Wellham and Pulsoni

[2008] FamCA 899

FAMILY COURT OF AUSTRALIA

WELLHAM & PULSONI [2008] FamCA 899

FAMILY LAW –  MAGELLAN –  interim parenting orders requiring supervision of time between father and children – mother required to particularise allegations of risk of abuse – obligation of party making allegations to provide evidence of facts and matters rather than make mere and general assertions of conduct

APPLICANT: Mr Wellham

RESPONDENT: Ms Pulsoni

INDEPENDENT CHILDREN’S LAWYER: Mr A. Goddard

FILE NUMBER: MLC 2400 of 2008

DATE DELIVERED: 18 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 18 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B. Apelbaum

SOLICITOR FOR THE APPLICANT: Hale & Wakeling

COUNSEL FOR THE RESPONDENT: Mr R.P. Hutchings

SOLICITOR FOR THE RESPONDENT: Fiona McGregor

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Mr G. Ainger

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Goddard Elliot

Orders

1.That the parties attend a Trial Notice Listing with the Magellan Registrar on 1 October 2008 at 2.15 p.m.

2.That pursuant to s62G(2) a report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services of this Registry of the Court to be released by 30 September 2008.

3.For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issues.

4.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.

5.The parties shall attend and ensure the child B born … October 1995, C born … June 2003 and J born … December 2004 attend all necessary appointments for the preparation of the Family Report.

6.That the mother and the father do all acts and things necessary including attendances by themselves and others for a psychiatric assessment of each of them to be undertaken by Dr K or such other psychiatrist or appropriately qualified person as is nominated by the independent children’s lawyer.

7.That the parents forthwith each make application urgently for funding to Victoria Legal Aid to meet the costs of the psychiatric  assessment.

8.That the independent children’s lawyer be responsible for providing a copy of the psychiatric assessments to the Magellan Registrar and to the Director of Child dispute Services as soon as practicable having regard to the release date of the Family Report.

9.That all documents produced on subpoena this day be released for inspection and photocopying.

10.That within fourteen days the mother file and serve an affidavit in which she particularises the allegations of sexual abuse which are currently recited in the Notice of Risk of Child Abuse filed 30 April 2008 and deposed to by her in paragraphs 22 and 23 of her affidavit sworn 29 April 2008, such particularisation to be as to the time and date and location the alleged statements were made and as far as practicable word for word the content of the alleged statements.

11.That contemporaneously with filing the affidavit referred to in the preceding Order the wife provide details of any other form of abuse which she alleges the children or any of them have suffered at the hands of the father.

12.That the mother and the father do all acts and things necessary to make application for acceptance of the family in to the Contact Centre at R and do so as soon as practicable.  Upon completing any necessary application form each parent send same to the Contact Centre, directed to the proper officer, and to provide the independent children’s lawyer with a copy of same.

13.That until further Order the father spend time with the children B born … October 1995, C born … June 2003 and J born … December 2004 on a supervised basis and at the R Contact Centre or at such other centre as the independent children’s lawyer directs and the family are accepted, providing that B need only attend the time to be spent at the contact centre if she wishes to do so. 

14.That the time to be spent between the children and the father be as frequently as is available through the contact centre, preferably weekly, but not less than fortnightly, and for up to four hours at any time.

IT IS REQUESTED:

15.That the independent children’s lawyer, Mr Goddard, explain to B at the earliest opportunity, that the father wishes to see her with the other children but she need not attend if she does not wish to do so.

IT IS FURTHER ORDERED:

16.That the subpoena issued on behalf of the independent children’s lawyer and directed to the Chief Commissioner of Police, Victoria, be extended to 31 July 2008 at 9.30 am and the independent children’s lawyer advise the recipient of the subpoena accordingly.

17.That pursuant to Sections 65DA(2) and 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Wellham & Pulsoni is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2400 of 2008

MR WELLHAM

Applicant

And

MS PULSONI

Respondent

REASONS FOR JUDGMENT 

(ex tempore)

1. This matter comes before me in the Magellan duty list and it concerns the children, B, who is 12, C, who is five and J, who is three. 

2. The father has not spent time with the children for approximately seven months.  Today I have ordered that a family report be prepared hopefully to be released by the end of September, and that there be a trial notice listing on 1 October which should see this matter accommodated for final hearing in the November, December 2008 sittings in the Magellan list. 

