Voit and Voit

[2010] FamCA 521

FAMILY COURT OF AUSTRALIA

VOIT & VOIT [2010] FamCA 521

FAMILY LAW – CHILDREN – Interim mention – Magellan Matter – Family Report – Report writer records the report is ‘compromised’ due to linguistic and comprehension concerns – Further report ordered to be prepared with assistance of interpreter
FAMILY LAW – CHILDREN – With whom a child spends time – Father seeks interim time – Consideration of allegations of abuse – Supervisor agreed between parties – Consideration of risk and regime to ameliorate – Orders made for supervised interim time

Family Law Act 1975 (Cth) s 69ZW

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Voit

RESPONDENT: Mr Voit

INDEPENDENT CHILDREN’S LAWYER: Dooley Solictors

FILE NUMBER: BRC 10570 of 2009

DATE DELIVERED: 18 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 18 June 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Charles Cooper Lawyers

SOLICITOR FOR THE RESPONDENT: Reardon Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

1. The matter is adjourned to the Magellan Registrar on such dates and at such times as may be advised for the making of all such directions as might be necessary for the further progress of this matter with a view to proceeding to a final hearing to occur over three days in early December 2010, such hearing before the Magellan Registrar shall be conducted by telephone.

2. Pursuant to Section 62G of the Family Law Act, a report be prepared for the Court by a Family Consultant, Child Dispute Services, and that such report to be available, if possible, by 1 October 2010.

   a.For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents/documents related to this matter.

   b.The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

   c.The parties shall do all such things, sign all such documents, pay equally all such reasonable fees and attend all such appointments and ensure the child attend all such appointments as are reasonably necessary for the preparation of the Family Report, and in particular the appointment scheduled for 9.00am on 20 September 2010.

3. In respect of the family report to be prepared in accordance with order 2 above, there be a Ukrainian interpreter available to the mother at all such times as might be required during the course of all such interviews necessary for the preparation of that report.

4. Through the agency of the Independent Children’s Lawyer he be at liberty to forward to the said Family Consultant:

   a.all documents filed in these proceedings and considered to be relevant by him;

   b.all such documents produced pursuant to subpoenae, inspected by him and considered to be relevant by him;

   c.the report prepared by the Department of Communities (Child Safety Services) pursuant to s 69ZW; and

   d.the Family Report of Ms O dated 22 April 2010.

5. The Mother attend upon Dr M, Psychiatrist on 1 November 2010 and on such further dates as Dr M may require for the purpose of the Mother being psychiatrically assessed.

6. The Father attend upon Dr M, Psychiatrist on 10 November 2010 and on such further dates as Dr M may require for the purpose of the Father being psychiatrically assessed.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. That the orders of Federal Magistrate Burnett made 4 February 2010 be varied such that until further Order the Father spend supervised time with the child T born … December 2006 at the residence of Ms R at P for such time as Ms R can reasonably provide each Saturday and Sunday but not to be less than four hours in duration.  The parties shall each be equally responsible for Ms R’s fees and the Father is at liberty to bring his son J born … October 1992 with him when he spends time with the child.

2. In addition to the time provided for in the previous order above, after 20 September 2001 for a period not exceeding three (3) hours each alternate Wednesday, supervised by such person nominated by the father and approved and considered by the Independent Children’s Lawyer as being a person who understands the obligations expected of a supervisor and considered to be a person appropriate to exercise the responsibilities and obligations thereof.

IT IS FURTHER ORDERED THAT

1. The Independent Children's Lawyer and each of the parties be provided with a copy of the Report, produced pursuant to s 69ZW, provided to the Court by the Department of Child Safety.

2. 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 under the pseudonym Voit & Voit is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 10570 of 2009

MS VOIT

Applicant

And

MR VOIT

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter comes before me in what is commonly described as “the Magellan list” as one of approximately 18 matters dealt with by the court today.  It has a history in the Federal Magistrates Court and was transferred to this court by order of Burnett FM on 4 February 2010. 

2. The child, the subject of the proceedings, is a daughter, T, born in December 2006, who is currently aged about three. 

3. It will be apparent, by reason of the matter’s inclusion in this list, that allegations are made by the mother against the father with respect to serious matters that can broadly be described as allegations of sexual abuse. 

4. Burnett FM ordered on 4 February 2010 that a family report be prepared by a Ms O. 

5. That was done and her report is annexed to an affidavit filed in this court on 5 May 2010. It is a comprehensive document spanning some 231 paragraphs and 59 pages.  It makes specific recommendations at its conclusion, which include that:

   It is suggested that no consideration for overnight time for the father being implemented until subpoenaed documents have been considered, and any intervention suggested completed.

   The indications at this stage are that [T’s] medium and long term interests may be best met by having significant and regular time with each of her parents, as well as significant contact with her extended families.

