Vieth and Camkin

FAMILY COURT OF AUSTRALIA

VIETH & CAMKIN

[2014] FamCA 68

FAMILY LAW – CHILDREN – With whom the children shall live and spend time – children to remain in the primary care of their mother – children to travel by plane to spend time with their father twice yearly due to geographical distance – where the mother made sexual assault allegations against the father and step-mother – the mother withdrew those allegations during the hearing – oldest child emotionally abused by the mother and subjected to systems abuse due to the allegations – father moved interstate due to damaged reputation – consequences of the allegations for the father to be reversed – father accuses the step-father of physically punishing the children – no finding that the children have been harmed or that there is any risk of harm in either parent’s household

FAMILY LAW – PARENTAL RESPONSIBILITY – Parents to have equal shared parental responsibility – further orders made in order to ensure that the mother does not undermine the father’s role in the future – mother has not supported the children’s relationship with the father in the past - very poor parental communication

Family Law Act 1975 (Cth) ss 60CC, 62B, 64B, 65DA, 106A

Child Protection (Offenders Registration) Act 2000 (NSW)

APPLICANT:

Ms Vieth

RESPONDENT:

Mr Camkin

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

613

2009

DATE DELIVERED:

13 February 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

16, 17, 18, 19 & 20 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Murray

SOLICITOR FOR THE APPLICANT:

Peter Hamilton & Associates

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW
(Mr Scally)

Orders

That all previous parenting orders relating to E born … February 2007 and M born … May 2008 (the children) are discharged SAVE AND EXCEPT the following Orders made in the Federal Circuit Court:
(i)Order 13 of the Orders made 6 May 2011 (Birth Certificate); and
(ii)Orders made 22 November 2011 (children’s surnames).
That the parents will have equal shared parental responsibility for the children.
That the children shall live with the mother.
That the children shall spend time with the father as follows:
(i)In 2014 in the holiday after Term 1, for a period of five days to be agreed between the parties and failing agreement from Thursday 17 April 2014 to Monday 22 April 2014 with the mother to deliver the children to the father at Gold Coast airport at the commencement of the period and the father and/or his wife to return the children to the mother at Melbourne airport at the conclusion of the period.
(ii)Each year in the mid-year term holiday from the first Saturday after term ends until the Saturday before the third term commences, commencing Saturday 28 June 2014 to Saturday 12 July 2014.
(iii) Each year in the Christmas school holiday period for a period of three weeks:
(i)in years in which Christmas Day falls in an even numbered year from the first Saturday after the New South Wales fourth school term ends commencing Saturday 20 December 2014 until Saturday 11 January 2015; and
(ii)in the alternate year when Christmas Day falls in an odd numbered year from the first Saturday after New Year’s Day for a period of three weeks, commencing Saturday 3 January 2016 until Saturday 24 January 2016.
(iv)In the Town B New South Wales area, for up to two periods per year (other than during Christmas school holiday periods), for a period of up to one week PROVIDED THAT the father gives the mother 14 days’ notice of the proposed period of time and the father shall ensure that the children attend school if the period of time falls in school term time.
(v)At such other and/or additional times as are agreed between the parties.

Cost of travel

For the purposes of Order 4(i) to 4(iii) inclusive the parents shall share equally in the cost of all travel for the children unless otherwise stated in these Orders.

Accompanied travel

The father shall book and pay for flights for the children to travel from the Gold Coast/Brisbane to Melbourne accompanied by himself and/or his wife on the first three occasions of holiday travel and shall provide the mother with flight details as early as possible, but in any event no later than 14 days before the flight.
The mother shall book and pay for flights for the children to travel from Melbourne to the Gold Coast/ Brisbane accompanied by herself and/or her husband on the first three occasions of holiday travel and shall provide the father with flight details as early as possible, but in any event no later than 14 days before the flight.
At the commencement of a period of accompanied travel, the mother shall ensure on each occasion of travel that the children are available at Gold Coast/ Brisbane Airport in sufficient time (as required by the airline) and shall deliver the children to the father and/or his wife at the Gold Coast/ Brisbane Airport to enable their travel to Melbourne to take place.
At the conclusion of a period of accompanied travel, the father shall ensure on each occasion of travel that the children are available at Melbourne airport in sufficient time (as required by the airline) and shall deliver the children to the mother and/or her husband at Melbourne airport to enable their travel to the Gold Coast/ Brisbane to take place.

