Paul and Slade-Paul

[2009] FamCA 1137

FAMILY COURT OF AUSTRALIA

PAUL & SLADE-PAUL [2009] FamCA 1137

FAMILY LAW – CHILDREN – Permission to travel – Supervision

Family Law Act 1975 (Cth)

APPLICANT: Mr Paul

RESPONDENT: Ms Slade-Paul

FILE NUMBER: SYC 3891 of 2007

DATE DELIVERED: 27 October 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 27 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hausman

COUNSEL FOR THE RESPONDENT: Mr Campton

Orders

1. The father is permitted to take the child to Fiji between 31 October and

   
   

   6 November 2009.

2. The mother do all acts and things and sign all necessary documents in order to allow the child to travel to Fiji with the father between 31 October and

   
   

   6 November 2009.

3. Within 24 hours of the date of Order the mother provide to the father the child’s passport.

4. The father’s time with the child be supervised in Fiji by:

   (a)       Ms K

   (b)       Ms J Paul or

   (c)       Ms M

   individually or collectively.

5. Pursuant to Section 65DA(2) and Section 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.

6. The costs are reserved for both parties.

7. The matter is listed for further interim hearing before me to 10.00 am on Monday, 30 November 2009.

IT IS NOTED that publication of this judgment under the pseudonym Paul and Slade-Paul is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3891  of 2007

MR PAUL

Applicant

And

MS SLADE-PAUL

Respondent

REASONS FOR JUDGMENT

1. The application before the court for present determination is an application by the father of the subject child, born in December 2005, for an order that he be permitted to take the child to Fiji between 31 October and 6 November 2009.  He seeks orders that the mother do all acts and things, and sign all necessary documents in order to allow the child to travel to Fiji with the father between 31 October and 6 November 2009, and that within 24 hours of the date of the order, that the mother provide to the father the child’s passport, and goes on to say that if the court believes that supervision should be undertaken, he provides a list of persons who could supervise the care of the child.

2. It appears on the evidence however that the persons going to Fiji, or who will be in Fiji, will be Ms K, Mr K, Ms J Paul, Ms M and Mr P.  All these persons appear to have had a relationship with the child.  Of those persons, Ms M, Ms Paul and Ms K have given evidence.  They have been cross-examined with style and flair by Mr Campton of counsel for the wife.  He has sought to elicit from them the fact that they disbelieve the allegation made against the father by the mother that there has been, in relation to the child, some inappropriate touching by the father.

3. Each of them has given undertakings to the court in their affidavits to supervise if they are cast in that role, and to keep the child within their sight, and not to permit the child to sleep with the father, to attend to various of the child’s needs which might otherwise give rise to a suggestion that there had been some inappropriate touching between the father and child or some other form of inappropriate behaviour.

4. The cross-examination notwithstanding, each of the persons involved, whilst still clinging to their belief of the innocence of the father of anything that is inappropriate, all solemnly gave undertakings to the court, either orally or in their affidavits, that they would, in fact, properly supervise, and I accept their undertakings as being given with the power of an oath and, indeed, Mr Campton with appropriate concessions said that he did not put in issue that their evidence in that regard was true.  As to the allegations themselves of inappropriate touching, they have been made and they have been made the subject of a report by Dr R, a well known forensic psychiatrist. 

5. In that report, having interviewed the parents, and the children and other relevant witnesses, and read all the material then available, he came to a conclusion that there was indeed a close and loving relationship between the child and the father, and nothing in the conduct of the child with the father would suggest that anything which had been reported as having been said had any substance or alternatively, that her contact was entirely inconsistent with those assertions.  He comes to a conclusion in the following terms:

   In short after trying to weigh carefully the issues I believe that it’s highly unlikely that sexual abuse has occurred and I believe that the father does not present as an unacceptable risk to the child.  My view is that the major issues which have contributed to this situation are the combination of the child’s separation anxiety and a vaginal condition which are both normal and common for this age.

6. Mr Campton says that he wishes to challenge the report of Dr R, and to suggest that he has come to conclusions without a consideration of the totality of the evidence, or a proper consideration of the evidence that he had, perhaps.  It is not for this court today to make a final determination on the acceptability or otherwise of Dr R’s opinion, or indeed of the assertions made by the mother.

7. Before the court is simply a question of whether a child, who has clearly a close and loving relationship, can spend some holiday time with her father in Fiji and in circumstances where, having regard to the matters before the court and referred to in Dr R’s statement and otherwise in the affidavits, that can be undertaken in a way which presents no risk to the child, and is otherwise to the child’s benefit.

8. I have come to the conclusion that permission to go to Fiji, given that the husband is prepared to concede that the order can be supervised in order to allay the concerns of the mother, is appropriate in the child’s interest, and that the child will enjoy the company of her father in a holiday environment, and with the father’s extended family.

9. I note this is a case in which neither party suggests that there should be anything other than joint parental responsibility order.  Neither party puts in issue that the child will live with her mother at this time, in any event, and neither party puts in issue that the child shall spend time with her father.  The mother seeks to have that time at variance to the time proposed by the father, but seeks in relation to it the provision of some supervision.  I am content that the supervision offered in relation to this matter, for the time being, will afford a secure environment in which the child can enjoy the holiday.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  27 October 2009