Vance and Vance (No 2)

[2010] FamCA 760

FAMILY COURT OF AUSTRALIA

VANCE & VANCE (NO. 2) [2010] FamCA 760

FAMILY LAW – CHILDREN – Magellan matter – pornography and deception – allegations of sexual abuse not determined – Resolved by consent – Basis on which court was satisfied that terms of settlement were consistent with children’s best interests

APPLICANT: Ms Vance

RESPONDENT: Mr Vance

INTERVENOR: Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: Mr McCarthy

FILE NUMBER: MLC 8477 of 2008

DATE DELIVERED: 21 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7, 8, 9, 10, 11 and 21 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A. O’Connell

SOLICITOR FOR THE APPLICANT: Fiona R McGregor

COUNSEL FOR THE RESPONDENT: Ms O. Nikou SC with Mr D. Mort

SOLICITOR FOR THE RESPONDENT: Hogg & Reid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr R. Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER McCarthy Hoey

COUNSEL FOR THE INTERVENOR Ms J. Benson

SOLICITOR FOR THE INTERVENER

The Department of Human Services

Legal Services Branch

Orders

IT IS ORDERED BY CONSENT:

1. That all previous parenting orders be and are hereby discharged.

2. That until 1 July, 2011(or until such time as the father has completed 12 months of counselling pursuant to paragraph 5.3 hereof) the Mother have sole parental responsibility for the children of the marriage, K born … July 2000, T born … March, 2002 and J born … October 2004 (“the children”) and thereafter the parents have equal shared responsibility for the children.

3. That the children live with the Mother.

4. That the Father spend time and communicate with the children as follows:

   4.1Until 1 January, 2011:

   4.1.1 For six (6) hours on each alternate Sunday to be supervised by N Supervisors or such other professional supervisor as agreed in writing between the parties, with the Father to bear the costs of supervision;

   4.1.2As otherwise agreed between the parties from time to time; and thereafter as follows:

   4.2From January, 2011, on each alternate weekend from the conclusion of school on Friday (as applicable) until the commencement of school the following Monday ( to be extended to the following Tuesday in the event of a non school day) AND FURTHER such time be extended to the commencement of school on the following Tuesday from first term 2013.

   4.3      For school term holiday periods as follows:

   4.3.1For 2011:

   4.3.1.1 For a period of 3 nights in the first week and four nights in

   the second week of each holiday period, as agreed and failing agreement as follows:

   (i)for week one, from the conclusion of school term until 12 noon on the first Monday;

   (ii)for week two, from 12 noon on the second Monday   until 12 noon on the following Friday; and thereafter -

   4.3.2From 2012, for one half of each school term holiday period as agreed and failing agreement, the first half to commence from the conclusion of school term until 12 noon on the second Saturday;

   4.4For the long summer vacation period as follows:

   4.4.1For the long summer vacation commencing in December 2011, save as otherwise agreed on a week about basis with the Father’s week to commence at the conclusion of school term and conclude at 12 noon the following Friday and each alternate week thereafter until the resumption of school term;

   4.4.2   From 2012 and thereafter:

   (i)in even numbered years, the second half of the holidays;

   (ii)in odd numbered years, the first half of the holidays; or

   (iii)as otherwise agreed.

   4.5         For Christmas:

   4.5.1For 2011 and each alternate year thereafter from 4pm Christmas Day until 5 pm on Boxing Day (with the children to be in the Mother’s care from 4pm Christmas Eve until 4pm Christmas Day);

   4.5.2For 2012 and each alternate year thereafter from 4pm on Christmas Eve until 5 pm on Christmas Day (with the children to be in the Mother’s care from 4pm Christmas Day until 5 pm on Boxing Day);

   4.6         On Father’s Day:

   4.6.1For 2010 for a period of 6 hours provided such time is supervised in accordance with subparagraph 4.1.1;

   4.6.2From 2011 and thereafter from 5.00 p.m. on the Saturday preceding such occasion until the commencement of school on Monday;

   4.7For 2011 and thereafter on the children’s as follows:

   4.7.1    On a school day from the conclusion of school until 6.30 pm;

   4.7.2   On a weekend for a period of 4 hours and failing agreement from   10 am until 2 pm;

   4.8By telephone on each Wednesday between the hours of 6.30 p.m. and 7.00 p.m.(with each party to facilitate telephone communication with the other party in accordance with the children’s wishes from time to time);

   4.9     At such other times as agreed between the parties.   

5. That for the purposes of paragraphs 4 hereof:

   5.1        For changeovers:

   5.1.1Save for contact changeovers at the children’s school or where the services of a professional supervisor are required, changeovers occur at the Mooroolbark Police Station, unless otherwise agreed;

   5.1.2In the event that Mother’s Day falls on a time when the children are in the care of the Father, such period shall be suspended from 5.00 p.m. on the Saturday preceding Mother’s Day until the Father’s next scheduled period of time with the children;

   5.1.3.1In the event that the children’s birthdays fall during the Father’s  time with the children, then such period shall be suspended:

   (i)for 4 hours on a weekend or failing agreement between 10 a.m. until 2.00 p.m.;

   (ii)from the conclusion of school until 6.30 p.m. on a school Day.

