Pavel and Pavel and Ors

[2012] FamCA 117

FAMILY COURT OF AUSTRALIA

PAVEL & PAVEL AND ORS [2012] FamCA 117

FAMILY LAW - CHILDREN – Interim orders – With whom children should live – Where Department of Family and Community Services removed two children one aged 22 days and the other aged 7 years from mother’s care – Where the children have different fathers – Where the father of the infant child has two other children to another woman – Where there have been allegations of sexual abuse by the father of the infant child of one of his other children – Where Department of Family and Community Services formed the view that the mother would not act protectively towards her children – Where the Court is satisfied that the mother will act protectively – Ordered that the infant be returned to the mother and she given sole parental responsibility – Where there has already been significant disruption to the older child’s living arrangements – Ordered that the older child to remain living with his father on an interim basis

Children and Young Person’s (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth)

APPLICANT: Mr Pavel

FIRST RESPONDENT: Ms Pavel

SECOND RESPONDENT: Ms B

THIRD RESPONDENT: Mr A

INTERVENOR: Director General of Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 1684 of 2008

DATE DELIVERED: 20 February 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Ryan J

HEARING DATE: 20 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Heazlewood

SOLICITOR FOR THE APPLICANT: Michael Jokovic & Associates

SOLICITOR FOR THE FIRST RESPONDENT: Condon Legal Pty Ltd

ADVOCATE FOR THE SECOND RESPONDENT: Ms Orr

SOLICITOR FOR THE THIRD RESPONDENT: Rafton Family Lawyers

COUNSEL FOR THE INTERVENOR: Mr Anderson

SOLICITOR FOR THE INTERVENOR: Crown Solicitor’s Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

Legal Aid NSW

Orders

1. Commencing 4.00 pm on 20 February 2012 and PENDING FURTHER ORDER:

   1.1That the child, C, born … November 2011 live with Ms B (“the mother”).

   1.2That Ms B have sole parental responsibility for C.

   1.3Order 1.1 is conditional upon Ms B residing with the child separately from Mr Pavel (“the father”) and her not facilitating contact between C and Mr Pavel other than in accordance with orders.

   1.4The Court Notes that Mr Pavel will vacate and remain away from … … I Street, Suburb R which is where Ms B intends to reside with C.

2. In relation to the child, H:

   2.1Pending disposition of parenting applications listed for further hearing before Loughnan J on 12 April 2012, all prior parenting orders are suspended (the period of the adjournment).

   2.2During the period of the adjournment, Ms B (“the mother”) and Mr A (“the father”) shall have equal shared parental responsibility for the child, H, born … January 2004.

   2.3During the period of the adjournment and until 12.00 noon on 6 April 2012, H shall live with Mr A.

   2.4During the period of the adjournment until disposition of the further applications referred to above, the child H shall spend time with Ms B as follows:

   a.for the first three weekends of each calendar month from 6.00 pm Friday with changeover at Suburb Z McDonalds until 6.00 pm Sunday with changeover at Newcastle Suburb BB McDonalds;

   b.from 12.00 noon on 6 April 2012 with changeover at Suburb Z McDonalds; and

   c.at other times as agreed.

   2.5That Ms B may communicate with the child, H at all reasonable times.

   2.6Ms B is restrained from permitting the child, H to speak or come into contact with Mr Pavel.

3. That Dr Q is appointed the Court’s expert to investigate and report upon matters in relation to the children, P born … May 2001, N born … September 2002, C born … November 2011 and H born … January 2004.  For the purpose of her interviews, Dr Q may interview and observe the children (or any of them) with Mr Pavel.

4. PENDING FURTHER ORDER the parties are restrained from permitting any of the children to attend upon a health professional, therapist or similarly qualified person in relation to allegations that that or another child has been sexually abused by Mr Pavel.

5. PENDING FURTHER ORDER that Mr Pavel have supervised time with the child, C as follows:

   5.1between 12.00 noon and 1.00 pm on Thursday, 23 February 2012 at Suburb L Department of Community Services;

   5.2no less than twice a week as arranged with the Department of Community Services and the mother; and

   5.3otherwise as agreed between the father, the mother, the Department of Community Services and the Independent Children’s Lawyer.