Unaccompanied travel

The children may travel unaccompanied after the first three periods of holiday travel (commencing June 2015) unless all relevant airlines decline to accept M as an unaccompanied child in which case the parties shall continue to accompany the children as per Orders 6 to 9 NOTING that in the event that M is able to travel as an unaccompanied minor, but the mother wishes to accompany her, she may do so but at her own cost.
At any time that the children fly as unaccompanied minors, the following arrangements shall apply:
(i)At the commencement of the period of time with the father the mother shall deliver the children and all required travel documents to the supervisor for unaccompanied minors of the relevant airline at the Gold Coast/ Brisbane Airport in sufficient time (as required by the airline) for travel to Melbourne and the father and/or his wife shall collect the children from the supervisor for unaccompanied minors at the relevant airline in Melbourne.
(ii)At the conclusion of a period of time with the father the father and/or his wife shall deliver the children and all required travel documents to the supervisor for unaccompanied minors of the relevant airline at the Melbourne airport in sufficient time (as required by the airline) for travel to Gold Coast/Brisbane and the mother and/or her husband shall collect the children from the supervisor of unaccompanied minors for the relevant airline at the Gold Coast/ Brisbane.
The parents shall each make inquiries to airlines which are proposed for travel for the children either as individual inquiries or in a joint approach, about M travelling as an unaccompanied minor and further each parent or both shall supply any medical information required by the airline to determine that issue.

Communication

Each parent is to keep the other advised at all times of current residential address and contact details including landline and mobile telephone numbers and email and SKYPE addresses.
The children are to communicate with the father during school terms by telephone between 6.30 pm and 7.00 pm on Mondays and Thursdays and, if the children are not spending time with the father on the following days then the children’s birthdays, the father’s birthday, Father’s Day and Christmas Day, with the father to telephone the mother on the mother’s landline and the mother to make the children available to take the father’s call in privacy and without interruption NOTING that such communication may happen by Skype or other digital means providing the father gives the mother notice of his election to do so and the mother has the equipment to put the father’s election into effect.
The children are to communicate with the mother during periods of time when they are with the father between 6.30 pm and 7.00 pm on Mondays and Thursdays and Christmas Day, with the mother to telephone the father on the father’s landline and the father to make the children available to take the call in privacy and without interruption NOTING that should the mother elect to do so and provided the mother gives the father two weeks’ notice of her election to do so and the father has the equipment to put the mother’s election into effect, such communication may take place by way of Skype or other digital means.
As otherwise agreed between the parties in writing from time to time.

Restraints on conduct

The parties must not discuss these proceedings (including the allegations of abuse raised by the mother in these proceedings) with, or in the presence of, the children and must not allow other people to discuss these proceedings (including the allegations of abuse raised by the mother in these proceedings) with, or in the presence of the children.
The parties must not question the children about their time in the other party’s home and must not allow other people to question the children about their time in the other party’s home.
The parties must not denigrate the other party or members of the other party’s family to or in the presence of the children and must not allow other people to denigrate the other party or members of the other party’s family to or in the presence of the children.
The parties must not physically discipline the children and must not allow other people to physically discipline the children.
The parties must not record conversations with the children or either of them by any means.
The parties must not allow the children to call anyone other than their natural parents “mother” or “father” (or derivatives of “mother” or “father”) and must encourage the children to call and only call their natural parents “mother” or “father” (or derivatives of “mother” or “father”).
The parties must not cause the children to attend on any psychologist, counsellor or social worker without the written consent of both parties or Order of this Court and in the event that the parties do agree for the children or either of them to attend upon such a psychologist, counsellor or social worker, then the parties must provide to that person the family report of Family Consultant Ms C dated 20 May 2013, these Orders and Reasons for Judgement .
The parties must ensure that the other party is informed as soon as reasonably practicable of any serious medical matter involving the children when the children are in their care.

Schooling

The mother is restrained from changing the school of the children or either of them without the prior written consent of the father.
The mother shall provide to the school which the children attend full contact details for the father and written authority, to the extent that it is needed, for the school to provide to the father directly copies of all documents forwarded to parents in relation to the progress and welfare of children at school and applications to purchase school photographs.
The Independent Children’s Lawyer shall provide a copy of these Orders within 14 days to:
(i)The Principal of the school/s attended by the children.
(ii)Dr D, Paediatrician (M) NOTING that the Reasons for judgment may be shown to the doctor at the discretion of the Independent Children’s Lawyer.
That the Independent Children’s Lawyer will provide a copy of these Orders and Reasons for Judgment to:
(i)The Manager of Client Services, Department of Family and Community Services;
(ii)JIRT Officers (Community Services) at Town A.
In the event that either parent fails to execute a document required by these Orders, then pursuant to s 106A of the Family Law Act 1975 a Registrar of this Court may execute the deed or instrument in the name of the person required to execute the deed or instrument and to do all acts and things necessary to give validity and operation to that document.
Pursuant to s 65DA(2) and s 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 Fact Sheet attached hereto and these particulars are included in these Orders.

