Tyson & Vickers
[2022] FedCFamC1F 117
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tyson & Vickers [2022] FedCFamC1F 117
File number(s): BRC 1186 of 2019 Judgment of: BAUMANN J Date of judgment: 4 February 2022 Catchwords: FAMILY LAW – PARENTING – Where the Final Hearing was unable to proceed – Where the father and Independent Children’s Lawyer sought an immediate change of residence – Where the father asserts the children are at an unacceptable risk of harm in the mother’s care – Where the evidence is untested – Where the family report writer recommends week about time with each parent – Where the Court adopts the recommendations of the family report writer on an interim basis Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Banks & Banks (2015) FLC 93-637 Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 4 February 2022 Place: Brisbane Counsel for the Applicant: Ms Gover Solicitor for the Applicant: Raiti Lawyers Counsel for the Respondent: Ms Chekirova Solicitor for the Respondent: A P Hodgson & Associates Counsel for the Independent Children's Lawyer: Ms Frizelle Solicitor for the Independent Children's Lawyer: Keyworth Harris & Lowe Family Lawyers ORDERS
BRC 1186 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TYSON
Applicant
AND: MS VICKERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the children, Y born 2011, X born 2013 and Z born 2015 (“the children”) live with the parents on a week about basis as follows:
(a)Until the conclusion of school or 3.00pm if a non-school day on Tuesday, 8 February 2022 with the mother;
(b)From after school or 3.00pm if a non-school day on Tuesday, 8 February 2022 to the conclusion of school or 3.00pm if a non-school day on Friday, 11 February 2022 with the father;
(c)From after school or 3.00pm, if a non-school day on Friday, 11 February 2022 until after school or 3.00pm if a non-school day on Friday, 18 February 2022 with the mother and each alternate week thereafter; and
(d)From after school or 3.00pm if a non-school day on Friday 18 February 2022 until after school or 3.00pm if a non-school day on Friday 25 February 2022 with the father and each alternate week thereafter.
2.That all changeovers occur at N School or at such other place as is agreed in writing between the parents.
3.That the father be permitted to attend the children’s first day of school in 2022 on 7 February 2022.
4.That except in cases of emergency, the children shall attend upon P Doctors, Suburb O.
5.That unless otherwise agreed between the parents in writing, the father shall make the children available for communication with the mother via phone call, Facetime, or similar between 6.00pm and 6.30pm each Wednesday that the children are in his care.
6.That the father shall facilitate any request by the children to contact the mother via phone call, Facetime, or similar, provided it is at a reasonable time.
7.That unless otherwise agreed between the parents in writing, the mother shall make the children available for communication with the father via phone call, Facetime, or similar between 6.00pm and 6.30pm each Wednesday evening that the children are in her care.
8.That the mother shall facilitate any request by the children to contact the father via phone call, Facetime, or similar, provided it is at a reasonable time.
9.That within forty eight (48) hours of the issue of these Orders, the mother shall provide to the father and the Independent Children’s Lawyer a list of names and contact details including address, telephone and email of all medical practitioners and allied health professionals, support workers and NDIS liaisons for the children.
10.That within forty eight (48) hours of the issues of these Orders, the mother shall provide to the father and the Independent Children’s Lawyer details of any medical practitioners and allied health professionals, support workers and NDIS liaisons for the children that the mother has taken the children to between the date of her last notification to the father and Independent Children’s Lawyer on 22 June 2021 and the notification to be given pursuant to Order 9 herein.
11.That the mother shall provide to the father a copy of all medical reports which she has received from any medical practitioners and allied health professionals, support workers and NDIS liaisons for the children, provided that the mother is not required to provide the father with reports from medical practitioners and allied health professionals, support workers and NDIS liaisons whose records have been subpoenaed and provided to this Honourable Court.
12.That within forty eight (48) hours of the issue of these Orders, the mother shall provide to the father details of the Cognitive Assessment which the mother was required to arrange for the child, Z (“Z”), to ensure her ongoing NDIS support and which report needs to be provided prior to Z turning seven (7) years of age on 30 October 2022.
13.That within forty eight (48) hours of the issue of these Orders, the mother shall provide to the father and the Independent Children’s Lawyer details of all upcoming appointments with any medical practitioners and allied health professionals, support workers and NDIS liaisons for the children.
14.That within twenty four (24) hours of the issue of these Orders, the mother shall provide to the father all of the children’s medications and scripts for such medication or alternatively, advise the father at which Pharmacy the scripts for the children’s medication are located.
15.That the father is authorised to make and attend all appointments with the children’s treating health practitioners or allied health practitioners.