6. That the Director of Child Dispute Services nominate a Family Consultant to meet with Ms M and assess her suitability to supervise the father’s time with C.  In this regard Ms M shall within 72 hours file and serve an affidavit which sets out her understanding of her obligations as a supervisor and written undertaking to act accordingly.

7. PENDING FURTHER ORDER Mr Pavel is restrained from approaching P, N, C and H, attending at any residence where they live or communicating with them other than in accordance with an order of this Court.

8. Leave is granted to the parties, their legal representatives, the Department of Community Services and the Independent Children’s Lawyer to inspect documents produced under subpoena by the Joint Investigation Response Team.

9. The Department of Community Services and/or the Independent Children’s Lawyer has leave to uplift those documents and provide them to Dr Q.

10. Within forty eight (48) hours the solicitors for Mr Pavel shall serve upon the solicitors for Ms Pavel a list of questions.

11. Ms Pavel shall give answers to the questions referred to above in writing within seven (7) days thereof.

12. All parties and the Independent Children’s Lawyer have leave to issue subpoenae for the production of documents.

13. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pavel & Pavel and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1684 of 2008

Mr Pavel

Applicant

And

Ms Pavel_

First Respondent

And

Ms B

Second Respondent

And

Mr A

Third Respondent

And

Director General of Department of Family and Community Services

Intervenor

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an application for interim parenting orders in relation to two brothers, H and C.  H was born in January 2004.  His parents are Ms B (“the mother”) and Mr A.  C was born in November 2011.  Ms B is his mother and Mr Pavel is his father. 

3. Because Children’s Court orders expire today and all parties agree that issues in relation to these children will be dealt with by this Court, my orders will address the children’s arrangements from that time.

4. The mother and Mr A separated in mid-2009, following which H lived with the mother and spent time with Mr A.  Although there has been occasional disagreement, by and large the mother and Mr A cooperated with each other in relation to their son’s care.  Both regard it as in his best interests that they have equal shared parental responsibility and that he reaps the benefits of meaningful relationships with both of them.

5. Concerns raised by Mr A about H’s school attendance, unilateral decisions made by the mother which should have been made jointly and difficulty with telephone contact as frequently as he would have preferred were not regarded by him as serious enough to change H’s living arrangements or to twice, once in 2010, and again in 2011, agree to orders that H lives with the mother.  In a similar vein, concern previously raised by her about earlier family violence by Mr A, were not regarded by her as reason to limit H’s time with his father.  Indeed, even now, there would appear to be no issue about either of H’s parents’ capacities to meet their son’s physical and intellectual needs.

6. Problems have arisen because, on 23 November 2011, the Department of Family and Community Services (“the Department”) removed H and C from the mother’s care.  In the exercise of powers conferred by the Children and Young Person’s Care and Protection Act 1998, the children who were deemed to be at risk were removed by the Department and consequent upon interim orders made in the Children’s Court, the relevant Minister assumed parental responsibility.

7. In the exercise of these powers, on 23 November 2011 H was placed with Mr A where he has been ever since.  The mother has been permitted to have supervised contact.  Although Departmental officers have given contradictory evidence to this and the Children’s Court about why officers removed H and C, one gains a sense of the issues from the following.  I read firstly from the application and report initiating care proceedings filed in the Children’s Court on 14 November 2011 where, under the hand of Ms J, she says:

   On 14 November 2011, Child Protection Caseworkers [Ms D] and [Ms W] attended [Mr Pavel] and [Ms B’s] home.  [Ms B] was co-operative and willing to comply with direction that [Mr Pavel] not live in the family home.  Given [Mr Pavel’s] previous refusal to comply indicating paperwork needed to be served first, [N], [H] and [C’s] care was assumed with the intention to remain with [Ms B]…

8. I observe it is difficult to understand why officers would be critical of a parent asking for service of paperwork in relation to their children or how something approaching a lack of integrity or mala fides by merely making such a request could properly be inferred.  In any event, in this Court, Ms S swore an affidavit filed today.  In relation to 14 November 2011, she deposes the following (at paragraph 54):

   On the same date, and as a result of concerns raised during the interview with [Ms B], Community Services assumed the care of the children from [Ms B].  The children were assumed on the basis of concerns about [Ms B’s] ability to act protectively towards the children.

