Vasik and Vasik (No. 2)

[2007] FamCA 757

FAMILY COURT OF AUSTRALIA

VASIK & VASIK (NO. 2) [2007] FamCA 757

FAMILY LAW - Children – Magellan – Interim parenting orders

Family Law Act 1975 (Cth)

HUSBAND: MR VASIK

WIFE: MRS VASIK

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5210 of 2007

DATE DELIVERED: 13 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 13 July, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr G.R. Atkinson

SOLICITOR FOR THE HUSBAND: Moores Legal

COUNSEL FOR THE WIFE: Ms M.L. Smallwood

SOLICITOR FOR THE WIFE: Middletons

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms. C.L. Jenkins

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That the further hearing of all extant applications be adjourned before the Honourable Justice Bennett and the Magellan Registrar on 31 August, 2007 at 10:00 am.

1. That the report to be prepared by Ms C pursuant to the orders made herein on 12 June, 2007 be filed and served by 30 August, 2007 and in the event it is not available at that time, the date of 31 August, 2007 be vacated and a later date be fixed in consultation with the Magellan registrar.

1. That subject to any agreement negotiated by the parties to the contrary at the mediation referred to in paragraph (9) hereof, until further order the children of the marriage B born in July, 2000 and A born in February, 2003 live with the husband at the following times :

   (a)from 8:00 am. until 1:00 pm. on 14 July, 2007 and 21 July, 2007;

   (b)from the conclusion of school/kindergarten/childcare on each Thursday until 7:00 pm. commencing on 19 July, 2007;

   (c)commencing on 28 July, 2007 from 8:00 am. until 5:00 pm. on each Saturday;  and

   (d)at such other times as are agreed between the parties. 

1. That subject to any agreement negotiated by the parties to the contrary at the mediation referred to in paragraph (9) hereof, until further order the children live with the mother at all times other than those specified in paragraph (3) hereof. 

1. That during periods the children live with the father they be supervised by one of the following, who shall be present at all times :

   (a)Ms T;

   (b)Mrs V;

   (c)Mr V;

   (d)Mr H;  and

   (e)Ms D.

1. That until further order each of the parties be and are hereby restrained by themselves, their servants and agents from denigrating the other in the presence or hearing of the children and from allowing any other person to do so.

1. That changeovers that occur other than at the conclusion of a school/kindergarten/childcare day, occur at the wife’s home or such other place as the parties agree.

1. That as soon as practicable the husband serve a sealed copy of this order on the principal of the school/kindergarten/childcare attended by the children.

1. That the parties attend a mediation with Ms L at 2:30 pm. on 18 July, 2007 and the costs of such mediation to be borne initially by the husband and to be apportioned by the trial judge or by subsequent agreement.

1. That pursuant to s.65DA(2) and s.62B, 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.

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

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5210 of 2007

MR VASIK

Husband

And

MRS VASIK

Wife

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This is the parties’ first appearance in the Magellan list, although I understand they have been involved in interlocutory litigation in relation to a disparate matter.  The parties married in April 1997 and their separation is very recent, being in April 2007.  They have two daughters:  B, born in July 2000, and A, born in February 2003.  On 10 May, 2007 the wife filed an application seeking an order that she have sole parental responsibility, that the girls live with her and they have no time at all with their father.  She also sought a number of property and spousal maintenance orders.

1. In response to that, the father brought an application seeking to have the wife's then solicitor restrained from acting on her behalf, due to an alleged conflict of interest.  That application was determined by Carter J on 31 May and the injunction sought by the husband was made. 

1. On 6 June, 2007 the husband filed a response in which he sought that the children live with him and spend time with the wife as agreed between them, that the parties retain equal shared parental responsibility and for a division of matrimonial property.

1. At a case assessment conference on 12 June the matter was assessed as being suitable for this list and the usual orders for the appointment of an independent children's lawyer and a DHS report were made.  Pursuant to an order, the wife filed a form 4 on 15 June, in which she alleged that the children had been sexually abused by their father. 

1. The Department of Human Services has filed a reasonably lengthy report, dated 2 July 2007.  It refers to two notifications in 2007, both of which alleged that the father had abused the children.  The report notes that the mother began to question B after B allegedly pulled down her uncle's tracksuit pants at a family function.  The mother alleged that, dating from about 25 March, A made statements that her father had touched her "tooshie", put his "tooshie" in her hand and that white gooey stuff had come out of it. 

1. The report makes it clear that the author could not be certain whether those comments had come from the child or whether they had been prompted.  There is some video evidence of the mother interviewing the children and police have heard audiotapes of the mother questioning them.  The report raises concerns about the nature and extent of her questioning.

1. The mother contacted the regional CASA on 17 April, and an appointment was made for 30 April.  The report from the regional CASA states that the mother wanted counselling for the children for sexual assault but, given the ambiguity of the initial disclosures, workers recommended a specialist assessment process.  That was undertaken. 

1. CASA workers had four sessions with B.  The CASA report (which the mother put into evidence) notes that no disclosures were made by B, she had age‑appropriate responses to sexual themes, she was confused as to why daddy was not at home and she had no overt symptoms. 

1. Workers had three sessions with A.  Talking about her understanding of why her father was not at home, A said that he always touched "my bottom".  She then pointed to her buttocks, said that she had her clothes on when this happened and, asked how it felt, said she was sometimes happy and sometimes sad.  The counsellor expressed some concern that A may have been impacted by her mother's obvious distress.  The mother's evidence is that there are a number of inaccuracies in the regional CASA report and one relates to the distress the workers perceived she was expressing at the time. 

