Vasten and Ford

[2016] FamCA 1101

FAMILY COURT OF AUSTRALIA

VASTEN & FORD [2016] FamCA 1101

FAMILY LAW – CHILDREN – Interim – Whether the children should spend supervised time with the father – Whether the mother should be permitted to enrol the children in a new school – Whether the children should continue counselling - Where the children have not seen the father since June 2016 – Where the mother believes the children have been sexually abused by the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Vasten

RESPONDENT: Ms Ford

INDEPENDENT CHILDREN’S LAWYER: Ms Huth

FILE NUMBER: BRC 2580 of 2014

DATE DELIVERED: 21 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 19 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms C. Dart

SOLICITOR FOR THE APPLICANT: Dixie Ann Middleton & Associates

COUNSEL FOR THE RESPONDENT: Mr R. Cameron

SOLICITOR FOR THE RESPONDENT: Smithson Lawyers Gold Coast

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. That each party must:

   (a)       Contact B, Family Contact Service (“the Contact Service”) forthwith and arrange an appointment for assessment for suitability for supervision of the time C born … 2009 and D born … 2012 (“the children”) spend with the father;

   (b)       Attend the assessment;

   (c)       Comply with any appointment made by the Contact Service for supervised time;

   (d)       Comply with all reasonable rules of the Contact Service; and

   (e)       Comply with all reasonable requests or directions of the staff of the Contact Service.

2. That if after the assessment intake procedure the Contact Service is unable or unwilling to provide supervision as set out in Order 1 then each party has leave to restore the matter to the list on three (3) days written notice to the other party and to the Court.

3. That if after assessment the parties are accepted by the Contact Service as suitable for supervised time, the father is to have contact with the children each week for up to three (3) hours at any time nominated by the Contact Service.

4. That in the event that the Contact Service offers supervised time only at times which are less regular than specified in Order 3 then contact shall occur at the times that are offered by the Contact Service.

5. That the period of contact provided in these Orders may vary by reason of the closure of the Contact Service during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Service.

6. That the time the children spend with the father under Order 3 is to be supervised by the Contact Service and the parents must pay the reasonable fees equally for the supervision on each occasion of supervision.

7. That the mother must (or cause some other responsible adult known to the children and nominated beforehand in writing to the Contact Service to) deliver the children to and collect the children from the Contact Service at the times specified by the Contact Service.

8. That the father must not attend the Contact Service or its vicinity before his time with the children is to start and must promptly leave the Contact Service and the vicinity at the time his time with the children is to end.

9. That if the Contact Service during the currency of these Orders declines or is unable to continue to provide its services, or the Director of the Contact Service recommends in writing to the parties a variation of these Orders, then either party may on seven (7) days written notice to the other parties and the Court restore the matter to the list.

10. That the parties request a report from the Contact Service prior to the next return date regarding the father’s time with the children.  The parties will bear the costs of that report equally.

11. That both parents are restrained from and an injunction hereby issue restraining the parents from changing the child C’s school from E School, Suburb F and the child D’s kindergarten from G Community Kindy.

12. That in the event that the parties agree that the children require counselling or if counselling is recommended by the Independent Children’s Lawyer the mother take all steps and sign all documents necessary for the children to continue counselling with Ms H as directed by Ms H.

13. That the mother must before making any notifications to the Police, Department of Communities, Child Safety and Disability Services or any other notifying body, inform the father and the Independent Children’s Lawyer of her decision to do so and must provide complete details to the father and the Independent Children’s Lawyer as to the nature and content of the notification.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2580  of 2014

Mr Vasten

Applicant

And

Ms Ford

Respondent

REASONS FOR JUDGMENT

1. Mr Vasten (“the father”) and Ms Ford (“the mother”) are in dispute about what interim parenting order is proper for their two children C aged 7 and D aged 4 (“the children”).

2. The children currently live with the mother. They have not seen the father since 19 June 2016.

3. The father proposes that he spend time with the children in a supervised setting for up to three hours each week.[1]

   [1] The precise terms of the order sought is set out in exhibit 3

4. The mother opposes any order for the children to spend time with the father even in a supervised setting. The mother seeks an order discharging all previous parenting Orders. In addition she seeks an order that she have sole parental responsibility, that the children live with her and that she be able to change the children’s school.[2]

   [2] The order sought is set out in her Response filed 13 December 2016.

5. The three issues agitated at this hearing concern:

   a)What , if any, supervised time the father should spend with the children pending trial;

   b)Should the children attend a new school commencing in 2017;

   c)Should the children continue to attend counselling with Ms H.

Relevant background facts

1. The parties commenced cohabitation n 1 May 2007 and separated in December 2013.

2. A final parenting Order was made by consent on 6 November 2015 providing for the children to live with the mother and spend gradually increasing time with the father culminating in alternate weekend time from Friday until Monday and some holiday time by mid-2017. The children spent their first overnight time with the father since separation in October 2015.