16.That these orders provide authority for any health practitioner or allied health provider the children see from time to time to provide to the father, the mother, and the Independent Children’s Lawyer with all information about the children at the cost of the requesting party.
17.That the parents are restrained and an injunction issues restraining each of the parents from commencing a new complaint or taking the children to the Queensland Police Service or to offices of the Department of Children, Youth Justice, and Multicultural Affairs 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.
18.That the parents are restrained and an injunction issues restraining each of the parents from:
(a)discussing the allegations of sexual or other abuse at the hands of the father with or within the presence or hearing of the children;
(b)making any hurtful remarks about the other parent, their lifestyle, partner or the history of the parents’ relationship to or within the presence or hearing of the children; and
(c)discussing the Court proceedings with or within the presence or hearing of the children.
19.That the Independent Children’s Lawyer be at liberty to apply.
IT IS FURTHER ORDERED:
20.That pursuant to Section 62G of the Family Law Act 1975 (Cth), the children shall attend with a Court Child Expert (practicing under their appointment as a family consultant) or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a specific issues report in regards to the children’s wishes, with such report to be released by 27 June 2022.
21.That the children shall attend an appointment with a Court Child Expert as nominated by the Senior Family Consultant of the Court Children’s Service, at the Federal Circuit and Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
22.That the parents shall facilitate the children’s attendance at the appointment with the Court Child Expert (unless otherwise advised).
23.That pursuant to Order 1 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views regarding the children; and
(b)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
24.That the Court Child Expert shall have leave to inspect subpoenaed documents produced to the Court.
Release of report
25.That upon receipt of the report, the Court will provide a copy to each party (or their solicitor, if any) and to any Independent Children’s Lawyer in the proceedings.
26.That unless a party objects, in writing, within fourteen (14) days of the date of releasing the report, copies of the report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory legal aid authority; and
(d)A convener of any legal dispute resolution conference.
27.That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.
28.That these proceedings be set down for Final Hearing for not more than five (5) days commencing at 10.00am on 11 July 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
29.That these proceedings be adjourned for Case Management Hearing at 9.30am on 10 May 2022 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
IT IS NOTED:
A.That the Court is aware of the existence of a Protection Order made on 16 September 2021 in force until 15 September 2026, naming the mother as the Aggrieved and the father as Respondent on which the children, Y, X, Z and W are named as persons protected by the Order as children of the Aggrieved.
B.That pursuant to 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 are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tyson & Vickers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BAUMANN J:
On Monday this week I was due to commence a five day trial involving Y, who is nearly eleven years of age, X, who is nearly nine years of age and Z, who is six and a-half years of age, who are the three children of the Applicant father, Mr Tyson, and the Respondent mother, Ms Vickers. As all Counsel before me understand, as do the parties, the trial had to be adjourned because on the Friday before the trial some 3500 pages of material were produced under subpoena. Directions were made so as to try and efficiently conduct an interim hearing today, as to what arrangements ought to be put in place between now and the Final Hearing in these proceedings which has been set for five days commencing 11 July 2022.
The submissions made by Ms Frizelle for the Independent Children’s Lawyer (“ICL”), Ms Gover for the father, and Ms Chekirova for the mother, were directed towards the evidence, much of which is untested and controversial and much of which is contained within subpoena documents, some of which appear to have only been revealed as early as last Friday and all of which has done nothing more than muddy the waters in a way that these parties’ conduct has, to some degree, contributed to. I say that because as long ago as July 2020 on an interim basis, I dealt with some of the history in this case and the difficult time these children have had, including a period from 2016 when they were effectively placed in the custody of the Department for a period of nearly two years.
Despite the father re-partnering and now remarrying, it seems on all the evidence, happily since about 2016, there have been ongoing conflicts and many stresses that the mother and father have had to deal with. The father has had to deal with what he would see as his children not being properly cared for by their mother and the mother allowing the children, particularly Y, to be exposed to family violence as a result of another relationship she has had and as the submissions today made by Ms Gover made clear, an assertion of an inability of the mother to properly care for the children bordering on neglect; not permitting them to obtain the full benefits of their school and education and consistently raising serious allegations against the father and/or his partner with the Department, the police, and other authorities including doctors and hospitals.
There is an enormous amount of material, some of which could (once tested at trial) support the propositions raised by the father which fit within the genre of the mother being an emotional risk to the wellbeing of the three children. The mother has on the evidence to date, continued to assert that the father has either been physically or sexually abusive of the children, particularly the two girls. That she has continued, Ms Gover would say on the evidence to maintain this stance, is the best evidence of her emotional abuse.
