Wang and Dennison

[2007] FamCA 234

FAMILY COURT OF AUSTRALIA

WANG & DENNISON [2007] FamCA 234

FAMILY LAW - CHILD ABUSE - Magellan matter – Father alleged to have sexually interfered with children – Father committed for trial on criminal charges as to related or same events – Father foreshadows application by him for interim determination of time with children which he would agree could be conducted at contact centre – Father not claiming any privilege against self incrimination and stands ready to give evidence and be cross examined – Interim application foreshadowed by father discouraged by court – Issue of unacceptable risk of emotional abuse is not a matter amenable to interim determination – Matter to be listed for final hearing at a date after which the criminal trial is likely to be finished

Family Law Act 1975 (Cth)

APPLICANT: Ms Wang

RESPONDENT: Mr Dennison

INDEPENDENT CHILDREN’S LAWYER: Gillian Coote Family Lawyers

FILE NUMBER: MLF 2835 of 2004

DATE DELIVERED: 2 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 2 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weston

SOLICITOR FOR THE APPLICANT: Perry Weston

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Watts

Orders

1. That pursuant to section 62G(2) of the Family Law Act 1975 the parties and children the elder daughter born in February 1998 and the younger daughter born in March 2000 attend upon a Family Consultant nominated by the Director of Child Dispute Services in the Melbourne Registry of this Court for the purposes of the preparation of a Family Report to be made available to the Court and the parties. The parties to comply with all reasonable directions as to attendance upon the said Family Consultant as and when required by the said Family Consultant.  Such report to be released by not later than 20 November 2007.

2. That the parties attend a Trial Notice Listing with the Magellan Registrar on

   
   

   28 November 2007 at 9:30am.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2835 of 2004

Ms Wang

Applicant

And

Mr Dennison

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the Magellan duty list.  It has been sent here for case management by a Registrar who had conducted a pre-trial conference.  The proceedings are between the mother and father who lived together from 1997 until approximately May 2003.  The proceedings concern the little girls:-

   a)The elder daughter who was born in February 1998 and is therefore 9 years of age, and

   b)The younger daughter who is very nearly 7 years old born in March 2000. 

2. Orders were made in 2004 that provided for the father to have contact with the children each alternate weekend from Friday to Sunday, each other Sunday for 4 hours and for 1 hour each Wednesday.  Nonetheless, the father has not seen the children since July 2005. 

3. On 10 October 2005 the mother filed an application in the Federal Magistrates Court seeking that the orders that provided for the children to spend time with the father be suspended pending an investigation by the Department of Human Services.  She supported that application with some evidence, an affidavit by her sworn on 30 August 2005.  It deposes at paragraph 6 that:-

   In May of this year my [elder daughter] began to complain to me about her father's behaviour during contact.  [She] is 7½ old and is very intelligent and articulate.  She complained to me that your (sic) Father was constantly hitting her and her sister during contact periods.  She said she was scared of him and that he would not “leave her alone” when she was with him.  Over the next few weeks the children were returned to me badly bruised and quite distressed.  [The elder daughter] complained of her Father pinching her all over her body, of him shouting at her, pulling her hair, strangling her and accusing her of having the devil in her.  I contacted The Department of Human Services asking for their help but they responded by saying they did not think that the matter warranted investigation.

   [7]. [The elder daughter] continued to be very distressed when forced to go for contact with her Father and continued to complain of having her hair pulled, of being pinched and punched by her Father and again repeatedly of not being let alone by him.  On 10 July this year, the children were returned to me after holiday contact with their Father.  Both children and [the elder daughter] in particular were very distressed.  [The elder daughter] told me of her fears for the safety of herself and her sister if forced to go to her Father’s again.  I asked her what was wrong and initially she was reluctant to tell me.  She did ask me were there parts of her body that her Father should not touch. 

   
   

   I asked her to tell me what happened but she seemed reluctant.  I asked her if she would talk to someone else and [the elder daughter] agreed to talk [to] our friend [Ms H] whom [the elder daughter] knows well and trusts.  [The elder daughter] subsequently told [Ms H] that when she and her sister are put in the bath by their Father that he “touches her all over and touches her in her private parts”.  [The elder daughter] said she was scared to go back and pleaded with me to not send her.  I decided at that point to stop contact for the protection of my children and to make Application to suspend the existing contact Orders.

   [8]. I have again referred the matter to The Department of Human Services and the police are currently investigating the matter.  The police have already interviewed [the elder daughter] and myself and will conduct further interviews later this week. 

