VIDLER & VIDLER
[2020] FamCA 840
•1 October 2020
FAMILY COURT OF AUSTRALIA
| VIDLER & VIDLER | [2020] FamCA 840 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Family Violence – Interim matters – Where the children live with the mother and have spent limited time with the father on an ad hoc basis – Where the father seeks to spend regular time with the children – Where the mother opposes the time unless it is supervised – Where the mother alleges the father has perpetrated physical and sexual abuse towards her and the children – Where the father denies the allegations – Where the children have been interviewed by Child Protection Services – Where the Independent Children’s Lawyer supports time be spent with supervision – Where the Court should protect the children’s relationship with the father – Where the Court should adopt a cautious approach in interim matters where there is contested evidence and an assessment of risk – Best interests of the child – Orders. |
| Marvel & Marvel [2010] FamCAFC 101 Deiter & Deiter [2011] FamCAFC 82 |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC |
| APPLICANT: | Mr Vidler |
| RESPONDENT: | Ms Vidler |
| INDEPENDENT CHILDREN’S LAWYER: | Duncan Basheer Hannon |
| FILE NUMBER: | ADC | 3763 | of | 2019 |
| DATE DELIVERED: | 1 October 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 28 August 2020 and 2 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms James |
| SOLICITOR FOR THE APPLICANT: | Scammell & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Tinning |
| SOLICITOR FOR THE RESPONDENT: | Barbaro Thilthorpe Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lindsay |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Duncan Basheer Hannon |
Orders
That X born … 2012, Y born … 2014, W born … 2016 and Z born … 2018 (“the children”) live with the mother.
That the children spend time with the father as follows:-
(a)For three (3) occasions between 9.00 am and 1.00 pm each Saturday; and
(b)Thereafter, each alternate Saturday from 9.00 am to 5.00 pm PROVIDED the father’s time will be under the supervision of one or both of the paternal grandparents.
That all handovers occur at the McDonald’s Restaurant at D Street, Suburb B, South Australia.
That neither party is to discuss with any of the children the proceedings including but not limited to any allegations made against the father.
That all applications for final orders be adjourned for hearing before Justice Berman on 1 March 2021 at 10.00 am as a 4-5 day matter and that the evidence in chief of all witnesses be given by affidavit.
That by 4.00 pm on 13 November 2020 the applicant file and serve upon all other parties:-
(a)an amended application setting out with precision the orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting the affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
That the parties do each pay one half of all setting down and trial fees by 4.00 pm on 29 January 2021.
That by 4.00 pm on 22 January 2021 the respondent file and serve upon all other parties:-
(a)an amended response setting out with precision what orders are being sought;
(b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
That by 4.00 pm on 5 February 2021 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.
That by 4.00 pm on 22 January 2021 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.
That no party file any further material other than as provided by these orders without leave of the Court.
That prior to the commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outline of case.
That pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon and at the direction of a family consultant (or Regulation 7 Consultant) nominated and appointed by the Director of Child Dispute Services of the Adelaide Registry for the purposes of the preparation of a family report to be completed and released by 19 February 2021.
That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.
Liberty is granted to each party and the Independent Children’s Lawyer to relist the matter at short notice in relation to trial directions or any application for leave for subpoena to issue.
That the practitioners for the parties file and serve electronically to ... by 4.00 pm on 24 February 2021 the following:
(a) a concise set of orders to be sought if different from those already filed;
(b)a list of the applications and affidavits to be read out and if not the whole affidavit, the relevant paragraphs relied upon;
(c) a list of assets and liabilities;
(d) a list of objections to evidence upon which rulings are required; and
(e) a bullet-point summary of argument in relation to the issues in dispute.
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 Vidler & Vidler 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 ADELAIDE |
FILE NUMBER: ADC 3763 of 2019
| Mr Vidler |
Applicant
And
| Ms Vidler |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Vidler (“the father”) and Ms Vidler (“the mother”) are the parents of X born in 2012, Y born in 2014, W born in 2016 and Z born in 2018 (collectively “the children”).
The parties separated on 1 June 2019. The children remained in the care of the mother and last spent time with the father on 28 September 2019.
The parties have not been able to resolve their differences and the mother’s opposition to the children spending time with the father is based upon allegations that he is the perpetrator of family violence in respect of the mother and the children and that the children, but in particular Y, are at risk of sexual abuse if time is spent with him.
The father denies the mother’s allegations and contends that they are concocted and without foundation. Moreover, the father argues that there are no current ongoing investigations either by police or child protection services in respect of any of the mother’s allegations.
