Vasik and Vasik (No. 3)

[2007] FamCA 1418

FAMILY COURT OF AUSTRALIA

VASIK & VASIK (NO. 3) [2007] FamCA 1418

FAMILY LAW – CHILDREN – Further interim orders following acceptance by parties of expert opinion to the effect that the daughters, aged 7 and 4 years, are not exposed to an unacceptable risk of sexual abuse if, in the interim, the father spends time with the girls for 5 out of 14 nights without supervision – Determination of the rate at which new regime should be introduced – Introduction sooner rather than later more consistent with the best interests of the children – Comments about expert evidence which may subsequently be relied upon by mother – Case removed from Magellan List of cases maintained by the court and put for hearing in due course in the general defended stream of cases

Family Law Act 1975 (Cth)

Goode & Goode (2006) FamCA 1346

APPLICANT: Ms Vasik

RESPONDENT: Mr Vasik

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 5210 of 2007

DATE DELIVERED: 19 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 & 15 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A. Glaister

SOLICITOR FOR THE APPLICANT: Middletons

COUNSEL FOR THE RESPONDENT: Ms R. Stoikovska

SOLICITOR FOR THE RESPONDENT: Glazer Lanteri & Associates

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Bender

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Victoria Legal Aid

Orders

1. That all previous parenting order be discharged save for any order which requires the attendance of the family upon Ms L, psychologist.

2. That this matter be removed from the Magellan list of cases maintained by the Court and direct these parenting and property proceedings be placed in the Trial Notice Pool and be called over for hearing as soon as practicable and

   
   I DIRECT

   that a copy of this Order be delivered to the Associate to Cronin for the inclusion in Phase 2 with such priority as Cronin J directs noting that the parties attended a conciliation conference on 30 July 2007 and expert evidence by Dr N and Ms F has already been filed.

3. That until further order the children A born … February 2003 and B born … July 2000 live with the husband as follows:-

   (a)From after school or kindergarten on Thursday 18 October 2007 to the commencement of school or kindergarten on 19 October 2007;

   (b)From after school or kindergarten on Friday 26 October 2007 to 5pm on Saturday 27 October 2007;

   (c)From after school or kindergarten on Wednesday 31 October 2007 to school or kindergarten on Friday 2 November 2007;

   (d)From after school or kindergarten on Friday 9 November 2007 to 5pm on Sunday 11 November 2007;

   (e)From after school or kindergarten on Wednesday 14 November 2007 to the commencement of school or kindergarten on Friday 16 November 2007 and each alternate week thereafter;

   (f)From after school or kindergarten on Friday 23 November 2007 to 5pm Sunday 25 November 2007 and thereafter each alternate weekend thereafter from after school or kindergarten on Friday to the commencement of school or kindergarten on Monday. 

4. That until further order the children live with the wife at all times other than those specified in the preceding or the immediately succeeding order.

5. That operation of paragraph 3 hereof be suspended between 1 January 2008 and 16 January 2008 and:-

   (a)The children live with the husband from 10am on 1 January 2008 to 6pm on 8 January 2008;

   (b)

   The children live with the wife from 6pm on 8 January 2008 to 10am

   
   16 January 2008

   ;

   and thereafter the regime of spending time recommence in accordance with subparagraph 3(e) on the first Wednesday (which in 2008 is on Wednesday

   
   

   23 January 2008 at 4pm) and in accordance with 3(f) on the second Friday thereafter (which in 2008 is Friday 18 January at 4pm) of this Order. 

6. That where the children are to live with the husband from after school or kindergarten on a certain day that the children are on recess or holidays from school or kindergarten that time is 4pm and where Orders are expressed to include the commencement of school and kindergarten that time be 8.30am.

7. That the independent children’s lawyer forthwith provide a copy of

   
   

   Dr N’s report to Ms F unless this has already been attended to. 

8. That in the event that the wife relies at trial on the evidence of a counsellor, social scientist or psychologist in relation to treatment or therapy of herself the wife ensure that such practitioner has received the following documents:-

   (a)A copy of Ms F’s report dated 9 October 2007 (18 pages);

   (b)A copy of Dr N’s report dated 10 October 2007 (20 pages);

   (c)A copy of the report of the Department of Human Services dated 2 July 2007 (13 pages).