4. There was also an affidavit by Ms H, a friend of the mother's and she deposes at paragraph 4 of that affidavit which is sworn 30 August 2005 as follows:-

   In November of last year I was in the process of running a bath for my children and the Applicant’s children who were at my home.  [The elder daughter] became quite distressed and reluctant to get into the bath.  She told me that no else could get into the bath with she and her sister and that “people hurt you in the bath”.  I thought this was quite odd.  I then asked [the elder daughter] what this was all about.  She told me that her Father touches her in the bath, that he touches her all over and in her private places and that he won’t stop. She was very distressed and I was extremely concerned. [The elder daughter] is very intelligent and well spoken and I had no doubt what she was telling me was true.  I made an immediate notification to the Department of Human Services.  I hear (sic) nothing further from the Department in relation to same.

5. The mother's Notice of Risk of Abuse was filed on 28 October 2006.  In it she makes the following allegations:

   That the children have complained of being repeatedly hit by the father during contact visits and have returned from contact badly bruised.  The [elder child] has complained of her father pinching her, pulling her hair, strangling her and refusing to leave her alone during contact periods.  The [elder child] has complained of the father touching her all over and touching her private parts while in the bath during contact periods.

6. They are allegations which are not specific as to time or place.  Nonetheless the Department of Human Services did investigate the matter and have delivered a report dated 16 May 2006 which is on the court file and of which each party has a copy.  The physical and emotional abuse which it is alleged the children have suffered is in relation to the elder daughter described at page 3 in the following terms:

   [The elder daughter] describes her dad as "mean, bossy, not nice, scary" and “bad”.  [The elder daughter] stated [her father] hit her a lot with his fist and if she or her sister cried, her father would pinch them and that last time her father hit her was on her face, which left finger marks that took “a week to go down”. [The elder daughter] stated that [the father] holds her around the neck so she can’t breathe saying: “it’s just for fun.”  [The elder daughter] stated [the father sometimes tells her she is the “devil” and she [is] “evil” like her mother.

   I interviewed [the elder daughter] a second time on 11^th of May 2006 at her school in order to further explore notified concerns, regarding both parents as caregivers.

   [The elder daughter] made consistent disclosures of physical and emotional abuse by [the father].  [The elder daughter] did not identify any positive characteristics about [the father] and clearly stated that she wished to remain in the sole care of [the mother], whom she did not identify as ever having caused her harm or sadness. 

   [The elder daughter] struggled to think of ways that she would increase her feelings of safety in the presence of [the father] and finally suggested that she might feel safe in his care if [the mother] was also present. 

7. In relation to the younger daughter, the report indicates that she made no allegation or information to suggest she had been a victim of sexual abuse but did give the following information:

   [The younger daughter] gave information that was consistent with disclosures of physical and emotional abuse stated by [the elder daughter].

   [The younger daughter] stated that her father would scream and yell.  She could not remember what her father said because she was smaller.  [The younger daughter] stated [the father] would come behind she and her sister and squeeze their neck.  [The younger daughter] stated her father made her and her sister “black and blue” on their body; that he smacks them on the legs and hand with his hand and it “really hurts”; and that he pinches them on the same places and he smacks them.

   [The younger daughter] stated that her would says (sic) words to [the elder daughter], such as she is “evil in her body”.  [The younger daughter] could not remember if [the father] said this to her but knows he said it to [the elder daughter] because she was in the same room.

8. The Department found the father to be obliging, helpful and to deny all allegations against him.  The Department saw the mother's oldest child,

   
   

   Ms L, who described the father in very positive terms as being her carer and parent figure.  The Department spoke to one of the father's older children J.  The report indicates that a counsellor who the elder daughter had been seeing:

   Holds the professional opinion that [the elder daughter] is telling the truth in regards to disclosures of sexual, physical and emotional abuse.  It is [Ms B’s] opinion that [the mother] has not influenced the information given by [the elder daughter].

9. The Department was satisfied that Ms B had been working intensively with the elder daughter since 25 November 2005.  The report records a contact with Senior Sergeant D at Melbourne SOCAU on 4 May 2006 in which Senior Sergeant D advised that a brief had been authorised and charges would be filed against the father:

   He will be charged with sexual, physical and emotional abuse.  She also advised that whilst the evidence provided by the children on the VATE interviews was not strong evidence in isolation of one another, the information provided them in the combined three interviews is consistent and provides strong evidence.

10. The conclusion to the Department's report is as follows:

    [The elder daughter] has made consistent disclosures of sexual, physical and emotional abuse by [the father]. [The younger daughter] has reiterated these disclosures with respect to physical and emotional harms perpetrated by [the father].