   Those two paragraphs cannot be reconciled and, at some point, the officers concerned will have to explain why different pieces of evidence about the same matter were given to different courts. 

9. In any event, the essential point is that the Department asserts that the mother has not and will not keep the children safe from Mr Pavel.  Mr Pavel is the father of two other boys, P, born in May 2001, and N, born in September 2002.  Ms K is their mother. 

10. Following a nine day hearing, on 14 October 2011, Loughnan J ordered that P and N live with Mr Pavel and that he have sole parental responsibility.  Reading his Honour’s detailed reasons will show that, having heard from Dr Q, his Honour agreed with her and adopted submissions made by the Independent Children’s Lawyer (“ICL”) that Mr Pavel does not pose an unacceptable risk of sexual abuse to the children and, indeed, along with Ms B, was best able to advance their long-term interests.

11. A careful reading of his Honour’s reasons for judgment will show that this also required his Honour to consider the significance of numerous incidents of poor parental judgment by Mr Pavel and Ms K, family violence involving both of them, and the willingness and ability of them, as parents, to promote the children’s ongoing relationships with their parents.  As already mentioned, in the weighing up of the numerous instances discussed in his Honour’s reasons by reference to the applicable law, his Honour decided that the children’s best interests were met by residing with their father and the orders were made accordingly.

12. On 9 November 2011, roughly three weeks later, P spoke to his school counsellor and made an allegation of sexual abuse against Mr Pavel.  As mandatory notifiers, notification was appropriately made to the Department.  Although the material is not complete, there would appear to have been questions raised by the counsellor about the efficacy of P’s disclosure.  The following day, the Minister assumed all four children’s care.  P was physically removed and placed with his maternal grandparents where he continues to reside.  In his maternal grandparents’ care, he has extensive contact with his mother.  H, N and C stayed with Ms B.

13. A joint investigative review team (“JIRT”) undertook an ERISP interview with P on 15 November 2011.  The interview is in evidence and I have read it.  At a first glance, one might think it may not withstand serious challenge.  On my quick review it would appear to be replete with suggestive and repetitive questions.

14. In any event, on 21 November 2011, JIRT and the Department determined that the allegation of sexual abuse against Mr Pavel was substantiated. 

15. As I have earlier mentioned, on 23 November 2011, the Minister removed the three remaining children from Ms B.  N was placed with P, with his maternal grandparents, H went to his father, and C, who I emphasise was 22 days old, was placed with his maternal grandparents. 

16. I doubt that I will have significant further involvement in this case, and, thus, it would be failing my obligations to C to fail to record my dismay at what happened to him.  It is difficult to recall, in my experience, a worst example of a step undertaken in the name of child protection.  It was an appalling decision.

17. In any event, as earlier alluded to, proceedings had been commenced in the Children’s Court on 14 November 2011 and, thereafter, there were rolling interim orders in relation to the subject children, all four of them being in the Minister’s care.  Lest it be thought that my comments are somehow impliedly critical of the Children’s Court, they are not.  It is only here that it has become apparent that some of the information provided to the Children’s Court was wrong, not on inconsequential matters, but on matters which almost certainly would have raised real concern in the mind of the presiding Children’s Court Magistrate about the children’s safety in the mother’s care.  My point being, officers gave evidence in the Children’s Court about the mother posing a risk which in this Court they say was wrong.

18. As in the Children’s Court, here the essential challenge is to the mother’s willingness to act protectively.  A quick précis of the salient facts gives a flavour to the challenge made to her willingness to ensure the children are safe.  When she first met Departmental officers, she was instructed that the children were not to have contact with Mr Pavel.  No document was given to her, no set of basic instructions about her role, her responsibilities or the Department’s powers or anything of that type, was provided.  She interpreted, not unreasonably on what I have seen, that the restrictions meant that she was not to facilitate or permit any form of face-to-face contact between N, H or C with Mr Pavel. 