   5.2During all school holiday periods, time pursuant to paragraphs alternate weekend residence periods pursuant to subparagraphs 4.2 hereof shall be suspended and resume in accordance with the usual cycle as if the holiday period had not intervened;

   5.3The Father shall forthwith:

   5.3.1 Engage and attend upon a Counsellor as directed by Dr. E at the expense of the Father, for a period not less than 12 months to assist him therapeutically come to terms with his past conduct insofar as its negative impact on the Mother and the children AND FURTHER the Father shall provide the details of such Counsellor to the Mother and she be authorized to contact such person to be informed of the Father’s progress in general terms.

   5.3.2Provide such Counsellor at the commencement of his therapy with a true copy of the Family Report by Ms O, all reports prepared by Dr E and by Dr A for the purposes of these proceedings and a sealed copy of these Orders and Justice Bennett’s Reasons for Decision delivered this day.

   5.4The Mother have the children in her care from 5.00 p.m. on 24 December, 2010 until 10.00 a.m. on 26 December, 2010.

6. That the Mother continue to consult with her therapist for a period not less than 6 months to assist her deal with the Father’s breach of trust and if so directed by the therapist, invite the Father to join in sessions with her to address relevant issues as determined by the therapist, including ways to improve their communication.

7. (a)      The Mother forthwith provide her therapist with a true copy of the Family Report by Ms O, all reports by Dr E and by Dr A for the purposes of these proceedings and a sealed copy of these Orders and Justice Bennett’s Reasons for Decision delivered this day.

   (b) The Mother forthwith arrange for counselling for the children to enable them to form a trusting and meaningful therapeutic relationship that may assist them explore any feelings and confusions in terms of their relationships with their parents at the parties’ joint expense with all reports in paragraph 5.3.2 to be provided to the Counsellor.

   (c)For the purposes of paragraph 7(b) herein the parties engage in such counselling with the children as directed by the children’s therapist.

8. That the Father and the Mother be and are hereby restrained by injunction:

   8.1 From denigrating the other in the presence of or in the hearing of the child, or permitting any other party from doing so;

   8.2 From discussing or disclosing any allegations in these proceedings concerning the other parent including the dissemination of intimate personal information to any third party other than their treating doctor or therapist.

9. That the Father be restrained by injunction from viewing, downloading or accessing any pornographic material whatsoever or having any such material available to him whilst the children are in his care or having any pornographic material in his residence.

10. That the Mother and the Father are restrained from discussing any sexual abuse allegations raised in these proceedings with the children or either one of them or to any third party unless under the guidance of a therapist or clinician.

11. That the Independent Children’s Lawyer forthwith arrange for Ms O to explain these Orders to the children.

12. That the Mother do all acts and things necessary to advise the proper officer of any school at which the children attend to enable the Father to receive directly from the school at his request and cost a copy of any school term report, newsletter, event notice, notice of any relevant meeting(s) and school photograph order form ordinarily provided to parents.

13. That from 2011 but not before, the Father be entitled to make all proper and reasonable enquiries as to:

    13.1The social, academic and sporting progress of the children at their school AND FURTHER the Father be at liberty to attend, at his  election, all school events, concerts, parent/teacher interviews and sporting competitions and events ordinarily attended by parents;

    13.2The children’s treating medical practitioners and like health professionals concerning any health issue whatsoever concerning the children;

14. That the Father and the Mother keep the other advised of any serious injury sustained or any medical treatment required for a significant illness by the children including the name, address and telephone number of any treating doctor whilst they are in their respective care, so soon as practicable.

15. That the Father and the Mother be at liberty to serve a sealed copy of these Orders upon the following:

    (a)       Any school attended by the children;

    (b)Any medical or health professional treating the child;

16. That the children remain in attendance at their current primary school and the Mother advise the Father in writing of any intended change 3 months prior thereto.

17. That the Mother and the Father keep the other informed of the suburb in which they reside at all times and any change of telephone contact number 48 hours prior to any such change.