    Although, information has been received which suggests that [the mother] has exercised a degree of influence over the children, due weight needs to be given to the children’s disclosures.  In addition to this, further consideration needs to be given to the children’s emotional wellbeing if they were to be placed in the care of, or have unsupervised contact with [the father], given their expressed fear and distress, and their belief around the alleged abuse.

    If the children were to have unsupervised contact with [the father], consideration needs to be given not only to the impact this may have upon the children’s physical and emotional safety, but to the possible impact upon [the elder daughter’s] capacity to maintain a positive and open working relationship with her counsellor, and upon her ability to discuss the quality of her family relationships in an open manner. 

11. The father has been charged and on 28 February 2007 was committed for trial on what appear to be numerous offences including:-

    ●one count of intentionally causing injury,

    ●six counts of reckless injury,

    ●one count of assault with a weapon,

    ●eight counts of unlawful assault,

    ●one count of incest by a parent,

    ●one count of indecent act on a child under 16,

    ●two counts of intentionally threaten serious injury,

    ●one count of threat to kill,

    ●one count of reckless conduct endangering a serious injury. 

    That may not be an accurate summation of the charges but the notice of undertaking of bail for appearance at trial is consistent with it.  The father said that he represented himself at the committal.

12. The father is to attend the Melbourne County Court on 27 March 2007 at 9am and he believes his trial will come on for hearing in Melbourne in the County Court in October 2007.  The conditions of his bail are to reside at B and not to contact any witness for the prosecution save the informant or otherwise by order of the Family Court.  That of course covers the mother and the two children. 

13. Today the father has indicated that he wants a final hearing in this court as soon as possible.  He has not seen his daughters since the middle of 2005.  He cannot have a final hearing very soon, he wants to make an application for interim parenting orders and, for that purpose, he will agree to seeing the girls at a contact centre.

14. I must say that when the matter was first mentioned, it seemed counter intuitive to me to have the final hearing in this court on before the criminal proceedings, however, the father is quite firm that he has nothing to hide and does not claim any privilege or have the slightest concern about being cross examined in this court.  He also seeks to have an interim hearing such as would at least get him some time with the girls in a contact centre or under supervision by a person who he may nominate who could be approved by the court.  After careful consideration I will not sanction either course. 

15. I will order that a family report be prepared in this matter in November 2007 and that the matter be ready for hearing as soon thereafter as practicable.  That will involve a trial notice listing on 28 November 2007.  The father represents himself today.  He does not have a lawyer in the criminal proceedings, he does not know whether he will be able to organise a lawyer privately but understands if he cannot then legal aid will because of the nature of the charge and the fact that the witnesses need to be cross examined by someone other than himself. 

16. He has given a long history which paints the wife as having acted with gross deception and erratically over a number of years since 1996, particularly since 2001.  It includes a history of her abandoning the young children for some period and then obtaining care of them with the principal motivation of getting social security payments.  There is no doubt that he is highly distressed by these proceedings.  Even though the father has been told that if he wants to make an application for interim orders such as would involve a contact centre and the like he can do so.  He has not made an interim application. 

17. I have indicated to him today that the circumstances of this case are such that an interim application is unlikely to be successful.  This is because the court, in considering what parenting orders to make, needs to have regard to a number of considerations including the importance of the children spending time with their father and having a meaningful relationship.  Another very important consideration is the need to protect the children from harm and abuse.  That is emotional as well as physical abuse and harm.  In this respect, the court will have to consider whether the children are at any unacceptable risk if they spend time with the father. 

18. It must be said in this case that, given the nature of the allegations which are made, the children spending time with the father in a contact centre is unlikely to place the children at risk of physical harm.  However, taking all of the same factors into account, I am easily satisfied that they could be at risk of emotional harm if exposed to the perpetrator of the acts for which the father is yet to stand trial. 

19. This is the Magellan list.  It is a highly resourced list which prioritises the hearing of cases usually over the hearing of other cases in the court which do not concern child abuse.  The resources are directed to the very beginning of the proceedings by way of DHS investigations and the like and at the final determination by a judge.  

20. The difficulty with this case is that an examination of the matters on an interim basis is going to be the same as an examination of the matters on a final basis.  It simply is not a matter where I can see at the moment the court could craft orders which would permit there to be contact or time between the father and the children which would not leave the children exposed to some significant risk of psychological harm.  There cannot be findings on the fairly complex factual matters on which the criminal charges are based.  All that said, there is no interim application to dismiss at the moment. 

21. Had the father made that interim application today, based on the evidence and submissions he has outlined from the bar table, I would have dismissed it.  I have merely made these comments to indicate that is the case for future case management purposes. 

22. The matter is set down for a final hearing and they are the only court events which I am contemplating at this stage.  That concludes these reasons.  

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  21 March 2007

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