By Amended Initiating Application filed 28 February 2020 the father seeks orders for property settlement and parenting orders such that the parties have equal shared parental responsibility for the children and that their care is shared equally between the parties.
By her Response filed 25 October 2019 the mother seeks that she have the sole parental responsibility for the children, that they live with her and only spend supervised time with the father upon such terms and conditions as the Court may order.
By Application in a Case filed 1 July 2020 the father better particularises the interim orders sought in respect of the children as follows:-
2.That the children spend time with the Father as follows:
2.1 For 3 occasions, between 9.00am and 1.00pm each Saturday;
2.2For a further 3 occasions, between 9.00am and 5.00pm each Saturday;
2.3For a further 3 occasions, from 9.00am Saturday to 9.00am Sunday;
2.4From the 10th occasion onwards, from 9.00am Saturday to 5.00pm Sunday.
2.5On the Father’s Birthday in 2020 between 9.00am and 2.30pm NOTING that this occasion does not count towards the number of occasions specified above.
2.6On Father’s Day Sunday 6 September 2020 between 9.00am and 5.00pm NOTING that this occasion does not count towards the number of occasions specified above.
3.In addition to the time spending set out in paragraph 2, the Mother do facilitate X and Y communicating with the Father by electronic means, via the use of their iPads or such other internet based form, between 5.00pm and 6.00pm each Tuesday and Thursday, and the Mother do ensure that the iPad is fully charged and accessible to the internet during these times.
4.That all handovers occur at the McDonald’s Restaurant at D Street, Suburb B SA ….
5.That the Mother do all things necessary to enrol the X and Y into a school within the Eastern suburbs by no later than the commencement of term 4, and facilitate the Father being an enrolling parent at said school.
6.That until further Order, each parent shall allow the children to reasonably communicate with the other parent when the children are in his/her respective care.
By her Response filed 6 August 2020 the mother opposes the orders sought by the father and promotes that the children spend supervised time with the father at a children’s contact service or in the alternative from 10.00 am to 1.00 pm on each alternate Saturday supervised by Mr C or such other professional supervisor as may be agreed between the parties with the cost of same to be paid by the father.
The mother seeks that the children spend time with the father in the absence of any member of the father’s family.
Background
The mother claims that during the period of their relationship the father perpetrated family violence. The mother alleges that in early 2012 the father threw her onto the bed with force at a time when she was pregnant with X.
In early 2014 the mother alleges that the father strangled her when she was pregnant with Y.
The mother further alleges that after Y’s birth the father punched her in the arm leaving a red mark and then in June 2017 punched her to the stomach in what she considered was an attempt to terminate her pregnancy with Z.
The mother further alleges that in March 2018 the father commenced to sexually assault her by engaging in non-consensual sexual intercourse and vaginal violation.
The mother contends that the family violence continued and was on occasion witnessed by the children.
Following separation the mother believes that the father commenced to harass her by driving past her home, yelling out of his car window at her and playing loud music.
The mother further observed that during the relationship the father was impatient with the children and was often aggressive with them requiring the mother to intervene. It was her view that the father was easily frustrated particularly when the children were crying and he would often swear at them and in mid-2017 the mother believes that the father hit or slapped X to his face.
The mother’s concerns purportedly escalated following separation when she alleges that Y told her that the father would rub cream on or around her vagina.
The mother’s concerns were such that she reported the allegation to Child Protection Services (“CPS”) and filed a Police Report.
On 9 October 2019 the mother further questioned Y as to whether the father had touched her genitals with the child reporting that whenever she had a shower with the father he would insert his finger into her vagina.
Y further reported that the father would also touch X and W’s genitals.
The child was asked to demonstrate what she had seen and her hand movements were such that the mother considered they were indicative of male masturbation.
On 10 October 2019 the mother filed a private application for an intervention order.
Since separation the children have continued to live with the mother and have spent limited supervised time with the father.
The mother contends that generally the children are in good health, although X has some learning difficulties which requires the assistance of a Student Support Officer. X also exhibits behavioural issues resulting in aggression towards his siblings. The mother views X’s behaviour as anger management issues and considers that they emulate her observations of the father’s behaviour.
X has been assessed for but not diagnosed with Autism.
Y, W and Z all appear to be developing in accordance with the appropriate childhood milestones.
The father specifically denies each and every allegation made by the mother.
He denies that he ever perpetrated family violence towards the mother and says that their sexual relationship was always consensual.