6. At an earlier part of the report Ms O says:

   In the immediate instance orders should be made that will allow for [T] to commence spending time with her father and brother forthwith.  If the court has concerns about an unsupervised arrangement, until reports from investigations are received, it is suggested the father might nominate a friend, family member or work colleague from the [father’s business] who could be involved in a semi-supervised arrangement. Certainly a reasonable block of time is suggested (e.g. four hour blocks to a day), and regular twice weekly contacts (e.g. one contact mid week and one day of each weekend are recommended).

7. The expression, “semi-supervised arrangement” is not otherwise expanded upon and the court is unclear what is meant by that expression. 

8. The father seeks to rely principally upon those ultimate opinions in suggesting that, pending the trial of this action, there should be time additional to that which was ordered by Burnett FM, namely time supervised at the C contact centre. 

9. It is submitted on behalf of the father that the amount of time he’s had with the child has been significantly restricted, and the contact with her brother, a matter referred to by Ms O, is an extremely important matter in the context of this case. 

10. The position of litigants in matters before this court, which involve significant and serious allegations of child abuse, is well known.  In the case of those who make the allegations, the concerns, if genuinely made, remain during the course of the time in which the matter is in the court’s lists and before the trial.

11. So too, in respect of those against whom allegations are made, but who deny them, the unfortunate interregnum between the making of the allegations and the final determination of them at a trial often means that time between that person and their child or children is significantly restricted. 

12. On one level the court makes no apology for that latter circumstance because in all matters involving children, and in particular matters involving allegations of abuse of children, the best interests of those children demand that the court proceed cautiously and conservatively. 

13. Having said that, it is a matter of considerable regret, of course, that the number of matters currently before the court, and the diminished resources of the court with which it is able to deal with those matters, mean that there is the interregnum earlier referred to.

14. In this particular case reliance upon the report, comprehensive and lengthy though it is, is tempered by submissions made by Mr Cooper on behalf of the mother.  He points out, in particular, what is said at paragraph 8 of that report. 

15. Somewhat remarkably, it might be thought, that paragraph says:

    This report is compromised due to the mother’s level of knowledge, skill and ability in regards to the English language.  The mother speaks with a very heavy Ukrainian accent.  Also when she speaks, she doesn’t use punctuation, so that her sentences all run into one another and blocks of themes or stories are not clearly delineated.  This is very distracting for the listener.  Additionally, her comprehension was wanting, such that at times she answered that what she’s believed to be the question, although becoming apparent that she didn’t understand the actual question.  [My emphasis]

16. Those statements are particularly troubling statements in the context of a case where serious allegations are made by the person about whom the comments just referred to are made. 

17. In cases of serious allegations of sexual abuse, it is particularly important, in my view, to be able to understand precisely what it is that is said by one or more of the parties.  I am particularly troubled by the statement, bald on its face, that “This report is compromised”. 

18. As I said during the course of argument, it is not for me, in the context of these significantly truncated proceedings where findings of fact cannot be made, to say whether Ms O’s ultimate opinions or, indeed, any opinions expressed by her, are right, wrong or otherwise. 

19. Similarly, I do not seek to criticise the report as such, having not had the opportunity to hear Ms O questioned about any aspect of it. 

20. I must, however, as it seems to me, be significantly troubled – within that same truncated interim context – by a report that effectively commences with the statement that it is “compromised”. 

21. It is in that context that Mr Cooper, on behalf of the wife, makes a submission that a further report should be prepared; with, this time the mother having at all times the assistance of a Ukrainian interpreter.  I accept the submission. 

22. It seems to me, by reason of the matters just referred to, that it is important for the ultimate trial court to have before it opinion evidence from an appropriately qualified person that is not, at least on its face, “compromised” by the matters there referred to. 

23. A separate issue is an argument raised by Mr Cooper that there should be a report writer other than Ms O who prepares any such further report.

24. In circumstances where, as I have indicated, it is in my view not appropriate to make findings that might strike at the heart of the veracity or reliability of the facts or opinions expressed in the report – and I repeat that I make no such findings or cast any such aspersions in the context of these proceedings – it does not follow necessarily that the court should go on to make an order that a separate expert should provide any additional report of the type referred to. 

25. However, it seems to me that, in the interests of justice being seen to be done by, each of the parties and, in particular, the mother (whose difficulties have been expressly referred to in the manner earlier quoted by that same report writer) that there be the opportunity to have a report before the court from a person other than Ms O, assisted by a Ukrainian interpreter. The latter should facilitate the precise interpretation of not only the mother’s answers, but, crucially, an understanding of the questions asked of her.

26. Ultimately, then, I am persuaded not only that an additional report should be ordered, this time with the assistance of a Ukrainian interpreter, but that it should be undertaken by someone other than Ms O. 

27. I have arrived at that conclusion, having also had inquiries made of the Director of Child Dispute Services in this court, and satisfied myself that interviews could be had with a family consultant on 20 September 2010, with a report prepared by approximately 1 October 2010. 

28. A report received at that time will continue to allow the final hearing of this matter to occur, when it is hoped that it will occur, in early December 2010.

