Vance and Vance

[2010] FamCA 414

FAMILY COURT OF AUSTRALIA

VANCE & VANCE [2010] FamCA 414

FAMILY LAW – CHILDREN – Magellan list – allegations of sexual abuse of the children made by the mother against the father – interim application for the suspension of the father’s time with the children – best interests of child – orders for supervised time with the father

Family Law Act 1975 (Cth) ss 60B, 60CC(2)

APPLICANT: Ms Vance

RESPONDENT: Mr Vance

INTERVENOR: Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: McCarthy Hoey

FILE NUMBER: MLC 8477 of 2008

DATE DELIVERED: 19 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Fiona R Mcgregor

COUNSEL FOR THE RESPONDENT: Ms Devine

SOLICITOR FOR THE RESPONDENT: Hogg & Reid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr O’Connell
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr McCarthy

COUNSEL FOR THE INTERVENOR Ms Benson

Orders

IT IS ORDERED:

1. That the file be retitled Vance & Vance and Ors.

2. That the Department of Human Services have leave to intervene in these proceedings.

3. That the proceedings be adjourned to a trial notice listing at 1.30 pm on 7 May 2010 with myself and the Magellan Registrar in Court with a view to this matter being included in the June 2010 sittings of the Magellan List.

4. That pursuant to s62G(2) a report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services of this Registry of the Court to be commenced not before 7 May 2010 and to be released by not later than 21 May 2010.

5. That for the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issues.

6. That the report writer 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.

7. The parties shall attend and ensure the children K born … July 2000 and T born … March 2002 and J born … October 2004 attend all necessary appointments for the preparation of the Family Report.

IT IS ORDERED BY CONSENT:

1. That the husband and the wife attend upon Dr E for the purpose of a personality risk assessment and follow all reasonable directions of Dr E in relation thereto AND IT IS NOTED that the appointments with Dr E are currently scheduled for 20 April 2010 and it is anticipated that his assessment report will be released by 30 April 2010.

2. That the independent children’s lawyer have leave to issue subpoenae directed to:-

   a)      Victorian Education Department (DEET) in relation to any complaints against or investigations into the husband’s conduct;

   b)     The Disciplinary Appeals Board of the Victorian Education Department (DEET);

   c)      Victoria Police, including SOCAU at X and C.I.V at L;

   d)     The Monash Medical Centre; and

   e)      Dr Y.

3. That the parties do all acts and things necessary to provide Dr E with an opportunity to inspect all subpoenaed material and Court documents and affidavits on the Court file.

4. That the independent children’s lawyer collate material which in his opinion is relevant to Dr E’s assessment, describe same in an index, and not less than 7 days prior to the parents’ appointments with Dr E, distribute to the practitioners for each other party to the proceedings a copy of the index.

5. That if any party wants to add additional documents or takes objection to any document being submitted by the independent children’s lawyer for the attention of Dr E and that issue can not be adjusted by agreement, I reserve liberty to apply on short notice by arrangement through my Associate, email … or telephone ….

6. That the costs of Dr E shall be borne as follows:-

   a)     the Department of Human Services pay for one half;

   b)     the husband pay for one quarter; and

   c)     the wife pay for one quarter AND IT IS REQUESTED that Victoria Legal Aid fund the proportion of the cost for which the wife is responsible:-

   such monies to be paid by the Department of Human Services not less than 7 days prior to the scheduled appointments with Dr E and be distributed on production of an invoice for same.

IT IS FURTHER ORDERED:

1. That by not later than 12.00 noon 26 March 2010 the lawyers for the wife produce a clean typed version of the previously unengrossed minute of order made 12 January 2010 and initialled by the Senior Registrar .

2. That within 7 days the lawyers for the husband provide to the lawyers for each other party to the proceedings the 8 page composition produced by him in June 2008 and referred to in the material of the wife as dealing with their private life or, in the absence of being able to do so, a description of where such document may be located.

3. That until further order the father spend time with the children K born… July 2000 and T born … March 2002 and J born … October 2004 on each Tuesday and Wednesday from 4.00 pm to 5.30 pm at the H offices of the Department of Human Services and such time be supervised by a case support worker of the Department and, in order to facilitate the time, the Department will collect the children from school and transport them to its office and return them to the mother at the conclusion of the father’s time with them.

