Rasmussen and Rasmussen and Anor

[2015] FamCA 1002

FAMILY COURT OF AUSTRALIA

RASMUSSEN & RASMUSSEN AND ANOR [2015] FamCA 1002

FAMILY LAW – CHILDREN – With whom a child spends time - interim

APPLICANT: Mr Rasmussen

RESPONDENT: Ms Rasmussen

INTERVENOR: Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Mr Haddock

FILE NUMBER: CAC 1664 of 2011

DATE DELIVERED: 23 September 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 23 September 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Bak

COUNSEL FOR THE RESPONDENT: Mr Howard

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR THE INTERVENOR:

Watts McCray

Mr Harris

Orders

IT IS ORDERED, UNTIL FURTHER ORDER, THAT:

1. B, born … 2004 and C, born … 2008, will have communication with, and spend time with, their father as follows:

   a)For the next two weeks the children will spend time on the telephone talking to their father on two occasions each week.  Such calls are to be initiated by the mother on behalf of the children at or about 6pm on each Wednesday and Friday, unless the parties otherwise agree.  The first of such calls to be this coming Friday, 25 September 2015. 

   b)The telephone calls may be made, and desirably should be made at least initially, on a loud speaker phone and the mother may be present during the course of the call.

   c)These calls will continue for a period of fourteen days, unless the parties otherwise agree, and thereafter it is expected that the parties will cooperate in ensuring that the children are able to speak to their father on two occasions each week at times that are as convenient to them and to the children as they can reasonably organise.

   d)There be liberty to apply if necessary if this should become impossible or difficult.

2. Thereafter with the assistance of the Secretary of the Department the children will spend two hours per week (or thereabouts) with their father under the supervision of appropriate persons from the Children’s Contact Centre, D.  It is hoped that D will be able to provide two hours of supervised time between the children and their father at about one week intervals at times that accommodate the reasonable requirements of the children, their parents and of D.  In any event, there will be four such sessions before the time the children spend with their father progresses to the next stage.

3. Upon completion of the four sessions referred to in the last Order, the children will then spend unsupervised time with their father for a period of two hours each week, for a period of six weeks, on Saturdays between 9am and 11am, unless the parties otherwise agree. 

4. Upon the expiration of the six weeks referred to above, the time that the children spend with their father will be weekly, for four hours, on an unsupervised basis from 9am until 1pm, unless the parties otherwise agree.

5. In relation to each period of time that the children spend with their father either the mother will drop them off and collect them from their father’s house or will take them to D and collect them from D. 

6. There be liberty to apply about the Orders set out above if it should be necessary.

IT IS NOTED THAT:

1. The arrangements about the time the children will spend with their father (but not the telephone calls) will be suspended during the period from 22 December 2015 until 6 January 2016 when the mother had already arranged a holiday.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 69ZW of the Family Law Act 1975 the Secretary of the Department of Family and Community Services (Queanbeyan) are to provide a report as to their investigations in relation to allegations against the applicant against the children.

IT IS NOTED THAT:

1. For the purposes of the hearing, although the Case Workers will not be required to file any affidavit as to the evidence they might give in the proceedings, they will be made available for cross-examination during the course of the hearing, if it should be necessary, on the application of any of the parties.

IT IS FURTHER ORDERED THAT:

1. Any subpoenas to be issued by any of the parties will require the leave of either me or the Trial Judge, Justice Watts.

2. Noting that it is likely that the matter may well proceed in the beginning of March 2016 the parties will file any affidavit upon which they seek to rely in relation to these proceedings on or before Friday, 12 February 2016.

   a)It is noted in this regard that the father may wish to file an affidavit by Mr E as to his suitability to spend time with the children and to conduct his parental responsibilities and to provide adequate parenting for the children in the light of the comments that he, the father, has made in his most recent affidavit about his psychological state.

3. Each of the parties will file an updating affidavit dealing with matters that have arisen since their last affidavits and in particular how the period of time that the children spend with their father progresses during the period up to the final hearing.

4. It is likely that the Department will seek to file a further affidavit from Ms F relating to the therapeutic intervention she has with the girls between now and the final hearing.  (It is noted in this regard no one seeks that such intervention should cease prior to the final hearing.)