9. That the independent children’s lawyer do all acts and things necessary to facilitate a conference (which can be by telephone) between Dr N and

   
   

   Ms F for the purpose of those experts settling an agreed description of the counselling treatment or therapy to be undertaken by the wife, noting that

   
   

   Ms F’s evidence was that any referral for such counselling would “indicate the need for the mother to process and understand events surrounding the parents separation and to come to a sense of an understanding about her role in the separation and to strengthen her parenting capacity and to support the children’s relationship with the father”.

10. That as soon as practicable the independent children’s lawyer provide to the practitioners for each of the parties:-

    (a)The appropriate description of the counselling or treatment which is recommended by Dr N and Ms F that the wife undertake;

    (b)The parenting education program which the independent children’s lawyer considers is appropriate for the husband to undertake and in this instance the independent children’s lawyer provide details of two (2) such courses -

    and it is noted that the wife will seek a referral for counselling or treatment on 16 October 2007.

11. That each parent indemnify the independent children’s lawyer for the reasonable cost of the attendance by telephone by Ms F for the purpose of cross examination today and do so at the conclusion of the proceedings in relation to an alteration of property interests and the independent children’s lawyer be responsible for payment of those fees to Ms F at first instance.

12. That by not later than 3 clear days before the callover, the practitioner for each party provide notice in writing to his/her client of:-

    (a)the actual costs incurred by the client up to and including the first day of the trial;

    (b)any expense paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

    (c)the costs payable for each day of the trial, excluding the first day;

    (d)the estimated length of the trial;

    (e)the source of the funds for the costs paid or to be paid so that:-

    (i)if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

    (ii)costs paid on by credit card must identify the finance provider and number and name of the credit facility; and

    (iii)costs paid for in cash must identify the payer.

13. That the wife provide details of professional fess and disbursements charged by Issac Brott as and when they are to hand and all particulars required by 12(e) hereof in relation to monies paid to Issac Brott. 

14. That within 24 hours the wife advise the practitioners for the husband of necessary medications or bedding for either or both of the children.

15. That the list of documents relied upon by the wife be marked exhibit “W1” and remain upon the court file.

16. That the list of documents relied upon by the husband be marked exhibit “H2” and remain upon the court file.

17. That the list of documents relied upon by the independent children’s lawyer be marked exhibit “ICL1” and remain upon the court file.

18. That the evidence of Ms F be transcribed and when transcribed a copy be made available to each of the parties. 

19. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

AND THE COURT NOTES:

AThat the husband proposes to abide recommendations in relation to medication and to consider the recommendations in relation to bedding the latter not currently being a matter of which he agrees he is aware. 

BThat the parties agree that the family’s attendance upon Ms L is privileged and not reportable in these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Vasik & Vasik is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5210 of 2007

MS VASIK  

Applicant

And

MR VASIK  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter came before me in the Magellan duty list last Friday 12 October 2007.  It was not able to be reached then so I have taken the matter today,

   
   15 October 2007

   .  I pronounced orders earlier today and those orders are set out at the commencement of these reasons.  I advised the parties that I would deliver my reasons for decision after I disposed of the next case.  I do so.  These are those reasons. 

2. The parties to the proceedings are the mother Ms Vasik and the father Mr Vasik. There is also an independent children's lawyer, who is represented by Ms Bender.  Ms Stoikovska, of counsel, appears on behalf of the respondent father and Ms Glaister, of counsel, for the applicant mother. 

3. The proceedings concern the children B born in July 2000, who is aged seven years, and A who was born in February 2003 who is aged four years.  The parents agree that it is appropriate for interim parenting orders to be made, to operate between now and a final hearing, which involve the girls spending 5 out of 14 nights in the unsupervised care of the father.  As a final order, the father wishes to pursue equal time.  I do not know what the mother’s position will be.  I should note that the recognition by the mother of the girls spending substantial time with the father on an unsupervised basis follows her acceptance of recommendations in a family report by Ms F which has been recently released. Where the parents are apart, and the issue which
   I have to determine, is at what rate the 5/14 parenting regime is to be phased in coming off a base of the girls currently spending time with the father on Saturdays and Thursday afternoons under the supervision of his family member(s). 