4. That during gazetted school holiday time when the children are not at school the Department will be responsible for  collecting the children from the mother’s residence and returning them thereto.

5. That until further order the parents their servants and agents be and are hereby restrained from:-

   a)      discussing the allegations in the proceedings with the children; and

   b)     denigrating the other parent to the children or in circumstances where such comments or conduct is likely to come to the attentiion of the children.

6. That during gazetted school term vacations for the school attended by K the days for supervised time provided for herein be Monday and Tuesday.

7. That until further order, each party is at liberty to cause subpoena to issue returnable in any subpoena list until the final hearing or on any date appointed by the Magellan Registrar for the return of subpoenae.

8. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

9. That all documents produced on subpoenae be brought into Court for the mention on 7 May 2010.

IT IS NOTED that publication of this judgment under the pseudonym Vance & Vance is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8477 of 2008

MS VANCE

Applicant

And

MR VANCE

Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. This matter comes before me in the Magellan duty list on the mother’s application which was filed two days ago. The proceedings concern the children K, who is nearly 10 years old, T, who is eight years old and J who is five and a half years of age. The mother seeks to suspend the father’s time with their children.  The father opposes that application.  I will detail the mother’s application after setting out a few historical matters which provide the context for the application.  

Background

1. On 15 July 2009, Orders were made in the Federal Magistrates Court which finalised parenting matters between the parties and provided that the children live with the father from after school on Friday until the commencement of school on Wednesday each fortnight and for one half of the school holidays. This worked out at a ratio of about five out of 14 days.

2. The parents, by that stage, had been in a relationship from 1996 and had separated on about 25 June 2008.  The proceedings before the Federal Magistrates Court had the input of an independent children's lawyer to represent the children's interests.  There had been an extensive report prepared by Dr A, filed on 27 April 2009.  There had been a series of subpoenas to the court to produce documents, issued at the behest of the mother, concerning matters of inappropriate sexual or antisocial behaviour on behalf of the father dating back to as long ago as 2004 and continuing until as late as June 2009.  I will turn to the specific allegations later.

3. The final Order made by Maguire FM operated from 15 July 2009 until mid-December 2009.

4. On 17 December 2009, the mother filed an application initiating proceedings seeking sole parental responsibility for the children, that they live with her, and effectively a cancellation of time the children were spending with the father in favour of whatever time was deemed appropriate by the court.  She filed a form 4 notice of risk of abuse alleging that the father had played a tickling game with J in the bath around her inner thighs and her vagina and that she was displaying sexualised behaviours. She asserted in her material that the statements were made during November 2009. 

5. The matter was referred to the police.  A VATE police interview was conducted of J.  She was referred for medical examination by Dr Y at Monash Medical Centre. Although the physical evidence was found to be inconclusive, the child’s statements during the examination to Dr Y were said to be unequivocal. 

6. The mother’s application was set down for hearing on 12 January 2010 before Senior Registrar FitzGibbon and assessed as a matter appropriate to be placed in the Magellan list.  The Magellan list is a judge-managed list of cases dealing with serious physical abuse and sexual abuse of children. 

7. On 23 December 2009, Orders were made by Cronin J, essentially requiring the parties to adhere to the orders for an extended time for the children with their father, but to be spent in the presence of the paternal grandparents. Costs were reserved and the matter was adjourned to 12 January 2010 when further directions were made in relation to the Magellan listing.  It was agreed between the father and the mother that until 16 March 2010 (the father denying necessity thereof) the children would be bathed by and sleep overnight only in the presence of the children's paternal grandparents.  It was also agreed that the father, mother and children would attend upon Dr A for a further report.

8. In January 2010, the Department of Human Services (“DHS”) made a protection application to the Children's Court based on the allegations of sexual abuse referred to by the mother in her application to the Family Court, filed on 17 December.  The matter stayed before the Children’s Court until 11 February 2010 when Magistrate Mr Zemlyak concluded that the matter was better dealt with in this court.  Today Ms Benson, of counsel, appears for DHS who wish to intervene.  There is no opposition to that course. I have made Orders joining DHS as a party to these proceedings. At present, DHS is generally supportive of the mother’s case.

