Wegiel and Edwins (No 2)

[2012] FamCA 662

FAMILY COURT OF AUSTRALIA

WEGIEL & EDWINS (NO. 2) [2012] FamCA 662

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where there were previous consent Orders providing for the children to spend supervised time with the father – where the proposed supervisor can no longer facilitate such time – where the mother alleges that the children’s behaviour has regressed since commencing spending time with the father – best interests – where the Court was of the view that it should err on the side of caution at this stage of the proceedings – orders for the continuation of supervised time with such time to take place at a Children’s Contact Centre.

FAMILY LAW – PRACTICE AND PROCEDURE – where the father says that the Family Consultant has shown a bias against him and should not prepare the updated Family Report – where the Court was not of the view that bias had been established.

Family Law Act 1975 (Cth)

APPLICANT: Ms Wegiel

RESPONDENT: Mr Edwins

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

FILE NUMBER: ADC 1310 of 2011

DATE DELIVERED: 31 July 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 31 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Read

SOLICITOR FOR THE APPLICANT: Matthew Mitchell

COUNSEL FOR THE RESPONDENT: Mr Harley

SOLICITOR FOR THE RESPONDENT: Dixon Gallasch

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission

Orders

UPON NOTING THAT if Dr Q is available to prepare the updated family report for the trial that she is not to be considered disqualified from doing so and further noting that the docket registrar order the preparation of the report at the appropriate time being until such time as the availability of a judicial officer is known to hear the trial

THE COURT ORDERS:

1. The matter be referred to the docket registrar for preparation of the trial and directions for trial when a trial date is available, such directions to include the preparation of an updated family report it being noted that Dr Q is not disqualified from preparing such updated report if she is available.

1. Both parties are restrained from showing any court documents or discussing the court proceedings with either of the children C born … February 2007 and R born … December 2009 or in the presence of either child.

1. Paragraph 3 of the orders made 11 August 2011 providing for the father to have telephone contact with the children is noted to continue until further order.

1. In relation to the further time to be spent the parties make appropriate arrangements to continue at the B Children Contact Service if available on the basis that the children spend time with the father supervised at the B centre each alternate Sunday for a period of not less than two hours.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wegiel & Edwins (No. 2) 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 a matter which is before me with a further application by way of interim orders sought by the parties whilst this matter awaits allocation of a trial.  The proceedings have been on foot for some time, having commenced in the Federal Magistrates Court and later been transferred to this Court.  The proceedings concern the welfare of two children of the parties, C, who was born in February 2007, and R, who was born in December 2009.  They are therefore quite young children.

2. The litigation commenced in the Federal Magistrates Court.  There was a consent Order made by Brown FM on 11 August 2011 which provided that until further order, the children live with the mother and spend time with the father for a period of not less than six hours on one day of each weekend as agreed between the parties, and in default, between the hours of 10.00 am and 4.00 pm on each Sunday, to be supervised by Mr M, a friend or associate of the father.  There were also conditions in relation to the commencement of that time.

3. Further provision was also made for the father to have telephone contact with the children each Wednesday, and for the parties to make arrangements to commence with the B Children’s Contact Service such that the father would have supervised time with the children on six occasions for two hours on the other weekend.  There were further ancillary orders made by way of injunctions, a direction that the mother arrange for the children to attend therapeutic intervention at Mental Health Services, and for the father to undergo an anger management course and a parenting course and to produce evidence of the same.

4. Since that Order which was made in August 2011, there has been no time spent supervised with Mr M for reasons which relate to the difficulties of Mr M making arrangements to carry out the undertakings, to make arrangements to speak with the Independent Children’s Lawyer, and in relation to his own work commitments. 

5. The time with the B Children’s Contact Service has now taken place.  There have been five such occasions.  There is also dispute in relation to the speed with which the father has attempted to comply with the Orders that he undergo an anger management course and a parenting course with Relationships Australia.

6. Since August 2011, the matter has progressed. There has been subsequently further affidavit material filed in this Court, including matters which were before me when I heard the matter previously in April of this year.  The Orders provided for the Independent Children’s Lawyer to interview Mr M, and for the B Children’s Contact Service time to then take place.  As I have said previously, only the time at the Children’s Contact Service has taken place.

7. The significant fresh matters which are before the Court are now the Affidavit of the mother filed on 18 July 2012, the Response of the father, together with the reports of Dr L and the reports of the Contact Centre setting out the report of the time the children have spent with the father. 

8. There is significant dispute in relation to the factors which need to be determined before the Court can come to any decision about what is in the best interests of the children.  In particular, the mother now raises in her Affidavit filed on 18 July 2012 serious allegations, in particular in relation to comments made as recently as the beginning of July this year by C about his father:

   Daddy put his dick in my bum but it wouldn’t go in because it hurt, and then he stopped.

9. There was then a detailed conversation which is reported in the mother’s Affidavit.  It would appear that that conversation has not been the subject of a report to the Children’s Protection Service, nor has there been any further independent interview between the child or children to establish the veracity of the comments the mother alleges that C made.  C continues to have treatment with CAMHS at E.  There is discussion in the mother’s Affidavit about C’s regressed behaviour and also about R’s regressed behaviour, which the mother connects to the time the children spend with the father.

10. The father strenuously denies these allegations and raises the serious issue of the mother’s role in providing the difficulties for both the children by way of interviewing them and discussing with them the court proceedings. 

11. This is an interim matter.  The Court is not able to test the evidence presented by either party.  The issues, however, remain serious and significant.  The Court must ensure that the best interests of the child are the paramount consideration.  The significant factors to be determined are clearly the ones that are most applicable to this situation; namely, whether it is in the children’s best interests to have a meaningful relationship with both of the parents, and the steps necessary to protect the children from harm, whether that be sexual, physical, psychological or emotional harm.

12. At this interim stage, therefore, it is my view that the Court must err on the side of caution and ensure that the children are protected so far as possible from all forms of harm.  I will therefore order that neither party should have any discussions with the children about the court proceedings or show either of the children any court documents.  The question of ongoing time spent by the father with the children also needs to be approached with caution such that, at this stage, it needs to be supervised appropriately.  The father does not offer any appropriate independent supervisor, and therefore the Court must rely upon the services provided by the B Contact Service.

13. It is necessary to refer the matter to the docket Registrar, to make directions to prepare the matter for trial, such directions to include an updated Family Report when the time for the listing of the final trial is known.  It would not be appropriate to subject the children to another family report session interviews now and then again when a trial date actually becomes available.  Therefore, I propose to delay the ordering of a further report until such time as the availability of a judicial officer to hear the final trial in this matter is known.

14. The issue of whether Dr Q is an appropriate person to prepare the second report has been raised.  It is the father’s submission that Dr Q has shown a bias against him.  On the consideration of Dr Q’s report, the matters that were discussed (albeit in the context of the children’s allegations and not raised with the father), are in my view appropriately discussed in terms that would not require Dr Q to be disqualified from preparing the updated report.

15. It would also be more appropriate for Dr Q, with the background knowledge that she has, to prepare the updated report and therefore reduce the number of experts which might be required to give evidence at the trial.  I therefore have it noted on the file that if Dr Q is available to prepare the updated family report for the trial, that she is not to be considered disqualified from doing so.  But again, I am not ordering that report, but leaving it up to the docket Registrar to order the report at the appropriate time.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 31 July 2012.

Associate: 

Date:  9 August 2012