Kuesterss and Kuesterss (No. 2)

[2008] FamCA 1217

FAMILY COURT OF AUSTRALIA

KUESTERSS & KUESTERSS (NO. 2) [2008] FamCA 1217

FAMILY LAW – CHILDREN – Interim – Further interim parenting orders to operate pending final hearing anticipated to commence in 6 weeks – change of circumstances – conditions for children spending time with father changed to include contact centre instead of supervision by paternal grandparents – fairness to parents second to best interests of children

APPLICANT: Mr Kuesterss

RESPONDENT: Ms Kuesterss

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12786 of 2007

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: Ms L.J. McCreadie

SOLICITOR FOR THE APPLICANT: Melville Orton & Lewis

COUNSEL FOR THE RESPONDENT: Ms B.M. Phelan

SOLICITOR FOR THE RESPONDENT: O’Keefe Pithouse

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms A.M. Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Victoria Legal Aid

Orders

1. That paragraph 1 of the Orders made 1 February 2008 be varied so that until further Order the father spend time with the children J born … March 2002, R born … May 2004 and B born … December 2005 at M Contact Centre, operated by Anglicare, as follows:-

   a)On 19 July 2008 from 12.00 noon until 1.30 pm;

   b)Subject to paragraph 3 of this Order on 26 July 2008 and weekly thereafter from 12.00 noon until 2.00 pm or such further or extended period of time as the proper officer of the contact centre nominates.

2. That the parents each do all acts and things necessary and make all such applications as are required to have the family accepted into M Contact Centre for the supervised time provided for in this Order.

3. That if the father does not exercise the time with the children to which he is entitled pursuant to paragraph 1(a) of this Order he be entitled to spend time with the children pursuant to paragraph 1(b) of this Order PROVIDING THAT his solicitors first notify the mother’s solicitors in writing that the father wishes to commence time in accordance with paragraph 1(b) of this Order.

4. That my reasons for judgement be transcribed and, when transcribed, a copy be provided to each party to the proceedings, to the Director of Child Dispute Services and, by the independent children’s lawyer, to the proper officer of the Contact Centre.

5. I DIRECT that my Associate send a copy of this Order to the lawyer for each party as soon as practicable in addition to forwarding same by pre-paid post.

IT IS NOTED BY THE COURT:

A.That for case management purposes the parties have a Pre Trial Conference allocated for 18 August 2008 and it is anticipated that this matter will be accommodated for final hearing in the Magellan sittings scheduled for August/September 2008.

B.The father caused a disturbance in the Court room as a consequence of which only part of this Order (up to and including paragraph 1(a)) was pronounced in open Court and the balance of this Order was pronounced in Chambers.     

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

Applicant

And

MS KUESTERSS

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter which concerns the children J who is six years old, R who is four years old and B who is two and a half years old comes before me in the Magellan duty list.  It is on track to be heard in September 2008.  To that end, interviews for psychiatric assessments have taken place with the father being assessed today by Dr S, psychiatrist.  There is to be an updated family report released by the family consultant, Ms L, at the end of August 2008.

2. The relevant history of this matter is set out in reasons for judgment delivered by Brown J on 1 February 2008.  I will not repeat the history save that to note that the parties separated in January 2007 and within six months reached an agreement through mediation for regular overnight time to be spent by the boys with the father.  These proceedings were initiated by the father in November 2007. In response, the mother filed a Notice of Risk of Abuse on 22 November 2007.  That abuse related to incidents in August and September 2007, including the father allegedly inserting a stone into the anus of the child, J; exposing the children, R and J, to pornography on his computer, and J stating that the father had inserted the father's tongue into his mouth.  There was a Department of Human Services (“DHS”) investigation and a report.  The report included consultations with external agencies.  Ultimately it was found by DHS that the alleged abuse was not be substantiated.  That is in no way determinative, I merely mention it as part of the history of the matter and to note that the mandated involvement of DHS involvement has taken place.  The DHS report refers to enquiries and investigations which, no doubt, will be scrutinised at the final hearing.

3. Since DHS looked at the matter and, in particular, in May 2008 there has been a further allegation of abuse.  The mother alleges that the father put a stone into the anus of the child, J.  This abuse is alleged to have occurred during a period of time that the children were spending with the father, under the strict supervision of the paternal grandparents, both of whom attend court today.  The father and the paternal grandparents deny that there was anything untoward or that there is any truth in the allegation. 

4. The mother had the child examined by a Dr H, a paediatrician.  It would appear that Dr H has examined J on three occasions, including 26 May 2008.  The paediatrician has found that:

   “Physical examination was otherwise unremarkable, apart from his peri‑anal region which had the appearance of an erythema in the anterior and posterior areas of the external anal canal which can be seen in the accompanying photographs which I took at the time.”

5. Those reports are Exhibit “M1” and I have directed that they remain on the court file.

6. The further allegations have been notified to the Department of Human Services.  There is a letter, which I marked Exhibit “M2” which indicates that DHS will not continue to be involved with the family.

7. There are some six weeks between now and a final hearing, hopefully.  Today the mother makes application for any time that the father spends with the children to be at the M contact centre.  She says that that time can start tomorrow for one and a half hours commencing 12 noon and thereafter each Saturday for two hours.  That would involve each party in considerable travel and the children in considerable travel.  The father resists the mother’s application as does the independent children’s lawyer.

8. The last period of time that the father was able to spend with the children was 24 May 2008 which is when the new allegations are said to have arisen.  There has been an interruption to the time by virtue of the father having been charged by the police and entering into conditions of bail which precluded him from seeing the children.  Those charges have now been withdrawn by Victoria Police and the bail conditions, which precluded the father seeing the boys, have lapsed. 