1. Members of the SOCAU unit attended the mother's home on 21 April.  They have expressed concern to DHS workers about the mother’s questioning of the girls.  The children were not at school or kindergarten between 26 April and 10 May.  The father has not seen the children for about 12 weeks.

1. In broad terms, the mother has alleged that the children have disclosed sexual abuse in the course of what is referred to (she says, by them) as the "tooshie game";  that the father has been angry and threatening to her and once hit her;  that the father’s sister has sent threatening SMS messages to her;  that the father has been drinking to excess on occasions;  and that the father has what she referred to as “a compulsion in respect of pornography”. 

1. The father has alleged that the children's mother had been behaving erratically for some six months prior to their separation.  He expressed concern about her psychiatric state.  He alleged that she has a history of depression;  that he had been threatened by a Rabbi in the course of some involvement of the Rabbi;  that - and these are my words, not his - she is hypervigilant about the potential for sexual abuse;  and that she has raised concerns about other people's allegedly inappropriate activities in the past.

1. The parties' families have become polarised and partisan.  That is not at all uncommon;  it is particularly difficult for parents and siblings to grapple with allegations of this sort.  The case is further complicated by the financial proceedings and, no doubt, by the application to restrain Mr Brott from acting for the mother.

1. Before me the mother seeks in the interim (until Ms C's report has been prepared and subject to anything different which might be resolved in mediation next week) that the father spend time with his daughters on each Thursday from the end of school (which she says is about 4:00 pm.) until 6.30 pm., on a couple of Saturdays from 8.00 am. till 1.00 pm., then from 8.00 am. to 5.00 pm. on each Saturday.  The father seeks time after school on Wednesdays and Thursdays until 7.30 pm., from 9.00 am. to 2.00 pm. on both days of the coming weekend, and then on either Saturday or Sunday from 9.00 am. to 5.00 pm. or 9.00 am. to 6.00 pm.  While the father sees no need for supervision, he advanced a list of potential supervisors, which included his sister.

1. The independent children's lawyer has supported a more gradual resumption of time with the father, to ease the pressure on the girls who are very aware of the parental dispute, and confused by it.  The independent children’s lawyer supports contact on one day a week after school rather than two and has no problem with the supervisors advanced by the father. 

1. The father proposed as supervisors both his parents, his maternal aunt, his sister, Ms H, and Ms H’s sister-in-law, Ms M.  For reasons which I have expressed, I do not think it would be prudent for his sister to be involved in that role, having regard to the allegations by the mother that Ms H has threatened her and the potential for Ms H to be called as a witness in relation to that issue.  That does not mean she cannot spend time with the children.

1. The mother has objected to both the father's parents or his aunt being involved in supervision.  On her behalf it is submitted their relationship with her was poor during the marriage.  She is concerned that they would not diligently supervise, as they do not believe that the father could do anything bad to his children.  She fears they themselves may not desist from denigrating her and would not stop others from doing so. 

1. In his affidavit it was the father who raised the potential for there to be some tension between his family and the mother’s family.  Responding to that evidence in her most recent affidavit, the mother said (in paragraph 57) :

   I admit there used to be tension between the husband's family and my family, caused primarily by arguments about our wedding plans.  However, this was alleviated in 2003 after the birth of [A] when my father approached the husband's father and suggested they be friends or for the benefit of the family, especially the grandchildren.

1. It must be said there is not much in the mother’s affidavit which would support the significant concerns the mother now says she has about the father’s family members.  She may not feel close to them and no doubt sees them as being partisan to the father, which they may well be.  But when considering potential supervision the focus must be on the risk alleged and the capacity of supervisors to protect the children from the risk alleged. 

1. In my judgment, contact with the father and his extended family should be reintroduced as soon as possible.  It should be reintroduced in a way which ensures both parties are protected from the potential fur further allegations and the children are protected from the potential for physical and emotional harm.

1. I do propose to make orders for supervised contact.  The supervisors will be Ms M, the father's parents, the father's aunt and Mr H.  I note Mr H was advanced by the mother as a supervisor.  I would commend the father using a supervisor supported by the mother when that is possible, for the children's benefit.

1. In terms of time, the father will have time with the children between 8.00 am. and 1.00 pm. tomorrow and on the following Saturday.  Commencing next Thursday, he will have time with them after school/kindergarten until 7.00 pm.  They can be collected at the end of the kindergarten and school day.  A copy of the order should be provided to the school/kindergarten. 

1. Commencing on Saturday 28 July the time will be extended from 8.00 am. to 5.00 pm.  The case will return to Court on 31 August;  by then, this routine should be established and the girls will be seeing their father and his extended family.  Hopefully, they will be a little less confused. 

1. I should have said something further about the proposed mediation.  The mother sought mediation at the Court and an appointment is available on Tuesday.  That mediation would be reportable.  The father sought private mediation, with Ms L;  that would be confidential.  Ms C is to prepare the family report.  It is undertaking mediation which is important.  Confidential mediation is no longer available through the Court.  If the lack of confidentiality may impact on its success, I am prepared to support confidential mediation conducted by Ms L, but only on the basis the father will pay for it initially.  That can be subject to review in due course by the trial judge.

I certify  that the preceding
24 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as VASIK & VASIK.