4. The mother contends[1] that it should be introduced gradually and slowly.  The father’s position[2] is that it can be introduced sooner rather than later.  The position of the independent children’s lawyer is closer to the father’s proposal than it is to the mother’s proposal. 

   [1] Exhibit “W1” sets out the mother’s proposals and is discussed commencing at paragraph 21 of these reasons.

   [2] Exhibit “H1” sets out the father’s proposals and is discussed commencing at paragraph 24 of these reasons.

5. Very briefly and by way of history, the parents married in 1997 and separated in April 2007.  The separation was effected in the midst of the mother making allegations that the father had acted in a sexually inappropriate manner to B.  The wife’s Notice of Risk of Child Abuse filed on 15 June 2007 details the wife’s allegations at that time including that A (then aged 4 years) said, inter alia, that the father had put his fingers into her vagina and that he “has placed his tooshi (penis) in her hand and there is snot on the tooshi.” 

6. The husband since separation has resided at his parents' home.  He is going to move into independent accommodation but has not done so yet. 

7. On 13 July 2007 the matter came before Brown J, also in the Magellan duty list of cases.  Her Honour there made orders for the husband to spend time with the girls under the supervision of various adults who were friends or relatives of the husband. Those times include from 8am to 5pm each Saturday, commencing on 28 July 2007; and after school, kindergarten or childcare on each Thursday until 7pm, commencing 19 July 2007.  By reason of the husband residing with his parents, the supervision should have been able to be effective whilst not being too obtrusive. 

8. When the children saw their father on 14 July 2007 pursuant to orders made by Brown J it was the first time the girls had seen him since approximately
   26 April 2007. 

9. At the time of Brown J making the interim orders her Honour had the benefit of a lengthy report from the Department of Human Services (“DHS”) dated 2 July 2007.  The report was prepared pursuant to a request of the court consequent upon this matter being included in the Magellan list of cases, which is a highly resourced list of cases dedicated to the determination of proceedings involving the alleged physical or sexual abuse of children. 

10. The report from DHS concludes with the following comments:-

    Two reports were made in 2007 expressing concerns that the father sexually abused the children.  Both reports did not warrant protective investigation and were therefore closed at the intake phase.  The police investigated the allegations and interviewed the children, who made no disclosures of sexual abuse.  The Department of Human Services has assessed that the mother has acted protectively and has accessed appropriate support services for assessment and counselling for the children. 

    The Department of Human Services holds some concerns for the emotional wellbeing of the children given that SECASA assessed the mother's state of distress to impact on the children's emotional wellbeing and stability.  It appears the children lack clarity as to the reasons why they are not in contact with their father and have presented as confused and frustrated with the present situation. Counselling may be appropriate in the future to provide an opportunity for the children to deal with family relationship issues and so lessen the likelihood of significant emotional disturbance in the long term. 

    There is also some ambiguity in relation to the validity of the initial disclosures to the mother, given her approach at interviewing the children.  It is unclear to what extent the children's statements were prompted.  The mother also reported her intent in manipulating a situation whereby she would extract a disclosure of guilt from the father.  Given that the children were interviewed by the police and were assessed by a specialist sexual assault service with no disclosures, there would be a concern for the children's emotional wellbeing if they continued to be questioned about the allegations.  The allegations against the father have not been substantiated and there is not sufficient reason to subject the children to further interviewing by Child Protection at this time.  The matter has now been closed.

11. Following her Honour's interim decision, the family was seen by Ms F psychologist on 23 August 2007.  Ms F was able to observe the girls in the company of the wife and in the company of the husband.  Her observations of the children's interactions with the wife was entirely positive, as was the interaction of the children with the husband. 

12. In relation to the parents' attitude to parenthood and parental capacity, Ms F expressed the following opinion:-

    As individuals, both [the mother and the father] articulate appropriate attitudes about the obligations of parenting their two children, [B] and [A] (sic), and until the allegations of sexual abuse were raised by [the mother] at around April 2007 [the mother and father] seemed to regard each other as appropriate parents to their children.  Both [the father and mother] recognise the need for the children to have ongoing relationships with the other, but [the mother] appears still uncertain about [the father]'s protective capacity while the children might be in his primary care.

