Tyson and Vickers

[2020] FamCA 510

FAMILY COURT OF AUSTRALIA

TYSON & VICKERS [2020] FamCA 510

FAMILY LAW – PARENTING – Interim – where the mother asserts that the father presents as an unacceptable risk of sexual harm – where the evidence before the Court as to the issues of risk does not outweigh the interests of the children spending time with the father unsupervised – where Orders are made for the children to spend time with the father unsupervised on a graduating basis

Family Law Act 1975 s60CC
Goode & Goode [2006] FamCA 1346 Banks & Banks (2015) FLC 93-637
APPLICANT:	Mr Tyson

RESPONDENT: Ms Vickers

FILE NUMBER: BRC 1186 of 2019

DATE DELIVERED: 3 July 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 29 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K Gover

SOLICITOR FOR THE APPLICANT: TWC Lawyers

SOLICITOR FOR THE RESPONDENT: Mr G Horvath,
AP Hodgson & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms P Keyworth, Keyworth Harris & Lowe Family Lawyers

Orders

1. That these proceedings be listed for Case Management Hearing for the pronouncement of Orders at 2.00pm on 8 July 2020 in the Family Court of Australia at Brisbane.

2. That all parties have leave to appear by telephone on 8 July 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   (a)They shall each telephone … (within Australia only) (toll free) by 1.55pm on 8 July 2020;

   (b)They shall each then enter the pass code …; and

   (c)Hold the line until the Court is ready to connect and proceed with the matter.

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 Tyson & Vickers 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 BRISBANE

FILE NUMBER: BRC 1186 of 2019

Mr Tyson

Applicant

And

Ms Vickers

Respondent

REASONS FOR JUDGMENT

1. The Applicant father Mr Tyson (aged 31 years) and the Respondent mother Ms Vickers (aged 30 years) commenced a relationship by early 2009 and finally separated in April 2016.

2. On any assessment, the parties’ relationship has been a volatile one shaped by significant parental conflict with allegations yet to be fully tested, that during the relationship:

   a)the father has been physically violent to the mother – denied by the father;

   b)psychological abuse, oral domestic violence and controlling or coercive behaviour, each against the other occurred;

   c)abusive and aggressive behaviours by the parents (and at times their current partners) towards the other party and their partner and towards or in the presence of the children occurred;

   d)subsequent involvement by the Department of Child Safety, Youth and Women (“the Department”) with the family since at least 2013 and again for two years from October 2016, when allegations that X and Z were the subject of parental physical abuse concerning fractures and multiple bruising – behaviour alleged to have continued since separation.

3. The extent of the allegations – one against the other – are serious, untested and numerous. Voluminous material has already been subpoenaed, with the helpful assistance of the Independent Children’s Lawyer, Ms Keyworth.

4. The allegations are further exacerbated by each party asserting the other being challenged by mental illness:

   a)the father with bi-polar; and

   b)the mother with Post Traumatic Stress Disorder and borderline personality disorder.

5. At this stage of the matter, further material will be necessary (and possibly further independent psychiatric assessment) before the extent of the parental challenges can be clarified.

6. As if these issues are not sufficient to create difficulties in seeking to assist this family to reach some co-parenting options which are sustainable, furthermore:

   a)the children were the subject of a two year Child Protection Order, which did not expire until October 2018, with the children during that period being under the care of the Department. The children were spending regular unsupervised time with the father and his partner during that period, but little time with the mother;

   b)the children were reunified with the mother in around April 2018;

   c)with all previous Domestic Violence Orders having expired, the mother was granted a Temporary Protection Order on 5 December 2018 however domestic violence proceedings are contested and were to be heard in April 2020, but were adjourned because of COVID-19 issues.

   d)between the cessation of the child welfare order in October 2018 and Orders of a Federal Circuit Court Judge on 8 April 2019, arrangements for the care of the children are a little confusing although the children lived with the mother. The Orders of Judge Jarrett provided, after two supervised visits, for the children to spend each Saturday (from 10.00am to 4.00pm) with the father unsupervised. However it seems as a result of risk issues identified by the mother in her sworn material, (not filed until many months after the father filed his Application in the Federal Circuit Court on 1 February 2019), arrangements for the children to spend time with the father broke down and had not been occurring.

