Thompsett & Keen

[2017] FamCA 421

FAMILY COURT OF AUSTRALIA

THOMPSETT & KEEN AND ANOR [2017] FamCA 421

FAMILY LAW – INTERIM PROCEEDINGS – Risk – Child Sexual Assault

Family Law Act 1975 – ss 60CC, 60CC(2)(b), 60CC(3) and 65DAA

APPLICANT: Mr Thompsett

RESPONDENT: Ms Keen

SECOND RESPONDENT:  Mr Pemberton

INDEPENDENT CHILDREN’S LAWYER:             Mrs A Evans

FILE NUMBER: CAC 678 of 2016

DATE DELIVERED: 13 June 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Claire Naidu & Co

SOLICITOR FOR THE RESPONDENT: Dillon-Smith Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:	Toner & May Legal
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Evans Family Lawyers

Orders made on 15 June 2017

1. Order 2 of the orders made on 28 October 2016 is discharged.

2. The applicant father (Mr Thompsett) shall spend time with B, born on … 2010, and C, born on … 2013 (the children) as follows:

   (a)For up to four hours on four occasions each calendar month as advised by him to the mother at least 14 days in advance of each occasion;

   (b)Unless otherwise agreed by the mother, such periods of time are to be spent with the children in the D Region of New South Wales;

   (c)Such times are to be supervised by a professional supervision agency such as E Group at F Town; and

   (d)By telephone three times per week as agreed, but otherwise on Mondays, Wednesdays and Fridays from 6pm to 6:30pm with the mother to initiate the call to the father’s nominated telephone number.

3. The arrangements for the father to spend time with and to have telephone contact with the children are to be made pursuant to these Orders through the solicitor for the father.

4. In the event that the parties identify an alternate supervisor who is not a professional supervision agency, the parties may relist the matter on seven days’ notice in writing to each other party in order to allow the amendment of orders to incorporate an alternate supervisor.

5. Mr Thompsett and Ms Keen are to undertake all steps necessary to enter into the intake programme for F Town E Group within seven days of the making of these orders.

6. The matter is otherwise adjourned to 4pm on 31 October 2017 for the making of further directions.

7. The parties are granted liberty to attend by telephone on that occasion provided they make arrangements with the Canberra Registry of the Family Court of Australia seven days in advance of that date.

8. I grant liberty to the parties to issue subpoenas as are necessary for the preparation of the matter for trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompsett & Keen and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC678/2016

Mr Thompsett
Applicant

And

Ms Keen

Respondent

And

Mr Pemberton
Second Respondent

REASONS FOR JUDGMENT

1. There are two children who are the subject of the proceedings.  Ms Keen is the mother of both of those children; that is B, who is about six years old, whose father is Mr Pemberton, and C, who is about 3 ½ years old, whose father is Mr Thompsett.  Mr Thompsett has stood in the shoes of the father in relation to both of the boys that is, both of the boys regard him as their father. 

2. The current application relates to interim proceedings where the mother, the Independent Children’s Lawyer and Mr Pemberton seek that Mr Thompsett have supervised time with the children.  Mr Thompsett seeks initially day time periods with both boys, increasing onwards depending on when the final hearing is to be heard.  He asked that there be no supervision, and at present is unable to make arrangements for supervision. 

3. The context of these proceedings is that the interim orders were made in October 2016, which provided for Mr Thompsett to have substantial and significant time with the boys, and with the mother to have sole parental responsibility.  However, since January 2017 the boys have not been seeing Mr Thompsett.  There is an issue of potential sexual violence on B either by or in the presence of Mr Thompsett. 

4. The principles for determining what is in a child’s best interest as set out in the Family Law Act 1975 do not differentiate between interim proceedings and final proceedings. That is, in either case a statutory reasoning process must be followed. However, the case law indicates that it is important to acknowledge the limitations of interim proceedings, that is, to understand that I am constrained in terms of finding facts. I ought generally rely more heavily on noncontroversial matters, and I ought, where possible, to avoid contentious matters. However, at the same time I carry the responsibility to assess risks as best as I am able to, where it is necessary to do so, to determine what is in the children’s best interests.

5. In this matter parental responsibility has already been dealt with and is not the subject of any further application, at least on an interim basis, and that is for sole parental responsibility to the mother.  Because there is no order for equal shared parental responsibility s 65DAA and the particular process of reasoning that it sets out is inapplicable. 

6. I turn then to the best interests as informed by the s 60CC considerations.  In considering the applicability of s 60CC and in identifying how I might go about making a decision as to what is in B and C’s best interests, the parties accepted that there were two critical issues.  The first is the protection of the children from physical or psychological harm, from being subjected to abuse, specifically in this case sexual abuse, pursuant to s 60CC(2)(b).  As against that I am to consider the benefits of a meaningful relationship with the parent for C pursuant to s 60CC(2)(a) and generally the benefits of a relationship for B with Mr Thompsett, which incorporates the nature of the relationship that he has with Mr Thompsett, the effects of being separated from Mr Thompsett and Mr Thompsett’s capacity to provide for his emotional needs pursuant to s 60CC(3). 

7. Until the allegations were made in about January of this year, despite there being other allegations about family violence, the mother says that she was supportive of the relationship between Mr Thompsett and the boys and says that she promoted the relationship.  From that I can infer that she regards the relationship as beneficial to the boys.  The Single Expert, Dr G, observed a warmth of relationship between Mr Thompsett and the boys.  She spoke at [101] of the affectional ties and indicated that maintaining and respecting those ties increased the boy’s feelings of trust in the world as a safe benign place and prevented the boys from drawing conclusions harmful to their self-esteem.  All other things being equal, these two matters would tell towards a continuation of the regime that was put in place in October 2016. 

