Vance and Vance

[2008] FamCA 861

FAMILY COURT OF AUSTRALIA

VANCE & VANCE [2008] FamCA 861

FAMILY LAW – CHILDREN – With whom a child spends time – Interim Application – What time to be spent with each parent and in what circumstances – Allegations of father exposing children to pornography – Mental health of father as a risk to the children

Family Law Act 1975 (Cth)

APPLICANT: Mr Vance

RESPONDENT: Ms Vance

FILE NUMBER: MLC 8477 of 2008

DATE DELIVERED: 17 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Watts J

HEARING DATE: 25 September 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hogg & Reid

SOLICITOR FOR THE RESPONDENT: Hold & Macdonald Pty Ltd

Orders

IT IS ORDERED BY CONSENT:

1. The former matrimonial home situate at and known as F (“the F.M.H.”) be forthwith sold in accordance with the terms and conditions of the sale agreement signed this day by the parties with B Real Estate.

2. The net proceeds of sale after payment of all costs and expenses associated with sale, discharge of mortgage to the Commonwealth Bank secured against the former matrionial  and payment of all outstanding rates and like encumbrances be distributed as follows:

   a.To each of the parties via their respective solicitors the sum of ten thousand dollars ($10,000.00) each;

   b.The balance to be placed in an interest bearing transaction account held by the solicitors for the Wife;

   c.Neither party to withdraw from same without prior order of this Court or with the written agreement of both parties.

3. The parties attend a conciliation conference at 11.00 am on Monday 8 December 2008.

4. The Husband and the Wife provide to the other no later than 14 days prior to the conciliation conference:

   a.Copies of all documents relevant to the financial proceedings between then as set out in Rule 12.02 and 12.05(2)(c) of the Family Law Rules 2004;

   b.Copies of all bank statements and credit card statements for the last three years.

IT IS ORDERED PENDING FURTHER ORDER:

1. The Husband and the Wife have equal shared parental responsibility for the long term care, welfare and development of the children of the marriage K born … July 2000, T born … March 2002 and J born … October 2004.

2. The children live with the Wife.

3. The children spend supervised time with the Husband as follows:

   a.On alternate weekends from Friday after school to the following Monday morning the Husband to deliver the children to school and the child J to the Wife;

   b.For the second week of the current third term school holidays, that time to begin at 10.00 am on Saturday 27 September 2008 and ending 10.00 am Saturday on 4 October 2008;

   c.For one week during the Christmas school holidays commencing at 10.00 am on 26 December 2008 until 5.00 pm on 2 January 2009;

   d.Both the Husband and the Wife have the ability to contact the children by telephone when the children are in each other’s care;

   e.Such further or other times as may be agreed between the parties from time to time;

4. Until it is sold and unless the parties otherwise agree, when the children spend time with their father, the Husband is to live in the former matrimonial home with the children.

5. The children’s time with their father is to be supervised by any one or more of his father, mother or sister-in-law or another person who is acceptable to the Wife.

6. The Husband be restrained from the use of or exposing the children to pornography during his time with the children.

7. The Husband be restrained from bringing any pornographic material into the home in which he spends time with the children.

8. Both parties are restrained from removing anything from the former matrimonial home.

9. The Husband is restrained from setting up any listening devices in the home and I note that this order is made on the basis that the Wife has made an allegation that the Husband has done that and has been charged with having done that, but this order is made without me making any finding that he has done that.

10. The Wife is to reinstate J at her pre-school and is restrained from moving K and T from their current school.

11. The children K born … July 2000, T born … March 2002 and J born … October 2004 shall be independently represented, and the Legal Aid Commission of Victoria is requested to arrange such representation.

12. I request that Victoria Legal Aid urgently process my request for the appointment of an Independent Children’s Lawyer.

13. The matter be adjourned to 10.30 am on Thursday 23 October 2008 before the Docket Registrar.

14. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED:

1. That on the next occasion when the Independent Children’s Lawyer is present the Court will consider whether or not an order will be made that a child psychiatrist be appointed to prepare a Chapter 15 report having seen the Husband, Wife and the three children and having reviewed the material filed and any material that is further subpoenaed.

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 SYDNEY

FILE NUMBER: MLC 8477 of 2008

MR VANCE

Applicant

And

MS VANCE

Respondent

REASONS FOR JUDGMENT

1. This interim hearing is about what time pending further order K born in July 2000, T born in March 2002 and J born in October 2004 spend with each of their parents and in what circumstances.