18. That the Father forthwith notify the Mother of any employment secured by him including the name and address of any employer.

19. That the Mother and the Father ensure that the children’s surname remain as “Vance”.

20. That the Order for the appointment of the Independent Children’s Lawyer be discharged upon the completion of the explanation by Ms O to the children of the operation of these Orders.

21. That all extant applications be otherwise dismissed.

IT IS ORDERED:

1. That the independent children’s lawyer send a copy of this Order and the reasons for judgment delivered this day to Dr E as soon as practicable.

2. That wherever there appears provision in the above orders, for a counsellor, therapist or like professional person to be provided with a copy of the family report of Ms O, the two reports of Dr E and the report of Dr A, or a combination of all or any of those, there also be provided to that person a copy of my reasons for judgment given this day.

3. That the reasons for judgment this day be transcribed and when settled copies be made available to the parties as well as to the Director of Child Dispute Services of this Registry of the Court for reference by Ms O.

4. That all documents produced on subpoenae be returned to the person or institution producing same.

5. That all documents tendered by a party be returned to the party tendering same.

6. That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.

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

And

DEPARTMENT OF HUMAN SERVICES

Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I am asked to make orders by consent which finalise the proceedings before the court.  The proceedings are in relation to K born in July 2000, T born in March 2002 and J born in October 2004 and have settled at the commencement of the second week of what was forecast to be a long trial, with not less than eight days left to run.  I give these reasons to indicate the basis upon which the court is satisfied that the orders sought by the parties are in the best interests of the children. 

2. The Department of Human Services (DHS) has intervened in these proceedings and generally supports the mother’s case.

3. I note that the applicant wife is represented by Ms O’Connell of counsel and the father is represented by Ms Nikou, senior counsel, and Mr Mort.  DHS is represented by Ms Benson and the independent children’s lawyer is represented by Mr Allen of counsel. 

4. This is the sixth day of the hearing.  The mother’s case has been completed. She was cross-examined.  The father has been two days in the witness box and was under cross-examination by counsel for the mother at the time that the parties agreed on a resolution of the matter. 

5. This matter is in the Magellan List of cases which is a list of cases dedicated to proceedings in which it is alleged that children have been physically or sexually abused.  In this case, the mother makes those allegations against the father and the Department of Human Services is supportive of the mother’s case.  It is also a matter to which Division 12A of Part VII applies, it is a less adversarial trial.  In accordance with s 69ZX(1)(e) I asked the father and mother several questions and have had the benefit of hearing much evidence although the father’s case is far from finished and none of the experts have yet been called.

6. I will say something of my impressions of the parties.

7. My assessment of the mother was that she was an intelligent, insightful, authentic witness.  She was a respectful and respectable woman who, in my assessment, is struggling to come to terms with a trail of destruction left by the father dating from 2004 onwards.  She impressed me as an anchored, strongly child-focused mother, who was well able to separate out her issues from the children’s issues. 

8. My single, but strong, criticism of the mother is that she is overly tolerant of disturbed behaviour, to a degree which leaves me with the impression that it is dysfunctional.  However, to the extent that I am yet to hear any expert evidence on the issue and will not now hear any expert evidence on the issue because the matter has resolved, I will just say that I observe in the mother a very high level of tolerance to poor behaviour which quite outstrips any self-interest she may have.  The father has been the beneficiary of her tolerance of bad behaviour which, it appears, has placed the children potentially at a risk.

9. I do not know whether the mother’s high level of tolerance of poor behaviour has its origins in her family of origin, where it appears to be common ground that she had a father who was affected by mental illness.  However, it must be one of the reasons why she stayed in the marriage for as long as she did and accepted unsatisfactory and dishonest explanations from the husband regarding his behaviour.

10. I observed the father as a witness for two days.  His case was that he should be the primary carer of these children and that there should be a moratorium of three months on the children having any time with the mother whilst she was re-educated or underwent therapy to come to terms with delusional or mischievous beliefs.  At no time during his evidence did he abandon this position.  Clearly, the result to which the father has consented today is a long way from his case.  All I can say is that in the delivery of his evidence over approximately two days, I did not observe a scintilla of remorse for what he has put the family through, what he has put the mother through and, through her, the children. 

11. The father appeared to me to be totally egocentric.  He was disregarding and disrespectful of the mother’s experiences.  He did not, for instance, make any approach to the mother to apologise for his past deceptions of her, the family and the authorities such as the Education Department which, at various times, employed them both.  His sole communication to the mother of his admission that he had access to pornography in the course of his employment came from the witness box, at which time the mother left the court room sobbing. 