3. The father seeks that he spend time with the three children between now and the final hearing date.  I gather with some reluctance, but a sense of reality, he concedes that the time ought be supervised, and he proposes that his sister do such supervision.  She has previously been a supervisor for time he has spent with the children. 

4. The mother resists supervision by the paternal aunt.  She concedes that the children should spend supervised time with the father, but says that it should be in the context of a contact centre. 

5. These proceedings were instituted by the father in March 2008.  The mother responded in April 2008 but, notwithstanding that she proposes that time be spent at a contact centre, she has made no application for acceptance of the family into a contact centre, consistent with her position today.  I am advised from the bar table that it has only been today that the mother was prepared to countenance any time between the children and the father.

6. The independent children's lawyer is Andrew Goddard, solicitor.  He hasn't met the children.  He will at some point in the future at least make arrangements to see B, who is 12 years of age.  Indeed, the orders that I make will involve him at least communicating with B by telephone. 

7. Returning to the issue of appropriate supervision, the mother's objection to the paternal aunt supervising time includes an allegation that the paternal aunt has been affected by alcohol whilst previously acting as a supervisor.  The independent children's lawyer has made inquiries of the Department of Human Services.  Apparently, DHS say that the paternal aunt was approved as a supervisor at some point in the past, but when the alleged risks were somewhat different. 

8. The mother filed a Notice of Risk of Child Abuse on 30 April 2008.  The single allegation of abuse is found at page 3 and it reads:

   “The child, [C], disclosed in or about September/October 2007 that the father has been touching her to her vaginal area and generally behaving in an overtly sexual manner towards her.”

9. The affidavit material upon which the mother relies as containing evidence of her allegation are paragraphs 21 to 23 of her affidavit sworn on 29 April 2008.  Those affidavits read as follows:

   21.I say that I receive an education maintenance allowance for the children.  That covers most but not all of the children's state school fees.  I've never asked the father for money.  I know I will never get any money from the father and he is simply not interested in assisting the family financially.

   22.I say the father's time with the children broke down because of disclosures made by [C] in or about September/October 2007.  [C] made disclosures as to touching her on the vaginal area by the father.  The matter was reported to Victoria Police and the Department of Human Services.  There was a forensic examination of [C] conducted at Monash Medical Centre in or about October or November 2007.  The findings of that were inconclusive.  [C], however, has made consistent disclosures, particularly to her sister. 

   23.We have seen a counsellor at Eastern CASA.  The advice of the counsellor was that it was of no benefit for [C] at her age to continue with counselling, but it may be something that needs to be readdressed into the future.

10. The affidavit material relied upon by the mother does not constitute evidence admissible in these proceedings.  It is of a summary descriptive fashion.  It is incumbent upon the mother making the allegation to provide evidence.  Evidence would usually include details of the date and time and location of when statements were made, and as far as practicable give a word for word account of the contents of the statement.  I have made orders today that she do so. 

11. The sexual abuse is not the full extent of the allegations made by the mother.  She alleges that the children have been exposed to domestic violence, and she makes allegations that the children, in particular, B, has been exposed to emotional abuse such as taunting or bullying. 

12. This being an interim hearing is not a hearing at which I am able to make any findings of fact.  My findings of fact, in line with authorities such as Goode v Goode (1998) FLC 92-801, are significantly curtailed. It cannot be otherwise given that the evidence is limited and what evidence there is has not been tested.

13. I need to act fairly conservatively.  The conservative manner in which this matter is to proceed must be viewed in light of the allegations which are made. 

14. The Department of Human Services has prepared a report which is before the court.  It is dated 16 July 2008.  In it, DHS has described its investigations.  It includes an assessment of B, which indicates that she is opposed to seeing the father at this stage.  That is somewhat consistent with the mother's description of B as detesting the father.  The conclusions of the Department of Human Services are as follows: -

    Child Protection has been unable to substantiate the allegations of sexual abuse and has assessed that there are no current immediate or significant concerns for the safety and well-being of [B], [C] and [J].  This assessment is based on the following rationale:

    ·On the 3/6/2008 Protective worker contacted [O] Childcare where [C] and [J] currently attend.  The children’s carers advised that they had not observed [C] or [J] to display any sexualised behaviours.  The carers advised that there had been no concerns in relation to the children’ presentation and that the children have not disclosed anything that was of a protective concern.  Furthermore, the childcare has advised that they have had no concerns in relation to [the mother’s] care of the children.

