 27 July 2007, the mother filed an application seeking sole parental responsibility for the child, that the child live with her and that the time and communication the child's father have with him be determined “once all investigations had been completed”.

2. To put that application in context, on the same day (27 July) the mother filed a form 4 alleging abuse and referring to a number of paragraphs in an affidavit she filed at that time.  In paragraph 10 of the affidavit she alleged that the father has sexually abused the child and that, on 12 March 2007, after the child had spent time with the father, he returned with a penis swollen three times its usual size and black with bruises. 

3. On 20 August 2007 the father filed a response seeking that the parents have equal shared parental responsibility and the children's residence and time with each parent be determined by the court.

4. The matter came before Registrar Riddiford in August.  He made orders appointing an independent children's lawyer.  Additionally, orders were made, by consent providing for the child to live with the mother and for the father's time to be determined once all investigations had been completed.  Those were interim orders. 

5. On 1 October, an amended form 4 was filed by the mother.  It does not particularise the allegations.  It is nevertheless clear from reading the evidence relied on by her that it is her case that the child has been acting in an aggressive and sexualised way.  On 10 October the matter was referred for Magellan assessment.  As the independent children's lawyer was present on that day, a number of orders were made.  One restrained the mother from taking the child to medical professionals without the consent of the independent children's lawyer and the father, and both parties were restrained from discussing the proceedings with the child.

6. The usual Magellan orders were made, so the court now has the benefit of a DHS report, dated 4 December.  It notes that the child has made three disclosures of sexual abuse in 2007 to his mother, SOCAU and to the DHS.  In the view of the workers involved there is a likelihood the child has been a victim of sexual abuse.  The report confirms that since March the child has been displaying aggressive and sexualised behaviours, consistent with abuse.

7. Reference has been made to a VATE tape.  The independent children's lawyer has viewed that tape; the mother's solicitor and counsel have not.  I am not sure about the father.  Someone in his position would rarely be shown it prior to a record of interview but the evidence is that the father was interviewed by a … Criminal Investigation Unit and no charges are to be laid.  DHS has verified that the father has not been convicted of any prior sexual abuse charges in Australia, as had apparently been alleged by the mother.

8. DHS recommends that the time between the child and the father be supervised and that the child have counselling through CASA.  He is to attend CASA as soon as practicable, but I cannot say, given the time of year, whether that will be before Christmas or after Christmas. 

9. The mother's position, until further order, is that the husband should be able to communicate by letters and gifts sent by mail but there should be no face-to-face contact until such time as CASA has made an assessment of the child. 

10. The parties have agreed that it would be useful for the parents to take all steps necessary for the family to use the S Contact Service.  The mother's submission is that they should do that now and get that process on the road so, if in due course the court determines supervised time is appropriate, time on the waiting list would be reduced.  The submission of the father and the independent children's lawyer is that the process should commence as soon as a place becomes available at the S Contact Centre, and the father should spend time with the child at the contact centre. 

11. The mother’s counsel has referred to the policies of CASA, summarising the common CASA policy which is not to recommend contact between an alleged perpetrator and a child while the child is in the assessment phase.  Still, that phase has not started.  On the other hand, the experience of the court is that there are very lengthy delays in accessing services; almost certainly, by the time this family could access the S Contact Centre, the assessment process will be completed.

12. I am satisfied that an order should be made now, providing for supervised time at the S Contact Centre.  I will grant liberty to apply so if a space becomes available, and a party wants to put evidence from CASA before the court, he or she can.  But, in my view what is needed is a measured regime, focused on the best interests of the child, which will ensure his safety and security while leaving open the potential for him to maintain his relationship with his father.  That is consistent with the legislative requirements for the court to balance the competing principles of the importance of protecting a child from harm, with the importance of children having healthy and safe relationships with both parents.

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

Date: 14 December 2007