Tourelle and Marcel

[2009] FamCA 806

FAMILY COURT OF AUSTRALIA

TOURELLE & MARCEL [2009] FamCA 806

FAMILY LAW  -  CHILDREN  -  interim  -  Magellan  -  ongoing police investigation  -  unacceptable risk  -  directions for trial

Family Law Act 1975 (Cth)

HUSBAND: Mr Tourelle

WIFE: Ms Marcel

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6913 of 2007

DATE DELIVERED: 30 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 30 July 2009

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr Grant

SOLICITOR FOR THE HUSBAND: McPherson & Kelly

SOLICITOR FOR THE WIFE: Bowlen Dunstan & Assoc

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That the parties and the children A born … March, 2000 and E born … September, 2002 attend upon Mr. P, psychologist, on 10 September, 2009 (or such other day as is nominated by Mr. P) at times to be advised, for the purpose of preparation of a family report, to be released by 30 September, 2009. 

2. That the husband be responsible for the costs of the family report. 

3. That the parties attend for trial notice directions with the Magellan registrar at 2:15 pm. on 5 October, 2009.

4. That the husband’s application for supervised contact pending trial be dismissed. 

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

6. 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 Tourelle & Marcel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6913 of 2007

MR TOURELLE

Husband

And

MS MARCEL

Wife

REASONS FOR JUDGMENT

1. The parties were in a relationship between 1998 and April 2007, when the husband was admitted to Hospital with a diagnosis of bipolar disorder.  As his psychiatrist, Dr K, records in the report the husband has put before the court, he was discharged for outpatient follow-up.  There was then a breakdown in what Dr. K described as “his already strained relationship with his partner”, and he had to leave the home.  The parties have two children – A, who is nine, and E who is almost seven.  The children have lived with their mother since the parties’ separation. 

2. There was litigation in the Federal Magistrates Court in 2007.  In the course of that, a lengthy family report was prepared by Mr P, a psychologist.  On 5 November 2007, those proceedings resolved when orders were made, by consent, providing for equal shared parental responsibility.  The children were to live with their mother and a graduated regime of time with their father was to be implemented.  Injunctions restrained the father from bringing the children into contact with the paternal grandparents, about whom allegations of sexual abuse had been made in the first trial, and the husband was required to attend on his treating professionals.  The parties also finalised property proceedings at that time. 

3. This set of proceedings commenced when the wife filed an application and a form 4 notice of abuse on 11 May, 2009.  She sought that those earlier parenting orders be discharged and that she have sole parental responsibility for the children.

4. The form 4 notice of abuse alleged that the husband touched A on his penis over a period of time, touched him on his bottom, put his face near the child’s penis and put his own penis near the child’s face.  The wife’s evidence was of changes in A’s presentation over the previous year;  she alleged symptoms of anxiety, weight loss and developmental changes.  A was referred to Dr H by his general practitioner. 

5. On 12 May A was interviewed in a VATE taped interview.  Counsel for the husband has read to me the opening statement made by the child.  It is clear that it will be his submission that the interview process was flawed.  It is probable there will be an allegation of coaching.  Counsel has squarely put on the table his client’s case, which is that the wife is an alienating mother who has worked consistently to undermine the relationship between the husband and children. 

6. The husband was interviewed by police on 17 June 2009.  He deposed in an affidavit filed today that no charges have been laid;  his counsel stressed that evidence.  On the other hand, the writer of the DHS report records advice to DHS – it is no more than that – after discussions with SOCAU members, that police intend to proceed with the criminal investigation and are in the process of preparing a brief.

7. Anyone who has been involved with criminal law will know that it is simply not possible for this court to say whether the father will be charged or will not be charged;  the court could not say with confidence that he will not be charged.  That matter is in the hands of police.  The brief to which the DHS report refers will, no doubt, be referred to the informant’s superior officer to determine if it is authorised. 

8. The husband also deposed in the affidavit filed today that DHS does not oppose supervised contact.  That is not an accurate account of the DHS position.  The recommendations of the departmental worker in the report of 26 June 2009 is that there be no contact between the husband and the children.  The writer records that, in her opinion, the children are distressed by the notion of a resumption of contact.  The report notes the husband has made no admissions of inappropriate conduct.  The court cannot draw any adverse inference from that denial.  Only as a fall-back position did the DHS report writer recommend that should the court grant contact between the husband and the children, it be supervised by an independent person. 

9. I have read the report of Dr K, the husband’s treating psychiatrist.  He notes that the diagnosis remains that of a bipolar spectrum disorder.  He notes that, given the current allegations, it would appear appropriate to have a thorough investigation and assessment of the husband’s parenting ability.  In his opinion, the husband has been able to function well with mood stabilisers.  He was unable to see any direct impairment in the husband’s parenting ability as a direct result of his mood disorder. 

10. In relation to the question of risk to the children, Dr K prudently opined that this should be determined on the basis of further investigations and a full family assessment which includes the children;  he said their perception of the situation definitely merits full attention.  Dr. K noted that mental health specialists specialising in the area of family assessment are better placed to do that work.  He expressed the opinion that the husband’s treatment is adequate.  The fact that he has a bipolar spectrum disorder should not be seen as the reason for his inability to be part of his children’s life.  I note that report.

11. The husband’s application for supervised time which the children is opposed.  An earlier order of Bennett J required the parties to make application to use the Berry Street Contact Service and the service would be available, if an order were made.  The solicitor for the wife opposes the order, submitting that it would be contrary to the children’s best interests, and premature.  The independent children’s lawyer does not support any supervised time at this point and places considerable weight on the children’s views, as well as the other material before the court. 

12. In terms of legal principle, the provisions in the Family Law Act 1975 that relate to children rest on twin pillars. The first is the importance of maintaining a meaningful relationship with both parents, insofar as that is consistent with their best interests. The second is the importance of protecting them from violence and abuse. Those principles can be, and in this list often are, in conflict and need to be balanced. As a general proposition, until the court has an opportunity to test the evidence and to hear further from experts who have provided reports to the court, it must be cautious. The emphasis must be on children’s wellbeing and protection from risk; those matters must take precedence over parents’ wishes or desires.

13. I note submissions made by the ICL which relate to the children’s views and the responding submissions of counsel for the father.  I do not find substance in the analogy drawn between a child being comfortable to know there is school security (and thus protected from a parent) and being comfortable in a contact centre (and thus protected from a parent). 

14. The question must be whether contact at this time can be found to be of benefit to the children and whether such contact could expose the children to a risk of abuse or physical harm and, importantly, a risk of emotional harm.  The children are clearly implicated in the dispute.  I note the husband’s concerns about coaching and alienation;  they are the very matters that will need to be considered at the trial.  However, balancing all the evidence presently before the court, I am not satisfied it would be appropriate to make an order for supervised time. 

15. I am satisfied the court should have the benefit of a family report before making any further assessment of the risk.

16. Mr P is available.  The children met with him in 2007;  that will minimise the number of experts with whom the children have contact and provide depth to the psychological assessment.  I place weight on Dr. K’s opinion of the need for a full family assessment. 

17. I appreciate that for a parent who does not see a child, every day can seem like a year.  Further, he or she can hold grave fears about damage to their relationship with children.  The case will be given priority and will be heard swiftly;  I will be looking to a trial notice listing in early October.  

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

Dated the           day of            2009.

…………………………………………
Associate.