    ·A Forensic Medical Examination was completed on [C].  It was found to be inconclusive and assessed that penetration of the vagina was unlikely due to [C] having a labial fusion.  Furthermore SOCAU conducted a disclosure interview with [C] and whilst it was acknowledged that [C] disclosed some offences in relation to her father, [C] could not give context to the disclosure therefore the interview was inconclusive.

    ·On the 6/6/2008 Protective Worker interviewed [C] at [O] child care centre.  [C] made no disclosure of being sexually abused by her father [Mr Wellham].  [C] could not articulate how safe she felt with her father and did not disclose anything that was of a protective concern in relation to her father.  Furthermore, [C] and [J] attend [O] childcare on a regular basis who would be able to further monitor the children and contact Child Protection should they have any protective concerns.

    ·On the 6/6/2008 Protective Worker also interviewed [B] in relation to protective concerns.  Whilst it is acknowledged that [B] did disclose that [C] had been sexually assaulted by her father, there was no context given as to when it ad occurred or where it had occurred.  [B] also disclosed that she was sexually assaulted by her father’s friends, and had been raped in the past whilst she was intoxicated; however the school has raised concerns in relation to the truthfulness of the disclosures.  Furthermore [B] is seen by the school welfare co-ordinator, Chaplain and social worker on a regular basis which would allow for an going monitoring of [B].  As mandated professionals , the school would contact Child Protection should they have any protective concerns.  [B] did not make any disclosures that were of a protective concern in relation to [the mother].

    ·Whilst concerns were raised in relation to [the father’s] substance use, the children have not had contact with [the father] since October, 2007 and as such the children have not been exposed to [the father’s] substance use.  Furthermore [the father] has advised that he does not use illicit substances when the children are in his care.

    ·There were no immediate or significant concerns in relation to the children being in the care of [the mother].  The children did not make disclosures in relation to [the mother] that were of a protective concern.  Whilst it is acknowledged that concerns were raised in the past in relation to [the mother’s] behaviour there are no known current concerns reported by professionals involved with the family in relation to [the mother].

15. The recommendations of DHS are that the father be required to undergo supervised urine screens for the testing of use by him of illicit drugs, that he engage with a drug and alcohol counsellor, that he take regular medication as prescribed by Dr F. It is recommended that any time spent by the father with the children in the short term should be supervised -

    […] to ensure that [the father] is not substance-affected whilst with the children.  Furthermore [B] has clearly stated she does not want to see her father and feels intimidated by her father.  Thus supervised access would allow for ongoing monitoring of the children, allowing for the children to be in a safe and nurturing environment.

16. Finally, there is a recommendation that there be no denigration of either parent "in order to ensure that the children maintain a positive relationship with both parents."  The benefit of such an order may be more apparent than real. 

17. I have read the affidavit material relied upon by the parties.  I have had the benefit of the submissions by each party. 

18. I remain of the view that it is important to act conservatively and carefully at this point. It is appropriate that a contact centre be the venue at which the father spends time with the children. There are drawbacks at a formal contact centre but there are also advantages for the parents and the children which go beyond peace of mind.  In this case and only as an interim measure. A contact centre provides an acceptable balance between the court’s responsibility to make orders which facilitate the children spending time with and having a meaningful relationship with the father and the need to protect the children from (untested) allegations of harm or abuse.

19. Originally the mother proposed a contact centre at W but there is approximately a six-month delay.  The parties have agreed that they will travel to R and go to a contact centre in R, which has what I understand to be no delay once an application is made.  I commend both of the parties for taking that position.

20. These are interim orders.  It would appear that this matter can be disposed of by the court in November, 2008.  It is conceivable that the proceedings could have been disposed of earlier. However, it is preferable that the family report not be rushed, and that the father and the children have an experience of some time together in the scrutinised atmosphere of a contact centre, which may ultimately produce some evidence which is of assistance to the court.  So the family report will not be released until the end of September. 

21. The family consultant should have access to a psychiatric report which each party has agreed to submit themselves to.  At the moment it seems that Mr K will do the report, and it's preferable that that be seen by the family consultant before the family report is released. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  20 August 2008