9. The mother’s application before me now seeks to alter interim arrangements which were put in place by Brown J on 1 February 2008.  At that time, her Honour was sitting in this list, was aware of the allegations as they then stood and considered the competing applications about what time the boys should spend with the father between then and a final hearing and what, if any conditions ought to be attached to that time.  In opposing any variation in the supervision of the father’s time from his family members to a remote contact centre, counsel for the independent children’s lawyer referred me to her Honour’s determination of 1 February 2008 and submitted that it was well reasoned and that any departure from the regime which her Honour imposed would be “a regressive step” as far as the children are concerned.  With respect, I agree that Brown J’s determination is well reasoned.  Her Honour has summarised succinctly the evidence which was then before the court and gone on to analyse the allegations and evidence relied upon.  Absent a significant change of circumstances, I would not consider interfering with the regime of time ordered on 1 February 2008.  However, it seems to me that there has been a change in circumstances.

10. It is apparent from Brown J’s reasons on 1 February 2008 that there was no physical indication of the alleged abuse to J.  Paragraphs 7 to 13 of her Honour’s reasons set out an analysis of the evidence.  At paragraphs 12 and 13, the absence of physical indications corroborative of the alleged abuse are focussed upon.  They read:-

    12.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. 

    13.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.

11. The relevant change in circumstances is that, on the untested evidence before me, it appears that J has suffered some trauma to his anus as recently as 24 May 2008 whilst either with the father under the supervision of his grandparents or in the care of his mother.  The father, through his counsel, has proffered an alternative explanation for the injury which involves the child, J, falling backwards onto a metal spike (which was produced) and perhaps injuring himself in a manner consistent with the injury which has apparently been found by the paediatrician.  The mother deposes to certain events on the morning of 25 May 2008 including:-

    “6.There was a minor dispute between [R] and [J] over a toy and [J] began crying hysterically.  I asked [J] why he was so upset.  His first response was a simple “No” and when I continued to question him as to why he was so upset over a toy he said “Daddy hurt my bottom yesterday”.  I asked him “What did he do?”  [J] said “He put a stone in my bottom with his hand”.  I asked him “Where were you?” to which [J] replied “Outside”.  I asked him “Where outside?” and he replied “Near the strawberry patch near the fence”.  When I asked him “Where was Gran and Pop?” he answered “They were inside”.

    7.During this questioning [J] was at first hysterical and difficult for me to understand.  He called down a little as we continued talking and I was able to understand what he was saying.

    8.After [J] said this to me I told him that I was going to have a look at his bottom.  I inspected his anus and noticed a tear in the region surrounding the opening to his anus.  The tear was at the front of his anus and approximately one centimetre long, and was slightly red in this area.”

12. Of course, there has been no testing of the paediatrician’s evidence and there will not be any opportunity to do so until a final hearing.  Likewise, the feasibility of any explanations proffered by the parties can not be tested.  However, it is apparent today that neither parent accepts the other parent’s explanation and that, as far as the mother is concerned, she alleges that the father has perpetrated further sexual abuse on J and that the paternal grandparents were either complicit or negligent in permitting that to occur during a period when one or the other of them was required to supervise the father’s time with all three children.

13. In discussion with counsel for the independent children’s lawyer I have raised my concern that physical indictors consistent with sexual abuse of J have now appeared in circumstances which would, if all of that evidence is eventually accepted at trial, be supportive of the sexual abuse which was alleged by the mother to have occurred in August 2007.  There may be a number of possible explanations but, at the moment, amongst the very many scenarios which may emerge at trial as being likely  I cannot exclude the possibility, at this interim stage, that the injury deposed to be the paediatrician was inflicted intentionally in order to support one parent’s position in this proceeding just as I cannot exclude the possibility that the injury was sustained in the course of J being sexually abused or that there is an innocent explanation for the injury.  It is a very serious case because anything other than purely accidental injury is likely to constitute abuse and sexual abuse at that.

14. I am not able to make findings of fact at this hearing such as would be available to me after hearing all of the evidence and assessing the witnesses at a final hearing.  The consolation is that whatever order I do make should only last for the next 6 weeks or so until the matter is back before the court.  I am concerned to act as conservatively as possible to protect the children from harm.  In so doing I may act unfairly against one parent but fairness to parents and the hopes or desires of parents are matters which rank below the safety of children.

15. As I have said, there may be many explanations for the child's further statements and the apparent injury.  What I am most concerned to do is to protect the children from any escalation in injuries or any escalation in the investigation of injuries or other investigations supportive of one parent’s case over the other.

16. The father and the independent children's lawyer acknowledge that it is appropriate to introduce a second layer or second tier of supervision at this stage and have proposed a number of parties with whom the children are apparently familiar.  I have given consideration to that proposal.  I note that it is also proposed that the paternal grandmother would be amongst those present with the extra supervisors.  I am satisfied that the proposal is genuine and well motivated but I do not see that there is safety is guaranteed by a greater number of supervisors.  For the next 6 weeks or so I am concerned to remove the children from an environment where the source of any physical injury they may suffer cannot be directly attributed to someone.  A formal contact centre, in my view, provides such an environment albeit an artificial environment which is more remote from the homes of the parties than time supervised by the paternal grandparents.  I will be requiring the time to take place at the M contact centre, where I understand that it can start tomorrow.

Addendum

1. After these reasons were delivered and I was pronouncing the orders, the father rose to his feet, indicated that he did not accept the determination and was verbally abusive to the mother.  His movement around the court was sufficiently menacing for me to rise so that court personnel and the persons in the court room were free to leave.  The balance of the orders were dictated in Chambers.  The Order provides that, if the father did not attend the Contact Centre the following day, he could subsequently activate his entitlement to do so by written notice to the mother, via their respective solicitors.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  14 August 2008