THE COURT NOTES:

(A)That the parents have resolved to take the following steps:
(i)to each do all acts and things necessary to discharge the Apprehended Violence Order made on 30 August 2012 in the Local Court at Town A;
(ii)to do all acts and things necessary to have the name of the father removed from the internal database of Community Services (listing him as a person causing harm) and in the event that his name has been included on the Child Protection Register pursuant to the Child Protection (Offenders Registration) Act 2000 to have his name removed from that Register.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC613 of 2009

Ms Vieth

Applicant

And

Mr Camkin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders. The applicant is the mother, Ms Vieth aged 30. The respondent is the father, Mr Camkin aged 42. They have two children, E aged seven and M aged five. The proceedings had been included in the Magellan program due to allegations by the mother, on behalf of the children, of sexual abuse of them both, by their father and by their step-mother.
Towards the end of the hearing the mother withdrew the allegations contained in the Notice of Abuse. The matter continued as a parenting dispute, contested as to residence, time and communication but not as to whether the children should see and communicate with their father and step-mother. The mother acknowledged that that should happen.
Both parents have remarried. The mother has another child F aged two and a half. The children live with the mother. When the hearing commenced they had not seen or spent time with their father other than in family report interviews since March 2012.

Short history

The father is a New Zealander. He came to Australia in 2005 in order to begin living with the mother in Australia. The parties married in August 2006.
In February 2007, six months after marrying, they separated and the father returned to live in New Zealand.
In mid-February 2007 the first child E was born. When she was about four months old the father returned to live in Australia. The parties reconciled for about three months. They then separated again and once more, the father returned to live in New Zealand. The father and perhaps the mother herself, was unaware that the mother was pregnant at the time of separation.
In May 2008 the parties’ second child M was born. The mother did not notify the father of M’s birth until about three months after she was born.
The father learned in New Zealand that he had a second daughter and he returned to live in Australia.
M’s surname was registered as the mother’s maiden name Keffer. The father was not named on M’s birth certificate.
M has been assessed as having global developmental delay. She has limited language and presently functions at the level of a much younger child, around 2.5 years.
In December 2008 the parties reconciled very briefly before separating for the final time.
In May 2009 they were divorced. Accordingly, over a period of almost four years, the parties lived together for approximately half that time.
In mid-2009 the father formed a relationship with Ms Maver, now his wife Ms Camkin. Ms Camkin became part of the children’s lives straight away.
The mother had a strong adverse reaction to the father’s new relationship:[1]
When [the father] met [his current wife] he became very demanding about wanting to spend more time with the children. I say that [the father] did not appreciate that the children had a limited relationship with him and that they were only young. [The father] became even more aggressive and intimidating towards me.
[1]Affidavit of mother sworn 12/12/2013, par 18
By the end of the hearing I concluded that the mother did not know, or knew but had been unwilling to accept, that the father had parental responsibility for the children just as she did. She chose to interpret his insistence about shared decision making and his persistence about spending time with the children as threatening and abusive conduct towards her. She wanted the father to leave her and the children alone. It was a profound misunderstanding of the needs and entitlements of her children, separate to her own.
In mid-2010 the mother met her current husband Mr Vieth.
In October 2010 the mother moved with the children from Town G near Town A (New England region) to Town B, near the New South Wales/Queensland border in order to live with Mr Vieth who was employed there. The mother clearly felt relief at moving away and hoped for a new and more stable life:[2]
I felt very overwhelmed by [the father] and [his current wife]. I decided to move to [Town B] to live with [Mr Vieth] full time, as he had a home he was building there and stable work available to him.
[2]Affidavit of mother sworn 12/12/2013, par 19
On 18 November 2010 the father made an application to the Federal Circuit Court (formerly the Federal Magistrates Court) for the mother to bring the children back to live in Town G.
In late November 2010 the mother and Mr Vieth married.
On 8 December 2010 as a result of the father’s successful application, the mother was ordered to return the children to Town G to live.
On Jan/ Feb 2011 the mother, her new husband and the children made the move back. The mother was pregnant. She was disappointed, frustrated and angry with the father about this forced return. For the mother all her hopes for the future were dashed.
In April 2011 the father and his current wife married.
On 3 May 2011 the mother was referred to treatment for an episode of major depression.
On 6 May 2011, final parenting orders were made by consent in the Federal Circuit Court. The orders provided for the parties to have equal shared parental responsibility, the children to live with the mother and to spend time and communicate with the father on defined terms. There were orders about specific issues, including restraint on the mother as to where she lived, an order that the father’s name be added to M’s birth certificate, a restraint on allowing the children to refer to anyone else other than their biological parents as mum or dad. There were other ancillary orders.
On 1 June 2011, about three weeks after the finalisation of the parenting dispute, (with the exception of a reserved decision as to the children’s surname), F was born to the mother and Mr Vieth.
On 13 September 2011, when the mother had taken F to Dr H for F’s three month check-up, she spoke to the doctor about E and M’s behaviour, including regressed behaviour, bed wetting and rebelliousness.
In the second half of 2011 there was a dispute between the parents about whether E should start formal schooling in the following year (2012), or wait until 2013. The father preferred 2013.
In fact E did start in 2013. The father felt that the mother made the decision unilaterally and did not take his point of view into consideration. The oral evidence of the mother suggested that she acted on the advice of the pre-school in waiting for another year, which in her view accorded with the father’s opinion. The significant matter is that she did not explain any of that to the father. Whether or not the outcome was a good one for E the decision making process frustrated and disappointed both parents.

