Salli and Malina

[2008] FamCA 181

FAMILY COURT OF AUSTRALIA

SALLI & MALINA [2008] FamCA 181

FAMILY LAW  -  CHILDREN  -  interim parenting orders – Magellan  -  supervision by a family member

Family Law Act 1975 (Cth)

FATHER: Mr Salli

MOTHER: Ms Malina

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 4196 of 2007

DATE DELIVERED: 25 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 25 February, 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Mrs M.L. Mandelert

SOLICITOR FOR THE FATHER: Victoria Legal Aid

COUNSEL FOR THE MOTHER: Mr S.A.M. Lethlean

SOLICITOR FOR THE MOTHER: Jane Baldwin

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Finn

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Marshalls & Dent

Orders

1. That all previous parenting orders in respect of the child … (“the child”) born … August, 2003 be discharged. 

1. That until further order the child spend time with the father on a strictly supervised basis as follows :

   (a)on Saturday 1 March, 2008 between the hours of 10:00 am. and 2:00 pm.;

   (b)on Saturday 8 March, 2008 between the hours of 10:00 am. and 3:30 pm.;

   (c)on Saturday 15 March, 2008 between the hours of 10:00 am. and 4:30 pm.;

   (d)on Saturday 22 March, 2008 between the hours of 10:00 am. and 5:00 pm. and          on Sunday 23 March, 2008 between the hours of 10:00 am. and 5:00 pm.;

   (e)on Saturday 29 March, 2008 and on Sunday 30 March, 2008 between the hours of 10:00 am. and 5:00 pm., and each alternate weekend thereafter;

   (f)telephone communication between the child and the father on Wednesday in each week at 4:30 pm., the father to initiate the call. 

1. That changeovers take place at the McDonald’s Restaurant in ….

1. That all periods of time which the father spends with the child shall be strictly supervised by the paternal aunt and the child’s godmother, …, upon the terms contained in the undertaking given by the child’s aunt this day. 

1. That until further order each of the parties be and are hereby restrained from :

   (a)discussing these proceedings, including any allegation made in the proceedings and all evidence adduced therein;

   (b)denigrating the other;

   in the presence or hearing of the child or allowing any other person to do so, and

   (c)discussing the proceedings, including any allegation made in the proceedings and all evidence adduced therein;

   (d)denigrating the other;

   with any member of the Filipino community in Melbourne save immediate family members.

1. That in the event the child cannot attend a period of time with the father, the mother shall provide a medical certificate or other document specifying with particularity the reasons for her non-attendance and shall, as soon as practicable thereafter, make arrangements to provide make-up supervised time. 

1. That the mother be at liberty to take the child to South East CASA for assessment or counselling as recommended by the Department of Human Services  PROVIDED THAT  :

   (a)the mother advise the independent children’s lawyer prior to any appointment at South East CASA;

   (b)the mother authorise the independent children’s lawyer to discuss such assessment or counselling with South East CASA;  and

   (c)the time between the father and the child continue pursuant to these orders during any such assessment or counselling. 

1. That there be liberty to apply in respect of the time the father spends with the child or additional supervisors by application in writing to the Magellan registrar. 

1. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 15 April, 2008.

1. That the parties attend a trial notice listing with the Magellan Registrar on 23 April, 2008 at 2:15 pm. 

1. That pursuant to s.62B and s.65DA(2), 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 the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

2. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 4196 of 2007

MR SALLI

Father

And

MS MALINA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties’ relationship commenced in 1999 and concluded in 2003.  The nature of that relationship is in dispute, particularly in relation to the question of cohabitation, if any.  They have a daughter (“the child”), born in August 2003;  the child will be five later this year. 

1. In October 2007 the father filed an application in the Federal Magistrates Court seeking equal shared parental responsibility for the child and that she live with him in alternate weeks, from Monday at 3.30 pm. to Thursday at 9.30 am., and on other special occasions.  Amongst other orders, he sought an order restraining each of the parties from criticising the other.

1. According to the affidavit of the father filed at that time, he last spent time with the child in September 2007.  He asserted that he had previously seen her on a daily basis. 

2. On 20 November 2007 the mother filed a response, seeking that the child live with her and that the father's time with her be reserved.  The same day she filed a form 4 alleging that the father had inappropriately touched the child’s genital area, had allowed the child to touch his genitals and had exposed his genitals to her. 

1. In the Federal Magistrates Court on 20 November 2007 orders were made, not by consent, for the father to spend some time with the child on 24 and 25 November, at McDonalds.  He was permitted to telephone her on 27 November.  The matter was otherwise, by consent, transferred to this Court.  An independent children's lawyer was appointed and Mr Finn appears in that role today.

