Wegiel and Edwins

[2012] FamCA 246

FAMILY COURT OF AUSTRALIA

WEGIEL & EDWINS [2012] FamCA 246

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the mother makes allegations of sexual abuse against the father – where there are also concerns of physical abuse by the father – where there are concerns about the emotional impact on the mother if there was an order requiring her to provide the children to the father – best interests – where the Court was satisfied that supervised time would adequately protect the children – orders that the children spend supervised time with the father

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Wegiel

RESPONDENT: Mr Edwins

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 1310 of 2011

DATE DELIVERED: 13 April 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mitchell

SOLICITOR FOR THE APPLICANT: Matthew Mitchell

COUNSEL FOR THE RESPONDENT: Mr Harley

SOLICITOR FOR THE RESPONDENT: Dixon Gallasch Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission

Orders

1. The matter is adjourned to 31 July 2012 at 9.15 am before the Honourable Justice Dawe for mention on the basis that any affidavit upon which any party seeks to rely to be filed and served by 4.00 pm on 20 July 2012.

IT IS FURTHER ORDERED DURING THE PERIOD OF THE ADJOURNMENT THAT

1. The children C born on … February 2007 and R born on … December 2009 spend time with the father for a period of not less than three [3] hours on one day each fortnight on a weekend as agreed between the parties or in default of agreement between 2.00 pm and 5.00 pm on the alternate Sunday commencing on the first Sunday after the Independent Children’s Lawyer confirms the suitability of Mr M to act as supervisor, such time is to be in the presence of Mr M at all times.

1. It be a condition of the order that the Independent Children’s Lawyer interview Mr M and to be satisfied that he is a person who is willing and able to protect the children from any emotional, psychological or physical harm and is willing to terminate the time spent with the father if it becomes necessary to protect the children’s wellbeing.

1. Upon acceptance by the B Contact Centre the children spend supervised time with the father for two [2] hours each alternate weekend on six [6] occasions UPON NOTING that the alternate weekends take place on the weekend which is not the time supervised by Mr M.

1. That 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 by this Court under the pseudonym Wegiel & Edwins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1310 of 2011

Ms Wegiel

Applicant

And

Mr Edwins

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an interim hearing in a matter which concerns the welfare of two young children, C who was born in February 2007, and R, who was born in December 2009.  The proceedings between the parties have been on foot in relation to the children for some time commencing it would appear in April 2011 in the Federal Magistrates Court. 

2. There were orders made in the Federal Magistrates Court after various hearings including an order made on 11 August 2011 which was a consent order providing for the two children to live with the mother, and for the father to spend time of a period of not less than six hours on one day of each weekend such time to be in the presence of Mr M or such other person as maybe agreed between the parties.

3. Further orders were made on that occasion which in summary provided for the father to file an undertaking by Mr M of his understanding of his role as supervisor prior to the first period of time taking place.  There were then other orders including directions that the parties enrol with B Contact Centre and thereafter the father spend time with the children for two hours each alternate weekend on six occasions and that thereafter the parties were to attend certain negotiations or conciliation arrangements.

4. There were specific orders made that the father was to undergo an anger management course and a parenting course with Relationships Australia with the father to produce evidence of his attendance and completion of such course to the applicant (Paragraph 17 of the order of 11 August 2011).  I have not recited all of the orders but they are the most significant for today’s purposes.  The time spent with the father and the children pursuant to that order did not take place.  It appears from the court file that Mr M did not provide an undertaking as required by that order until 8 December 2011 on the basis that he had been overseas and interstate recently. (That is the affidavit of Mr M filed on 8 December 2011).  There then arose serious allegations concerning the mother’s concerns that C had been sexually abused by the father.  The matter was transferred to the Family Court of Australia and placed in the Magellan List with directions made for further investigations to be carried out.  As a result the Court has before it the report of the Children’s Protection Service dated 27 March 2012, the (forensic psycho-social assessment report as it is described) referring to C.  It is a result of assessments and interviews carried out in December 2011 and February 2012. 

5. The report deals with the allegations of sexual abuse.  It is a lengthy document.  I have considered it in some detail.  Under the summary and conclusions it indicates that C referred to his father in terms which are not complimentary.  He indicated that he had been smacked and hit by his father and punched by his father.  Specifically on page 12 the report gives particular details of C’s allegation of physical abuse by his father.  It continues to indicate that there was no specific information regarding sexual touching or being engaged in sexual behaviour by anyone.  The report concludes that on the basis of the information obtained during this assessment it was not possible to draw a conclusion that C has been sexually abused.

6. However it also states that it is not possible to completely discount the possibility that C may have been sexually abused.  It then refers to the number of reasons why C may not have disclosed such sexual abuse in his interviews.  Also on page 12 it refers to the clinician’s concern that C appeared anxious and distressed during the interviews.

7. The recommendations are on page 13:-

   Recommendations

   Based on the outcome of this assessment, it is recommended that:

   ·     Given the reported concerns, [C’s] safety would be best ensured if any future contact with [the father] is supervised by a person who is able to keep [C] physically and psychologically safe.

