Thoma and Wykes

[2007] FamCA 751

FAMILY COURT OF AUSTRALIA

THOMA & WYKES [2007] FamCA 751

FAMILY LAW - CHILDREN – Magellan – Attendance at CASA – Interim orders

Family Law Act 1975 (Cth)

HUSBAND: MR WYKES

WIFE: MS THOMA

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1371 of 2005

DATE DELIVERED: 28 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 28 June, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms J.P. Spehr

SOLICITOR FOR THE HUSBAND: Middletons

COUNSEL FOR THE WIFE: Ms A. Glaister

SOLICITOR FOR THE WIFE: Yarra Legal

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr P. Indovino

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Septimus Jones & Lee

Orders

1. That pursuant to s.62G(2) of the Family Law Act1975 a family report be prepared and released before 7 September 2007 and, in the absolute discretion of the family consultant, she/he may observe the father with R born in April 2001, on more than one occasion.  

1. That the parties attend a Trial Notice Listing with the Magellan Registrar on 12 September 2007 at 10.30am.

1. That the father attend Dr K as soon as practicable for the purpose of a psyco-sexual assessment, the cost to be borne by the father, subject to any order to the contrary by the trial judge, and as soon as such report is available, a copy be made available to the family consultant preparing the family report.

1. That save pursuant to court order, or with the consent of all parties, R not attend further sessions with CASA.

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That each party have liberty to apply, on notice, to the Magellan registrar.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1371  of 2005

MR WYKES

Husband

And

MS THOMA

Wife

Independent children’s lawyer

REASONS FOR JUDGMENT

1. I will say something briefly about this case;  these remarks will then be on the record.  The parties lived together, as I understand it, from 1995 to 2001.  Their daughter R was born in April 2001;  she is now six.  Back in February 2004, orders were made in the Federal Magistrates' Court, some by consent and some not by consent, providing for R to live with the mother and for her to have regular and frequent time with her father.  A number of applications have been filed since, including child support departure applications.

2. This round of proceedings commenced when the mother filed an application, in December 2006, seeking the suspension of time between R and her father, and a recovery order.  Federal Magistrate Hartnett made a recovery order on 4 December 2006, in the absence of the father.  That presumably was an ex-parte application.  She suspended the existing contact orders.  On 18 December, 2006 the mother filed an application seeking the discharge of all previous parenting orders, sole parental responsibility, that the father have no time or communication with R, and for an independent children's lawyer to be appointed.  She also filed a form 4 alleging, by reference to affidavits, sexual abuse by the father and sexualised behaviour of the father.

3. An independent children's lawyer was appointed.  The order relating to joint parental responsibility was reinstated in the interim and the matter was adjourned for a trial in the Federal Magistrates' Court.  That did not occur;  instead, the matter was transferred to this Court, with a request for a Magellan listing.  It was assessed and was considered appropriate to be given the additional judicial and other resources available to cases in this list. 

4. The father's application, filed in amended form on 20 March, 2007, is to reinstate all previous orders in relation to his time with R, to have specific holiday time with her and to restrain the mother from attending at changeovers.

5. The DHS report, dated 4 May, 2007 refers to an earlier notification in early 2005 in which the father alleged the mother had hit R with a hockey stick.  It notes that one of the doctors who examined R at that time said the injury was non-accidental, and consistent with his version.  In relation to the current notification, that report states that R disclosed that the father had kissed her on the genitals, that (and I summarise) her body language supported the disclosure, and a professional assessment suggested R was suffering emotional and psychological harm.

6. A brief second report was prepared, dated 26 June 2006.  It does no more than summarise phone calls with the father, a home visit and discussions with the mother.  R refused to talk with the protective workers.  She attended some seven sessions at CASA and a copy of the CASA report, dated March 26 2007, is before the Court.  The writer’s considered opinion was that R would not be able to provide “clarifying information” while she feels unsafe.  That was in the context of R raising matters which suggested to the CASA worker that she felt unsafe when with her father.

7. R had then not seen her father for some time.  It is now some months later.  I am told, through counsel for the independent children's lawyer, that it has been suggested by the CASA worker that she have six further sessions with R.  I have no evidence as to what has changed between March and today which would warrant that intervention.  Such sessions would, inevitably, postpone the preparation of a family report and the trial.  If I thought them essential for the child's best interests, they would occur, regardless of their effect on the trial.  But on the evidence before me, I am not satisfied that R should go back to CASA at this time.  In the secure environment of her mother's home she has twice refused to speak to child protection workers.  In seven CASA sessions she made no disclosures of abuse.

8. The Court must balance the need to protect R from physical or emotional abuse, with the need to ensure a meaningful relationship with her father, if that is consistent with her best wishes.  The way to determine that balance is through a trial and orders made today will be focused on achieving that outcome.  I am not satisfied that any evidence adduced to date justifies further sessions at CASA at this stage.

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

Dated the           day of            2007.

…………………………………………
Associate.

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