On 19 October 2011 a report was made to the Department of Family and Community Services (DoCS) that M had a bruise on her back and that the police had seen the bruises. The father alleged that the bruises were caused by Mr Vieth. Again, the parents were both concerned about the issue, but missed communicating with each other. The mother asserts that M had been seen by a paediatrician and diagnosed with a “Mongolian Blue Spot.” The father continues to be doubtful about this explanation and believes that M was bruised through being struck by her step-father.
On 22 November 2011 an order was made and reasons delivered by the Federal Circuit Court that the children be known by the hyphenated surname “[Camkin-Keffer]” and that relevant changes should be made to both children’s birth certificates. The mother did not comply with this order, nor with the order to include the father on M’s birth certificate and has actively encouraged the children to call her husband ‘dad’ and their own father ‘[the father’s given name]’. I conclude that the mother did not feel bound to comply with those orders.
On 14 February 2012, about seven months after the final Orders by consent, the parties came to a mediated agreement on parenting arrangements in the form of a parenting plan, which was not signed and dated.[3]
[3]Copy Parenting Plan attached to mother’s affidavit filed 11/02/2013
The parenting plan confirmed residence for the children with the mother and provided for time with the father and his wife for three weekends each month, from 5.00 pm Friday to 4.00 pm Sunday. This was a focus on time at weekends rather than the week days which had been provided for in the consent orders.
Approximately five weeks later, in March 2012, events took place, which led to the cessation of all time between the children and their father and step-mother.