   ·     If supervised contact between [C] and [the father] occurs, [C’s] emotional well being, as well as any expressed preference by [C], needs to be taken into account prior to contact commencing.

   ·     Given [C’s] consistent reporting that his father “smacked” and “hit” him “all the time”, and his statement that [the father] had threatened to take him away if he spoke to the clinician, it is recommended that [the father] be engaged with a counselling and/or parenting education service so that he can gain awareness of alternative and more appropriate child behaviour management skills and parenting strategies.

   ·     If Family Court proceedings occur, a family assessment will be important to determine [the father’s] capacity for providing safe and nurturing care for [C] and [R], and to assess the boy’s relationship with their father.

   ·     [C] requires continuing therapy through CAMHS, to address his experiences of trauma and issues related to his emotional and behavioural presentation.

   ([C’s] safety would be best insured if any future contact with [the father] is supervised by a person who is able to keep [C] physically and psychologically safe and that for his emotional well being [C’s] any express preference needs to be taken into account prior to contact commencing).

8. The report then refers to the father undertaking counselling and/or parenting education so that he can gain awareness of alternative and more appropriate child behaviour management skills and parenting strategies. 

9. The submissions I have heard this morning from counsel are that the mother still believes that there is a basis to the sexual abuse allegations and is concerned for the children’s safety if they are to be in the care of the father.  She is also concerned for their emotional and psychological safety on the basis that she is concerned about them spending time with a man they believe has hurt them and with whom they do not wish to spend time.

10. The father’s submissions were that because the physical allegations were known prior to the consent order in August 2011 and the sexual abuse allegations have not been established that the orders of August 2011 should be resumed.  The Independent Children’s Lawyer appearing for the children this morning has not accepted without reservations the submissions of either counsel for the parties.

11. I am concerned that the father has not undertaken the steps as ordered in August 2011 which were intended to improve his parenting capacity.  I am also concerned about the emotional impact upon the mother of an order requiring her to deliver the children up to spend time with a man she believes has sexually and physically abused the children and against their wishes. 

12. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) and the well known authority of Goode & Goode (2006) FLC 93-286 require me to consider the various factors as best can be done when there is considerable contest between the parties as to the relevant factual matters which would need to be determined before the Court could make a decision concerning the best interests of the children.

13. However, it appears that in this case the primary considerations are the main factors, namely; the need to protect the children from any harm and encouragement to maintain a meaningful relationship with both of the parents.  Any order that is made for the children to spend time with the father needs to be made on the basis that will give the mother some assurance and therefore some emotional security that the children will be protected so that the relationship with the father can be resumed on a meaningful but protected level.

14. The Independent Children’s Lawyer has indicated a willingness to confer with the proposed supervisor in order to ensure that he is an appropriate person who is able and willing to ensure that the children are protected physically, psychologically, and emotionally.  That will assist the court to a large extent in overcoming any concern there might be about his suitability.  The order of August provided for the children to spend six hours with the father each weekend.

15. I consider that to be an order which at this stage would not promote the best interests of the children as it would have two effects; one it is a long time for young children to be separated from their mother and to be placed with the father with whom they have had very little time in the recent past, and two, the mother’s inability to handle the time spent would be increased if it were to be for a long period. 

16. Having taken into account all of the factors necessary I am therefore proposing during the period of the adjournment to order that the children spend time with the father for a period of not less than three hours on one day of each fortnight on the weekend as agreed between the parties or in default of agreement between 2 pm and 5 pm on the alternate Sunday commencing on the first Sunday after the Independent Children’s Lawyer confirms the suitability of Mr M to act as supervisor.  Such time is to be in the presence of Mr M at all times.

17. The order is conditional upon the Independent Children’s Lawyer interviewing Mr M and being satisfied that he is a person who is willing and able to protect the children from any emotional, psychological or physical harm and is willing to terminate the time spent with the father if that becomes necessary to protect the children’s well-being.  The other orders of 11 August 2011 which are relevant, namely, the parties enrolling in the contact service are still on foot.

18. I am going to ensure that paragraph 6, the alternate weekends take place on the weekend which is not the time supervised by Mr M. 

19. Those are orders that I am proposing to make during the period of the adjournment.  The difficulty I have with the adjourned date is knowing how long it will take for B Contact Centre to obtain the report that is referred to in paragraph 7 of the order of August 2011.

20. However, I propose that the matter come back before me for mention on 31 July at 9.15 on the basis that any affidavit material upon which any party seeks to rely be filed and served by 20 July. 

21. I consider it appropriate that there be a further Family Report prepared with a view to assisting the Court in determining the orders that need to be made. However, I will not order that at this stage but would expect to hear from the parties as to the need to list the matter for final hearing if it is not resolved when the matter comes back before me on 31 July.  The preparation for the final hearing would include an updated Family Report.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 April 2012.

Associate: 

Date: 23 April 2012