Kuesterss and Kuesterss

[2008] FamCA 302

FAMILY COURT OF AUSTRALIA

KUESTERSS & KUESTERSS [2008] FamCA 302

FAMILY LAW  -  CHILDREN  -  Magellan  -  interim time  supervision

Family Law Act 1975 (Cth) s 62G(2)

HUSBAND: Mr Kuesterss

WIFE: Mrs Kuesterss

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12786 of 2007

DATE DELIVERED: 1 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 1 February, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr R. McIvor

SOLICITOR FOR THE HUSBAND: Melville Orton & Lewis

COUNSEL FOR THE WIFE: Ms S.S. Buchanan

SOLICITOR FOR THE WIFE: O’Keeffe Pithouse

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms E. Bender

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders 

1. That until further order the father spend time with the children of the marriage J born … April, 2002, R born … May, 2004 and B born … December, 2005 as follows :

   (a)from 9:00 am. until 12:00 noon on 2 February, 2008;  and

   (b)commencing on 9 February, 2008, from 9:00 am. until 5:00 pm. on each Saturday;

   PROVIDED THAT  such time be supervised by one of the husband’s parents and that prior to the first period of time pursuant to these orders, the husband’s parents sign an undertaking that :

   (i)one of them will be present at all times during which the children are with the husband;  and

   (ii)they will terminate the husband’s time with the children in the event a child becomes distressed or the husband acts inappropriately towards a child. 

1. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 30 March, 2008.

1. That the parties attend a Trial Notice Listing with the Magellan Registrar on 7 April, 2008 at 3:45 pm.

1. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

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

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12786 of 2007

MR KUESTERSS

Husband

And

MRS KUESTERSS

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These proceedings commenced in November last year, with an application brought in the Magistrates’ Court.  The parties married in late March 2001.  They separated a little over a year ago, in January 2007.  They have three very young children: J is nearly six, R is three and a half and B, the baby, is just two.

1. It is clear from the material that the parties struggled after separation to agree on arrangements for the father to spend time with the children, who were living with their mother.  It is clear from his own evidence that the father was very distressed by the separation, and sought professional help.  His distress impacted to the extent he felt he had to leave his employment.

1. The parties attended mediation, through Centacare.  They signed an agreement after mediation on 5 June, 2007 pursuant to which the father was to see the children on each alternate weekend.  It is much to their credit that they went through that process. 

1. The father spent time with the children pursuant to that agreement for only a short period.  On 10 August, 2007, (which was the Friday of a weekend on which the children would have been with their father) the mother advised that the children were ill.  The same day, the father was contacted by the Department of Human Services.  On 18 August, 2007 the father received a registered letter from the mother, in which she accused him of sexually abusing the children.

1. It was he who filed the initiating application on 8 November, 2007 in which he sought that he and the mother have equal shared responsibility, the children live with him and the mother spend time with them, as determined by the court.  On 22 November, 2007 the mother filed a response, seeking that his application be dismissed, that the children live with her, and that he spend such time as appeared “to be in the best interests of the children after a full family assessment report has been furnished”.  The same day, the mother filed a form 4, in which she alleged three complaints.  The first was that on 2 August, J complained that his father had inserted a stone into his anus; the second, that on 8 August, J and R disclosed that they had viewed pornography on their father's computer; the third, that on 1 September, J disclosed that his father had inserted his tongue in his mouth.

1. On 22 November, 2007 orders were made in the Magistrates’ Court.  Pursuant to them, the parties were to do everything necessary for the father to spend time with the children at the Anglicare contact centre in M.  An independent children's lawyer was appointed and the case was transferred to this court, where it was assessed as appropriate for the Magellan stream.  Procedural orders were made, including an order for the provision of a report from DHS. 

1. The court has before it a report from the Department of Human Services, dated 25 January.  It refers to the initial notification, which arose from an alleged disclosure by J that somebody put a stone in his bottom when he was with his father.  Asked about the identity of the person who did this, J initially said it was a two-year-old.  Later, he said it was a nine-year-old.  Later still, he said that the person was the same age as his father.  J was interviewed on three occasions.  He is described as shy and uncommunicative.  I will refer in a moment to some of the things he did say. 

1. DHS workers also made a number of inquiries.  A worker spoke with Dr N, who had examined the children; with those at J’s school, T School; and with the paternal grandmother.  There were a number of meetings with the mother and with the father.  Police members were present at initial interviews with the mother and J, and Detective G spoke with J.

1. On behalf of the father, it is submitted that the allegations made by the mother have escalated since the initial allegation that someone put a stone in J’s bottom.  This was followed by allegations of inappropriate behaviour by the father towards the other children (based on further alleged disclosures by J) and the allegation that J watched what is described as pornography on the father's computer.

1. The DHS file records concerns as to the level of animosity the mother displays towards the father.  It is not surprising that a parent who believes the other parent has acted in a violent and abusive way to a child would become angry.  The father's position is that the mother’s anger predated these allegations, and is the motive for the making of false allegations.  From the mother's perspective, it is the father who was intimidatory, volatile and abusive prior to these allegations being made.

1. Material before the court raises concern about the potential for the mother’s questioning of the children to have resulted in answers which she then interpreted in ways consistent with her fear that one or more of the children has been abused, and to reinforce her view that the father should not be spending time with the children.  With small children, there is potential for such reinforcement if adults repeat allegations or discuss concerns in their presence.