19. She permitted telephone contact on one occasion between N and H and Mr Pavel.  She says, and there seems to be no challenge to this, that, once it was made plain to her that no contact meant by any means whatsoever, from that point there was no further telephone contact or any contact between those children and Mr Pavel.  I pause to observe that, on oath, a Departmental officer told the Children’s Court that the mother had facilitated face-to-face contact.  It is conceded here that she did nothing of the sort. 

20. In any event, the mother also sent photographs to Mr Pavel of C asleep. 

21. According to the Department this is conduct by her which establishes that she has and is likely to fail to act protectively.  So that it is clear, Mr Pavel had vacated the home in which she and the children lived and, from the outset, there had been no face-to-face contact between him and any of the children, there had been one telephone conversation, and no more after it was explained that this too was impermissible.

22. So it is not her actions then, I would suggest, that would entitle the Department to come to the view that she would not act protectively.  It must, therefore, have been something she said in relation to which there are two interviews of note.  They are the interviews of 14 November 2011 and the interview of 23 November 2011, both of which I have read.  There is no doubt that, in those interviews, the mother attempted to convey to the officers that she does not believe that Mr Pavel sexually assaulted P and that, in the fullness of time, her judgment in this regard would be vindicated.  She also made plain that it was her hope and expectation that she and Mr Pavel would be able to resume family life.

23. The following portions probably best convey the gravamen of those interviews and I read firstly from page 50 of the interview of 23 November 2011:

    CW [Ms D]:JIRT are experts.  Their view from all information is that [P] is at risk of sexual harm.  Looked at family law court material, spoke to [Mr Pavel] and interviewed [P] twice and made an assessment of risk.  Given this substantiation of risk of harm, our assessment is that [Mr Pavel] is also a risk of harm to your children.

    [Ms B]:All my children?

    CW [Ms D]:Yes.

    [Ms B]:But you have to do that, just say that.

    CW [Ms D]:That’s the assessment outcome.

    [Ms B]:I read the interview and it’s not true.

    CW [Ms D]:That decision has been made, but I head [sic] that you don’t accept the assessment.  Tell me what you would like?

    [Ms B]:I want my children to have contact with their father.

    CW [Ms D]:How?

    [Ms B]:Same as before.

    CW [Ms D]:Tell me about your relationship with [Mr Pavel].

    [Ms B]:It’s great, we garden together.  We are best friends, we go to the park.

    CW [Ms D]:Has the relationship changed since these proceedings?

    [Ms B]:Yes! I can’t see him.  Children can’t see him.  It breaks my heart.  All lies.

    CW [Ms D]:It has happened to [P].

    [Ms B]:No.

24. Then, reading from page 52:

    CW [Ms D]:So you don’t share concerns and intend to remain with [Mr Pavel].

    [Ms B]:With current information yes.

    CW [Ms D]:Would you be willing to separate?

    [Ms B]:If you are asking me to choose between the children and [Mr Pavel], I choose the children…but in the end I will be with [Mr Pavel] when all is proven.

    CW [Ms D]:What do you mean?

    [Ms B]:When this is all over and the truth is out.

    CW [Ms D]:We have assessed risk at this time as all children being at risk.  I am asking you if would be willing to separate at this time.

    [Ms B]:Think of my point of view and what you are asking me today.  How can you expect to ask me and expect me to give you a responce [sic]. 

    I can’t do that no.  What would you do in my situation?

    …

    [Ms B]:If I am to make a decision I choose the children.

    She is then questioned about whether she can be trusted in this regard and makes plain that, in her view, she can be. 

25. It is from these discussions that the officers decided that the mother could not be trusted to commit to keeping the children away from Mr Pavel and, so, they were removed.  Since then, the mother has had supervised contact with H and C. 

26. Dr CC, a paediatrician, who has attended upon C and knows H well, was in contact with Departmental officers to whom she expressed her view, in essence, that the wrong decision had been made.  As is clear from her report of 17 December 2011, she was very complimentary about the mother’s parenting capacity and care of both H and C.  I observe that in her letter of 13 January 2012, she puts into issue the accuracy of file notes made by Departmental officers about this conversation. 