    Until the allegations, [the father] seemed also to view [the mother] as an appropriate parent, but now he holds concerns about her mental health and apparently "erratic" behaviour in the period prior to the allegations.  Although [the mother] acted protectively at the first disclosures by [A] (sic) and then [B], seeking professional and police assistance, it is of some concern that despite clear questions about the veracity of the allegations by the specialist professionals, that [the mother] maintains her stance and appears intent on defending her role.

    Indeed [the mother] seems to lack insight about the ongoing negative effects of exposure to questioning and investigations for the children, noted clearly by the Department of Human Services in their closure summary, as well as the long‑term distress should her application for no contact with [the father] be supported by the court. A psychiatric assessment might indicate appropriate treatment, but I would also emphasise the need for [the mother] to undertake substantial counselling to address the relationship issues and to strengthen her parenting, which remains vulnerable to the level of her emotional investment in pursuing the dispute concerning [the father]'s behaviour. [The mother] should also undertake parenting education and continuing mediation with [the father].

    On the basis of the information available to me and in my observation and interview with him, [the father] presents as an appropriate parent and, following investigations by the social institutions charged with this obligation, the Victoria Police and the Department of Human Services, they are no longer involved in the matter.

    Given the information available to me and unless the court has additional information that might indicate otherwise, I do not consider [the father] as a protective risk to his children.  [B] and [A] (sic) should have the opportunity to spend substantial time with their father, such as six days each fortnight, and this time does not require supervision. [The father] should undertake parenting education and continue in mediation with
    [the mother].

13. In relation to what parenting orders should be made, Ms F expressed the following opinion at paragraph 36 of her report and following:-

    Given the context of unsubstantiated sexual abuse allegations against [the father] and a question concerning [the mother]'s mental health, I consider that [B] and [A] (sic) should live with their father for at least six days in every fortnight until a more permanent arrangement can be arrived at.  An arrangement that allows [the father] to be involved in the children's school activities as well as extracurricular pursuits would be preferable, as well as one that allows the children to spend family celebration time, such as the Sabbath, with both parents and their extended families.  Alternate Thursday to Monday and Thursday to Friday mornings on the intervening week might be appropriate if agreed by the parties. The matter should be reviewed in light of all reports and the subpoenaed material.

    On the basis of the information available to me, my observations and request of me, and unless there is any further information available to the court that indicates otherwise, I respectfully recommend that:

    ·[B] and [A] (sic) live with their father on alternate Thursdays to Mondays and Thursdays to Friday mornings in the intervening week, the children should live with their mother [Ms Vasik] at all other times;

    ·both [the mother and the father] attend further education about post‑separation parenting;

    ·[The mother] undertakes any treatment recommended in the psychiatrist evaluation and attend personal counselling to address relationship issues;

    ·both [the mother and the father] continue to attend mediation counselling to develop a parenting plan, and when appropriate to include both [B] and [A] in a joint family session.

1. Subsequently both parents were assessed by Dr N psychiatrist.  Dr N has sworn an affidavit on 10 October 2007, to which is annexed his report dated 10 October 2007.

2. For the purpose of the assessment Dr N interviewed the family on 1 and
   2 October 2007.  Dr N's report runs to some 20 pages.  It is a well reasoned, thorough assessment of the family.  His views in relation to the parties are summarised in the following paragraphs of his report. 

3. As to the mother:

   While there was in my view no evidence of major psychiatric illness, there was in [the mother] a sense of preoccupation with her husband's role with her children and a downplaying of any importance he might have to them.  This preoccupation and need to present matters in her own way appeared to impact negatively on [the mother]'s capacity for insight regarding the children and their relationship with their father. There appeared to be a strong need on her part to limit his contact with them and for her to be in charge of the parenting situation. (page 8)

4. In relation to the father, Dr N concluded:-

   [The father] presented as a cooperative and reasonably open person who engaged well in the interview process.  He showed appropriate emotional responses to the material being discussed.  He was clearly distressed by the accusations about him and by interruptions to his relationship with the children. He was quite forthright in his denial of any inappropriate behaviour towards his children.  There was no evidence of disturbance on mood, thought or perception, or disturbance of cognitive function.  His responses appeared quite appropriate.  He appeared to have appropriate insight and judgment and to have a capacity to reflect on what was discussed.