1. In this Court the matter was assessed as being appropriate for the Magellan list and the usual orders were made, including an order for a report from the Department of Human Services.  On 30 January the court received a very comprehensive report from the Department of Human Services, which relates to two notifications received in August 2007 and a further notification in October 2007.  The report notes that the child has been interviewed twice by SOCAU and has not made any disclosures of abuse.  She is only four and was just four at the time the allegations were raised.  With children of that age an interview, even with very sensitive police professionals, can be very difficult.  The DHS report notes that the child has not made disclosures to any adults other than her mother.  It is the father's case that any such disclosures are fabricated.  There is reference to the child attending South East CASA.

1. The child care centre attended by the child was contacted and the Department of Human Services report refers to advice given to it there.  The centre does not report any sexualised behaviour by the child.  DHS was advised that she is happy and accepts affection from adults, and can also at times be shy and withdrawn.  As the report notes, that behaviour is not unusual of children of separated parents.  It is certainly not necessarily indicative of abuse.

1. DHS determined that a substantiated claim of sexual abuse towards the child can not be made.  The author of the report notes that it is clear that the mother believes that the child has disclosed sexual abuse;  in the view of DHS, the mother acted protectively in ceasing access.  It seems likely that at some point DHS advised the mother to do that.  However, having reviewed all information, DHS has taken the position that further assessment would need to occur to be able to substantiate the claims of abuse.  DHS sees itself as being unable to make any recommendations at all about further contact between the child and her father.

1. The independent children's lawyer and the father join in seeking orders which would have the effect of the father spending time with the child on a strictly supervised basis, supervision being undertaken by the paternal aunt, a person known to the child.  As is not infrequently the case in matters such as this, that is a concern to the mother.  She sees the paternal aunt as being in the father's camp, and as not accepting he would have the capacity or desire to harm his child.  The mother is thus concerned about the adequacy of the supervision.  On the other hand, supervision in these cases can offer two way protection;  it can protect a parent who asserts he or she has not acted as alleged from any further allegations, as it can protect the child. 

1. The mother seeks that any time the child spends with her father be in a professional supervised environment, such as a contact centre.

1. Whilst family members are sometimes not the perfect supervisors, the court must always make a judgment about the capacity of an individual to play the role, regardless of his or her personal beliefs.  The proposed supervisor has attended court today and has signed an undertaking, noting her understanding that the father and child must always be within eyesight and earshot.  The undertaking states that if the child is upset, or the father demonstrates any inappropriate behaviour, she is required to forthwith terminate the period and return the child to the mother. 

1. The Family Law Act 1975 requires the court to balance the importance of children maintaining meaningful relationships with each of their parents with the need to protect children from physical and psychological harm. I am satisfied the orders proposed by the independent children's lawyer and father strike the necessary balance between those objectives, and that the child’s best interest will be served by ensuring the paternal aunt is present at all times she is with her father.

1. There was a recommendation for a South East CASA assessment in the DHS report.  That surprises me a little;  I am unsure what the child protection practitioner (the author of the report) had in mind.  It is referred to as an assessment, but DHS has not seen fit to organise it.  In my experience, DHS would normally arrange such an assessment if workers determined that there needed to be more investigation before the case was closed.  DHS has effectively closed the case, and this is simply a recommendation, tossed out at the end of the report, and unusual in that sense.

1. I do not propose stopping the mother from taking the child to SECASA.  It will be a matter for SECASA to determine whether they are able to assist the child.  The mother will be at liberty to take the child to SECASA, provided that she advises the independent children's lawyer prior to any appointment, and authorises the independent children's lawyer to discuss any assessment or counselling with SECASA.  That will mean that the independent children's lawyer is in a position, if he believes it appropriate, to bring the matter back to court on application to the Magellan registrar.

1. Any treatment or assessment at SECASA will be conditional on the time between the father and the child continuing pursuant to these orders.  It is a matter for SECASA as to whether they can accommodate that or not, and it will no doubt depend on the form of intervention recommended for the child. 

1. I am concerned about the breadth of the injunction sought in paragraph 6 of the minute of orders proposed by the independent children's lawyer.  I am prepared to make an injunction that each of the parties, until further order, be restrained from discussing these proceedings or any allegation made in them, or denigrating the other, in the presence or hearing of the child or members of the Filipino community save immediate family members.

1. If the mother’s family members defame the father the price may be high.  That price could include damages and costs ordered in a defamation action, but it could also include significant damage to the mother’s credit, and the success of her case.  Such conduct clearly would be relevant to the exercise of parental responsibility, and were she to be seen to encourage or endorse any such behaviour, the court would take that into account.  The same caution needs to be expressed to the father.  Litigants need to understand that the court looks beyond the immediate behaviour of parents towards children, and takes account of the milieu in which children are being brought up.

1. In my view, two phone calls a week are too much for a child of this age.  It is unlikely to be productive.  It is likely the child will just hang up the phone on occasions, as children of this age can find it very difficult to have a telephone conversation.  I will order one phone call a week.  With the wisdom of Solomon I suggest Wednesday, but if the father wants it to be Tuesday, that will be fine. 

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

Dated the          day of           2008.

…………………………………………
Associate.