Pickering and Beagle

[2017] FCCA 295

FEDERAL CIRCUIT COURT OF AUSTRALIA

PICKERING & BEAGLE [2017] FCCA 295

Catchwords:
FAMILY LAW – Interim parenting – recommendations of psychologist include that father undergo sex offenders program before supervised time is recommenced – father seeks supervised time whilst undergoing treatment – final hearing in May 2017 – supervised time not ordered.

Legislation:

Family Law Act 1975, s.67Z

Applicant: MR PICKERING

Respondent: MS BEAGLE

File Number: MLC 3093 of 2016

Judgment of: Judge Harland

Hearing date: 30 January 2017

Date of Last Submission: 30 January 2017

Delivered at: Melbourne

Delivered on: 30 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Prytz

Solicitors for the Applicant: Murray & Ryan Arundell

Counsel for the Respondent: Mr Turner

Solicitors for the Respondent: Samantha Ward Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Smith

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

1. Until further order, orders 2 and 3 of the orders made 31 May 2016, and orders 9 and 10 of orders made 7 July 2016 be suspended.

2. In addition to 8 May and 9 May 2017, the final hearing is listed for a third day on 10 May 2017.

3. The father file and serve an amended application within 21 days.

4. The parties do all acts and things to enrol at Bethany Contact Centre for the purposes of facilitating supervised time between the father and the child.

5. The father attend upon either (omitted) or (omitted) as soon as practicable for counselling with respect to the issues raised by Dr K.

6. The father provide the counselling service with copies of:

   (a)Dr K’s report,

   (b)the s.67W report,

   (c)the family report

7. There be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties (“the Minute”) and:

   (a)The minute be placed on the Court file;

   (b)The solicitors for the Respondent engross the Minute and deliver a clean, certified, electronic copy of the Minute (“the copy”) to the Chambers of Judge Harland by way of email to (omitted) within seven days; and

   (c)Upon delivery of the copy to the Court, the within orders be extracted and the copy be attached hereto.

NOTING

1. The father has already enrolled at Bethany Contact Centre.

2. The matter is listed with priority at the final hearing listed on 8 May 2017 (with an approximate hearing time of 3 days).

3. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3093 of 2016

MR PICKERING

Applicant

And

MS BEAGLE

Respondent

REASONS FOR JUDGMENT

1. This case is listed for a final hearing before me commencing on 8 May 2017. Interim orders were made on 7 July 2016. Those orders included consent orders requiring the father to attend a psychologist for a psychosexual risk assessment and general family law psychological assessment as well as a suite of other orders including the father to spend some additional time with the child X born (omitted) 2012 (“X”) supervised by the parental grandmother.

2. Since 26 August 2016 the father has not spent any time with X after a Department of Health and Human Services (“DHHS”) worker advised the mother not to make him available to spend time with father.

3. The father seeks an order that he spend supervised time with X pending a final hearing at Bethany, a supervised contact service in (omitted). As with many other supervised contact services there is a waiting list.

4. Dr K’s report was filed on 11 January 2017. He carried out the psychosexual risk assessment of the father. Dr K identified a number of concerns with respect to the father, including at [51] of his conclusions were he says that considering the father’s background and ongoing reports of his focus on teens in child pornography it is possible that ongoing unsupervised contact with children would place him and the children at an unacceptable risk. The following paragraph he said that if the Court finds it appropriate that he spend time with the child who should be ordered to undertake a sex offender program through the Department of Justice dealing with the propensity of sexual offending and also to do with the mental health issues the Dr K identified earlier in his report prior to there being any supervised time.

5. The father’s lawyer submitted that his understanding was that unless an individual has been sentenced it is not possible to do this sex offenders programme but there are forensic psychiatric or psychological services in Melbourne including (omitted) and (omitted) which can address the same issues. Both services have waiting lists.

6. The father’s lawyers submitted that whilst Dr K recommended that supervised time not be commenced until the father completed the sex offender’s course. The father’s solicitors submitted that it would be appropriate for the father as long as he started the course for him to spend supervised time.  He submitted that initially the mother was content for the father to spend equal time with X and that this changed once she re-partnered.

7. The mother’s lawyer relied on the recommendations of DHHS and Dr K once the father has completed it with the appropriate course then supervised time at Bethany may be appropriate. He referred to the report provided by DHHS which recommends that the time between the father and X before list supervised if it is considered to be in X’s best interests.

8. The Independent Children’s Lawyer acknowledged that the evidence is untested and the parties have not had yet had the benefit of the family report (the interviews are scheduled to take place in March 2017). She referred to the recommendations of Dr K which I have referred to above which also included that the father requires ongoing assistance from a psychiatrist with an evaluation as to whether or not he should take antidepressant medication because of his ongoing pattern of the suicidality under stress as well as psychological therapy including the dialectical behaviour therapy. She understands that (omitted) and (omitted) will be able to assist in that regard. The Independent Children’s Lawyer acknowledged that it is difficult situation and that X has previously had a break in spending time with his father and now time has stopped again. X is young, he will be turning five in May 2017. She submitted that this is not one of those cases where it is appropriate for there to be supervised time at this stage because on the untested evidence the risk may be unacceptable.

9. In have read the report provided by DHHS pursuant to s.67Z of the Family Law Act 1975, and Dr K’s report. These reports raise very serious concerns about risk to X’s welfare even if he spends supervised time with the father.

10. The issues that are raised in Dr K’s report, and the Department, raise very serious concerns about risk. I accept that the evidence is untested but the Court cannot ignore very serious allegations being made about risks to X’s welfare if he spends supervised time with his father. 

11. The father will be able to address the concerns raised in the reports and the evidence will be tested at a final hearing in May 2017.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  21 February 2017