9. Pursuant to the Orders made on 23 December 2009 by Cronin J, the mother was required to file documents in January 2009 and the parties were to see Dr A in January or February 2009.  However, everything went into abeyance when DHS commenced proceedings in the Children's Court. 

The current application

1. Two days ago, the mother filed an extensive affidavit in this court, together with her application that the father's time be suspended.  On the same day, as it happens, the father filed a response to her application of December 2009, seeking that the children live with him "and spend time with the wife as deemed appropriate by this Honourable Court" and that the wife pay his costs of that application. 

2. The matter comes to me in the Magellan duty list for directions.  The parties have not seen Dr A, they have instead decided to see a psychologist, Dr E on 20 April 2010.  It seems to me to be a sensible course.   The parties already have the benefit of a report from Dr A, which is less than 12 months old. Dr A expressed an opinion that neither of them suffer from any psychiatric illness.  The report of Dr E will, I hope, be more attuned to risk of inappropriate sexual behaviour, risks of behaviour which is maladjusted and the implications for the children of the respective personalities of their parents. 

3. I also have the benefit of a DHS report dated 10 March 2010 prepared specifically for this court pursuant to sections 67Z and 67ZA.  The report recommends that the father's contact with the children be temporarily suspended, pending the children and the father undertaking specialist assessments.  

4. I gave DHS leave to make an oral application.  DHS’ application today differs from the recommendations in the report dated 10 March 2010.  DHS seeks that the father’s time with the children, at either his home or the home of the paternal grandparents, be suspended and that instead his time with the children be restricted to twice a week for one and a half hours duration on Tuesdays and Wednesdays at DHS premises at H.  The premises include a contact room for the exclusive use of the children, father and a supervisor (who is a child protection worker).  There is also a nearby park which, if all things go well, the children, father and supervisor can make use of for some part of the father’s time.   

5. The father opposes any further restriction of his time.  He says that such a time as he has with the children can be supervised by his parents or one of them and that is the maximum protection which the court should reasonably implement at this stage. 

6. The mother and the independent children’s lawyer are aligned to the case of DHS and made no submissions to the contrary.

Allegations against the father and paternal grandparents

1. The allegations seem to fall within three categories: 

2. The first are allegations against the father of antisocial, inappropriate behaviour prior to the final orders in July 2009.  These are all matters of which the mother had notice at the time and had been either wholly or partially investigated by her, or on her behalf, or during the currency of proceedings.  They include the following:

   a)That in 2004-2005, the father downloaded pornography whilst he was teaching classes at Z School, which included 400 pornographic images and 39 videos.  There was a hearing in this respect on 18 and 21 March 2005.  The mother says that the father was advised that if he didn't leave his employment, he would be terminated and he went to work at a hospitality venue.  The father maintains that there was a tribunal hearing, but the evidence against him was manufactured, that it was, in fact, the efforts of two male students, who, whilst he was out of the room, downloaded pornography onto his laptop and that it was his disenchantment of the complaint investigation process that led him to leave that employment.

   b)That prior to 2005, the father was alleged to have inappropriately touched a female student at Z School.  The father admits that there was a complaint.  He says that the matter complained of did not occur and that the girl subsequently retracted the complaint.

   c)That in June 2008, the mother found adult pornography images on the children's X‑Box in the former matrimonial home.  The father agrees that this occurred and says that it was inadvertent and a result of a lack of understanding of the technological network. 

   d)That in June 2008, the father composed an eight page manifesto of the personal life of him and the mother and distributed it to other people.  The father admits that this occurred. 

   e)That on about 28 August 2008 the father, whilst participating in school activities with the children, or with T in particular, acted in such a way that separated T from other children, interfered with T’s ability to interact with his classmates and that on that day T was said to be observed acting in a regressive way (“regressive” being my term and not the term in the mother’s affidavit material).

   f)That in August 2008, the child, J, complained to the mother of a tickling game done to her by the father in the bath and referred to "my little dad."  The father says that these allegations were fully investigated by DHS and not taken any further.