Whether the mother still maintains that position is difficult to fathom from her material because at the trial before it started on Monday, the mother was not seeking any supervised time in relation to the father of the children. Having said that, based on what the father knew, he was not seeking any supervised time of the mother of the children. That position changed when the parties were invited to provide a minute of order for an interim hearing, noting that I would make a decision in relation to the care of the children until the trial.
The ICL and the father by their minute were effectively on the same page, namely, that there should be an immediate change of residence and that the mother’s time should be both limited and supervised. When I say “the mother’s time”, of course, I do not ignore that in the mother’s home are two siblings for the three children (who I have jurisdiction over) – younger siblings whose paternity is the mother and other persons including Mr Q. He is the father of one child and he has been the subject of criminal charges because of serious assaults against the mother.
The court is required clearly to not lose sight of the siblingship relationships that exists between these five siblings whilst they have different fathers. I am still unclear about whether the mother generally continues to argue that the father is a risk of sexually abusing the children, particularly the girls, and of physically abusing the children, including his partner. Perhaps when we get to the trial her position will become clearer.
As the Full Court in Banks & Banks (2015) FLC 93-637 made clear, when dealing with any interim decision the courts are required to concentrate on those factors in section 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) which are most likely to shape an interim order in the best interests of the children.
I have no doubt that any reading of the transcript of these interim proceedings today will identify that Ms Gover was put under significant pressure by the bench to support some of her propositions that she raised. I do not in any way criticise Ms Gover’s persistence. She was clearly very well prepared and had very firm instructions to support a change of residence. The problem I have with the general thrust of those submissions, which were in some way supported by the ICL initially, is that whilst there is some evidence that might support the father’s position, I am not in a position to make findings of the nature necessary to be satisfied that these children are at such a risk of neglect or harm, emotional or otherwise, in the mother’s care that would justify the removal of the three children from the mother and limit the time with her in this five month period.
I have made it clear to the mother’s Counsel that the mother is on notice. In fact, Ms Gover could not have been clearer about the areas of concern raised in the material that the father feels about the mother’s care of these children. They relate to things like what the person at the childcare centre, in the statement of 18 January 2022 (incorrectly described as 18 January 2021) set out. I have some concerns about that statement and the origin of it. But nonetheless, at least some part of that statement makes and draws a comparison between the state in which Z came to day care from the father’s home when compared to the mother’s.
The children’s school records in terms of attendance could be reflective of the inability of the mother being able to cope or manage the children and get them to school on some days or on time. However, the level of absenteeism is not at a level that would make that conclusion automatic, especially when one considers the very difficult educational environment that Australian children have had to cope with due to COVID-19 issues over the last little while and the overarching behavioural issues that challenge young Y and to lesser degree but still to some degree, X.
I still have some concerns about why it took so long for the mother to either concede or ultimately support the orders made for paternity testing of X. That is a matter that she will need to explain, no doubt, if she is asked in the witness box. So although I do not ignore these allegations, what I am prepared to accept, on an interim basis, is the father’s genuine concerns about the mother’s care of the children. I am not able on the evidence, despite the very persistent and considered submissions of Ms Gover, to be satisfied that they reach a level that justify the change of residence that the father seeks on an interim basis.
As I have indicated during my Reasons at different times today in my exchange, one of the factors which the court needs to consider, which was only barely touched upon by submissions which were all really about risk or not, is firstly these children, when last asked about their relationship with their father by the family report writer who interviewed the children on 1 November and produced a report on 1 December 2021, said nothing to indicate either a preference or a desire to live with the father. Accordingly, at least on one level, at that time, an order where they were to be moved to the father’s primary care and have limited time with the mother and their siblings would not be consistent with the thrust of the children’s expressed views at that time and would be quite different to what their lived history is.
That does not mean, of course, that those wishes should be given predominant weight. Rather, they must be considered at the trial. In that regard, in view of the orders I propose to make for equal time, there will be an opportunity for the children to reflect on their more recent history of time with both parents reflected by the week about time during the school holidays and the period between now and the trial. The other issue which was uppermost in my mind today raised in section 60CC(3) of the Act, is the effect of the order upon the children.
I am not satisfied necessarily on an interim basis that the father does accept the extent to which a change of residence at this time and in this way, being as it is on the cusp of Z going to school for her first day, will have on these children’s emotional wellbeing. They are genuinely challenged children in some ways. The evidence of Y is overwhelming. X less so but still a matter to be taken into account. There is no evidence that these children would cope with this level of change without significant emotional distress.
Sometimes there are cases where there is a clear, pronounced and unequivocal issue that one as to deal with and effectively some short-term pain for some long-term gain is in the children’s best interests. But I am not satisfied in this case at this time that this is one of those cases on an interim basis. I remind the parents of what I have said during the course of the day during a very long interim hearing where I have been asked to read a lot of material and I have done so. The decision I make today for equal time should not be seen by either the mother or father as an indicator of what the court will order when all the evidence has been tested.