5. Dr N had the benefit of reading Ms F's report.  Generally his report contains the following discussion (page 16):-

   It was my assessment that neither parent showed evidence leading to diagnosis of major psychiatric disorder.  I found no areas of concern from my interviews with [the father]. In particular there was no evidence of personality disorder and there was no suggestion of inappropriateness in his interaction with me or in his discussion of his children.  While he was angry regarding the allegations against him and [the mother]'s behaviour, he showed some concern about her welfare and acknowledged the importance to the children of their relationship with her.

   I am not in a position to determine which of the parents was correct when there were opposing reports of fact. However, I am aware that my assessment is consistent with that of Ms [F] concerning [the father]. As indicated above, I did have some concerns about [the mother]'s presentation.  I found her to be focused on the alleged disclosures at the expense of thinking about other issues which might be important to the children. In particular [the mother] appeared to have difficulty in considering their father's importance to them and downplayed his relationship with them.  Her views about [the father]'s relationship with [B] and [A] (sic) run contrary to the findings from the various professional assessments of the children.

   It was further noted that [the mother] found reasons to disagree with the assessments without evidence of having thought about them and having reflected on their possible significance.  It was noted that she commented that teachers had been concerned about [A]'s (sic) response to being picked up from school by her father, while the report from school did not indicate any such concerns.

   I also experienced, through my interaction with [the mother], a fairly intense need that one follows her views of events.  This experience would be consistent with the concerns which have been expressed about her influence on what the children might say.  There is concern that for whatever reason, she has difficulty in placing such matters in perspective.  [the mother]'s focus on the sexual abuse and on [the father] raises the possibility that these form a vehicle for [the mother] to unconsciously deflect from internal emotional difficulties.  This would be consistent with the strength of her apparent need for this direction.

   There is disagreement as to whether or not [the mother] had prior psychological or psychiatric treatment. It would be helpful if possible to clarify this discrepancy in the history. It was my assessment that both parents were concerned for their children and their relationship with them.  It is likely that [the mother] acts out a sense of concern for the children but that currently there is difficulty in her viewing the total situation with regard to their best interests.

6. Later (at page 19) Dr N opines:-

   It is thus my opinion, based on an assessment of the parents and from my reading of reports and affidavits, that there is no data to raise concerns about the recommendations offered in Ms [F]'s family report.  I agree with her recommendation that [the mother] receive counselling both regarding herself and her relationship with her children.  It is my understanding that she appears convinced that the children have been abused.

   From the children's point of view it is of concern that they might continue to be caught up with this focus and this would continue to interfere with their relationship with their father. I further agree with Ms [F]'s recommendation that there be a mediation for the parents.  It would appear that the current situation is such that the parents are unable to appropriately communicate with each other about the children and their needs. There is evidence that the children are aware of this difficulty and it is of concern to them.

   I have attempted to present my interviews with and evaluation of [the father and the mother].  In doing so I have attempted to consider them as individuals, as a couple, and as the parents of [B] and [A] (sic).  I have then aimed to integrate my experience of the parents with material from reports from other professionals.  I have then considered the risk factors for the children based on this data.  I have compared the risk of the children being exposed to an abusive father and the risk of them feeling pressure to align with their mother's concerns and of there being significant disruption to their relationship with their father.  I have concluded that the data which
   I have obtained, viewed in the context of the reports of other professionals, supports the conclusions and recommendations in the family report of
   Ms [F]. 

7. When the matter commenced before me, the parties were in agreement that an appropriate parenting regime involves the children spending five out of 14 nights with the father.  The dispute is the time over which this new parenting regime is established. 

8. The mother's proposal was reduced to a minute, which was tendered and is marked Exhibit “W1”.  It provides for the father to continue to see the children after school each Thursday until 7pm.  Then the children would spend from
   8am to 5pm with the father on each of Saturday and Sunday, 20 and
   21 October, but not overnight.  There would then follow, on the weekends of
   3 and 17 November, a period of time involving one overnight stay from 8am on Saturday to 5pm on Sunday.  Then there would be two weekends, commencing 1 and 15 December 2007, in which the children spend time with the father from 8am on Saturday until the commencement of school on the following Monday. 