   g)That in February 2009, the father was found guilty of placing listening devices in the mother’s home, covertly recording her, and then distributing the recordings to other people.  The father admits that he was charged with three counts of taping telephone conversations of the mother without her consent, and that he pleaded guilty to such charges.  He says he did not receive a conviction on any charge. Instead, he received a good behaviour bond.  The father asserts, through his counsel, that he disseminated the recordings to one person only, a Ms P, and did so to persuade Ms P that the mother had been planning to end the marriage.  He maintains (through counsel) that the contents of the telephone conversations taped are the mother denigrating the father, calling him “a loser”, “an arsehole”, complaining about costs associated with legal proceedings and the mother’s statement that she was leaving the father.  In anticipation of the final hearing before Maguire FM, Dr S, psychologist, prepared a report which I am told significantly explains the circumstances of the father's actions. I do not have the report.

   h)That whilst there was an arrangement for J (at age four or five years) to be collected from her kindergarten by the wife's sister, the husband attended at the kindergarten at the relevant time and acted in a physically inappropriate manner toward the maternal aunt and J.  In particular, by "pushing into [the aunt’s] back" and trying to get J’s attention to say how much he loved her and would miss her.

   i)That in June 2009, T made a statement indicating that the father had inappropriately touched his penis.  The father admits that this allegation was made to DHS, who investigated the matter fully, and it was not substantiated and the file was closed. 

3. The second set of allegations are the sexual abuse allegations that give rise to the placement of this matter in the Magellan list and are described in paragraphs 52 to 57 of the mother’s affidavit, filed on 17 March 2010:-

   52.On Wednesday, 25 December 2009 the children had been in the husband’s care.  The husband had returned them to school and kindergarten that day.

   53.At night when I was tucking [J] into bed, she complained of a sore vagina.  I asked her whether she had been touching herself with dirty hands, which she had done in the past.  I certainly did not think it even remotely possibly that her vaginal soreness had anything to do with the husband.

   54.[J] then told me her father had been tickling her vagina.  [j] uses correct anatomical terms.  I asked her what she was talking about and she told me that her father plays a tickling game with her but not in the bath.  I asked her where they play that game and she said in the bedroom and in the living room.  She told me that it happens with her clothes on and off, and then she proceeded to show me how the husband tickles her vagina.

   55.There have been previous occasions when [J] has woken up at night complaining of a sore vagina but in the morning she has not remembered waking and any soreness has abated.  I had not investigated the matter further at those times as I had not been able to see any cause for her complaint such as a rash or redness, or she did not complain of pain when urinating.

   56.On 26 November 2009 I contacted the Department of Human Services and was referred to [X] SOCAU Unit.  On 27 November 2009 I took [J] to the [X] SOCAU unit.  She was interviewed by two police officers, [Ms I] and [Ms B].  After the interview, the police officers told me that [J] had disclosed her father tickles her with her clothes on and off and that she said it was okay but she felt sad afterwards but wasn’t sure why.  They asked me if I wanted [J] to participate in a VATE record of interview but told me it wasn’t sufficient to pursue at that time.  I consented to the VATE interview.  [J] said the same thing on the VATE interview but did not include that the tickling occurred without clothes.  I was told that because she hadn’t fully disclosed the same information, the police were not sure whether there was sufficient evidence for them to pursue and they were unsure as to whether the information would be provided to [L] detectives to investigate.  They arranged for an examination with a forensic paediatrician at Monash Medical Centre.

   57.On Wednesday, 2 December 2009 I attended with [J] at Monash medical Centre where she was examined by Dr [Y].  During the examination, [J] again disclosed that her father tickles her vagina with or without clothes, and the tickling game occurs in front of her brothers but her dad doesn’t tickle them.  Various samples were taken.  External examination revealed no physical evidence to either prove or disprove the disclosures made by [J].  The doctor informed me that she wouldn’t be sending [J] back to her father if she were I until the issue was resolved and she said I needed to at least get counselling for [J].  She said she would include that information in her report and she would notify both the Department of Human Services and the SOCAU unit.

