Merrill and Jeffreys

[2007] FamCA 197

FAMILY COURT OF AUSTRALIA

MERRILL & JEFFREYS [2007] Fam CA 197

FAMILY LAW - CHILDREN – Live with – Spend time with

Family Law Act 1975 (Cth)

APPLICANT: MR MERRILL

RESPONDENT: MS JEFFREYS

FILE NUMBER: SYF 3626 of 2004

DATE DELIVERED: 28 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 28 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Watkins

COUNSEL FOR THE RESPONDENT: Mother in person

Orders

1. The parties are to attend for family dispute resolution by arrangement with the Manager Child Dispute Services.

1. The proceedings are adjourned to the Call-over of the Judicial Registrar's Duty List at 9:30 am on 26 March 2007.

1. No variation is made to the existing orders in relation to the child born in July 2003.

1. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child born in July 2003.

1. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as practicable for appropriate representation for the child.

1. The legal representative for the father is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within 24 hours.

1. Each party make available to the Legal Aid Commission of New South Wales, within 7 days, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

1. The Court requested that consideration be given by the Magellan Registrar to the inclusion of the matter within the Magellan program.

IT IS NOTED

1. The existing orders mean that the child returns to the father at 10:00 am tomorrow.

IT IS FURTHER ORDERED

1. Any further documents on which either party seeks to rely are to be filed and served within 21 days from today’s date.

1. Leave is granted to either party and to the Independent Children's Lawyer to apply on 48 hours’ notice to the Court to the other and the Independent Children's Lawyer in relation to these proceedings.

1. Until further order the mother is restrained from taking the child or permitting him to be taken to any counsellor, psychologist or any other medical service for a forensic examination or for any reason other than medical treatment.

1. Until further order the mother be restrained from taking the child outside New South Wales without the written consent of the father.

1. Each of the parties is restrained from discussing with the child any matter relating to allegations of abuse of the child by the Step Paternal Grandfather.

1. The father is restrained from bring the child into the presence of the Step Paternal Grandfather during any period when the chid is in his care or permitting the child to be brought into the presence of the Step Paternal Grandfather during any such time.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3626 of 2004

MR MERRILL

Applicant

And

MS JEFFREYS

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to the child, who was born in July 2003. He is just over three and a half years of age.  The evidence is that the child went to Tasmania with the mother.  The child made disclosures the mother says and the mother referred those disclosures to a number of people, including the Department of Community Services of NSW, a similar agency in Tasmania, and raised those disclosures with the father.  The mother says she has filed a notice of abuse.  The Department of Community Services is investigating the matter although I think a fair representation of what the mother has been told is that they do not know when they are going to do anything about it because they are very busy.

2. The child is here in the Registry child minding area today.  The father is aggrieved because the mother was in breach of the orders having the child away for more than the time specified in the current orders; he is aggrieved because he does not accept the allegations that have been made in relation to his step-father and he feels as though there is time due to him because of the time he missed with the child being away and he seeks some slight changes to the current orders and some injunctions.

3. The mother seeks some restraint in relation to the father's time with the child because she does not believe that the father will act independently of his step‑father.  I have indicated to the parties what I propose and that is adjourning the matter so that an independent child lawyer can be appointed and in the meantime restoring the current orders, restraining the mother in relation to non therapeutic interventions with the child and restraining the father in relation to contact between the child and the father’s step-father. 

4. One thing the parties will need to understand is that it is very difficult to obtain reliable evidence from a three and a half year old child. That will be part of the problem for the Department of Community Services. So there is a real possibility that we will never get to the bottom of the allegations. However, the Court can take some steps. I will ask that consideration be given to inclusion of the matter in a program called Magellan which deals with allegations of sexual abuse, that gives the matter some priority. Even if the matter does not fall within that program we will get on to the issues fairly quickly, we will obtain the assistance of an expert and additional evidence.

5. Nothing I say is intended to impugn anything about the integrity of the step‑paternal grandfather it is just that I am able to exclude the identified risk without harming the child. It is possible that the mother has made all this up.  It is possible that it is just a child responding to questions in a strange way, who knows. So we do this, I mean no offence to the gentleman involved and sometimes there is a big distraction in these cases as the step-paternal grandfather tries to clear his name and the father gets upset because of the things that are being said and so on.  We just have to focus on one three and a half year old child and get the case back on the road.

ORDERS MADE

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Judicial Registrar Loughnan

Associate: 

Date:  15 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MERRILL & JEFFREYS