There are current criminal proceedings in respect of the mother’s allegations. The father highlights his belief at the commencement of the proceedings that the mother would make false allegations of family violence and him being an unacceptable risk to the children.
The father highlights that initially the mother did not make allegations that the father had behaved or acted inappropriately, but does concede that the arguments between the parties were common and volatile and on occasion were in front of the children.
The father highlights his concern that the mother has coached the children but in particular Y to allege that the father had acted inappropriately.
Each of the parties rely upon Police Reports and a Forensic Assessment Report dated 30 April 2020 prepared by CPS in support of their respective position.
The Court has also been assisted by the involvement of an Independent Children’s Lawyer (“ICL”).
The proceedings were transferred to the Family Court of Australia on 28 October 2019.
On 2 September 2020 judgment was reserved in respect of the interim applications of the parties and they were given an indication that the matter would be listed for final hearing and trial directions would be made.
Interim parenting
In Marvel & Marvel [2010] FamCAFC101 the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:-
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).
121.…
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123.Later, at paragraph 100 their Honours amplified their comments and said:-
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where the contested facts relate to an assessment of risk a greater level of caution should be exercised, however, in Deiter & Deiter [2011] FamCAFC 82 the Full Court said at [61]:-
In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending upon the evidence that is before the Court.
The law
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Pt VII of the Act namely:-
(1)The objects of this Part are to ensure that the best interests of children are being 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 the 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.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interest):
(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).
Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the best interests of a child.
The primary considerations are:-[1]
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[1]Family Law Act 1975 (Cth) s 60CC(2).
In applying the primary considerations as set out in s 60CC(2) the Court is to give greater weight to the considerations set out in sub-paragraph 2(b).
The mother does not contend that the children would not necessarily benefit from having a meaningful relationship with the father, it is that she considers the children would be at significant and on her case unacceptable risk if the children spend time with the father other than under strict supervision.
Accordingly, the need to protect the children is the principle focus of the separate proposals of the parties.
Forensic Assessment Report – 30 April 2020
Y and X were referred to CPS by the Family Violence Investigation Section of South Australian Police (“SAPOL”) following concerns that the children may have been the subject of sexual abuse by the father. There were three separate notifications on 9, 15 and 29 October 2019 which highlighted that Y had alleged the father put his finger inside her vagina and had rubbed cream around her vagina. The notification recorded that Y had been asked whether the father had inappropriately touched her with her initial response being “no” but then asking whether she would get in trouble if she revealed the father had touched her vagina.
The allegations were not restricted to Y but rather Y reported that the father had touched X on his penis whilst in the shower.
The father denies the mother’s allegations and in support of his contention that Y and to a lesser extent X have been coached by the mother, he highlights the following paragraph from the report on page 6:-
Y separated easily from her mother and entered the interview room without hesitation. She made and sustained appropriate eye-contact with the CPS Clinician and happily engaged in conversation about peripheral topics. Y was calm and compliant throughout the interview process and was talkative and expressive in her speech. It was, however, noted that her expressive language was often not age-appropriate and had an adult-like quality. For example, Y made semantically incorrect use of words such as “embarrassing’, “convincing” and “awkward”. Of note, Y’s affect was varied throughout the interview, and she became increasingly avoidant as the interview progressed. In general, she was chatty, happy, playful and bright; however, when the clinician raised topics related to the current concerns Y became quiet, lowered her head and avoided eye contact. Towards the end of the interview, when discussing the allegations, she made frequent attempts to redirect the conversation to unrelated, innocuous subject matter.
The clinician also recorded the following exchange with Y at page 7:-
During her practice narrative, Y spontaneously remarked that [the father] was “watching bad stuff”, had been “smoking” and that he had been “pretty much like stupid”. When asked, Y did not elaborate and instead spoke about her mother having a “busy life” with “the police, lawyers, you, Grandmother”. Y later stated that she doesn’t sleep at home, and upon further enquiry, stated that “I’m scared that Dad comes here” and that “he’s a mean dad”. She further stated that he had “punched the shower screen”, that it was “pretty embarrassing” and commented, “Whoever people who do that?...it’s not a safe world out there”.
X was also interviewed by the clinician and alleged that the father had touched him on his private parts whilst in the shower.
X was asked to tell the clinician what the father had done just before he had tickled X’s penis. At page 12 of the report, the clinician recorded that the child responded as follows:-
“yeah, I think I can remember what happened, so right before he tickled my willy, I think Y said, tickle X’s willy, and then think that’s how that happened. I think Y did it”.