1. Standing back and reading the interviews of 23 November and 14 November 2011, in their entirety, they demonstrate that Ms B does not believe that Mr Pavel sexually abused P.  She was at pains to emphasise to the officers the importance that they keep open minds and have regard to the context in which P’s allegation was made, in particular, coming so soon after unfavourable judgment as far as the mother, Ms K, is concerned.  Also, that, in the context of those hotly disputed proceedings, Dr Q had examined prior allegations of sexually inappropriate behaviour and determined, at least in relation to matters of medical certainty, that there was no unacceptable risk to the children from Mr Pavel.

2. It cannot be the case that there is a child protection principle of general application that, unless someone immediately agrees with a decision to substantiate an allegation of sexual abuse, this means a person is unwilling and/or unable to keep a child in his or her care safe.  It is trite to say that there are cases of child sexual abuse which are substantiated at the early JIRT phase but which, with further investigation, result in a different view being reached about the veracity of the allegation.

3. Just as the mother tried to implore the officers to keep open minds, it seems that it would be useful for the Court to remind them to do the same thing.  It is not inconsistent to keep an open mind, but still act protectively while the investigation and adjudication of the allegations is undertaken.  In my view, the Department made a mistake when they assessed the mother to be unwilling to act protectively in relation to C and H.  There is little doubt in my mind that the children should not have been removed from her when they were, but this is not an occasion to rewrite history because the fact is that they were.

4. In relation to C, the evidence that he should be returned to the mother forthwith is overwhelming.  It is an inadequate response to her obvious ability as a parent and her desire to resume his full-time care to say that she can live with her parents and spend time with him supervised.  There is no basis for such intervention in what should be a healthy mother and child relationship.  That said, nor is there a proper basis for the Minister to continue to have parental responsibility in relation to C.

5. Because Mr Pavel will not be involved in C’s life, other than by way of supervised time, it will be appropriate during the period pending further hearing that she has sole parental responsibility.  Of course, all of this is conditional upon the mother doing what I accept she will do and that is not facilitate contact of any sort between C and Mr Pavel.  To the extent that there is contact between C and Mr Pavel, it will be pursuant to orders and in no other way.   That said, it is understood that she will return to live in the family home after Mr Pavel has vacated.  Upon him vacating, he will be restrained from approaching the property pending further order. 

6. Different issues arise in relation to H, not in relation to the assessment of risk of exposure to Mr Pavel, in relation to which I make the same findings about him as I did about C.  However, H is older and he is in the care, as I have earlier alluded to, of an apparently capable parent.  Although he should not have been removed from the mother, the fact is he has been and, since November 2011, he has settled in with his father and his father’s partner in their home and to a new school.  No doubt that change was not without difficulty and another inexplicable change, mid-term, would be an unreasonable impost upon the boy.

7. There is some weight to be applied in Mr A’s favour to the argument that, by H being with him, he is protected from the Pavel/Ms K disputation which seems to know no end.  There is no dispute that Mr A is taking good care of H.  The real issues for me are the effect on H of a prolonged separation from his life-long primary carer, namely the mother, and depriving him of a proper opportunity to bond with his baby brother.

8. The ICL’s argument in favour of restoration of H to his mother was well made.  It has been a finely balanced decision to not make that change now.  But, because it is mid-term and too much inexplicable change should be avoided, H will stay with his father till the end of this term.  The matter will need to be looked at again by Loughnan J but he will be equipped with more information about what should then take place than I presently have.  Not only will there be another report, but his Honour will know whether the orders are likely to continue for just a month or two or whether the final hearing is going to be further away than that.  Different considerations arise depending on which is the likely scenario.

9. As was discussed during argument and addresses, I do not consider alternate weekends sufficient time for H and C.  If C were not part of the equation, I would leave the arrangement at alternate weekends, but the two brothers need more time together than is the situation presently.  Thus, the orders will provide that, for the first three weekends of each calendar month, H will spend the weekend with his mother and then he will go into a block period commencing noon on Good Friday.  It is argued that there is a need for supervision, but for the same reason I am satisfied C does not need to be supervised whilst in his mother’s care, nor does H.

10. For these reasons, I am satisfied the orders are in the children’s best interests.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 February 2012.

Associate:     

Date:              14 March 2012