Events between 18 March 2012 and 30 August 2012

Events giving rise to allegations of abuse

In March 2012 the two children spent time with their father and step-mother for the period from 5.00 pm Friday16 March until 4.00 pm Sunday 18 March 2012.
They were returned to their mother at the conclusion of that period. Soon after, the mother put the two girls in the bath.
In her affidavit the mother referred to the incident in the bath taking place on 20 March 2012. However before her cross-examination commenced the mother corrected the date to 18 March 2012. That would have been the Sunday evening of their return from a weekend with their father.
There is some inconsistency around the sequence of events. I am satisfied that the incident in the bath took place, probably on 18 March 2012. My observation is that the mother was not an accurate or consistent reporter.
The mother made a statement to police annexing a page of her diary[4]. The diary entry for 20 March 2012 states “kids told me about [initial of the father’s current wife’s given name] and [initial of the father’s given name]”. If the correction of the date to 18 March 2012 is accurate, the diary entry suggests that the mother did not contemporaneously record her comment.
[4]Exhibit 21 – Statement of Mother
On that evening the mother walked into the bathroom after “ducking to the linen press.” She came in and saw the two girls as follows:
[E] sitting down leaning back against the wall of the bath with [M] lying on her, their chests meeting. [M] was kissing [E] ‘with a whole bunch of pecks on the cheek and more than typical sisterly affection’.[5]
[5]Affidavit of mother sworn 12/12/2013, par 39
The mother confronted the children:
What are you doing? That is not appropriate behaviour.
In her oral evidence the mother said that she was in “immense shock at that point.” She was asked whether she thought of any other explanation other than misconduct when she saw the children behaving this way. She said this:
I thought of sexual assault straight away. After a breather I tried to think if it could be anything else.
In response to the mother’s question to the children, E is said to have looked “a bit scared.” In her oral evidence the mother added that M looked a bit scared too and agreed that possibly that was because she, the mother, had sounded “a bit cross”.
The mother then asked a further question of the children (although knowing that only E could answer):
Where did you learn that from?
E is reported to have said words to the effect:
Dad and [the father’s current wife’s given name] had touched my butterfly.[6]
This statement attributed to E is relied on as evidence of sexual abuse.
[6]‘Butterfly’ is E’s word for her genital area
I accept that the mother interpreted the statement as indicative of sexual abuse. Objectively it was not a reasonable interpretation. The mother must have known that the statement was likely to be simply factual. Just as she, and her husband regularly washed, dried and applied cream to the genital area and bottom of both girls so would the father and his wife have done. There is nothing in my view obviously or unavoidably sinister in that statement by E. In the event it did prove to be factual in that both the father and his wife had showered both children and had washed and applied cream, or powder to the children.
The children finished their bath and the mother put M to bed. The mother dressed E for bed and spoke to her in the kitchen that night. The mother asked E, “How long it had been going on?” and E is reported to have responded, “Just a long time.” The mother said words to the effect, “Be open with me” and the mother again, “I am proud that you told me.” The mother then put E to bed.
In her oral evidence the mother said that that evening, she was “in complete shock and feeling very physically ill.” She said that she had “wanted to clarify what had happened.” That desire to clarify “what had happened” triggered a series of events which require close examination.
On the following morning, the mother initiated a conversation with E, she “tried to ask her more about what was happening.” The mother recorded the conversations on her mobile phone.
During the hearing the recorded conversations on a USB stick[7] were converted by the mother’s instructing solicitor to an agreed transcript.[8] Subsequently the police produced to the Court a disc containing all of the conversations recorded by the mother over several days.[9] The mother had given that material to JIRT on the day of E’s third interview.
[7]Exhibit 1
[8] Exhibit 4 (This was the first reference to play with rather than touch and was introduced by the mother)
[9]Exhibit 3
In her oral evidence the mother stated that all the conversations (on the topic of abuse) that took place on this day (19 March 2012) were recorded by her.
In her affidavit the mother alleged that on 19 March 2012 E said words to the effect:[10]
Dad pulled his pants down and played with his privates when he did it; He showed me how to play with mine at the same time. [The father’s current wife’s given name] would do it when Dad went to work and Dad would do it when [the current wife’s given name] went to work.
[10]Affidavit of Mother sworn 12/12/2013, par 46
The recorded conversation on 19 March 2012 does not accord with the version of the conversation in the affidavit of the mother.
The child did not say that her father pulled his pants down and played with his privates when he did it. She did say, “Daddy [the father’s given name] takes his pants off and plays with mine too. He plays with mine and takes his pants off.” The child did not say “that her father showed her how to play with hers at the same time”, nor that “[the father’s current wife’s given name] would do it when dad went to work and dad would do it when [the current wife’s given name] went to work”. The affidavit is at best, completely inaccurate.
The recorded conversation between mother and daughter is replete with leading questions and the introduction of new ideas. For instance:
Mother:Just for the sake of touching (reference to the child’s butterfly). Does she ([the father’s current wife’s given name]) play with it?. Yes, No?
[E]: Yes
Mother: Not good. What about [M], does she do the same to [M]?
Throughout the interview by the mother there was questioning of the child along the lines of:
Are you lying……?
Are you telling lies?
You weren’t lying?,
I hope you’re telling the truth;
You’re not making stories up are you?
On that day or the next, the mother rang Ms J, E’s psychologist, who had consulted with E in relation to her regressed behaviour. The mother reports that Ms J advised her to call DoCS and the police. The mother did so on that day ringing the Department of Family and Community Services and perhaps also the police separately.
On the same day the mother took E to see Dr K. In her oral evidence the mother said E was present with her when she reported to the doctor what E had told her.
Dr K reports that at 2.45 pm that afternoon the mother told him the following information which he reported in his notes as follows:
20/3/12 [E] told her mum – report from mum “Daddy and [Ms Camkin] – his wife play with her privates until she has to go to the toilet – wee, every time she goes to spend weekends with them”.
The Court ordered her to return to the area in December 2010 for paternal access + require visitations three weekends out of four with father.
Now family concerns about safety.
Noticeable recent personality regression + change in behaviour- mum notices rude, disrespectful, tantrums defiant and referral to [Ms J].
Bed wetting worse in last 12 /12 okay by day.
Child declines GP examination of g/U/anal region.
Mum has spoken to DoCS, police, psychologist and lawyer now requests medical check.
Dr K referred the mother and E to Town A Hospital.
On that same day the mother and E saw Ms L at Town A Hospital. Ms L contacted JIRT and advised that E should have a physical examination after her interview.
On 21 March 2012 the mother was contacted by a detective from the JIRT team. She spoke to Detective N.
On 23 March 2012 the mother again initiated conversation with E and recorded her responses. All together there are about 25 minutes recorded on the mother’s phone in irregular sound grabs. It is apparent that the mother attempted again and again, to get the child to discuss what the mother regarded as sexual abuse allegations. The first conversation started at 9.30 am that day with the mother saying:
Mother:Are you able to tell mummy any about what daddy [the father’s given name] and [the father’s current wife’s given name] did?
Child:            Yes.
The child went on to describe that her father and his wife fought and swore, “they swear, every single day they swear”.
The mother bypassed the reference to swearing and pressed on:
Mother:         What else, what about what you told me. They play with   your butterfly. Tell me more.
Child:            No no.
Mother:         Are you able to tell me in detail what they do?
Child:            Not really.
Mother          Why?
Child:Because I’ll get in trouble. They’ll make me in trouble. [The current wife’s given name] said you’re going to go in jail.
The mother was clearly not content to accept the child’s answer that she really couldn’t say any more about the topic the mother wanted to raise. Seven minutes later at 9.37 am, the mother initiated a conversation again:
Mother:         Is what you told me the truth or not?
Answer:        Yes.
Mother:         You’re not in trouble
but followed it up with this:
Mother:         You’re not making it up just because you don’t want to go.
Answer:        No.
This compound question was impossible for the child to accurately answer with a yes or no response. Again the mother pressed:
Mother:         Can you tell me in detail what happened?
Answer:        Not really because dad will make me in trouble.
There followed more leading questions, for example:
Mother:         Do they touch you in ways that are uncomfortable.
Answer:         Yes.
Mother:         Do they use their fingers to touch you?
Answer:         Yes.
Mother:         What did they do?
Child:            Can we stop talking about this.
Mother:        I just want to find out what’s happening.
Child:            They do everything that’s bad.
There was a note of frustration even exasperation in the child’s voice as she said those words. The mother moved swiftly on to leading questions which suggested serious misconduct. The details were presented by the mother to the child.
Mother:Does daddy [the father’s given name] show you his privates? Does he do anything with his privates?
Answer:         Yes.
Mother:         Does he teach you to play with your privates your   butterfly?
Child:            Yes.
Mother:         What does [the father’s current wife’s given name] do?
Child:            She cooks.
The mother was not content with this answer:
Mother:         Does [the father’s current wife’s given name] do anything?
Child:            No.
Mother:         Does she touch you with her fingers?
Child:            Yes.
Leading questions continued and again references to whether or not the child was telling the truth. There were further conversations, apparently during the course of that day, including a revisiting by the mother of an earlier story which E is said to have told her grandmother. It was raised in earlier court proceedings. This story related to the child being “tied up” by the father’s current wife. Towards the end of these taped conversations the mother says this:
Mother:         Now is there anything else you can tell me about what   [the father’s current wife’s given name] has done?
Child:            No.
Mother:         What about things she said about mummy?
Child:            No.
Mother:When [the father’s given name] is touching you and he’s playing with his privates in front of you?
Child:            Yeah
Mother:         He’s never put his privates into you?
Child:            Nuh.
Mother:         That’s good. I’m glad he hasn’t………….
Whatever her state of mind, the mother must have known that her question about possible vaginal penetration should not have been asked, there being not the slightest hint of any such thing occurring. At the end of the tape there are these plaintive words from E, “Can I go now?”.
I formed the impression that the mother believed that her lack of expertise in asking questions was the reason that her questioning of the child was put in issue. That is not the problem. What the mother did was to introduce to E what the mother feared might have happened, in the form of propositions which the child agreed to through a combination of confusion, fear of consequences and a desire to give “the right answers”.

