Vance and Vance

[2009] FamCA 1290

FAMILY COURT OF AUSTRALIA

VANCE & VANCE [2009] FamCA 1290

FAMILY LAW – CHILDREN – Interim – Risk

Family Law Act 1975 (Cth)

APPLICANT: Mr Vance

RESPONDENT: Ms Vance

FILE NUMBER: MLC 8477 Of 2008

DATE DELIVERED: 23 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Hogg and Reid

COUNSEL FOR THE RESPONDENT: Ms Devine

SOLICITOR FOR THE RESPONDENT: Fiona R McGregor

Orders

1. That the wife make available each of the three children to the husband this day at 7.00pm at McDonalds at M.

2. That the husband return the children to the wife at 7.00pm on 11 January 2010 at McDonalds at M.

3. That the interim issues remain listed for hearing before Senior FitzGibbon on 12 January 2010 at 9.45am.

4. That whilst the children are in the husband’s care pending return of them on 11 January 2010 they are to only be bathed and bedded overnight at the home of the husband’s parents in N.

5. That the husband immediately this day advise his parents of the making of these orders and in the event the parents are not prepared to take responsibility for ensuring the order is carried out, the husband is to immediately notify the wife and return them to her.

6. That on 6 January 2010, the husband provide to the Court and serve upon the wife an affidavit of his parents confirming that they have been made aware of these orders.

7. The costs of the husband fixed in the sum of $3450 this day be reserved to the trial judge.

8. The wife’s costs of the day are reserved to the trial judge.

9. That the reasons for judgment this day be transcribed.

10. Liberty to both parties to apply on short notice.

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

MR VANCE

Applicant

And

MS VANCE

Respondent

REASONS FOR JUDGMENT

1. This is a matter that has been brought before me this afternoon, 23 December 2009, as a matter of urgency.  Each party filed proceedings for parenting orders.  The wife filed her application on 17 December 2009 and the court fixed it for hearing on 12 January.  The husband filed his application today, 23 December and it was also fixed for the same time, on 12 January.  An application was made to have the matter abridged because of the circumstances to which I will refer and the Registrar refused.  The matter then came before me on the basis that the husband objected to the refusal for the abridgment.

2. This case has a history in the court with which I am familiar because I dealt with a contested interim application in May 2009 and made orders.  Since then the parties have had a long involvement with the court, which has included obtaining a report from Dr A, who is a well-known and recognised psychiatrist. 

3. The application came before the court in May 2009 in the Federal Magistrates Court before Maguire FM, at which time various orders were made and the proceedings were fixed for final hearing on 15 July 2009.  Final orders were made in respect of the children which for all intents and purposes, should have ended matters.

4. The three children are K, who was born in July 2000 and is therefore nine-and-a-half years of age;  T, born in March 2002, and is therefore aged nearly eight;  and J, who was born in October 2004 and is therefore not long turned five. 

5. Under the orders of Maguire FM, there is a comprehensive regime for the children to spend time with their father.  In essence, leaving aside the ancillary issues, the husband was to have the children on each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Wednesday, bearing in mind that J at that time was still in kindergarten.  In addition, there were orders to which both parties consented for a share in a significant way of the school holidays.

6. The mother’s application sought orders that she have sole responsibility for the care of the children and that the husband spend time with the children as deemed appropriate.  In addition, in terms of interim orders, she sought that the case be considered for inclusion in the Magellan list and that has been considered by the Registrar, who has fixed the date in March before Bennett J. 

7. The father has sought orders that the wife forthwith deliver the children to him, failing which a recovery order should issue.  There were other ancillary orders sought, including a suspension of the wife’s time until the matter could be heard on 12 January and that she undergo a psychiatric examination.  In addition, the husband sought that the wife be restrained by injunction from permitting any medical practitioner to see the children. 

8. Those are the positions of the parties.

9. The affidavit material of the wife is less than helpful in some senses, in that it is extremely general.  What she says is that in previous proceedings, to which I have referred, there was an allegation that the husband played a “tickling” game in respect of J in particular, tickling her in the vaginal area.  There was also an allegation that T had made, in June 2009, of being “touched” by his father while he was in the bath.  What the wife said was that these matters were reported to the Department of Human Services and investigated.  No adverse findings were made by the Department and, ultimately, the court made the orders in July.  There is some significance in that, because when I look at the orders, there is no indication of any concern on the part of the federal magistrate who made the orders.

10. Bearing in mind that those issues would have been canvassed in an affidavit shortly prior to the final hearing and the parties consented to an arrangement which would seem to be inconsistent with the concerns, I must conclude that the court was satisfied that there was nothing untoward about the orders, which would require the court to have hesitation about making them. 

11. It appears that subsequent to those orders being made, the contact arrangements have taken place.  The wife says that contact occurred on 20 November 2009 and they were returned to her care on 25 November.  The wife said that when she was putting the children to bed, J was crying and complaining of a sore vagina area.  She asked the child had she been touching her genitals with dirty hands, because she thought she might have scratched an irritation and caused some inflammation.  J told her that she had not, but she had a sore vagina from the “tickling” game.

12. She said that J had “disclosed” to her that her father had been tickling her in the vaginal area both with clothes off and clothes on and in front of her brother.  There is nothing in the affidavit material to indicate what the reaction if any of the other child or children.  The wife then said that she contacted SOCAU Victoria Police and a record of interview was conducted of J on 27 November by the police.  The wife says, and I quote:

    It is my understanding that she made some disclosures prior to the VATE record of interview and she made different disclosures when actually being tape-recorded for the VATE interview.