1. Inquiries made by DHS with the school do not disclose any behaviour by J which would be indicative, or have the hallmarks, of a traumatised or abused child.  It is possible J’s remarks about a stone refer to constipation.  His description of the alleged perpetrator might be described as fantastical;  if it is not a description of a well-known advertising mascot, it could be.  When J was questioned, some time after the allegation about the stone in his bottom, he said it happened four hours ago.  He said he went to the house where it happened with his mother, and then his mother and his grandfather.  He said that after it happened, he just looked around and did not see anyone.  Two medical examinations have not disclosed any physical indications of abuse. 

1. It needs to be said that a lack of physical symptoms of abuse is not determinative of whether abuse has or has not occurred.  Small children can make disclosures over lengthy periods and the descriptions may not be consistent.  Children’s accounts can include elements which sound odd or unlikely to be true, with other allegations eventually found to be true.  In each case the court must look at the body of evidence before it.

1. The application of the father is that his time with J and the other children should recommence swiftly.  He seeks to spend time with them on each alternate weekend, from Friday to Sunday, and for four hours on the intervening Saturday.  He is prepared to consent to an order that his parents be in substantial attendance, albeit with a denial of the necessity for that order.  He seeks that the mother be psychiatrically assessed and the matter otherwise proceed on to trial.

1. On behalf of the wife it is submitted that the time the father spends with the children should continue to occur at Anglicare’s supervised facility in M.  There have been two such attendances there to date.  It is submitted that the risk is too great to make orders as sought by the father.  First, investigations are not complete and second, the father’s parents are necessarily partisan to their sons' position, and have (she says) not been supportive of her since separation and may not be diligent in the supervisory role.

1. In response to the father’s application that she be psychiatrically assessed, the mother says, to summarise it bluntly, that if anyone needs to be psychiatrically assessed, it is the husband.  In any event, it is submitted an assessment is premature and should wait on the recommendations of the psychologist or social worker preparing the family report. 

1. The ICL has proposed that the father spend time with the children on a daily basis (from 9:00 am. to 5:00 pm.) on one day in each weekend, with the paternal grandparents to be in substantial attendance. 

1. The mother is fearful for her children.  The ICL accepts that her fear is genuine, but draws attention to discrepancies in accounts and other factors relevant to the existence of objective foundations for her fears.  DHS has concluded that the allegations are not substantiated and is closing the file;  workers have no concerns about the children in either parent’s care.

1. These children are very young.  Ms H has adverted briefly to the importance of young children maintaining and consolidating attachments with both parents and with other people of significance to them.  The Family Law Act 1975 stresses the two primary considerations when considering where the best interests of children lie as, on the one hand, the importance of the maintenance of a meaningful relationship with both parents and, on the other hand, the importance of protecting children against the potential for physical or emotional abuse. In many cases there is a tension between these considerations. Sometimes it is easy to see where the balance falls; often, it is not. The test is always the best interests of the child, not the parents' wishes and desires.

1. The assessment of an alleged risk is particularly difficult in an interim hearing such as this, when the court cannot test the evidence.  It is hard for parents to sit in court  and hear, through a third party, an account which they may feel is partial, or inadequate.  I have read all the material on the file, including the affidavits sworn by each parent.  The focus of the court must be squarely on the children.  I note both parties have parents with them in court and it is fortunate for the children that each of their parents are supported by extended family, even at this time.

1. Balancing all matters, I am not satisfied that contact should continue at the contact centre.  It is too far; it is too short; it is too infrequent.  On the other hand, I am not satisfied that contact should be for the period sought by the father.  In my judgment, it is important to re-establish a regime which can be consistent, predictable, stable and safe for these children.  Research suggests that what is important for young children are regular periods of time with parents, rather than less frequent, but longer, periods of time.

1. I do propose to order that, until further order, the father’s time with the children be supervised. I appreciate that is not what is sought by the father and is not the first preference of the ICL.  There are cases where an order for another adult to be “in substantial attendance” is adequate.  However, having regard to the fears and concerns of the mother in this case, it is unlikely an order in those terms would ameliorate her genuinely held concerns about the children’s safety.  I appreciate that an order for supervision by a grandparent imposes an onerous commitment, but such an order may help the mother to send the children off to spend time with their father with a little more confidence, despite the animosity between the two families. The children have good relationships with grandparents on both sides.  These children do not need to know their time with their father is being supervised; from their perspective, they will be spending time with their father and their grandparents.

1. I will ask the paternal grandparents to undertake that one of them will be present during each period of time with the children and that he or she will intervene and terminate the time in the event the children became distressed, or any inappropriate behaviour is observed.  The court's experience is that grandparents are protective of their grandchildren; if they have to, they must demonstrate the capacity to put the children’s interests ahead of the interests of their own son.

1. Contact will be on Saturday, between 9:00 am. and 5:00 pm., from 8 February.  Contact tomorrow will be between 9:00 am. and noon. 

1. A family report will be prepared and released at the end of March.  The father will have had an opportunity to resume contact with the children, pursuant to these orders, before the family meet with the family consultant. 

1. I do not propose at this stage to order any psychiatric assessments.  If recommended by a family consultant, I will reconsider that issue at that time. 

I certify that the preceding
26 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.