The first JIRT Interview

On 5 April 2012 E was interviewed by the JIRT team. She was interviewed together with her mother, who was present throughout, by two officers.
When E was asked to identify her family, she identified mummy, daddy (a reference to Mr Vieth), baby (F), sister (M). When pressed as to anyone else, she answered nan and pop then cousins, then Mr O (her uncle), then great grandma, then grandpa. She was prompted to say who she was referred to when she said daddy; she said Mr Vieth, I call him dad, then this:
Question:      Anyone else you might call dad?
Answer:         No.
Question:      Who’s [the father’s wife’s given name]?
Answer:         My step-mum.
Question:      Who is she married to?
Answer:         [The father’s given name].
Question:      [The father’s given name] is who?
Answer:         My real dad.
Question:      Tell me about [the father’s given name]?
Answer:         He plays with my butterfly.
This exchange shows in my view that E was extremely reluctant to mention her father or his current wife, although she was very well aware of who they were, and that they were part of her family. It is not a great stretch of the imagination to speculate that she was trying to avoid the topic about which she had already been extensively questioned by her mother over the previous two to three weeks.
The JIRT officers at that stage knew that E had told her mother some things but they did not have the details.
In this first interview E is asked what happens to her clothes when her father is said to be touching her.
Child:            Keep them on.
Question:      What are you wearing?
Answer:         Dress, undies.
Question:      Are your undies on or off?
Answer:         Kept them on.
Subsequently E gives different answers about her clothes.
There is then this passage:
Question:      What does [the father’s given name] say?
Answer:         Can you come into my room.
Question:      Where do you go?
Answer:         Lay down on his bed, plays with my butterfly.
At that point on the tape the child hugged her mother and put her head down on her mother’s chest. In fact the evidence is that this was a factual statement by E in the sense that both the father and his wife refer to getting E to lay on their bed to have cream applied, or powder or a nappy put on, on many occasions prior to March 2012.
E was taken back to the subject of clothes. She repeatedly stated that her father always had his clothes on every time, “he leaves them on.”
Towards the end of this first interview, the JIRT officer said to E, “People shouldn’t be touching you on the private part.” This statement could have been nothing but confusing for E, who has regularly been ‘touched on her private part’ for washing, for the application of cream and powder and because she suffers from eczema in the folds and creases of her body.
A Magellan Report[11] was prepared for these proceedings.
[11]Magellan Report dated 12/04/2013
In the Summary of Child Protection History there is this entry:
21 March 2012: Risk of Sexual Harm – Proceeded to Secondary Assessment (risk of harm) yes; Outcome - Substantiated.
In the Analysis section of the report there is a reference to the Interview on 5 April 2012 but not to the two subsequent interviews.
Clearly the JIRT team substantiated risk of sexual harm, on the balance of probabilities, from what E said in that first interview and perhaps also because “The father had no reaction when informed of the allegations” (there is no other apparent reason for including the statement in the report).
On 10 April 2012 a Provisional Order (ex parte) ADVO was made in the Local Court Town A for the protection of E from her father.
On 24 April 2012 the mother and her husband took M for review in the Paediatric Outpatient Clinic on a referral for paediatric delay. The mother told the Paediatric registrar “that there may have been possible sexual abuse (of [M]) by her biological father”.
She went on to report to the Doctor that E told her:
The father showed his private parts to both girls
He wanted both of the girls to touch his private parts
He touched both of the girls’ private parts
He did this when his current wife was absent
That his current wife did a similar thing to both of the girls when the father was absent, the difference being that she wears disposable gloves while the father does not
They (the father and his current wife) stimulate both girls until they have the desire to wee.
None of these allegations appear in the affidavit of the mother. E did not say those things to the JIRT team in interview. The mother had suggested some of those ideas to E in conversation /questioning and she had agreed to them.

