Wootton and Wootton

[2009] FamCA 586

FAMILY COURT OF AUSTRALIA

WOOTTON & WOOTTON [2009] FamCA 586

FAMILY LAW – CHILDREN – Magellan list – best interests of the child – sexual abuse allegations – refusal of application for interim orders providing for supervised time with parent against whom allegations are made

Family Law Act 1975 (Cth)

APPLICANT: Mr Wootton

RESPONDENT: Ms Wootton

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6277 of 2007

DATE DELIVERED: 27 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 27 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J.J. Cantwell

SOLICITOR FOR THE APPLICANT: Kempsons Lawyers

COUNSEL FOR THE RESPONDENT: Mr C.C. Ham

SOLICITOR FOR THE RESPONDENT: McKean Park

COUNSEL FOR INDEPENDENT CHILDREN'S LAWYER Ms J. Spehr

SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER Victoria Legal Aid

Orders

IT IS ORDERED:

1. That the father’s oral application for interim orders entitling him to spend time with the child … born … November 1998 is refused.

2. That the further hearing of all extant applications be adjourned to the Magellan Directions List on 15 May 2009 at 10.00 am.

3. That the father do all acts and things necessary and keep the other parties to the proceedings advised of the progress of any criminal proceedings against him and, in particular, to state whether he is charged with criminal offences or receives an indication from an appropriate authority that he will not be charged.

4. That liberty is reserved to each of the parties to approach the Magellan Registrar in the event that the matter progresses and he or she seeks that further orders of a procedural or substantive nature be made earlier than on 15 May 2009 and IT IS REQUESTED that the Magellan Registrar list the matter at the next available opportunity thereafter.

5. That the reasons for judgment this day be transcribed and when available copies be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6277 OF 2007

MR WOOTTON

Applicant

And

MS WOOTTON

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter comes before me in the Magellan directions list and it concerns the parties’ daughter, born in November 1998.

2. The proceedings are competing applications about with whom the child should live and spend time.  The parties are the child’s father, Mr Wootton, and her mother, Ms Wootton. The issue before the court today concerns an application by the father that his time with the child resume on a supervised basis pending a final hearing of the matter.

3. The parents commenced living together in approximately 1999 and were married in 2000. They separated in November 2006, with the father moving out of the family home in early 2007. 

4. Final parenting orders were made in the Federal Magistrates Court on 12 February 2008 which provided that the parties would share parental responsibility and the child would spend fairly extensive and regular time living with the father.  For the purpose of those proceedings, a psychologist, Ms F, prepared a family report dated 7 January 2008 and an addendum to the family report dated 11 February 2008. I should note here that in these subsequent proceedings, Ms F prepared a third report dated 12 September 2008 and a fourth report 10 December 2008.

5. Following the 2007/2008 proceedings, it appears from the material that the child went to live primarily with the father and had little or irregular time with the mother, particularly over the first half of 2008.  In May 2008 the father returned the matter to court seeking to regularise what were then the existing arrangements and the parties again saw Ms F, the psychologist, who prepared her third report.

6. Ms F recommended amongst other things that the parties revert back to the final orders and that both parents undertake some counselling to help them communicate. It was recommended that the wife attend a number of personal counselling sessions, that the father attend about half as many counselling sessions as the wife and then some jointly with the wife. Ms F recommended that the child’s development be monitored by school-based welfare staff. 

7. In her third report, Ms F raised concerns relation to the child’s propensity for lying.

8. On 15 December 2008 the mother filed a notice of child abuse alleging that, two months prior, the child had told the class teacher matters which indicated that the father had been acting in a sexually inappropriate way towards the child. In particular, that the father has watched her while she was bathing, that he has grabbed and massaged her bottom and placed his hand between her legs and touched her vagina and has called her inappropriate sexual names.

9. At that point the matter was transferred from the Federal Magistrates Court to this court and marked for consideration for inclusion in the Magellan list.  Prior to that occurring, however, the father's time or residence with the child was suspended by an order made by Burchardt FM in November 2008. 

10. The father has not spent time with the child since approximately October 2008. Today he makes an application that his time with the child resume on a supervised basis.  This is not the outcome that the father wants but, conservatively, he accepts that it is the only viable application he can make. In short, he wants to be able to see his daughter again and will submit to supervision if that is necessary. He nominates his sister as the supervisor. She has attended court with him today and is a solicitor.     

11. The application is opposed by the mother and by the independent children's lawyer.

12. The allegations of sexual abuse are based largely if not wholly on statements which have been made by the child. 

13. Counsel for the father, Mr Cantwell, has referred me to Ms F’s fourth report dated 10 December 2008. Mr Cantwell refers to paragraphs 76 to 79 of that report which begin:

    On the basis of the information made available to me for the preparation of this further updated report and given my observation of this family over four occasions in the past 12 months, there is sufficient doubt concerning the disclosures made by [the child] to concede unequivocally that [the father] is a protective risk whilst she is in his care.

14. The balance of the summary reads as follows: -

    However, should the Court have information that indicates otherwise, time arrangements will need to be reviewed in that light.

    Notwithstanding the outcome of investigations by the appropriate statutory authorities, the relationship between [the child] and her father is ruptured and will need professional assistance to repair. [The child] and [the father] could attend Ms [G], who has indicated her willingness to assist. Mr [P] might also be re-engaged for more long-term parenting and family counselling with both [the father] and [the mother] and [the child].