7. The only interim Orders, those of Judge Jarrett made 8 April 2019 (before the mother had filed any response material), had not been reviewed and when the mother first came before me on 21 February 2020 and since then the following issues and events occurred:

   a)The matter had been designated a “Magellan” matter by Registrar Brooks, which caused three Magellan reports to be produced, dated 29 November 2019, 17 February 2020 and 20 April 2020. I have considered these Reports. The last two refer to Child Concern Reports alleging physical abuse by the mother with the Department deciding not to intervene. The first report provides a detailed history between 7 December 2011 and 23 October 2019, including substantiated outcomes of harm caused by both parents causing the Southport Children’s Court Orders to be made as earlier noted. Complaints raised on 6 December 2018, 20 December 2018, 8 February 2019, 25 February 2019, 20 May 2019, 27 May 2019 and 13 August 2019 which did not cause the Department to intervene;

   b)The first notification of alleged sexual abuse is recorded on 11 July 2019 (after the mother had taken the child to Dr B), followed up with further notified Child Concern Reports on 9 August 2019, 13 August 2019, 18 August 2019 and 23 August 2019. Investigations by the Department and Police have not lead to any substantiation or any charges, although perhaps not surprisingly considering the history, some suspicions existed;

   c)

   An interview was conducted by Police of X on 10 July 2019. I have viewed the tape. The mother says that the evidence establishes that not only the father but his partner Ms G present as an unacceptable risk to the children of both physical abuse and sexual abuse. My initial view of the interview of X are cautiously expressed, as some context about the level of engagement the child had with the mother before, and during, the interview on 10 July 2019 is unknown and needs to be properly tested. However the police position noted in the finalised report entered on

   
   

   22 July 2019 that “as per previous reports regarding disclosures of victim child there is insufficient evidence to commence proceedings in relation to this matter” is at least explainable by the fact that:

   i)Although at X’s age at the time (6 years) it is not unusual that a child’s recollection of time and place can be confused, X’s initial remarks were not maintained by further questioning by Police;

   ii)Whilst Mr Horvath (for the mother) says the interview “speaks for itself”, in my assessment the disclosures made by the child became increasingly uncertain and varied as the interview progressed;

   iii)It is quite unusual in my experience, that the Police interview was interrupted on two occasions:

   A.almost immediately, and before any disclosure was made; and

   B.approximately 25 minutes later when the child again indicated that she wished to go to the toilets

   iv)On both these occasions, the audio strongly suggests, the mother accompanied the child to the toilet for a few minutes;

   v)The initial disclosure was quite graphic and appeared to relate to an incident during a visit with the father (accompanied by his girlfriend Ms G) on Saturday 6 July 2019 – just four days earlier. The main points raised in the initial disclosure to Police were:

   C.this happened last Saturday and every Saturday;

   D.her father and his girlfriend “gets me dressed and takes photos of my private area”;

   E.they “squeeze” my private area like an orange and it “juices”;

   F.this even happens when she goes to the toilet and they “wipe” me – which is not necessary because “I am a big girl now”;

   vi)In trying to explore these initial concerning disclosures to obtain more detail of “when and where”, by the end of the Police interview there is no clarity at all. The child was initially insistent that it occurred at KFC (after a changeover occurs at McDonald’s Suburb D which is across the road from KFC) but before the movies. That location seems less certain in the child’s memory and then it seemed to be alleged it happened at the father’s home at E Town, before the movies.

   vii)Some of the child’s other comments suggest she has been aware of some adult issues in conflict (e.g. a concern about the father removing her from her school), including confusion about her paternity. The child indicated that the mother’s current partner Mr F is her father when it is clear that the child’s biological father is either the father or another person (but not Mr F).