2. The application by the father is that he be able to live in the matrimonial home each alternate week with the two children of the marriage.  The mother currently lives in the home with the children. The father’s proposal is that she would move out for the week that he would be with the children in the home. 

3. The father currently lives with his parents at N, which is 450 kilometres from where the children reside, a 900 kilometre round trip.  It is a six hour road trip one way.

4. On 26 June 2008 the mother at the time of separation locked the father out of the home. There were intervention proceedings taken by the mother based on allegations hinting at paedophilia but substantially based upon an assertion that the father, who is involved in the enthusiastic use of adult pornography, either deliberately or recklessly has exposed the children to that pornography. 

5. At the time of the separation in June 2008 the mother took out an interim intervention order and excluded the father from the matrimonial home.

6. The father took no immediate action in any court exercising jurisdiction under the Family Law Act to attempt to reverse what the mother had done. His lawyer explained from the bar table (and I accept the explanation) that the father was concentrating on the serious issues raised in the intervention orders and I accept that he had decided to attempt to have those matters resolved prior to pressing this application and that he attempted to negotiate with the mother in the meantime. The father had some type of turn at court on the first day in the intervention proceedings and an ambulance had taken him away. The mother has not alleged any material domestic violence during the marriage. The matters at the R Local Court were resolved on 25 August 2008 and the application by the mother for an intervention order was dismissed by the magistrate. The mother has, in effect, denied the children the opportunity of seeing their father for a two month period.

7. Since then some of the scheduled time between the children and the father had to some degree been thwarted by the fact that the father was unable to organise a supervisor as required by the mother.

8. When the matter came before me the parties agreed and sought that I make an order in relation to the sale of the matrimonial home.  The overall plan was that both parties would use monies from the net proceeds of the sale to pay for accommodation in the general area in which the matrimonial home is located so that the parties would live relatively close to one another.

9. There was a preliminary issue as to whether in the State of Victoria, school teachers are authorised to take an oath for affidavits in this court.  In the end that argument did not proceed because the father’s solicitor allowed the documents that had been signed by the school teachers to be used in evidence.  This was an appropriate course given the limited amount of time that I had to deal with the matter on the day it was before me.  The documents would have been taken into evidence as signed statements and treated as first hand hearsay and permissible in interlocutory proceedings in any event.  The two affidavits were the affidavit from Ms G and the affidavit from Ms T. 

10. The father claimed that the mother has suffered depression in the past. 

11. The mother is working as a teacher.  The father had been working as a teacher but he left teaching because of a cloud over him in relation to pornography being found on a computer he had at school.  Assertions that he had exposed students to that pornography were denied by him. 

12. This matter came on by way of short notice.  Service was effected by 16 September 2008 as required by the Registrar’s order.  Lengthy material that was relied upon by the mother was not filed in time and was filed in Court.  It had been provided to the father’s lawyers some time before. 

THE THERAPEUTIC LETTER

1. The father had written on his computer a lengthy and in parts disturbing document which he claimed was a therapeutic exercise helping himself.  The final sentence of the document says:

   Anyway, those are my thoughts for this day, and typing them out has been good therapy for me.

2. The eight page document contains some intimate reflections including details about his sexual life within his marriage with the mother and describes the unsatisfactory nature of the father’s sexual relationship with the mother after she returned to teaching in 2005.

3. It is clear that around about the time of the breakdown of the marriage the father suffered what was at least an acute depressive episode.  It may be more than that. 

4. The father in his letter says that he was diagnosed with severe depression, that he was prescribed Zoloft and that he also started cognitive behaviour therapy.

5. The father comments in the letter: “I lie sometimes about things because I know [the mother] will react”.  The father describes how his unsatisfactory sex life with the mother led him to using adult pornography “to ‘taking matters into my own hands’ so to speak”.  He indicates that “I recently used the card again and racked up $800”. 

6. It is not so much what is in the eight page document that is particularly disturbing.  The disturbing behaviour by the father in relation to this document is that he not only generated it for his own therapeutic benefit and in circumstances where it is not even clear that he showed it to his therapist, but he thought it appropriate to share it with neighbours and a teacher at the children’s school. 

7. The father’s lawyers described these persons as intimate friends of the father but that is not a description which is justified on the face of their affidavits. 