Lest it be thought that identifying effectively, a third alternative to the orders proposed today by the parties that equal time was a leap of faith into an area without consideration, of course it is not. It reflects the considered opinion as an option from the Family Report, albeit based on maybe material that has not yet been seen by the report writer, but of which there was a lot of material about the history of the parents and their parenting contained in the family report.
EVALUATION BY THE REPORT WRITER
The evaluation makes clear that since the first report was made by Ms R, the mother and the Y have been subjected to a domestic violence incident by Mr Q. That was clearly a tragic incident, a significant attack upon the mother and one which Mr Q will be answering in the criminal court it seems. The family report writer obviously identified at the time of her report that there were continual and multiple allegations to the police and Child Safety by the mother which has been the concern raised by the father.
The family report writer raised at paragraph 98 of her report and evaluation concerns about possible coaching. She noted that the father and the partner were fatigued from these allegations. I can well understand the suggestion, recalling at one stage that there was some evidence (to be tested) that the mother was so focused on damaging the father’s partner that complaints were made about her employability in child care and ability to get a Blue Card.
Of course, the family report writer is unable to make findings about whether or not the father had been violent towards the children and/or his partner, and/or the partner towards the children, they being matters for the court. She raised that as a concern at paragraph 100 and at paragraph 101 identifying that the father on her assessment, but perhaps not to be accepted at trial, had limited insight on how much fear, living on eggshells, threats and witnessing other people being hurt affects the children’s behaviour. That being, effectively, the lifestyle of the mother who has been in a refugee for nearly all of 2021.
She raised concerns at paragraph 103 about the need to share information about these children that has been dealt with in submissions today. She identified between paragraphs 104 and 109 of her report the vulnerabilities of both parents on her own assessment and those of the children, before somewhat surprisingly, perhaps, concluding that a shared arrangement on a week about basis with each parent might be the best option. Her justification or opinion for that is contained at paragraphs 111 to 115 of the family report which I re-read over night. Accordingly there is a basis upon which the court could order equal time. In my view, the family report of the report writer is persuasive on an interim basis to take this leap of faith.
I do not for one moment think that anything I have said either on Monday or today will necessarily have any definitive effect on these parents. It may well be they are so entrenched in their view of the other parent that nothing anyone can say will have an effect. If that is the case then these children’s emotional vulnerability because of that conflict and inability of the parents to grow up and to deal with the issues many of which they have created, will manifest in a compromised emotional likely capacity of the children to fulfil their potential. I will do my very best in July to try and allow these children to reach their potential with appropriate orders.
However, the week about arrangements occurred during school holidays. The findings to the extent I have made them of the uncertainties of this case and the recommendation of the report writer made as recently, effectively, as three months ago all in my view persuade me on an interim basis to form, to make the orders I do for week about time.
Now I accept that Monday is a very important day for the child, Z. It is her first day at school. She is going to N School like her big brother and big sister. I am sure she is excited about it. She is in her mother’s home who has a uniform for her. It is appropriate notwithstanding week about time, that the mother take the children to school on Monday. It is appropriate that the father be entitled to attend. I do not intend to make an order that the parties be nice to each other or civil, so much is abundantly clear that they do not need an order to do it. If it does not occur there will be enormous damage to the child, most likely, and embarrassment.
In my view the children should begin their care with the father at after school on Tuesday and continue to after school on Friday, when the week about should occur. I appreciate that the father might say that he is robbed of some nights, I accept that. But I am trying to get a routine that is very clear and it is just a little bit challenged by Monday being the first day of school. The other orders that have been dealt with and discussed between myself and Ms Gover and the ICL, I think, are pretty clear.
Just so the parents know, the children will not be asked where they would prefer to live. What they are likely to be asked, I suspect, is their experience of the last few months; what will by then be over six months where they would be moving from one parent to another. The children would be likely, no doubt, to share with the report writer if either parent (contrary to the orders I propose to make), discusses these proceedings with them or in their presence, or sought to encourage them to give evidence to the report writer in a particular way.
I do not ignore the strong submissions of Ms Gover about the father’s concerns that the mother has learnt nothing about these proceedings and will continue to make complaints without foundation. The mother needs to understand that if the court was to find that was the case it would inevitably require me to consider not only a change of residence but a strong reduction in any time she has with these children. But the last thing that needs to be said about this case and although much of it is due to the mother’s own conduct continuing to have children to other men post-separation, is that these three children have siblings and they will be their siblings for life and a removal from these children of those relationships at a stage of their development has to be considered.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 4 February 2022
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