5. The mother may file an affidavit by her current partner and the father may wish to file an updating affidavit from Ms G, his partner.

6. There will be a Family Report in this matter in accordance with Terms of Reference to be settled by me in Chambers upon receiving suggestions from counsel or their instructors in this matter.  Such suggestions to be received by Friday, 2 October 2015. 

7. To the extent that the affidavit that may be filed by the father, or on behalf of the father, by his treating psychologist requires he has leave to do so.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rasmussen & Rasmussen and Anor 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 CANBERRA

FILE NUMBER: CAC 1664 of 2011

Mr Rasmussen

Applicant

And

Ms Rasmussen

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings before me are interim proceedings, pending a final determination of this matter which has been stalled for a time because of the intervention of criminal proceedings to be brought against the father.  The time that the children have spent with their father has, for reasons that are certainly not significant in the determination of these proceedings, been suspended until the results of the criminal proceedings have been made available. 

2. Those proceedings have now been finalised and resulted in the acquittal of the father of the charges against him and the withdrawal of the Apprehended Violence Order which was pending on the direction of the police. 

3. The matter was then reactivated on an interim basis by the father seeking time with the children pending a final hearing.  I do not go into the terms of the orders in great detail.  They are set out in a comprehensive and thoughtful way over about a page and a half in the application filed on 26 August 2015. 

4. In support of that application, the father filed an affidavit and that affidavit, together with a further affidavit from the lawyer who acted for him in the criminal proceedings about the nature of the criminal proceedings and annexing all but the judgment of the trial judge in those proceedings, is part of the evidence before me. 

5. The mother in these proceedings filed a response in which she sought, in short terms, that there be a family consultant appointed to prepare a report and that there be a suspension of any time that the children might spend with their father until further order.  During the course of the proceedings this day, the mother’s position was somewhat changed from that through her counsel, who indicated that he had a different proposal, which I will deal with in a moment, which did involved the children spending initially telephone time with their father, then some supervised time with their father, followed by a period of unsupervised time pending the hearing. 

6. It appears at this stage that the mother is still seeking to advance during the course of the final hearing the proposition that the children should spend no time with their father. 

7. I note and will confirm by order the intervention of the Department in this matter and note that this arises as a result of an invitation from me on 31 October 2013 which was confirmed by the Department’s filing a Notice of Address for Service on 29 November 2013.  To the extent that it is necessary, the Secretary of the Department has leave to intervene in these proceedings and that should apply as and from the date on which the Secretary filed a notice of address for service.

8. The Independent Children's Lawyer had helpfully provided some additional information in relation to the orders that are sought, and it is really about those to which I now turn.  Notwithstanding that these are interim proceedings, it is necessary that I should still apply the overall principle that in deciding to make any particular parenting order about C and B, I must regard their best interests as the paramount consideration.  I am also obliged to consider, at least to the extent that it is an issue between the parties, whether or not there should be an application of the presumption that there should be equal shared parental responsibility. 

9. These are interim proceedings which is one ground for the rebuttal of that presumption or at least its potential rebuttal and, in any event, neither parent asks that the present situation be changed.  The circumstances are not such as would give rise to it, and in the best interests of the children the presumption should not apply.  The mother should continue at this point, on an interim basis, to have sole parental responsibility for the children.

10. In the matters that I have to take into account in determining what orders I should make, I receive guidance from the Act in s 60CC which sets out both primary and additional considerations. 

11. The primary considerations involve two things, both of which are relevant to the proceedings before me. 

12. The first is the primary primary consideration, if I can put it that way, as a result of the insertion into the Act of s 60CC(2A) of the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  The second is that I should take account of the benefit to the children of having a meaningful relationship with both of their parents.

13. In relation to the latter of those two propositions, I draw attention to the fact that the Act does not prescribe that there should be a meaningful relationship, but rather that the Court should take account of the benefit to the children in such a relationship occurring. 

14. In this matter, where there are allegations that the father has sexually abused C and where there has been a criminal trial relating to that matter and the father has been acquitted, it is reasonable that there should now be some proper consideration of what time should be spent with the girls prior to a final hearing.  Any such order should, in terms of the High Court prescription in M v M and B v B, be such as not to expose the children to an unacceptable risk that they might be the subject of abuse or be the subject of physical and psychological harm - adapting the decision of their Honours to the wording of the Act as it currently exists.