13. The words may have been a lawyer’s words, but I suspect they were carefully chosen.  It would seem to me clear that a police officer could be able to say clearly what those disclosures were, albeit that the VATE tape indicated, presumably, that either different disclosures or no disclosures were then made.  I am not at all sure what the wife means.

14. The wife then says that the police referred her to the Monash Medical Centre, where J was examined by Dr Y.  It strikes me as odd that the Victoria Police would refer the wife and J to the Monash Medical Centre.  If the police were concerned about looking for some corroborating material, it would normally be the practice for them to actually take the child for an examination. 

15. The wife’s evidence is that J made disclosures to Dr Y of being tickled in the vagina area by her father with both clothes on and off and in front of the boys.  According to the wife, an examination was conducted by Dr Y, which was inclusive, but that Dr Y informed her that J had made “clear and unequivocal disclosures”.  That is also unhelpful because it does not tell me what disclosures J actually made to Dr Y.

16. The disclosures were then reported to the Department of Human Services by presumably the wife, although that is not clear from the affidavit.  If in fact Dr Y at the Monash Medical Centre received the disclosures and felt there was a basis to be concerned about, then under her mandatory reporting requirements, presumably she would have contacted the Department of Human Services.  I am not sure what happened.  The wife goes on to depose that the Department of Human Services told her that the case “is open”, but that there would be no further action because they told her she was a protective parent by refusing to make the children available to their father.

17. I am not sure why that conclusion might be drawn, because at that point in time, as I understand the wife’s evidence, she had not told the father that she was not returning the children to him under the orders.  She seems to have been told that she needed to return the matter to the Family Court as a matter of urgency.  That seems to me to be rather unusual in the circumstances, because the Department might have actually taken some further steps, such as making inquiries of Dr Y and also of the Police.  That is the evidence upon which the wife relies.

18. It goes without saying that when I read the affidavit of the husband, he was oblivious to all of this happening and says he is outraged and offended by what is being said.  He denies emphatically that any such action has been taken and to some extent having regard to the fact that this is something that had occurred in the past, I am not surprised.  However, when he found out about what was happening, he made some demands through his lawyers for some time with the children.  What I found puzzling was that on 9 December, some two weeks, almost, after this process had begun, the wife sent an email to the solicitors for the husband, indicating that the husband could have access to the children from Friday 11 December after school to Monday 14 December and that he was to return them by 5.30 pm at the M McDonalds on 14 December.

19. She then asked could he stop sending her harassing text messages.  Perhaps he was sending harassing messages because he did not know exactly what she was doing.  Counsel for the wife points to the fact that the wife was feeling intimidated and therefore obliged to concede time for the period to which I have referred.  I have some difficulty with that because of what she was told by the Department of Human Services.  She should have gone back to the Department and sought their advice.  However, I also take into account that this is not the first time the Department has been involved.  It seems to me, therefore, that there are some very confusing messages in all of this.

20. I had the matter stood down because the matter is listed in early January before the Senior Registrar who will be in no better a position than what I am, to try and work out what to do, pending the ultimate determination on an interim basis before Bennett J in March.  I asked that the parties make inquiries of the relevant authorities to see what was in fact occurring.  It seems that the L Police Department has not looked at the VATE tape.  Even if they did, presumably on the wife’s evidence, it would not assist them because it seems that either no disclosures were made or different disclosures to that which were made prior to the VATE tape commencing.  It seems more important to find out what the child told the person prior to the VATE tape commencing.  This is not a prosecution matter, and as such, the admissibility of the evidence is entirely different from that which the criminal jurisdiction deals.

21. The second port of call was the Department of Human Services and probably sensibly, the Department declined to make any comment at all.  It is not lost on me, of course, that they can intervene at any time, let alone take their own action in the Children’s Court.

22. The third port of call was to the Monash Medical Centre, but I have been told that Dr Y is on sick leave and will not be back until next week.  Under those circumstances, a determination must be made about whether the risk here is real or not.  It troubles me that this is something that has happened in the past, and has been investigated at considerable length.  What has not been put before me is any proposal by the wife about the other children, bearing in mind that the accusations seems – on this occasion – to relate only to J.  It seems to me that I should be cautious about simply relying on the notice of risk of child abuse and simply suspending existing orders.

23. What I have been asked to do is to make an order that the children be made available to the husband at 7 o’clock tonight.  Balancing out the risks, it seems to me that the evidence before me does not justify me suspending the existing arrangement.  However, as a matter of precaution, there is an avenue open to give some comfort to the wife.  The object of Part VII is to provide for the protection of children.  It is part of the court’s charter to ensure that children’s relationships with their parents are not damaged, if possible.  I take into account that there will be someone with the children, conscious of the allegations having been made and the need to care for them.

24. It seems that what the husband was proposing to do with the children was drive to N in western Victoria to spend time at the home of his parents over the ensuing days, and I propose to make an order that whilst that occurs the children stay overnight at the parents’ home.  I do not propose on this evidence to restrict the husband’s movements, save that he must not bathe the children or bed them in any other place other than the home of his parents pending the return of the matter on 12 January.  In the meantime, if some material comes to light which makes these orders clearly untenable, then I have no difficulty with the parties making an urgent application either to me, or, as I said, the Department can take whatever course of action it desires.

25. It seems to me that it is still in the best interests of these children that the ongoing relationship, which the court found to be in their interests in July, should be continued. 

26. Each party has effectively incurred legal costs for the day, and I propose to fix the husband’s costs in the sum of $3,450 and to reserve them to the trial date.  And although I am not aware of the wife’s exact position, it may be feasible to suggest that if there was any merit in her claim, her costs should also be reserved.  So I am simply reserving the wife’s costs to that return date.

I certify that the preceding Twenty Six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 December 2009