Vandijk and Vandijk

[2016] FamCA 1173

FAMILY COURT OF AUSTRALIA

VANDIJK & VANDIJK [2016] FamCA 1173

FAMILY LAW – Interim Proceedings – Where allegations of family violence have been made the by both parties – Where Domestic Violence Orders have been taken out by both parties against the other - Where both parties are still supportive of overnight time for the child with the other party - Where the evidence is insufficient to conclude that any violence has taken place

Family Law Act 1975 (Cth)

APPLICANT: Mr Vandijk

RESPONDENT: Ms Vandijk

FILE NUMBER: CAC 2153 of 2016

DATE DELIVERED: 23 December 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 23 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Vandijk
Self-Representing

SOLICITOR FOR THE RESPONDENT: Ms Smithies

ORDERS

1. B, born … 2010, live with the mother.

2. The child spend time with the father:

   a.From 4pm each Saturday until 4pm each Sunday and from 4pm each Wednesday until 4pm each Thursday.

   b.As otherwise might be agreed between the parties in writing.

IT IS NOTED THAT

1. The above orders provide for the mother to spend time with B despite the terms of the Interim Domestic Violence order … of 2016 made in the ACT Magistrates Court.  To the extent that order conflicts with this order for the child to spend with his mother and only to that extent the Interim Domestic Violence order is invalid. 

IT IS ORDERED THAT

1. Changeovers for the child are to occur out the front of the Suburb C Police Station.

IT IS NOTED THAT

1. The parties will facilitate the handovers taking place through the use of third parties.  This is necessary given the mutual domestic violence orders that are in place.  The mother will use her mother to hand the child over, the father will use his father to hand the child over.

IT IS FURTHER ORDERED THAT

1. The Department of Disability, Housing and Community Services Department of Community Services (“the agency”) provide to the Canberra Registry of the Family Court of Australia within 14 days all documents and information in the agency’s possession or control about any the following:

2. Any notification to the agency of suspected abuse of the child B, born … 2010:

   a.Any notification of suspected family violence affected the above child;

   b.Any assessment by the agency of investigations into a notification of suspected abuse or family violence and the findings and outcomes of those investigations;

   c.Any reports commissioned by the agency in the course of investigating a notification.

3. In complying with this order it is not necessary that material identifying the person who made a notification be produced and to that end it is sufficient to produce documents and information with any material that may identify such a person being blanked out or otherwise made unreadable.

4. At the time of the delivery of the documents to the Court the Agency is to advise the Registry Manager in writing as to whether the documents contain material that may identify a person who made a notification.

5. In the event that the documents or information identifies the person who made a notification no access to the material is allowed pending further order of the Court.

6. In the event that the documents or information do not identify a person who made a notification, the legal representatives for the parties, any self-represented party and any Independent Children’s Lawyer or report writer appointed pursuant to s 62G or Chapter 15 of the Family Law Rules 2004 are authorised to inspect such material subject to the following:

   a.The material cannot be photocopied otherwise than pursuant to an order of the Court;

   b.The material may be photocopied on the basis that all copies are to remain within the control of the legal representatives of the parties, the Independent Children’s Lawyer and any report writer with such copies to be destroyed or returned to the Court at the end of the appeal period following the finalisation of the proceedings;

   c.Any use or disclosure of the information contained within the documents produced, other than use in the conduct of the case before this Court, is not permitted.

7. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for B, born … 2010, and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.

8. The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.

9. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

10. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

11. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

12. The Director-General of the Community Services Directorate is requested to intervene in these proceedings in relation to the child B, born … 2010.

13. The Court is to notify the Director-General within 48 hours of this order.

14. The solicitor for the mother and the solicitor for the father are to forward to the Director-General of the Community Services Directorate within 14 days of the date of these orders copies of the documents filed by each of the parties to date.

15. Upon request from the nominee of the Director-General, the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

16. The Court notes that for the purposes of this notification the subject child presently resides with the mother.

IT IS ORDERED BY CONSENT THAT

1. The mother and father are each restrained from using illicit drugs.

IT IS FURTHER ORDERED THAT

1. The matter is listed for further directions on Thursday, 9 February 2017 at 9am for a period of up to 30 minutes only.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vandijk & Vandijk has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2153 of 2016

Mr Vandijk

And

Ms Vandijk

REASONS FOR JUDGMENT

1. As I indicated to you before, the difficulty in these proceedings is that they are interim proceedings, which means that the evidence cannot be tested.  What you both probably appreciate is your evidence is diametrically opposed.  You say very different things about what seems to be the most critical incident of late.