   viii)although many questions arise from the interview, where not only do the father and his partner Ms G deny on oath any such behaviour by them (including the allegation that Ms G “dragged” X by the legs and threw her on rocks), but their sworn evidence is that on 6 July 2019 they never went to KFC or the Cinemas at Suburb D see Affidavit of father at paragraphs 11 to 17, and the Affidavit of Ms G at paragraphs 64 to 71). It is also difficult to accept, one version of the incident on 6 July 2019 given by the child, that after changeover the child went to the father’s home (some 30 minutes’ drive south from the changeover location at Suburb D), before then travelling north (past Suburb D) to Brisbane to go to the movies.

   ix)The alleged disclosures by the child to the mother that caused her such concern so as to engage Police and health professionals, was made for the first time after the visit on 6 July 2019 despite significant ongoing unsupervised visits between the child and the father having occured.

   x)I also note, again a matter that might require further investigations, that the father emphatically denies (at paragraph 18) having ever “taken photographs of X’s genitals”. The mother is recorded as telling the Police on 10 July 2019 that she has taken photographs of the children “unclothed” (but not of their genitals) “when they go to their father as she has been previously accused of harming the children”.

   xi)In these circumstances, notwithstanding the cautious approach that ought be adopted when seeking to assess risk on an interim basis, the benefit to the children of moving to unsupervised time, as I propose to order, is not outweighed by the children’s exposure to risk in the father’s unsupervised care – even when, as required, s60CC(2)(b) is to be given greater weight.

   d)Although a Family Report was Ordered on 5 December 2019 (when the Senior Registrar noted “the father’s time with the children is not progressing as the mother says time should be supervised”) interviews were not scheduled to take place until 31 March 2020;

   e)When the mother came before me on 21 February 2020 I was naturally concerned that the Orders made ten months earlier were not being complied with, and listed it for interim determination (after the parties had been directed to file material) on 6 March 2020. Although the father, at that time, indicated through his Counsel Ms Gover that the mother was making vexatious and malicious complaints against the father (and his partner Ms G) and as such the Court should be considering an interim change of residence. In circumstances, in an interim hearing where findings of risk must be cautiously considered (through the prism of the legislative pathway), as to what Orders are in the children’s best interests, I expressed a preliminary view about the hurdles confronted by the father’s case where limited time had occurred now for some months between the father and the three children;

   f)On 6 March 2020 when the matter initially came before me for an interim hearing and after the parties material was considered and submissions heard, Orders were made for the children to spend two hours of supervised time with the father commencing 14 March 2020 as prescribed in the Order. On 6 March 2020, the Independent Children’s Lawyer and the parties’ solicitors had not inspected the subpoenaed material (including the s93A interviews) and a Family Report was imminent. The Court was aware that, by adjourning the matter for further interim determination, on the next occasion all parties would be in a position to:

   a)inspect the wealth of subpoenaed material;

   b)notes from the Contact Centre about supervised visits would be available, and may assist; and

   c)a fulsome Family Report was likely;

   g)

   Unfortunately, although Family Consultant Ms H did see the parents on 31 March 2020, because of COVID-19 restrictions, the family report process could not be adopted and rather a more limited assessment via telephone interviews with the parents only (not partners or children) within the framework of a Child Dispute Conference was conducted.

   
   

   Ms H at paragraph 58, recommended “a Family Report with face to face interviews of adults and children, and, observations of the children with their parents occur as soon as practicable”. I agree with that recommendation and arrangements for a full Family Report to take place in August/September are being made. Nonetheless, the Child Dispute Conference Memorandum identified that “risks for the children exist in both homes” and the children are likely to “have been exposed to family violence between the parents” before recommending that:

   “Future Directions

   51.There is an extensive child safety history with this family for serious concerns of the children being exposed to physical harm by their parents. There are continuing concerns expressed by the father about the children’s physical safety in the mother’s care given him reportedly sighting marks to Z, which are unlikely to be caused by play, and, to which Z said “Mummy did it”. As stated I have made a report to Child Safety.