8. Ms T is a school teacher at the school at which K and T attend (although she doesn’t teach them).  She knew the father through a local kindergarten community and in the course of seeing him around the school.  Ms T says that her son and J are in kindergarten (preschool) together and the first time that she really met the father was when J was invited to her son’s birthday party earlier in the year and the father brought J to that party.  This is not a description of an intimate friendship between the father and Ms T.  Ms T describes herself feeling very uncomfortable in April/May when the father arrived at her home after she had been minding J when the father had to go to the doctors.  Ms T says that the father was talking about his relationship with the mother and some of what he was saying was very personal but he seemed oblivious to the fact that J was present.  

9. In relation to the first incident in April or May, Ms T was sufficiently disturbed about the father’s behaviour to report his behaviour to the school principal as a precautionary step, saying she was concerned about the welfare of her family generally.  She was sufficiently disturbed at being showed the contents of the father’s therapeutic document that she talked to her husband about it and he rang the police to inform them that the father was not to go into their home again.  Ms T says that in August 2008 she saw the mother at school and spoke to her and told her of her concerns.  She said she wanted to satisfy herself that the mother was alright.  The affidavit of Ms T is important because it appears to be information from an independent person about some quite unusual and disturbing behaviour exhibited by the father in April, May and June this year.

10. The other person who has filed an affidavit on behalf of the mother to whom the father showed his therapeutic document was the parties’ next door neighbour, Ms L.  Ms L describes her relationship with the father until approximately May 2008 as “good”.  They had been next door neighbours for approximately five years and had children of similar ages.  Given that the father was primarily the care giver in the household I infer that it is probable that there was a level of friendship between Ms L and the father.  On one afternoon (in about May 2008) the father went to the home of Ms L with J with his therapeutic letter.  The father told Ms L that he wished her to read the document in his presence.  Ms L’s memory is that the letter contained “a lot of very personal information about his life with [the mother] and seemed focused on himself and his sexual needs”.  Ms L says that her reaction was that she was unsure as to why the father was showing her this material and she was taken back by the fact that he had done so.  She said she gained the impression the father was intent on drawing her into some discussion regarding his personal life with his wife and she was reluctant to do that, especially because the father had told her that he didn’t want his wife to know that he was talking about these things with her.  The father told her things about his resignation as a school teacher because of allegations pornography was found on his computer and that his wife had found some pornography downloaded onto the children’s X-box.  Ms L describes the father as being highly emotional during this occasion, with him crying a couple of times.  She estimated that it took about 45 minutes in total and that J was there during the entire time. 

11. Ms L deposes to the fact that on 1 June 2008 the father made an admission to herself and her husband that he had taped conversations of the mother in the home.

12. On 28 June 2008 Ms L records that the father had received an intervention order apparently taken out by a teacher and some of the mothers at the kindergarten and primary school.  This matter was not highlighted during submissions and I have no detailed information about the facts surrounding this aspect of the matter. 

13. It is clear that Ms L was disturbed by aspects of the father’s behaviour in May and June 2008. 

REPORT FROM DR S DATED 30 JUNE 2008

1. Dr S is a clinical psychologist who as at June 2008 had been seeing the father fortnightly since 3 October 2007.  A report, which seems to be incorrectly dated 30 June 2007 (it should be 2008) is annexure PV1 to the father’s affidavit sworn 15 September 2008.  The father in his affidavit confirms that he commenced counselling with Dr S in or about October 2007 and that he has continued to consult with Dr S (by implication to the date of him swearing his affidavit which was 15 September 2008). 

2. Dr S’s June report indicates that initially the father presented in October 2007 with symptoms of depression:-

   He presented with a depressed mood, he had lack of energy, some sleep disturbance, lack of interest in some usual activities, lowered self worth and mild suicidal ideation (with no intent to carry out a plan).

3. Dr S records that the father reported that the precipitating factor for his depression was his deteriorating relationship with his wife.  Dr S opined that the father’s feeling of self-worth and mild suicidal thoughts and his depression appeared to be situational, particularly in regard to what occurred with his job and sadness within his marriage. 

4. Dr S says that her assessment indicated that the father met a diagnosis for Dysthymia (as reported in DSM-IV-TR).  The doctor does not expand on that diagnosis but a dysthymic disorder is described as having as an essential feature a chronically depressed mood that occurs for most of the day more days than not for at least two years.  The doctor however goes on, having made that diagnosis, to indicate that in her view that diagnosis does not pose a risk of harm to the children or the mother.

5. The solicitor for the father in reply said that what the father had was situational depression.  It was asserted that there has been no report by the teachers to DoCS.  No subpoenas had been issued to the Department, so it is difficult to assess whether or not that assertion is accurate.  There is no independent information to say one way or the other. 