2. You have each applied for domestic violence orders.  You have one which contains your son, the child; you do not have one that contains your son, B (the child).  On each version that you give, the child is in some sort of danger from your former partner.  It is difficult at this stage to ascertain how great that danger might be, because I cannot determine where the truth lies at this stage.

3. It is my obligation to make orders which will be in the child’s best interests, and the key issue in the child’s best interests at present is protecting him, but at this stage, it is difficult to tell what he needs protection from the most.  It is also important, and the Act tells me that it is important, to make orders that will foster benefits that the child might get from having a relationship with each of you.  So the two most critical things that I need to consider in considering his best interests are those things:  protecting him, and giving him the opportunity to get benefits out of a relationship from each of you.

4. On the father’s account of the pivotal event, the mother has used a knife on the father in the presence of the child and has threatened to burn the house down with the child present.  The police have intervened.  The mother accepts that she used a knife in relation to the father, but says that that was necessary to deal with the violence that was inflicted upon her as she attempted to physically eject the father from the house.  The mother expresses concerns about the father’s drug use and mental health, however, before the incident, she was apparently allowing unsupervised time between the father and the child.

5. The father says that he believes that the child needs him and needs to spend time with him.  However, following the incident, the father left the child with the uncle and aunt from 18 to 22 December before attempting to even contact the child.  This calls into question at least the father’s capacity when it comes to looking after the child after such a critical incident.  It also calls into question the degree of the concerns that you have for the mother.

6. The father’s position is that when things calm down, a fifty-fifty arrangement might be the appropriate arrangement.  That seems to accept that the father accepts that the mother is able to look after the child well.  The mother’s position is that she says up to 48 hours at a time is okay with the father; that it is after that that she has concerns that the father might not be able to cope or might not function well as a parent.  That seems to accept that, despite the allegations that are being made, she also accepts that the father has adequate capacity to parent.

7. Neither of those two positions, the father’s position that this could result in fifty-fifty care, nor the mother’s position that 48 hours at a time is workable, sits very well with the assertions that each of the parties has made.  What they accept about the other’s capacity doesn’t make particularly much sense in the context of what it is that they say that the other person has done.  As I’ve said, I’m unable to determine what each person has done – particularly not in the critical incident.

8. My priority then is to try and ensure the child’s safety in the face of my inability to determine exactly what the risks are.  What seems to be absolutely critical is that neither of you should come into any form of contact with each other.  The domestic violence orders will help to ensure that that is the case.  But the critical incident that has happened with the child has happened in the context of the two of you being in contact with each other.  So whatever is to happen, the two of you cannot come into contact with each other for a period of time, perhaps until this cools off.

9. What also seems to be quite important is that there be no illicit drugs consumed by either of you.  As I said, I can’t determine whether or not either of you has consumed illicit drugs or has a mental health problem at this stage.  But it seems like a sensible step, and you both say it is a sensible step, that there be no drugs used.

10. Given that the father accepts that one of the potential outcomes in this is that there would be week about time, I can accept that the mother has capacity to give significant care to the child.  And that’s reinforced by the father putting the child into the uncle and aunt’s care for a number of days despite the domestic violence order.  What I think I can also accept is the mother concedes that time with the father for the child can work.  It seems important to maintain the relationship between the child and his father, especially if what the father says turns out to be accurate.

11. Accordingly, I will make orders that will provide for the child to live principally with his mother but to spend significant time with his father so that that relationship can be maintained and that balance can be maintained.  Those orders will be in place until it can return to Court at a time that the Court might deal with it more fully.  I propose to also make orders inviting the Department to intervene in these proceedings. 

12. In order to facilitate handing over of the child without the parties coming into contact with each other, it unfortunately seems that it will be necessary to order that handovers take place outside a police station.  It is not the best place for handovers to take place for the child.  It would also seem sensible to have the parties make arrangements for third parties to conduct the changeover rather than doing it themselves.  It might be that if that is able to be managed, when the matter comes back to Court we might be in a better position to determine what will be good for the child in the longer term.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 December 2016.

Associate: 

Date:  27 March 2017