   52.From the limited information available to me, the concerns raised with respect to the children’s safety in the father’s care were investigated and unsubstantiated by child protection services. This includes their investigation in 2013 and the investigation concerning sexual abuse allegations of X which occurred in 2019. It is noted that child safety did identify the father as a likely perpetrator in 2013.

   53.I find it difficult to understand why child safety would facilitate unsupervised time between the children and the father every second weekend from Friday to Monday, if, as the mother claimed, he did not address his caseplan goals. I am also uncertain about the mother’s comment that the father “Blackmailed” child safety to enable this to happen. Subpoenaed records are likely to clarify this. It is noted that the mother stopped the children’s time with the father after child safety closed their case, and, then wanted to negotiate with the father to have supervised time with them.

   54.If the Court accepts that child protection services have assessed and unsubstantiated the concerns relating to the father, then the children would benefit from spending unsupervised time with the father. This would need to be limited given the children have not formed a close relationship with him, due to the several extended absences he has had from their lives.

   55.Changeover locations would be extremely limited given the serious allegations of family violence, and, the level of hostility between the parents and their partners’ needs to be managed and minimised so that the children are not exposed to this.”

   h)On 29 May 2020 submissions were received from all parties and competing proposals on an interim basis were articulated. I anticipate it may be appropriate to review the interim Orders now pronounced, after  a full Family Report is available as this case is unlikely to gain a trial hearing until well into 2021, unless otherwise expedited.

   i)Having perused the material relied upon by the parties I regard it as appropriate to also note that:

   a)the report of General Practitioner Dr B is nothing more than a “note” to the J Hospital, indicating what X is alleged to have told her mother (as is otherwise confirmed by the mother in her Affidavit). It is not possible to identify what is meant by the examination note:

   “labial majora appears stretched and loose”

   I have not been directed to any note at the J Hospital arising from this referral.

   b)

   The K Centre notes have been viewed. It appears some conflict between the operators of the Centre and the mother and her partner might have arisen, but I am unable to determine the full context (see email dated 4 April 2020). The notes cover visits on 15 February 2020, 28 February 2020, 4 April 2020 and

   
   

   18 April 2020. Whilst I accept the mother’s evidence of how the children looked forward to, coped with and presented after each visit paints a picture – the notes of the supervision paints an entirely different picture. The children engaged warmly with the father; were affectionate and at times reluctant to leave their father. I accept, as I indicated to Mr Horvath for the mother, that she had not had a chance to read the notes before submissions.

Competing proposals

1. The Independent Children’s Lawyer proposed a minute for interim orders, after viewing all material and consistent with her oral submissions. It is marked Appendix One. Essentially it provides for:

   a)a further eight weeks of supervised visits;

   b)then after 31 July 2020, unsupervised time for four hours weekly until 18 September 2020; and

   c)then unsupervised time for eight hours each week.

2. The father’s proposal is not dissimilar to that proposed by the Independent Children’s Lawyer, save he wishes to advance time more quickly, namely:

   a)four weeks of supervised time for two hours weekly at K Centre;

   b)after 28 June 2020 unsupervised four hours weekly for one month;

   c)then from 1 August 2020 unsupervised eight hours weekly for one month;

   d)then from 29 August weekly unsupervised time from 10.00am Saturday until 10.00am Sunday.

3. Both the Independent Children’s Lawyer and the father propose that the father’s partner Ms G (28 years) be permitted to attend the supervised visits (and of course be present during the unsupervised visits) – although the father says every week and the Independent Children’s Lawyer proposes fortnightly whilst supervised.

1. The mother’s firm position is that the supervised visit continue as currently ordered (for what could be another four months as is) and that Ms G not be permitted to attend such visits. I note, of course, the mother’s partner Mr F who has been in her life for approximately 19 months does not offer any evidence at this point in time.