6. Paragraph 17 on page 7 of the father’s affidavit says he expects to be able to cease taking Zoloft shortly. 

7. Dr S asserted that between March 2008 and June 2008 the father’s depression had decreased and his mood increased, as had his sleep and his energy.  It was said by Dr S that he had no current thoughts of suicide and was able to see his future rationally.  In talking about the loss of his job, Dr S records “[Mr Vance] denies that he put the pornography on the computer, and that the student later admitted this”. There may have to be some exploration, in the future, as to whether or not the father gave that history to Dr S. 

8. Dr S has not had the opportunity of observing the children with their father.  She reports that the father has always spoken kindly and lovingly about them and I have no doubt that that is true.  She opines that the father poses no risk of harm to the children nor to his wife.  She says that she believes the father is struggling emotionally with his marital relationship and therefore his behaviour has not been as objective as he would have liked.  She supports the father in his application for continuing to care for the children.

9. It does not appear from the face of the report that Dr S had knowledge of some of the matters which are in evidence before me.  It was unclear to me and I was not enlightened from the bar table, as to whether or not the father’s psychologist had actually seen the therapeutic letter that he had written.  It may or may not be that knowledge of that behaviour would change Dr S’ opinion. 

THE LEVEL OF RISK IN THE FATHER’S BEHAVIOUR

1. The lawyer for the father referred to the mother making hints about paedophilia by the father.  I am not sure the mother has gone that far.  The mother has expressed concerns about discovering pornographic websites on the children’s X-box in the toy room for which the father has given her an explanation.  The mother has also described behaviour in the children which has now improved since the parties have been apart.  Ms G, for example, gives information that T’s quiet and withdrawn behaviour (sitting under chairs and being very aggressive) has dramatically improved since the parties have been apart.  The solicitor for the father suggested that evidence about dramatic improvement in the children’s presentation could be easily explained because there is now no longer tension in the home in which they live.  I cannot say if that is so and need on an interim basis to err on the side of caution. 

1. Mr M said he found other material in an unlocked shed.  The lawyer for the father debated with me whether or not there was any evidence as to the children being able to access inappropriate pornographic material saying that the blow up doll that was found in the garden shed was left over from the father’s bucks night (that was told to me from the bar table), but Mr W gave evidence that he found pornographic material on the shelf under the house that could be easily accessed by the children.

2. Ms W’s affidavit at paragraphs 4 and 5 refer to the father pushing past people which the lawyer for the mother equates to disassociate behaviour by the father.  I would not be comfortable in drawing that conclusion at this point. 

3. Counsel for the mother raises the issue as to why it would have been that father had lost his job.  Whilst that might be a matter when linked with other matters might form the focus of some interest at the final hearing, it is not a matter which concerns me greatly at this interim stage.  The father lost his job almost four years ago.  The fact is that the mother was aware of the allegations made against the father at the time he was stood down as a teacher but was content to allow him to be the primary care giver and for her to go back to work at a time when the children were all under school age. 

SCHOOLING

1. I was informed from the bar table that the mother had unilaterally taken J out of preschool for two hours, two days a week, without the father’s knowledge or consent.  She also intended to change K and T’s school, unilaterally and without the father’s consent, commencing at the conclusion of the current school holidays. 

2. The parties had otherwise consented to an interim order that the parents have equal shared parental responsibility.  In those circumstances, it is appropriate to make an injunctive order restraining the mother from carrying out her intention in respect of taking J out of preschool and changing the other two children’s schools.  The reasons for those decisions by the mother were not the subject of proper ventilation before me.  I did not mean, by making that decision, to preclude another judicial officer in the future from properly considering those matters, even on an interim basis, in circumstances where both parties had been given a proper opportunity to put evidence before the court about those matters.

SECTION 60CC(2) AND (3) FAMILY LAW ACT

1. Neither party addressed me specifically on the primary considerations and additional considerations set out in s 60CC(2) and (3) and in the confines of this hearing I do not intend to fully discuss those matters, but simply to highlight those to which the court gives most weight.

2. Prior to the date of separation the parties concede that the father was the primary carer of the children, although the mother criticised the ability with which the father fulfilled his role as primary carer.