8. Against that however, is the key issue of risk.  While that issue focused on B, the answer to B and the risk in these current proceedings will dictate the answers for C. C is a younger, and potentially more vulnerable, child.  The context here is that there is nothing to suggest that there is a distinction drawn between C and B by virtue of their different fathers by Mr Thompsett.  That is, he treats both the boys as if he was their father.  In relation to risk I was taken to a number of factors that pointed both to risk and away from risk.  I note Mr Thompsett categorically denies presenting such a risk to the boys and categorically denies the behaviours that are attributed to him in respect of B.  Some matters were identified by the mother as going to his credibility in making such denials but those matters were not adequately supported by evidence to allow me to take them into account.  However, I am limited by the interim nature of these proceedings which means that this evidence is unable to be tested, that is, the categorical denials were unable to be tested or assessed. 

9. In relation to how the allegations arose I was carefully and helpfully taken through those by Ms Naidu, who appears for Mr Thompsett.  In short form, the components by which the question of risk arose came from B reportedly telling his mother (at Exhibit C1 tag A) that Mr Thompsett would wake him in the middle of the night and he did not like it, that there was a man that tickled his arm, his upper torso, up his thigh to his crotch area, under his underwear and that Mr Thompsett was present for this and described it as fun or play.  I was taken to tags B1 and B2 which were entries for 3 February 2017 which indicated that there had been a report from a grandmother and indicated that B had been examined by three different witnesses.  Tag C indicates that he was asked leading questions by his mother in the context of previously unrecorded questioning of B.  The mother recorded this and a video indicated that B described that his armpits were tickled, his feet and his inner thighs and also that he was tickled above the groin.  Tag E indicated he said that Mr Thompsett had described these things to him as being a secret.  Tags B1 and B2 together with tag D indicated that the police, when they interviewed B, found him to make no disclosure, that there were issues about whether he could differentiate between what is the truth and what is a lie, that he told them that he was tickled on his arms, his fins, his ears and his neck but that he specifically denied being tickled on his penis or bottom and that he said that the tickling man was not real and that he had lied about the tickling man.  Tag H recorded a report again by B saying that he had been woken up on numerous occasions during the night by Mr Thompsett and that on these occasions Mr Thompsett had said that he loves him a lot.  He reported at tag H that he was tickled by a man down to his waist.  Tags A and B contained on Exhibit C2 contained allegations that Mr Thompsett is wanted by Victorian police regarding a sexual assault on his now adult siblings. 

10. The critical matters then to consider are that B now says to the police that the matters that he has described were a lie.  He says that he has not been touched on his penis or bottom.  That is strong reason to be wary of the reliability of assertions made by B. As against this, B previously disclosed touching under his underwear, up his thigh to his crotch area with Mr Thompsett present.  The circumstances described were that he told his mother this where he said that he had not previously told her everything and when he cried when he told his mother this.  If this is accurate it may be a report of a sexual assault committed in the presence of Mr Thompsett.  This conflict between B saying that he had not been touched and B saying that he had been touched will no doubt be an essential factual matter to be resolved at the trial of this matter. 

11. While these are matters which are capable of significantly undermining the question of risk, that is, B’s interview with the police may significantly undermine the idea that Mr Thompsett poses a risk to him.  It is premature to say that it will hold sway over what the mother has reported and the concerns raised by the Independent Children’s Lawyer about B’s particular intellectual and mental health issues as being supportive of him being vulnerable and explaining potential difficulties he might have in an interview with the police.  That is, this contest between those matters which undermine risk and those matters which support risk are factual matters which are not resolvable now. 

12. That leaves open here a question of risk.  It is a risk of a significant nature.  It is an unquantifiable risk – if something occurred it potentially occurring again and carrying with it significant consequences.  That is, it is an unknown risk of something which carries potentially grave consequences. 

13. The open question of risk under the circumstances of the assessment by the Single Expert led the Single Expert at [110] to suggest that there be supervised or day time only periods.  The nature, however, of the risk, the vulnerability of the children given their ages and B’s potential personal characteristics mean that despite the fact that at present there is no immediate access to a supervisor, that supervision is necessary.  This is despite what was a well-argued case for the father and despite the Single Expert leaving open the question of unsupervised day time.  At present I am unable to see how day time unsupervised periods would provide sufficient security against this unquantified but potentially grave risk. 

14. I will make orders that will provide for Mr Thompsett to have up to four periods each month with professional supervision, with such periods to occur in D Region, unless there can be agreement otherwise.  I will leave it for him to be able to determine when precisely those periods occur, acknowledging that he will need to travel in order for these to occur.  I intend to maintain the orders that provide for him to have telephone time with the children and in the event that the parties identify another potential supervisor I will allow for them to relist the matter so that further orders might be made.  At present there appears to be an Apprehended Violence Order which would potentially come into conflict with these orders.  I am not at present advised as to the terms of the Apprehended Violence Order and will refrain from formalising the orders in this matter until those terms are made known to me so that I can then make the appropriate orders to deal with that.

15. The matter is otherwise adjourned until 2pm on Thursday 15 June 2017 for the giving a further directions and for the making of orders in accordance with the reasons just given.  The parties are at liberty to attend by telephone provided they make arrangements to do so with the Registry beforehand.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 June 2017.

Associate: 

Date:  16 June 2017