Principles for Interim Parenting Matters

1. Although the statutory pathway to be followed when making parenting orders is well settled (see Goode & Goode [2006] FamCA 1346), the truncated nature of interim parenting proceedings means a full examination of any evidence the parties choose to raise with the Court is not possible – and certainly remains untested. The best interests of the children remain the paramount consideration.

2. As the Full Court decision in Banks (Banks & Banks (2015) FLC 93-637) makes clear, usually when considering competing applications for interim parenting orders attention should be focused on the most relevant considerations set out in s60CC(2) and s60CC(3) of the Family Law Act 1975 (“the Act”). At this stage of this matter, the children in the interim shall continue to live with the mother, and therefore attention in both the submissions by all the advocates and in these Reasons is given to the requirement to weigh up particular s60CC(2)(a) and s60CC(2)(b) considerations. The competing proposals demonstrate the different positions urged upon the Court and the Reasons which preceded this statement of the principles, identify the major areas of difference.

Discussion

1. I am satisfied that it is in the best interests of the children, Y, X and Z that the time they spend with their father progresses now to unsupervised time. Whilst I am unable to say anything likely to satisfy the mother’s concerns at this stage, my assessment is that neither the father or his partner Ms G are likely to expose the children to the risk of sexual or physical harm the mother asserts has occurred in the past with the shadow of both a Family Report process and further Court intervention pending.

2. The issue remains as to the pace of progression of time. Certainly, as earlier noted, it was regrettable that the children spent no time with the father from July 2019 for many months.

3. The evidence of supervised interactions between the father and all children has demonstrated a warm bond. This is hardly surprising considering the extent of time the children spent in his care to July 2019 (even when under the State child welfare orders).

4. I have decided to progress the time similar to the graduation proposed by the Independent Children’s Lawyer, yet (taking into account the weekly supervised time likely to have progressed since submissions some four weeks ago) only two further supervised visits will need to occur. This allows all parties to prepare for the change to unsupervised time.

5. I am not prepared to move the time to overnight time before a full Family Report is available, but regard it as appropriate to graduate time between when unsupervised visits commence until after the Family Report is likely to be available by the end of September, in a way that prepares the children for overnight time commencing – if the Court decides to move in that way.

6. As a result, I am not prepared to order now, unsupervised time overnight as the father seeks (but was not supported by the Independent Children’s Lawyer). In giving the children a few visits to prepare, I should indicate I do not regard it as necessary, on the evidence of the father’s history of care, that he needs time to “prepare”. I accept the father is likely to be disappointed – even frustrated – that his proposal is not accepted. He will need to be careful that any frustrations are not evident in his behaviour or words when the children are with him.

7. I hold no concerns about Ms G being present at either the two remaining supervised visits or the unsupervised visits that follow. The children are well aware she is the father’s partner and she has spent time with them on many occasions previously.

8. I explained to the father, through his Counsel Ms Glover, that the father needed to be aware that unsupervised visits means there might be opportunities for further allegations against them to be made. His Counsel, confirming once again his complete denial of any inappropriate behaviour, indicated he is aware of that risk.

9. In the circumstances of the history of this matter, I have decided on an interim basis to restrain either of the parents from taking the children to the Police or Department without the prior approval of the Independent Children’s Lawyer. I intended to give the Independent Children’s Lawyer liberty to relist, if a matter arises before the Case Management Hearing in October 2020, such as a further new disclosure or unreasonable cessation of visits, so that the Court will be informed quickly.

10. The Courts anticipation is that a Family Report will be available by the end of September 2020, and I make directions which will require the Independent Children’s Lawyer to, if possible, circulate a minute of order at least of interim arrangements pending a final hearing. This minute will be required 14 days before the next Case Management Hearing and should take account of end of term four school holiday arrangements and Christmas 2020.

11. For the Reasons given, I find the Orders which appear in the paragraph which follows these Reasons are in the best interest of these children on an interim basis, but before pronouncing them I will hear from the parties as to whether it is necessary for specific times for the commencement of visits to take place need to be prescribed and whether those times are available at the K Centre, for changeovers. I also note that the parties agree for paternity testing of X occur, however I shall ask the Independent Children’s Lawyer to identify a suitable testing laboratory.