3. The father remarried this year and his wife, Ms I, has two children, a girl aged 17 and a boy aged 15 who live with them. Ms I is an early childhood teacher.

4. In November 2015 C commenced seeing a psychologist because of symptoms of anxiety.

5. In February 2016 the mother sought the father’s agreement to suspend overnight time because of a change in the father’s place of residence and C’s anxiety.

6. The father spent overnight time with the children on 19 February 2016 and for two nights on 4 and 5 March 2016.

7. The mother ceased time because of an alleged statement by D on 11 March 2016 that the father put his finger up her anus while changing her nappy. Initially the allegation identified Ms I’s son as the alleged perpetrator. 

8. D was interviewed by police on 11 and 12 March 2016 but other than saying “It was a secret” no other statement of potential interest was made.

9. On 20 March 2016 C was interviewed by police but made no statement of significance.

10. The father commenced these proceedings on 23 March 2016.

11. The 2015 parenting Order that the father spend time with the children was initially suspended and a family report ordered.

12. Ms J, family consultant, undertook the preparation of the family report and recommended the children spend unsupervised time with the father.

13. On 16 June 2016 a parenting Order was made that the father spend alternate weekends and other time with the children.

14. The mother lodged an appeal against that Order which was stayed on 15 July 2016 (as amended).  

15. As the father is no longer pressing for an interim change in living arrangements for the children and proposing that his time be supervised it seems the appeal may well be redundant.

How interim parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper (Goode & Goode (2006) FLC 93-286), but such consideration will focus in particular on issues that will be determinative at an interim hearing. As the Full Court observed in Banks & Banks (2015) FLC 93-637:

   48. … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.

   50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

2. In any event, whether the hearing is interim or final, the Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).

3. Consideration of the particular issues raised by the parties will be considered within the context of the legislative pathway.

4. Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:

   a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

5. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

7. Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. Section 60CG imposes a statutory imperative to ensure that a parenting Order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

9. Family violence is defined in s 4AB of the Act to mean violent, threatening or other behaviour that coerces or controls a member of a person’s family or causes the family member to be fearful. Making repeated derogatory taunts is an example included as behaviour that may constitute family violence. 

10. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

11. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

12. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

The father’s position

1. The father denies any act of sexual impropriety towards his children. He maintains he has a close and loving relationship with them but because of concern about the escalation in the mother’s allegations he proposes that his time should be supervised pending trial to protect the children from further intervention by authorities and medical practitioners and also to protect himself from further allegation.

2. The proposed supervisor, Ms B, is a psychologist who has already undertaken an assessment of the matter and deemed it to be high risk given the nature of the allegations and is prepared to provide high level supervision including with CCTV.

3. The father proposes that the children continue their counselling with Ms H and opposes a change in practitioner.

4. He also opposes a change in their school. In his application for a final parenting order he proposes the children live with him and that will necessitate a change of school. C has already been to two schools.

The mother’s position

1. The mother contends that the children have been sexually abused by the father. She relies upon a number of statements made by the children to her and others. The nature of the alleged abuse involves the father allegedly putting his finger into D’s anus while changing her nappy and pinching C on the vagina.

2. The mother contends that it would be emotionally traumatic for the children to be exposed to the perpetrator.  

3. The mother contends that the children’s behaviour has significantly improved since time with the father ceased and as such she contends that there should be no time at all pending a trial. In particular her counsel points to the decrease in number of days absent from 16.5 in semester 1 to 6 in semester 2.

4. She also contends that as she has recently changed employment and has moved closer to her employment she should be able to start the children at a school that is more convenient to her residence.

5. She opposes the father’s proposed order that the children continue counselling with Ms H but would agree to them commencing with a different counsellor who has alleged expertise in dealing with sexually abused children.  

6. She would prefer no counselling than a continuation with Ms H.

The independent children’s lawyer

1. The Independent Children’s Lawyer supports the position of the father. She submits that there are a number of alternative hypotheses open to explain the statements made by the children and their behaviour including the high conflict between the parties/the divided loyalties of the children/leading questions/other health issues.  

2. She submits that this interim hearing involves the balancing of a risk that the children may suffer psychological or emotional harm at seeing the father if he has sexually abused one or both of them as against being deprived of a relationship with their father. On balance she urges for a continuation of time in a supervised setting.

3. The Independent Children’s Lawyers opposes a change in school pending a trial as ultimately the children may be removed from the mother’s primary care and commence to live with the father. As this will involve a change in school according to the father, a change now may involve yet a further change in the not too distant future.

Family report

1. Ms J is a family consultant who prepared a family report dated 24 May 2016.  In her interview with the mother she reports that she was told,

   The children have been traumatised by their father’s abuse, are fearful of him and do not wish to spend time with him at this stage.

2. During Ms J’s interview with C, C said “I do not love my dad as he hurts D” and that her father pushed his finger into D’s front and back ‘bottom’. She knows this because she “has seen [D’s] red bottom.”