9. The mother’s proposal provides that there is a holiday period from Friday,
   31 December at 4pm to Wednesday, 2 January at 5pm; a four-night break. The mother proposes that she have a seven night break with the children, when she will be taking them away on holiday.  The time that the father has with the children would increase so that on the weekend of 18 January he would have them from 4pm on Friday to 10am on Monday, then on 24 January he would have them from 4pm on Thursday to 5pm on Monday.

10. According to the mother’s proposal, the overnight time on Thursdays would not be introduced until term 2 in 2008, which is in approximately April 2008.  The mother indicated that she was going to obtain a referral for a counsellor from her general treating medical practitioner on 16 October 2007. 

11. The father's proposal was also reduced to writing.  It was tendered and marked Exhibit “H1”.  It adopts the midweek and weekend regime.  It is a much more accelerated implementation of living arrangements. The time which the children are to spend with him on Thursday would commence immediately, and fairly quickly be extended to Wednesday evening and Thursday evening.  The weekend time, which would run from after school on Fridays until the commencement of school and kindergarten on Mondays, would begin from 26 November 2007. 

12. The father's proposal adopts two nights in one week and then a period of three nights in the following weekend as achieving the five out of 14 nights.  It is a structure which was endorsed and supported by the independent children's lawyer, who sought only a slight delay to the implementation of the three days per week. 

13. Ms F, psychologist was available to give evidence and be cross examined by telephone, and that occurred. This being a matter initiated after the introduction of the procedural reforms in the Family Law Amendment (Shared Parental Responsibility) Act 2006, it is a matter which is to be determined in the less adversarial trial process. 

14. I informed Ms F of the gist of Dr N's report.  It was a pity that she had not had an opportunity to read it prior to preparing her own report.  She was however aware that Dr N found that neither parent exhibited symptoms of significant psychiatric illness.  Ms F was cross examined fairly extensively. 

15. The gist of the mother's case appeared to be that whereas five out of 14 nights was ultimately an appropriate regime, that it needed to be introduced gradually and "take with it" the mother and the children.  The mother has indicated a preparedness to attend counselling but has not yet done so. 

16. It seemed to me that the wife's preparedness to embrace the support recommendations recommended by Ms F and Dr N would be a significant aspect of her case.  Therefore it is important that she knows precisely what the expert witnesses are recommending she embrace by way of counselling or support services.  To that end Ms F has agreed to discuss with Dr N and provide an appropriate description of the counselling which they say that the mother should undertake. 

17. Ms F's recommendations were not shaken in cross examination.  Her evidence in response to questions was that the introduction of a 5:14 regime should be graduated but it should be much faster than that proposed by the mother and at much the same pace as that proposed by the father. 

18. Ms F's firm view was that it was not necessary to wait until the mother had commenced seeing a counsellor or obtaining parental support before the introduction of a regime whereby the children spend significant time with their father. 

19. The Full Court of the Family Court in the recent decision of Goode & Goode (2006) FamCA 1346 made it clear that the process for me in interim proceedings such as this is to follow the legislative pathway set out in the amendments to the act effected by the 2006 legislation, but that the scope of the inquiry is "significantly curtailed" compared to what will occur at the ultimate hearing of the matter on a final basis. At paragraph 68, as follows:-

    Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

20. At paragraph 72 the Full Court observed:-

    It can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.

21. In this case I am satisfied that it is reasonably practical for the children to spend five out of 14 days in the father's care each fortnight.  At the final hearing the court will apparently be asked to determine the father's application for equal shared care on a week-about basis, but that is a matter which he concedes needs to wait till the final hearing and will probably be in the context of him having moved out of his parents' home and into independent accommodation for himself and the girls. 

22. Turning to the primary considerations, it is not contended by either party that a meaningful relationship between each parent and the girls will be anything other than beneficial. 