Orders to be made

1. The Orders I propose to make are subject to hearing further from the parties about the issues of start and finish times for the unsupervised time with the father and changeovers, but save for those enquiries as are as follows:

   On an interim basis pending further Order:

   1.That the children, Y born … 2011, X born … 2013 and Z born … 2015 (“the children”) spend supervised time with the Father at K Centre, L Street, M Town (“the Centre”) on Saturday 4 July 2020 and Saturday 11 July 2020 for periods up to two (2) hours or such other time as available at that centre.

   2.That the Father’s partner Ms G born in 1992 be permitted to attend with the Father on each weekly visit the children spend with the father.

   3.That from and including Saturday 18 July 2020 the children spend unsupervised time with the father for a period of four (4) hours each week on a Saturday.

   4.That from and including Saturday 15 August 2020 the children’s time with the father pursuant to Order 3 be extended to a period of eight (8) hours, save that on the father’s election time scheduled to take place on Saturday 5 September 2020 shall take place on Sunday 6 September 2020 (Father’s Day).

   5.That as and from the weekend commencing 12 September 2020, the children spend time with the father from 9.00am to 5.00pm Saturday and 9.00am to 5.00pm Sunday and each alternate weekend thereafter.

   6.That for the purposes for the time set out in these Orders all changeovers will occur at the beginning and end of time at the Centre, unless otherwise agreed in writing between the parents.

   7.That the Father and Mother share the costs of the Centre equally.

   8.That the parents are restrained and an injunction issues restraining each of the parents from taking the children to the Queensland Police Service or to offices of the Department of Child Safety, Youth and Women for the purpose of raising an allegation against the other parent or the other parent’s partner, without the prior consent of the Independent Children’s Lawyer.

   9.That the Independent Children’s Lawyer is to circulate and file a proposed minute of order by 16 October 2020.

   10.That these proceedings be listed for Case Management Hearing at 9.30am on 28 October 2020 in the Family Court of Australia at Brisbane.

2. For the purpose of the pronouncement of these Orders and to consider the submissions of the parties as to the issues identified, the matter has been listed for a further Case Management Hearing at 2.00pm on 8 July 2020.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 3 July 2020.

Associate:

Date: 3 July 2020

Appendix One

INDEPENDENT CHILDREN’S LAWYERS PROPOSED ORDERS
For the period 29/05/2020 to 29/11/2020

1. That the children, Y born … 2011, X born … 2013 and Z born … 2015 (“the children”) spend supervised time with the Father at K Centre, L Street, M Town, (“the Centre”) not less than weekly for periods up to 2 hours or such other time as available at that centre for 8 weeks from the date of these Orders.

2. That the Father’s partner Ms G born … 1992 be permitted to attend with the Father on each alternate weekly visit commencing on the first visit after the making of these Orders.

3. After 31 July 2020, the Father be permitted to spend unsupervised time with the children for a period of 4 hours each week on either a Saturday or Sunday.

4. After 18 September 2020, the Father’s time pursuant to Order 3 be extended to a period of 8 hours.

5. That for the purposes for the time set out in the proposed orders 3 and 4 above all changeovers will occur at the beginning and end of time at the Centre.

6. That the Father and Mother share the costs of the Centre equally.

7. That pursuant to section 62G of the Family Law Act 1975 as amended, a Family Report be prepared by a Family Consultant of the Family Court of Australia.

8. That such report be conducted with Face to Face interviews of the parties and the children together with observations of the children.

9. That for the purpose of completing the Family Report, the Family Consultant has permission to inspect this Court file.

10. That the Family Consultant has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

11. That the parties shall do all such things, sign all such documents, attend all such appointments and ensure the children, Y born … 2011, X born … 2013 and Z born … 2015 attend all such appointments as reasonably necessary for the preparation of the Family Report and as requested by the family consultant.