3. I accept that the father had been the primary care giver of the children since January 2005.  At that time the three children were 4 ½, nearly 3 and about 3 months of age respectively.  The year before that the father had been at home and had been jointly caring for the children when he had been on leave from the Department of Education. The mother returned to full time work when the youngest child was three months old and the father stayed in the home looking after the children.  The mother worked long hours and took on extra duties in the course of her employment.  The father involved himself in the role of parent and his evidence indicates that there were a number of activities and committees, reading programs and the like in which he involved himself.  He involved himself, for example, in J’s pre-kindergarten program.

4. Clearly it is very important, if possible, for the children to continue the meaningful relationship that they have established with their father during the period of time that he has been their primary care giver.  That has to be balanced against the second primary consideration which is a need to protect the children from risks of being exposed to psychological abuse arising out of:-

   44.1.possible mental status problems with the father at the current time;

   44.2.possible problems arising out of the father’s recklessness in terms of his use of adult pornography in the home in a way that may expose the children to that material.

5. The children are too young to have expressed any view. 

6. The mother makes some criticism of the father’s parenting capacity as to its quality.  That criticism, however, at least at an interim stage, has to be viewed through the prism of the history of the parenting between 2005 and the date of separation. 

7. There was no suggestion the children are in any way frightened of their father.

8. I do place some weight in the confines of this short interim hearing upon possible risks as I am required to do by the second primary consideration and that leads me to conclude that, pending further order, supervision of the father’s time with the children is appropriate.

CONCLUSIONS

1. The mother suggests a number of supervisors and I will add them to the list of possible supervisors. The mother opposes the father’s father being a supervisor. That opposition is based on one incident where the father and his father went to the mother’s sister’s home to see the children after the local magistrate had dismissed, on a defended basis, the proceedings for an intervention order.  That was probably not a very intelligent thing for the father and his father to have done.  I understand the frustration the father would have felt about the mother making a unilateral decision to prevent him from seeing the children for a period of two months.  I can understand the mother’s sister’s reaction when the father and his father turned up unannounced.  There was some heat in the exchanges at that time.  There was some “chesting” by the father’s father alleged.  I do not believe that any of that should disqualify the father’s father from being an appropriate supervisor.  The father’s father and mother were in court.  They heard what both lawyers had said to me.  I was reasonably satisfied that they both understood the nature of the allegations that were made against the father. 

2. The police have charged the father with offences under listening devices legislation.  It is alleged that the father had put listening devices in the home for the purposes of recording the mother’s conversations. Those charges have not yet been dealt with.  I can understand the mother’s concerns about the father coming into the household in circumstances where he has been charged with bugging the home.  The father and his supervisors I believe would understand the serious nature of that type of behaviour, particularly if it happened from this point onwards given the outstanding unresolved charges and I am reasonably satisfied that the father’s supervisors would guard against that type of behaviour by the father.

3. The orders which I make are an attempt to balance the first and second primary considerations, in the short term, based upon the evidence available to me.

4. I explained to the parties that within the confines of the amount of time that I had to deal with the case, although I had had the opportunity of reading all the material, I had not had the opportunity of cross referencing it or reflecting upon it.  There was some important parts of the evidence that could be open to different interpretation and may need to be the subject of fuller investigation in time. 

5. The main immediate concerns centre around the father’s current mental status.  At the time of the separation in June he did some things that at least prima facie were unusual. 

6. I explained to the parties that the best I could do was make some temporary orders until more information was available to the Court and then another court may choose to re-look at the interim orders that were made on a temporary basis. 

7. Both parties agreed to the appointment of an Independent Children's Lawyer.  I intend to appoint an Independent Children's Lawyer and request that the Legal Aid Victoria give urgent attention to that request. 

8. On the next occasion the matter is before the Court I would think that the Independent Children's Lawyer may make some recommendations as to whether or not a Chapter 15 expert, a child psychiatrist, be appointed for the purposes of assessing, on an overall basis, the mental status of both parties and the relationships and attitudes that both parents have.  The Court would be assisted in this matter in the future by expert opinion of an appropriately qualified expert.

9. The parties were unable to give me any estimate of how long it would be before the matrimonial home would be sold pursuant to the orders that I have made and consequently how long it might be before the parties are living close together, each in their own independent accommodation. It may be that at that time, given the history of the father’s past care giving and if there is a clearer picture in relation to his mental status, then some more positive consideration can be given under s 65DAA of the Family Law Act to equal time or significant and substantial time.

INJUNCTIVE ORDER

1. I intend, because of fears expressed from the bar table, to make an injunctive order that neither party remove any item from the matrimonial home between now and when it is sold without the written agreement of the other or further court order. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: …

Date:  17 October 2008