1. The further significant allegation about the father's conduct, post December 2009, arises in the context of these Magellan proceedings and an investigation of sexually inappropriate behaviour by the father.  It is alleged  that the father and the father's parents, in particular the paternal grandmother, have called J “a liar” and told all of the children to “stop lying” and referred to the allegations made in these proceedings.  This is denied by the father and the paternal grandmother. 

2. The father says (through his counsel) that he has spoken to the children about the need for truthfulness.  The independent children's lawyer has referred me to paragraph 8 of the father's affidavit, sworn on 11 January 2010, in which he deposes:‑

   I also say that I had a conversation with the children and my mother present about the importance of telling the truth and standing up for the truth.  I did not specifically refer to the mother’s allegations.  It was stated in very general terms and indicated to all the children if you hear lies you need to stand up and tell the truth.  For a few days after this, [T] seemed more agitated.  He then came to me when my mother was also present and told me that he had lied to the police about me.  He did not go into any further detail and I did not want to make any more of it with him.  I only responded that it is important to tell the truth and that everything would be all right.  He seemed much better, more relaxed after this.

3. The proceedings which were instituted in the Children's Court by DHS in mid January 2010 were before that court on 2 and 11 February 2010.  There had been in place, since the matter had proceeded before Cronin J on 23 December, restrictions on the bathing and sleeping arrangements for the children.  Those matters were to be done only by the paternal grandparents.  In the Children's Court, the grandparents gave at least one undertaking on 11 February 2010[1] that they be solely responsible for bathing and bedding the children and that they would ensure that the father is accommodated overnight outside any premises of which the children are sleeping.  They also undertook to refrain from discussing these proceedings with the children or in their presence or hearing or denigrating the mother to the children or in their presence or hearing.  I was asked by counsel for DHS to assume that a similar undertaking had been given on 2 February 2010, as it represents standard practice in these matters.  I am unable to draw that inference.

   [1] “Exhibit DHS 1.”

4. The third category of allegations relevant to the father's case are against the paternal grandparents and their failure or neglect to abide terms of supervision that they have either undertaken or been required to do by orders of the court.  It is in this respect that the records of DHS are entirely at odds with the father's case. The father contends that between now and a final hearing, the paternal grandparents can keep the children safe and be responsible for supervision of his time with the children.  DHS contends that the grandparents have indicated to the children that they do not believe them. DHS alleges that the grandmother has stated to DHS that she does not believe J’s complaint. In that respect, I was referred to page 9 of the confidential court report,[2] in which it is reported:‑ 

   On the 13^th January, 2010, Ms [Vance Snr], paternal grandmother contacted Ms Connell.  [The paternal grandmother] advised that she has been supervising the contact the father has with the children and that she believes the allegations [the mother] has made are false; [the mother] has stated that [J] has said that her father tickles her on the vagina which cannot be true as she and her father have not had a bath together since [J] was about 3 years of age.  [The paternal grandmother] stated that [J] has often suffered from urinary tract infections and on one occasion she was applying medicated cream to [J’s] vagina and as [J] did not present as being uncomfortable during this process, she did not believe that [J] had been sexually abused.  Further [the paternal grandmother] stated that the children had not made any disclosures to her, implying further that the abuse must then not be true.

   [2] “Exhibit DHS3”

5. On page 11 of the same report, it is noted:‑  

   It is documented that during this particular conversation, [the father] and [the paternal grandmother] both confirmed that he was not being supervised on all occasions with the children.

   During this conversation, [the paternal grandmother] stated that she recently bathed [J] and asked her if she wanted to play the “tickling game”.  [The paternal grandmother] stated that she asked [J] this to interpret her reaction.  [The paternal grandmother] stated that [J] appeared “dumb founded” which she interpreted to mean that [J] did not know what she was talking about.  During this conversation, [the paternal grandmother] also advised that she felt it was unreasonable and unnecessary to expect that she be able to fully supervise the children’s contact with their father.