29. The primary reason for the trial being allocated dates at that time is that the independent children’s lawyer, Mr Dooley, advises that the earliest dates upon which the chosen psychiatrist, Dr M, can see the parties are 1 and 10 November 2010. 

30. Dr M can, in the experience of this court, usually be relied upon to produce a report very quickly;  usually within two weeks after the last of her interviews.  It is anticipated then, that all of the expert material considered necessary for the court to be fully appraised of the issues should be ready and available to the parties in the court by that time.

31. Within the context just referred to the father, in reliance upon primarily Ms O’s report, seeks significantly more time than that which is availed him by the order for supervised time at the C Contact Centre, made by Burnett FM on 4 February 2010. 

32. In that respect, the independent children’s lawyer advised each of the parties and the court of a service available to parties in and around the local area provided by a Ms R. Mr Dooley outlined Ms R’s earlier professional experience, which seems to me to, on its face, equip her well to undertaken the task of supervision and all of the obligations and responsibilities which it implies.

33. Discussions between Mr Dooley and the solicitors for the respective parties were productive of an agreement that Ms R could in fact supervise time. 

34. In the order proposed by Mr Dooley, it is suggested that time take place each Saturday and Sunday, but not less than two hours in duration. 

35. Whilst the matters pertinent to the report prepared by Ms O are also live with respect to the issue of what time should occur between the children and the father pending the trial, it seems to me that a number of other considerations need to be taken into account.

36. First, and significantly, despite the fact that these are interim proceedings, the court is bound to take account of the Objects, Principles and Considerations prescribed in the Family Law Act 1975 (Cth). That remains no less the case in interim proceedings than in final proceedings (as to which see the decision of the Full Court in Goode & Goode (2006) FLC 93-286).

37. Here, a number of considerations are directly relevant to the decision that ought be made, albeit within the significantly truncated context applicable to this hearing.

38. Plainly, the court must be concerned about the risk of harm emanating from the allegations raised by the mother.  They remain untested in this court, despite indications in the section 69ZW report prepared by the Department of Communities, that as far as the department is concerned, the level of risk may not be as high as that asserted by the mother. 

39. Nevertheless, as I have earlier said, it seems to me that a court in the current situation should proceed conservatively and cautiously where the best interests of young children are concerned and that is none the less so in this case. 

40. Having said that, this young child deserves to have – and has a right to have – a meaningful relationship with her father in circumstances where the court can be reasonably satisfied that, firstly, it is in her best interests to do so, and, secondly, that, at the same time, she is protected from such harm as might be alleged.

41. It seems to me plain that it is in the best interests of this child to have time with her father, particularly given her age, so that her appreciation of him, and concept of him, can be enhanced and reinforced. 

42. The issue which is of most concern to the court is whether any orders for time, given that serious allegations remain untested, can alleviate any unacceptable risk that might attend that time. 

43. It seems to me that any such risk as might be posed by the father, arising from the allegations of the mother, can be met by firstly keeping the amount of time that the child spends with the father within reasonable bounds and not ordering overnight time. Secondly, any such risk can be met by putting in place a form of supervision with which the court can have reasonable satisfaction. 

44. I have already referred to the fact that the parties agree that Ms R meets that criteria. 

45. It seems to me that two hours is insufficient in which to allow that crucial relationship for a three year old child to develop, and I have accordingly determined that, given that Ms R can accommodate four hours of time, that that should be the period during which the father sees his child. 

46. I am cognisant of the opinion of Ms O that there needs to be significant and regular time. Quite apart from any opinion expressed by Ms O it seems to me that a three year old child, at the particular stage of development that might be expected of a three year old child, needs to have regular time with each of her parents.  Large separations in time between visits should ordinarily, in my view, be avoided. 

47. In circumstances where the court can be reasonably satisfied that any potential risk is met, and at the same time provide for the sort of regularity in time that might otherwise be indicated as appropriate, then an order to the effect is in my view indicated in the child’s best interests.

48. Here, it seems to me that whilst Ms R may not be available to supervise time, in any additional respects, if the independent children’s lawyer, who himself owes obligations not only to the children, but to this court, can be satisfied that a person nominated by the father is a person who would be aware of and prepared to comply with the onerous obligations and responsibilities of a supervisor, then that person can provide appropriate protection against any perceived risk. 

49. Although serious allegations are made against a party, each of the parties and an independent children’s lawyer are well aware that, in effect, every move made by the party against whom allegations are made is being monitored and looked at by the other party, by independent supervisors and by the independent children’s lawyer. That all occurs within a context in which a family consultant and an independent psychiatrist will each assess the parties and the children and report to a court. Those matters, of themselves, provide a measure of protection in alleviating any unacceptable risk associated with the time pending a final trial.

50. Doing the best I can then to balance all of those considerations, I consider it in this young child’s best interests to make the orders for time with her father that I have earlier indicated.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date: 30 June 2010