3. During Ms J’s interview with D she notes that D was aware the father was in the office and very much wanted to go out to see him. She reports the following observation:

   236. When [C] and [D] were taken out to the reception area [D] ran and leapt into her father’s arms. They both exchanged long and happy embraces. [C] was in close pursuit of [D] and also ran to the reception area for hugs with her father.

   237. The children were both very excited to see their father and were eager to tell him news. It was noted that the children and their father exchanged smiles as they chatted. …

   243. It was noted that the children played happily without any distress. They spontaneously hugged their father and also interacted with [Ms I] affectionately. … [D] and [C] were observed to seek comfort from their father at times and he responded with verbal reassurance and physical nurturing. …

   245. At the end of the observation session with their father [D] asked if she could go home with him …

4. The mother was perplexed by the children’s interactions during their observation with the father (which she could hear from where she was sitting) given the level of fear the children had been asserting to her about the father. Ms J says that the mother acknowledged that she has stated in front of the children that “she hates the father” as she was so distressed about the children’s allegations.

5. On a second day of interviews with the children Ms J reports that the children both commenced their interview with a statement that they did not want to sleep over at the father’s house. D said that her father was a “horrible dad” and “I don’t love him”. C said that she was scared that the lawyer would pick her father and she does not want to live with him. She also said that her father touches her under her underpants and pinched her vagina. She said that she knows he does this because “when she goes home to her mother’s house she has seen the red marks in that area which are the size of her father’s fingers.”

1. Ms J makes the following observations about the children’s interaction with the father on this second occasion:

   258. The children squealed with delight when they saw their father, [Ms I], [K] and [L] and all exchanged hugs. There was a lot of laughter as the children played with their father and his family. … It was also noted that at times [C] would become tearful and when she received attention would become cheerful.

2. A rather extraordinary observation is then made by Ms J while giving the mother feedback about the session with the father and children:

   263. When the report writer provided [Ms Ford] with feedback about the positive visit the children had with their father and [Ms Ford] told them she could hear them laughing. [Ms Ford] became tearful and asked the report writer for a hug. As the report writer comforted [Ms Ford], [C] was observed to become emotional and also wanted to comfort her mother. When the report writer suggested that the children to their father so that [Ms Ford] could speak to the report writer, as she was feeling emotional, [C] started to cry uncontrollably. [D] accompanied the report writer to the observation room where her father was located. When the report writer returned to [Ms Ford], [C] was curled upon in a ball on her lap weeping.

3. Ms J provides this word of warning which one can only hope will be heeded by the mother:

   It is the report writer’s view that if [C] and [D] were to continue to be subjected to unsolicited questioning about allegations of sexual abuse by [Mr Vasten], their future emotional and psychological health will be adversely affected. …

Discussion

1. The issues for determination are narrow nevertheless I have considered the relevant matters in the legislative pathway.

2. I accept the submissions of the Independent Children’s Lawyer that this case involves a balancing of potential risk of emotional or psychological harm to the children in either being exposed to an alleged abuser on the one hand or being deprived of a father they appear to adore.

3. There may be any number of reasons for the children’s behaviour as described by the mother not least of which may be their exposure to a highly anxious mother as observed by Ms J. I am not prepared to infer that C’s improved attendance at school in second semester can be sheeted home to her no longer seeing her father.

4. In my view the greater risk to the children is the emotional or psychological harm that may be caused to them in being deprived of their relationship with the father. The proposal of the father and supported by the Independent Children’s Lawyer is a sensible solution to the current circumstances.

5. I take the opportunity to remind the mother:

   The reality is that evidence about whether a child has been sexually abused is frequently the product of inferences and clinical assessments that are not fully complete and which are amenable to different interpretations.[3]

   [3] Professor Ian Freckleton: Evidence in the Family Court: The New Regime (2005) 12 Psychiatry, Psychology and the Law 234

6. It is therefore very important that any questioning of the children by her cease. It is apparent from the mother’s own affidavit material that she has engaged the children in question and answer sessions and her behaviour as observed by Ms J is most troubling indeed. In order for the court to make an assessment at the trial of this matter as to the nature of any risk and the magnitude of that risk her involvement as described by her will not assist her cause.

7. While I understand the reasons for the mother’s application to enrol the children in a different school next year it seems to me that such a step, while convenient for the mother, is not one that would be in the best interests of the children at this time. C has already attended two schools and if the father’s application is ultimately successful a change at this stage would be followed by yet another change.

8. The children have undertaken counselling but there is now a dispute between the parents as to whether the counselling should continue if Ms H is to continue providing that counselling. At this stage I consider it preferable for there to be a break in counselling but should the children require counselling in the future they should return to Ms H.

9. There is a request by the father and the Independent Children’s Lawyer to be provided with full particulars should the mother make any further complaint to the Department of Communities, Child Safety and Disability Services. I consider that to be an entirely reasonable position.

10. I see no need to make the order sought by the mother for sole parental responsibility at this interim hearing.

11. The order I propose to make is set out above and I consider it to be proper in the circumstances.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 21 December 2016

Associate: 

Date:  21 December 2016