15. That does not require, nor would it be appropriate for me to embark upon, a consideration or determination about whether, on the differing standard of proof applicable in this Court, a court could find that, notwithstanding the acquittal of the father in the criminal proceedings, the assault asserted has occurred – and the consequences that might flow from it.  What is important from that decision and from the Act is that any orders I make should not impose an unacceptable risk upon the children.

16. In coming to that conclusion, it is important to look at what each of the parties, the Secretary of the Department, through Mr Harris, and the Independent Children's Lawyer suggest.   There is a commonality in the proposals which I roughly summarise in these terms:  recognising that there may be concerns for the children as to their father’s anger at the fact they gave evidence against him in criminal proceedings, and recognising that they have not spent time with their father for a period of, I think, about 17 months (although the precise period is not relevant) and recognising further that there is an advantage, so far as both parents are concerned, in the fact that the children might have a relationship with their father, and bearing in mind again that there is a risk, in the words of Mr Harris on behalf of the Department, that a further delay in restoring time between the children and their father may result in a permanent detachment of them from him, there appears to be agreement there should be an introductory period for the children, followed by, depending upon the proposal, some supervised time for them with a professional supervisor with their father, and that after that there would be unsupervised time, pending a final hearing.

17. The details of each of the parties’ proposals have been set out and exhaustively discussed during the course of the proceedings this day.  It suffices to say, I think, that as a result of the discussions and the helpful submissions made by each counsel, that I have reached a conclusion that, to some extent, is an arbitrary assessment of the various proposals made.  To some extent I have no expert evidence about the particular advantages of one over the other, but does, nevertheless, represent, in my opinion, an appropriate way of proceeding given the history of this matter and given the report, in particular, from Ms H, to which attention had been drawn during the course of the proceedings, and in relation to her report particularly in line 1680, that there should be some time for the children to spend with their father on a permanent basis.

18. Admittedly, Ms H’s report was prepared at a time when the criminal proceedings were pending.  But the result of the criminal proceedings would not have changed that position, it would appear – at least not to the extent of saying that the children should not spend time with their father.  The mother’s concerns are centred on the fact that the children are afraid that their father will be angry as a result of their giving evidence and that they are therefore worried and concerned and anxious about spending time with him. 

19. It is legitimate both for the children to feel that way and for the mother to feel concerned about it on behalf of the children.  It is equally reasonable for the father to seek to have an opportunity to allay those fears and, of course, it would be strongly in his interest to ensure that those fears are allayed as soon as possible.

20. So far as the introductory proposal is concerned, the father seeks that the time with the children should commence immediately in a supervised way through Dr I (a qualified psychologist) who could provide facilitation for time with the children on the basis of once a week for a period of about four weeks.  The virtues of that facilitation are not entirely clear to me, given that the children have, in fact, been attending, through the agency of the Secretary of the Department, Ms J, who has now seen C on some 20 occasions and B on a further nine or 10 occasions. 

21. It is not proposed by anyone that that therapy or assistance that she may be giving to the girls should be terminated or suspended during the periods that the children spend with their father and her continued opportunity to, I think, in the words she uses, “debrief” the girls in relation to their time with their father would be of assistance both to the girls, to their mother, to their father and ultimately to the court when it hears the matter.

22. Irrespective of whether or not Dr I should be involved, it seems to me that it is appropriate that there should be some reintroduction in the least possible threatening way so far as the girls are concerned, and it would be to the advantage of the father if the girls’ concerns about his anger were to be allayed in arrangements which would guarantee their safety, such as their having a telephone call in their mother’s house with their mother present, so that any of their potential fears could be alleviated. 

23. It seems to me, however, that whether or not this occurs for a period of four weeks once a week or for two weeks twice a week is, to some extent, a matter of choice.  There is no particular virtue associated with one or the other.  It seems to me (and I put it no more highly than that) that the appropriate time would be that the children speak to their father twice a week for a period of two weeks, which would enable a reconnection between them to occur in circumstances of no threat and safety so far as the girls are concerned.