23. The next primary consideration is the need to protect the girls from physical or psychological harm or from being exposed or subjected to abuse, neglect or family violence.  There are no family violence issues of relevance in this case at this stage. As indicated, this is a matter which is in the Magellan list of cases, a list of cases devoted to the determination of cases in which children have been considered to be at some risk of harm. It is here because of the risks identified by the mother in her notice of risk of child abuse. I inquired of counsel for the mother whether or not the allegations of sexual abuse were matters which were required to be determined by the court, I stood the matter down while she obtained specific instructions. 

24. The result was that the mother does not contend that sexual abuse is a matter which does need to be determined by the court. She is accepting of the recommendations of Ms F and sees that it is appropriate for the children to spend unsupervised and significant time with the father.  The problem is that she does not see that it should happen quite now or not just yet. 

25. It is not apparent, however, that the mother's personal mindset in relation to the father having sexually abused the girls has changed.  It is not part of her case that it has.  Her case is that, regardless of her own thinking and conclusions in this regard, the mother is prepared to abide the recommendations of Ms F.  I am satisfied that this must be a difficult time for the mother.

26. It seems to me preferable that the children commence to live with the father for extended periods of time each week, as is proposed by him and the independent children's lawyer and supported by Ms F. I will not go through in detail Ms F's evidence. I will order that it be transcribed and a copy be available to the parties.

27. I have already said that I accept the evidence of Ms F as to the desirability of introducing a new regime gradually but in a time line which is similar to that now proposed by the father. 

28. Ms F identifies a key concern as having the father involved in the children's school life and that the new five out of 14 regime being implemented prior to the commencement of the 2008 academic year, which will be A's first year at school. Ms F did not consider it appropriate that the first extended weekend be in the fortnight prior to the commencement of school and is much more comfortable with it occurring in or around December of this year. 

29. The history of this case has, as far as Ms F is concerned, left the children with some doubts and confusion as to why the father's involvement in their lives was so abruptly ceased in late April 2007 and why it has continued until now on a limited basis.  Ms F identifies that as something which must be altered in the children's life in the short term, and I accept her opinion. 

30. Given the mother's concessions in relation to the previous concerns of sexual abuse, which concessions seem to be fairly and reasonably based on the opinions of Dr N and Dr F, the greatest risk to the children's emotional equilibrium appears to emanate from the mother and her unresolved views that the children have been sexually abused. That is something to which the counselling or psychological support now to be accessed by the mother might address. 

31. In the meantime I am satisfied that it is in the best interests of the children, having regard to the nature of the relationship that they have with both parents, their obviously comfortable interaction with the father as well as the mother, and the positive effect which Ms F feels will flow from greater exposure to the father, to permit the girls to experience the new parenting regime and have it implemented sooner rather than later. 

32. I am satisfied that it would not be appropriate to accord weight to the children’s views other than to extrapolate from the expert evidence that they enjoy seeing the father.  The proposal of the father does involve alteration to the girls current circumstances but I am satisfied that the change will be for the best. Parental capacity and the ability of each parent to promote a meaningful relationship between the girls and the other parent are really matters best assessed at a final hearing.  For the time being, I agree with the evidence of Ms F that the girls should start seeing more of their father sooner rather than later. 

33. In the event that the mother wishes to rely on the evidence of a therapist or the counsellor, she should be able to do so.  However, that opinion is not going to be of much assistance unless it is informed by investigations and assessments which have already taken place in addition to that expert’s experience and assessment of the mother.  In my view, it will be necessary for any such expert or treating therapist upon whose evidence the mother is to rely to be appraised of the following information, at least:-

    a)the report from the Department of Human Services of 2 July 2007;

    b)the report of Ms F which arose out of interviews conducted on
    23 August 2007 and are set out in the report of October 2007;

    c)the cross examination of Ms F (transcribed);

    d)the report of Dr N dated 10 October 2007. 

    Accordingly, I will order that those documents be submitted to any expert witness upon whose evidence the mother relies. 

34. It is agreed that this matter can now be removed form the Magellan list of cases and be placed in the general pool of cases to be dealt with by the court. Case management in this court is undergoing significant change at the moment.  
    I will make what order I consider is necessary to have this matter determined as part of the second phase of cases awaiting hearing.  That should mean a hearing not before March 2008 in the general defended list of cases. 

35. I am satisfied that the above orders are consistent with the best interests of the children.  This concludes the reasons for my decision. 

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate 

Date:  29 November 2007