12. The orders to which the husband and wife consent, and the other parties, including the Department of Human Services and the independent children’s lawyer, are clearly predicated on the court not finding that unsupervised time between the children and the father exposes the children to an unacceptable risk of sexual abuse.  I cannot construe the orders in any other way.  I respect the resolution of the parties in that regard.  However, the hazards which the father presents to these children are likely to become greater with time even though, in the assessment of all parties, they do not involve an unacceptable risk of sexual abuse.

13. The hazards which are likely to have a greater impact on the children as they get older includes the father as a role model.  The older the children get, the more vulnerable they are to behaviours of the husband which are clearly unacceptable.  He is manipulative, dishonest and egocentric.  I do not make these comments lightly. 

14. I respect the decision of the parties to seek therapy and note that the orders which I am requested to make are predicated on the husband participating in therapy.  I also note that the orders provide for the reports of the family consultant, the two reports of Dr E and the single report of Dr A to be sent to whomever now is to be the therapist for the father, the children and the mother.

15. The reports of Dr E and Dr A and the family consultant were never tested in evidence. 

16. Dr E’s last report purported to make recommendations on the disposition of the case, which is well outside and extraneous to the matters on which he was asked to provide expert evidence.  Dr E expressed opinions of the father based on an incomplete and inaccurate understanding of the facts as they emerged, in cross examination and elsewhere, at trial.  For instance, Dr E refers in his supplementary report to the father having made an admission to downloading pornographic material at school.  The father does no such thing.  The father admits to viewing pornographic material, but makes a distinction between “downloading” and “viewing”.  The father says that he formed no intention to store the material permanently and what material was recovered from the computer on loan from the school was stored automatically.

17. The father still blames students for the presence of images on the memory of his computer.  Previously he said that pornography was never accessed by him. At the trial he says that he and his students were responsible for downloading or accessing pornography but cannot say the proportion for which they and he were responsible. 

1. The matter became subject to terms of settlement without receiving evidence as to how the school detected the use of the father of the computer, which belonged to the Department of Education, to view the hundreds of pornographic images (approximately 415) and 39 pornographic movies which were found on his computer. 

2. I endorse the therapist for the father having as much information as possible.  I endorse the decision of the parties to provide the therapist with earlier forensic reports.  However, it must be recognised that the opinions of the experts were not tested in evidence. I doubt very much that Dr E would adhere to his assessment of the father when presented with certain aspects of the evidence which, I stress, came mainly from the father in cross examination. 

3. It should be noted that the conclusions of Doctors A and E are more inviting of a particularly sympathetic response to the father that is not easy to reconcile on the evidence which I heard.  I also note that the opinions of Drs A and E are inconsistent with terms of settlement that the parties ask be made into orders.  Those terms provide for considerably more restrictive time between the father and the children than can be said to be recommended by Dr E, albeit that the recommendation was made outside the parameters of what he was required to assess and express an opinion on.

4. I find the report of Ms O, family consultant, to be cogent and well reasoned.  But that report was not tested either.  Ms O will explain the outcome of the proceedings to the children and a transcript of these reasons must be available to her before she does so. 

5. In making the orders sought, I am satisfied that they are consistent with the children’s best interests.  This is a case in which both primary considerations are relevant.  The need to protect the children from physical or emotional abuse and an assessment of the extent to which it is in the best interests of the children to have a meaningful relationship with both parents.  That task has not been undertaken by the Court with the benefit of all evidence properly tested. However, the primary considerations are the vantage points from which I assess the settlement put up by the parties.  The terms on which the parties have resolved the matter are quite different from the determination which would have flowed from the evidence to date.  However, I did not hear all of the evidence.  If I declined today to make the orders sought, there would be no regulation of parenting arrangements or safeguards or compulsion to attend therapy – all of which would be contrary to the best interest of the children.  In a case, this is a workable means to a solution which may, or may not, eventuate.  It will enable the father to remain in contact with the children in the medium term.

6. I would like to express my appreciation to counsel for all of the parties for assisting the court.  This has been a difficult matter.  A child focussed outcome may be best obtainable by first trying to use therapeutic means, rather than court orders, to modify and correct the behaviour which poses a risk to the children’s welfare.  That is the rationale which I bring to bear in being satisfied that the children’s interests are not compromised by this result.  I acknowledge that the parties have been assisted to arrive at the result which they now seek be made orders of the Court.  I will make the orders.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 June 2010.

Associate: 

Date:  1 September 2010