The clinician considered that X’s disclosure that the father had tickled his penis was given with some contextual information, whereas the clinician expressed concerns in respect of Y’s narrative in the following paragraph at page 16 of the report:-
Aspects of Y’s narrative raised concern regarding the veracity of her account. There were minor concerns regarding the internal consistency of her narrative, and it was noted that her dialogue was frequently disorganised and tangential in content. Additionally, there was a lack of contextual detail surrounding the alleged abuse incidents, which raised questions regarding the source of her narrative. Further, her choice of language was frequently age-inappropriate and suggestive of exposure to adult conversation. These concerns were compounded by confirmation that she had been exposed to numerous conversations regarding the allegations.
Whilst the clinician considered that X’s account of events “did not possess a rote-learned quality”,[2] there were aspects which raised a level of concern arising from inconsistencies in the matters raised by X and those as described to the police by the mother. It was raised as a possibility that X may not be recalling his own experience but rather the concern was that both “X and Y had overheard adult conversations in relation to [the father] and the allegations that have been made against him”.[3]
[2] Forensic Assessment Report dated 30 April 2020 at page 17.
[3] Ibid.
The weight that can be attached to the allegations made by Y and X are encapsulated in the following extract at page 18 of the report:-
Other comments made by X and Y raised concern that they have been encouraged by the maternal family to make disclosures during the forensic interview process. For example, X stated that he was told that he would get a frozen coke and happy meal after the interview “if I talk really well”. Further Y stated that “Grandmother said tell the truth or he could get away with it and he can do it to more children”. This raised concerns regarding pressure being put on the children during the interview process to make disclosures in relation to [the father].
Conclusion
The mother has made serious allegations in respect of the father’s family violence directed to her and the children and strongly supports the children’s allegations that the father has inappropriately touched their genitals.
The father makes a credible denial of the mother’s allegations and points to the police reports and the CPS report that raises the possibility that the purported disclosures made by Y and X are either as a direct result of coaching by the mother or from overhearing conversations between adults.
I am not able to determine the veracity of the mother’s assertions or the father’s denials.
The matter is listed for final hearing in March 2021. The focus is therefore to determine what interim orders, if any, should be put in place on an interim basis to best serve the children’s interests.
The children have not seen the father since late September 2019. The risk is that if the Court considers that there is no impediment to the children resuming time with the father then the restoration of the relationship will be made more difficult by the efflux of time.
The mother considers that if the children are to resume spending time with the father then it should be the subject of the most stringent supervision.
The ICL supports supervision but does not consider that it needs to involve the rigor of time being spent at a children’s contact service or that the parties should incur the unnecessary expense of professional supervision by Mr C or such other appropriately qualified person.
The ICL considers that the children’s presentation to the CPS Clinician raised concerns that they had been subject to strong negative views about the father by the mother and her family.
The ICL also highlights that the mother had hoped that the sexual abuse allegations were not true and refers to the mother’s hypervigilance in asserting that the father had secreted an electronic eavesdropping device in her bedroom, whereas it was a Bluetooth speaker and not a listening device.
The ICL supports a resumption of time between the children and the father upon condition that it is supervised by the paternal grandparents. The ICL did not support supervision at a children’s contact service or the engagement of a professional supervisor.
I am obliged to exercise caution when dealing with interim proceedings where allegations are made that a child may be at risk of physical or sexual assault.
The mother intends to call the maternal grandparents, a psychologist who has been counselling Y, a clinician dealing with Y’s developmental issues and possibly a teacher or school counsellor.
At this stage there is some uncertainty as to whether the CPS Clinician and/or members of SAPOL will be called in relation to the various allegations.
I am satisfied that the paternal grandparents understand their responsibilities and obligations to protect the children by supervising their time with the father.
The mother will consider that the level of supervision to be exercised by the paternal grandparents to be inadequate whilst the father will contend that supervision is unnecessary.
In circumstances where the evidence relied upon by the mother in support of her contention that the father has sexually assaulted Y and X is equivocal, whilst a cautious approach is warranted, orders should be made that will also protect the children’s relationship with the father should his position be vindicated.
I do not ignore the mother’s allegations of family violence but at this stage the consideration is the extent and the conditions of the children spending time with the father.
I will order that the children spend time with the father for three occasions between 9.00 am and 1.00 pm each Saturday and thereafter from 9.00 am to 5.00 pm each alternate Saturday provided that the father’s time with the children be supervised by either of the paternal grandparents.
I make orders as appear at the commencement of these reasons.
I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 1 October 2020.
Associate:
Date: 1 October 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies
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Standing
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