6. Counsel for the Department also referred me to page 12 of the report and, in particular, to the following:‑   

   On the 5^th of February, 2010, Senior Protective Worker, Ms [R\ and Team Leader Ms [C] met with [Mr Vance Snr] and Mrs [Vance Snr], paternal grandparents, as per requests of the Melbourne Children’s Court to reassess them as being suitable people to supervise the father’s contact with the children but were there to ensure that [the father] did not make attempts to use listening devices.  During this interview, Ms [R] and Ms [C] (Child Protection) went through the Children’s Court expectation that [the father] was to be in the same room/vehicle as his parents whenever his children were with him and at night that he was to sleep in a campervan.

   […]

   On the 2^nd of March, 2010, Senior Protective Worker Ms [R] and Principal Practitioner Mr [L] attended the home of [the father] to discuss the current situation with him.  [The paternal grandmother] was also present during the interview.  [The father] consented to participate in a sexual offender’s risk assessment.  He consented for Ms [R] to make the necessary arrangements.  [The father] relayed similar information to Ms [R] and Mr [L] as he had on the previous occasion he had been met with.  [The father] consistently maintained that he has not sexually abused the children.  [The father] stated that the day prior to the interview, he had taken [K] to drama classes by himself.  [The paternal grandmother] stated that she had remained at home with the other children and that her husband, [the paternal grandfather] was not present as he was in the country with a sister, who is ill.

7. I have not read the confidential court report in its entirety.  I was not asked to do so.  I was not aware of its existence until I was receiving submissions in the case.  I have now, as indicated, marked it as an exhibit and it will remain on the court file. 

8. DHS submits that the evidence, taken cumulatively, ought to satisfy me that the paternal grandmother should have been aware of her obligations to supervise the father's time with the children, but has left the children, or at least one of them, unsupervised, that she has actively spoken to the children (or J) about the allegations, which she then sought to rely upon to disprove the allegations. Counsel for DHS submits that I ought to infer that the paternal grandmother has breached her undertaking not to discuss these proceedings with the children or something of that nature.  The father says that there has never been an acknowledgment that his time with the children has been unsupervised, that his time has been supervised and that the instance involving the oldest child going to drama school did not involve any of the children being in his sole unsupervised care.

Application of legal principles

1. This is an interim hearing. All of the allegations and the evidence is untested. I cannot make a finding of fact as to the conflicting allegations. Where, as here, the welfare of children is concerned, I will not take risks potentially at the expense of the children.

2. I have regard to the objects of the legislation under s 60B of the Family Law Act (‘the Act’). I have regard to the two primary considerations under s 60CC(2) of the Act which are to protect children from abuse, neglect and harm and to make an assessment of the benefit to children of having a meaningful relationship with both of their parents.

3. Oftentimes in the Magellan list, there is tension in the application of the primary considerations.  In this list, matters are prioritised over any other matters in the court. However, having regard to the fact that the parties have agreed to obtain an assessment report by Dr E which will be followed by a report prepared by a family consultant, the earliest that this matter can be accommodated is the Magellan sittings in June 2010.

4. Between now and then, I will act conservatively in the interests of the children.  This will come at a cost to the parties, but I stress that it is the best interests and the protection of the children with which I am most concerned. In that respect, the interests of either parent must give way to the interests of the children.

5. The allegations against the father, save to the limited extent that elements are admitted by him, are untested and denied through his counsel.  Nonetheless, the allegations are worrying.  This is not a case where allegations turn on one instance and can be explained innocently.  The mother paints a picture of the father as a person who has had flagrant disregard for children in his charge when he was a teacher and has repeatedly acted in an antisocial and deceitful way and in a sexually inappropriate way. 

6. I stress that the father denies all allegations. Given the very limited time since the mother’s application was filed, I draw no inference from the fact that the father has not gone on oath with his denials. He has not had time. There was no objection to the matter proceeding before me on the basis that his counsel, Mr Mort, would convey to the court what he is instructed his client would say on oath if he were afforded the opportunity.