Second JIRT Interview

On 28 June 2012 E was interviewed again by the JIRT team, this time by the police officer who had participated in the first interview. Again, the mother was present throughout the interview. E was very reluctant to respond to questions:
It seems apparent that the officer thought that there was more that the child should say. He reminded E that something had happened between herself, the father’s current wife and a chair. E responded that the father’s current wife read a story (in the chair) and described the story. This was the only light exchange in the interview.
Question:      Anything else in a chair?
Answer:         I played; nothing else.
Then this:      Things you told mummy, you don’t want to tell me.
Answer:         Yes.
Question:      Were they true?
Answer:         Yes.
Question:      Maybe another day you could tell me when you don’t have   a cough.
Answer:         Yes.

The ambiguity for E of the question, “there are things you told mummy you don’t want to tell me” is obvious in retrospect. It was very clear from E’s demeanour that she did not want to talk about her father and his current wife on the topics already raised at all.
The police officer was pressing for a disclosure. In my view E wanted the questioning to stop.

Third JIRT Interview

On 3 August 2012 E was interviewed for a third time, by a new interviewer. I have no basis for understanding why this interview took place, four months after the first interview.
Again E was asked about what clothes she was wearing, about her butterfly, where she was touched, whether it hurt her. For the first time E said when asked once again whether her clothes were on or off:
Off, he pulled my pants off. I said stop but he didn’t stop. He said I’m not going to stop ever.
It is undoubtedly the case that E was fabricating perhaps in an effort to say to the adults what she hoped it would take to create an end to the questions. It was clear in her response to the question,
Question: Was he doing anything else?
Answer: Noooo.. [extended in a very bored and irritated tone].
By now E was seen to be climbing on the couch, rearranging the cushions and showing every sign of frustration. She was asked:
Question: How many times it had happened that her father had played with her butterfly.
Answer: I think it was 18.
It was at this third JIRT interview that the mother made a statement[12] and supplied a copy of her own interviews captured on her mobile telephone.
[12]Exhibit 21
If the JIRT team had had the opportunity to listen to the extensive questioning that had taken place by the mother of E before the JIRT team conducted any interview, two things might have happened.
They undoubtedly would have understood that E had been led into stories and had had ideas suggested to her, which affected her own memory and responses. The second thing is that they may well have been prompted to ask the mother whether she had done any more questioning, unrecorded, between 23 March and this third JIRT interview.
The JIRT records disclose one substantiated Risk of harm for E.
On 30 August 2012 a final AVO against the father for the protection of E, was applied for and granted for a period of two years.
E was referred for sexual assault counselling, the mother was assessed to be protective and the father was listed as a person causing harm on the Community Services database.
On the basis of those assessments and the fact that Family Law proceedings were on foot the matter was closed.