24. The Department indicated that it would facilitate and request (which would provide priority) for the father to have the supervised time at D.  That would be in episodes (if I can put it that way) of two hours.  The father’s original proposal involving Dr I involved one hour and part of that, I suspect (and it is perfectly reasonable that it should) related to the cost of the provision of such services.  The cost of the children attending with their father at D would be zero to the parties or to the children, although the Commonwealth would have to pick up the tab at some point.

25. It seems to me that after four such visits, and ideally they would be situated at one week intervals but that may not necessarily be so depending upon the availability of the children, the parents and D – there should then be movement towards unsupervised time for two hours - for a period of a further six weeks.  Then there should be a change to a period of four hours on each occasion once a week, pending the final hearing of this matter.  That is scheduled at this point to be in March of next year – on an overlisted basis. 

26. I propose, bearing in mind that all sorts of things can go wrong (and as a matter of principle things will go wrong) that the parties should have liberty to restore the matter before me or Watts J at some time prior to the scheduled hearing, if the need should arise.  I propose in the meantime also to order a family report so that the family reporter, who will not actually be able to undertake the writing of the report, I suspect, until sometime in the New Year, will have an opportunity to evaluate the relationship between the children and each of the parents (and in particular their relationship with their father) after there has been a sensible opportunity to re-examine that relationship, albeit in the somewhat-artificial circumstances normally surrounding a family report. 

27. I would propose that the children’s time with Ms J should continue, as I have indicated previously, and a supplementary report from her about the progress of the time that the children are spending with their father would be of considerable assistance to the trial judge. 

28. Those are the matters I have in mind at this point, and my reasons for doing do are dictated in part by my balancing of the two primary considerations, to which I have already made reference.  In particular I have taken account of the limited nature of the children’s present relationship with their father.  This has the ambivalence of their expressing the view that they would like to see their father but that they are afraid that he might be angry with them.  That needs to be resolved and should be resolved prior to the final hearing. 

29. I have taken account in that report of the views that the children are expressing, but it seems to me that the orders I propose to put in place do provide the best opportunity for an alleviation of their anxiety and the opportunity for an adjustment in a appropriate way during the period of re-introduction. 

1. I take account of the way in which each of the parents has, in my opinion, responsibly approached the question of how matters were to proceed this day and until the final hearing, and I have taken account of what would happen in relation to the children because of this change in their circumstances. 

2. This I have done principally by trying to find a system which, in my opinion, will both maximise the opportunity for them to be able to resume a meaningful relationship with their father while at the same time feeling secure from the anxiety that they are currently afflicted with and the proposition that they will be operating in circumstances which, in my opinion, will not impose an unacceptable risk upon them. 

3. I have looked also at the expense associated with the matter and taken account of the fact that parties have both incurred substantial expense, both directly and indirectly, as a result of the criminal proceedings, and the further expense such as that which would be generated by the children’s time with their father being facilitated or supervised by Dr I should be avoided – if it can be. 

4. And I have looked at the fact that, given the history of the parties, each of the parents is capable, in my opinion, of carrying out these orders and in particular the father is capable of looking after the children in the limited periods that are referred to. 

5. I have taken account of family violence, but only to the extent that it is not suggested these orders would in any way expose the children to any threat of violence nor any violence as between the parents which may impinge upon the children’s best interests. 

6. Those are generally the matters I take into account, and I will make orders accordingly. 

7. I will also make orders relating to the preparation of the matter for hearing in the New Year to ensure that, if it is necessary for the parties to proceed to a final hearing – which at present it appears it will be – then all the relevant material will be available before the Court. 

8. I should add this includes my making an order under s 69ZW of the Family Law Act for the provision of all relevant material from the Department relating to this matter. 

9. I note Mr Harris has indicated that the Secretary of the Department’s attitude at present is that the Department had “substantiated” (using that word as the Department uses it rather than as a matter of law) the allegations previously and that that would be likely to be the Department’s attitude during the course of the proceedings.  I have also indicated to Mr Harris on behalf of the Secretary that I would not require any further affidavit or an affidavit from the case workers in this matter but that it would be appropriate that they should be available to give oral evidence (or to be cross-examined, more realistically) about the terms of the material produced under s 69ZW, if the need arises.  That is a matter which the trial judge can ascertain and deal with between the parties in due course.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 23 September 2015.

Associate:

Date:  16 November 2015