7. The father says that not only are the mother’s allegations incorrect, but that she has embarked upon a series of malicious reports to DHS, in particular those made on 25 June 2008, 29 August 2008, 10 June 2009 and 18 September 2009.  He says that she has done so falsely and for an ulterior purpose, which was generally to gain an advantage in subsequent court proceedings.  For instance, on 25 June 2008, the mother made a notification to DHS that she had found pornography on the children's X‑Box.  She also said that K, the eldest child, had been in bed with the father and had referred DHS to the pornography charges for which the father was investigated by the Education Department in 2004 and 2005.  Mr Mort, for the father, juxtaposed this with an application for an intervention order which was made some three days later on 28 June 2008, in which the wife effectively sought to exclude the father from the home.  Ultimately, that application did not proceed.  It was struck out on 25 August 2008, a date after which the father no longer resided in the home.

8. In arriving at my decision, I take into account that the regime sought by DHS represents an enormous restriction on the father and that the father is concerned that the children will view his time with them in a suspect light because of allegations which, he says, are made not only falsely, but maliciously.  I have had the benefit of evidence from Ms U, the family consultant assigned to this list, that no doubt the children will notice a significant difference between the time they have with the father, pursuant to these interim orders, as opposed to the relaxed and free time that they had with him, the father and the grandparents, at N or in Melbourne. However, it is Ms U’s opinion that it should be time that can be nonetheless enjoyable for the children from their perspective, if not from the father's perspective.

9. The evidence of Ms U, in respect of which I did not permit cross‑examination, but upon which I place weight today, was to the effect that the demeanour of the children with the father and his parents now, which is happy and relaxed and eager to see him, does not indicate that any of the statements the children have said are necessarily untrue.  Ms U has given evidence that it is particularly important that children not be spoken to about allegations which they have made;  they not be second guessed;  they not be tested;  the children need not be put in a position where they think that what they say is particularly important.  In summary, the children need to be allowed to be children and to enjoy themselves. 

10. I am aware that it will be cold comfort for the father, but the orders that I will put in place will also represent for him some protection against subsequent allegations of inappropriate discussions or behaviour with the children between now and a final hearing.  I am satisfied that today the orders I impose are in the best interests of the children, although I acknowledge that they are done in circumstances where the father is significantly disadvantaged by not having had an opportunity to put all of his evidence on affidavit and to have a hearing at which the allegations can actually be tested.

Conclusion

1. Having regard to the best interests of the children as paramount, I will accede to the application of the DHS for two periods of time supervised by them on Tuesdays and Wednesdays each week. It is a decision to which I come knowing that the court will accord this matter priority in the allocation of a final hearing. If it subsequently becomes apparent that this restrictive approach has worked an injustice to the father and the children, then it will have been for the least possible duration.

2. I will adjourn the matter until 7 May 2010 and on that day conduct the compliance check in conjunction with the Magellan Registrar if she is available.

3. The family report will be allocated to a family consultant to take effect as soon after 7 May 2010 as is possible and directions will be made on that day for the final hearing.  At that point, the parties must be ready to point to documents produced on subpoena or otherwise that they will rely on as evidence in the hearing and be in a position to identify what documents will need to go into a court book to make the hearing run as smoothly as possible.  That will be a court book which is ultimately put together by the court.  It would be of assistance, therefore, if counsel who are going to appear on the matter can appear on that day.  If that cannot occur, then whoever comes should know.  The court book or tender bundle will be compiled without prejudice to the right of any party to object to the admission of a document into evidence at the trial although, I note that no order pursuant to s 69ZT(3) has been made in this matter.

4. The interim arrangements will be that the father spend time with the children on each Tuesday and Wednesday from 4 pm to 5.30 pm, at the H offices of the Department of Human Services and such time be supervised by a case support worker of the DHS. In order to facilitate the time, DHS will collect the children from school and transport them to the office and return them to the mother at the conclusion of the father's time with them.  During periods when the children are not at school, DHS will be responsible for collecting the children from the mother's residence and returning them thereto.

5. It is appropriate that there be an order that, until further order, the parents, their servants or agents, be restrained from discussing the allegations in the proceedings with the children or from denigrating the other parent to the children or in circumstances where such comments or conduct is likely to come to the attention of the children.

6. During gazetted school term vacations, for the school attended by K, the days for supervised time provided for herein will be Monday and Tuesday.

7. These reasons can be distributed to Dr E and the family consultant in due course.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  17 May 2010