    [The child’s] time with her father should be reinstated but gradually. A trusted adult such as Mr [Y] might be in attendance for a short period and then overnight time could be gradually reintroduced. Counselling should have commenced for [the father] and [the child] before overnight time recommences. Supervision at a children’s contact service does not seem necessary.

15. Ms F’s evidence is not tested and is unlikely to be tested until the final hearing.

16. Once the matter was received into the Magellan list of cases, a report was sought from the Department of Human Services.  A report was forthcoming on 2 February 2009. 

17. The DHS report recites that on 30 October 2008, the child made statements to her teacher and then to her mother on 31 October 2008 that some days previously, namely 19 October 2008, the father had touched her in a sexual manner on her bottom and her vagina, stared at her whilst she was in the bath in a manner that made her uncomfortable, and made sexually inappropriate comments to her.  It was reported to the Department of Human Services that later in November 2008, the child made statements indicating that the father's behaviours had been occurring for several months.

18. On 11 November 2008, the mother took the child to Footscray SOCAU where the child was interviewed by police members and it is recorded that the child made statements to the SOCAU members that she had been touched on the genital area by her father.

19. The report details earlier investigations in this matter.  The departmental officer concludes as follows:

    The Department of Human Services has not interviewed [the child].  It is believed that it is not in [the child’s] best interests to undergo another interview, as she has already been interviewed by several professionals in the past.  [The child] has made disclosures of sexual abuse to at least four professionals since October 2008.  It is apparent that all the professionals have mixed views of the allegations.  Despite this, the professionals are recommending supervised contact between [the child] and her father.  [The child’s] disclosures need to be taken seriously and given [the child’s] age and inability to self protect, she requires protection and security from the adults that she trusts in her life.  Given, this Child Protection (sic) supports the recommendations of professionals and the proposal of Ms Jenkins that [the child] have supervised contact with her father.

    From past discussions with [the mother] in the previous involvement and from the current information obtained in the documents available, [the mother] has been assessed as a protective parent and appears to be prioritising [the child’s] best interest and safety.  It is believed that she is seeking no contact between [the child] and [the father]. According to Ms [G], [the child’s] anxiety levels decreased once [the child] stopped seeing her father.

    Given, the current contact between [the child] and [the father] has been suspended and that the Independent Children’s Lawyer is seeking supervised contact; [the child] has been interviewed by professionals in the past; and [the mother] is demonstrating an ability and capacity to be protective, the Department of Human Services will not intervene in this matter.

    Recommendations:

    1.Child Protection supports the Independent Children’s Lawyer’s recommendations of supervised contact, if and when [the child] is ready for contact to begin.

    2.It is recommended that [the child] continue to undergo therapeutic counselling to further explore her experiences; further assess her relationship with [the father]; and assess the ongoing safety of [the child] should contact resume between herself and [the father].

    3.It is recommended that [the father] undergo a psycho social assessment to further assess any risks to [the child].

    4.That the Department of Human Services not intervene in these proceedings at this stage.

20. The core principles under the Family Law Act are that an assessment be made of the benefit of the child having a meaningful relationship with his or her parents and that there is an imperative to protect children from physical or psychological harm.  In cases such as this, those aspirations can conflict.  I asked Mr Cantwell what change in circumstances there had been since the matter was before Burchardt FM in November 2008.  I am told that the changes of circumstances have not been significant.  The father has not seen the child, but that was by operation of the order which is sought to be varied at this point. 

21. There are some matters of which I have been informed from the bar table. It is said that the father may be charged with some criminal offences.  The only common ground is that he has been interviewed.  At that interview he made no comment, which was his entitlement.  It is common ground that the child has been interviewed.  It is agreed that no charges have yet been laid against the father. 

22. I am satisfied that the court would be very much assisted by both of the parties undergoing something in the nature of a psychosexual assessment by the same clinician.  I asked Mr Cantwell to obtain specific instructions as to whether his client would undergo such an assessment and would undergo such an assessment prior to knowing the outcome of the criminal investigation.  I am advised that at this time the father prefers to wait until the criminal investigation is concluded before undergoing a psychosexual assessment. He is entitled to adopt that course and he is entitled to change his mind subsequently.

23. Acting conservatively, as the best interests of the child require that I do, I am not going to accede to the application of the father for supervised time with the child between now and a final hearing or between now and any other return date. 

24. The effect of me refusing the father’s application is that the child will have no time with her father.  At a final hearing, and with the benefit of hindsight, my refusal of supervised time may appear to be a decision which is unfair to the father and not in the best interests of the child.  However, sitting as I do today I see that that is the only proper decision that I can make. The proceedings will have to run their course. Because the applications are in the Magellan list, the matter should be allocated a hearing virtually as soon as it is ready to proceed.

25. Any further step in these proceedings seems to hinge on, at the moment, whether or not the father will face criminal charges.  It is the preference of the father and the independent children's lawyer to have the matter listed on 15 May 2009 in the Magellan directions list.  It was the preference of the mother that these proceedings be taken out of the list of cases awaiting hearing and the Magellan list with the right of reinstatement upon certification by any of the parties that there was a dispute that required determination or the matter was otherwise ready to progress.

26. It seems to me that the matter might be ready to progress earlier than 15 May, in which case the parties can contact the Magellan registrar who will list the matter in the next available directions hearing.  I will leave the hearing on 15 May 2009 in place.  If on that day it appears the mother unnecessarily incurs costs of representation, no doubt she will refer to these reasons in support of an application for costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  29 June 2009