Procedural History

On 11 February 2013 the mother filed an Initiating Application seeking very different orders than those that had been agreed between the parties previously, namely:
a)that the children live with her;
b)that she have sole parental responsibility;
c)that the father spend time and communicate with the children as agreed; and
d)that the mother be permitted to relocate herself and the children back to the Town B/Town I area of New South Wales.
The mother also filed a Notice of Abuse/Family Violence.
In that Notice the alleged abuse was said to be that the child E disclosed to the mother that the father and his wife had touched E in such a manner as to amount to sexual assault. The alleged risk of child abuse was said to be that the mother believed that the father’s behaviour as disclosed to her by the child E, demonstrates the existence of sexual abuse over a period of time. She asserts that there is therefore an ongoing risk of abuse for one or both children.
On 25 February 2013 that application was allocated into the Magellan protocol, an Independent Children’s Lawyer was appointed and there was a direction for a Magellan report. The father was directed to file a Response. The notations included the detail of the sexual assaults that the mother alleged. The father declined to enter into negotiations for interim consent orders until he had received legal advice.
On 12 April 2013 interim orders were made discharging all former orders and that the children live with the mother and the father be restrained from spending time with the children. The father consented at that time to the mother relocating with the children to the Town B/Town I area. The mother, her husband and all three children relocated forthwith.
On 30 May 2013 a family report was released indicating that E was suffering quite severely from the stress of the conflict between her parents and her involvement in three JIRT interviews during 2012.
On 12 June 2013 time for compliance for the father to file a Response was again extended.
On 25 June 2013 the father filed a Response seeking orders for the parents to have equal shared parental responsibility, communication for him with the children on a fortnightly basis via Skype, letters and cards and for the children to spend time with their father for two weeks in mid-term school holidays and four weeks during Christmas holidays, with the children to spend time with their father according to their wishes as they got older.
An interim order was sought that the mother not attend the workplace of the father. This is a reference to the fact that the father had permanent part-time work in Business Z and the mother and her husband and perhaps the children, were in the habit of doing their shopping there.
On 18 July 2013 the Magellan Registrar noted that she had been unable to ascertain the status of the investigation and/or prosecution of the father. The father wished to maintain his privilege against self-incrimination and did not wish the proceedings to progress until notification about prosecution and charges.
The father became aware that the State Crime Command Child Abuse Squad had advised that a brief of evidence had been forwarded to the New South Wales Police State Crime Legal Advice Service and advice was received that there was insufficient evidence to proceed criminally. The brief of evidence was forwarded to the Director of Public Prosecutions (DPP). The DPP advised that based upon the evidence available there was “no reasonable prospect of a conviction against [the father].” The police investigation relating to the alleged aggravated indecent assault of E by the father had been closed.[13]
[13]Exhibit 2
On 3 October 2013 the father filed an Amended Response seeking final orders that the children live with the mother, that they spend time with him for half school holidays and at other agreed times, and that the father and children communicate regularly by Skype, email and telephone.
On 4 October 2013 directions were made for the matter to be heard on the four days commencing 16 December 2013. The notations to the orders and directions were as follows:
The New South Wales authorities do not intend to prosecute the father in respect of former allegation of child sexual abuse.
The solicitor for the mother submits that the mother will not seek a specific finding against the father of his commission of child sexual abuse, but will instead contend that he represents an unacceptable risk of sexual abuse to the children.
On 28 October 2013 the mother filed an Amended Initiating Application. The significant difference was that the mother sought an order that the father spend no time and/or not communicate with the children. Subsequently the mother changed solicitors.
The father moved to Victoria for work. I accept that he felt unable to continue living and working in Town G. I have taken the unchallenged evidence of the father’s employer into account in coming to that conclusion.[14] As a consequence of moving interstate he lost his Grant of legal aid. The father represented himself at hearing.
[14]Affidavit of Ms P sworn 06/12/2013, p 2, point 8
On 4 December 2013 orders were made extending the time for the filing of affidavits by both parties.
On 16 December 2013 the hearing commenced but was delayed until midday on the second day due to late production of the JIRT Interviews. Accordingly the matter ran for a total of five days.
On 20 December 2013 (at 12:05pm) during the course of the oral evidence of the Family Consultant, the mother, through her Counsel, withdrew the allegations contained in the Notice of Abuse. Her stated position was that she was satisfied that there was not an unacceptable risk of sexual assault or harm to the children from the father and his wife.
On that day at the conclusion of submissions I reserved judgment. The parties were having discussions about how to reintroduce time and communication between the children and their father and step-mother. The father and his wife were due to return to Victoria on the following day in order to ensure a timely return to work by the father.
The matter was listed for mention on 28 January 2014 for information to be provided to the Court about what had taken place in relation to time spent and contact made.
On that day I was advised by all parties that, by arrangement between the parents, the two girls spent time with their father for six hours on each of two consecutive days, namely 28 and 29 December 2013.

The evidence

The parties relied upon the following documents:
(a)Amended Initiating Application filed by mother 28/10/2013;
(b)Notice of Child Abuse/Risk of Family Violence filed by mother 18/02/2013;
(c)Amended Response to Initiating Application filed by father 03/10/2013;
(d)Affidavit of mother filed 12/12/2013;
(e)Affidavit of Mr Vieth filed 12/12/2013;
(f)Affidavit of Ms Keffer filed 12/12/2013;
(g)Affidavit of Mr Keffer filed 28/11/2013;
(h)Affidavit of father e-filed 18/11/2013;
(i)Affidavit of Ms Camkin e-filed 18/11/2013;
(j)Affidavit of Ms P e-filed 06/12/2013;
(k)Magellan Report dated 12/04/2013;
(l)Family Report of Senior Family Consultant, Ms C dated 20/05/2013.

Ms Vieth, the mother

The mother is aged 30. She gave her evidence in a quiet, flat tone, answering “yes” or “correct” on most occasions. The mother was treated for depression and anxiety in 2011 and 2012, took medication and had counselling pursuant to a mental health plan. She attributed her depression, at least to some extent, to the relocation that was ordered at the end of 2010. I accept that that is likely both that she herself had found it difficult to cope with the relocation and that it had a negative impact on her daughters. It is likely that the negative impact came from the mother’s distress rather than the actual change of residence for the two girls then aged three and two. The mother herself attributed the children’s problems to the move, not to her change of mood.
On 13 September 2011 she had told Dr S that E had exhibited behaviour problems “since coming to [Town G]. Bed wetting, doesn’t listen to you, regressed behaviour, slow eating.” E was referred to Ms J Psychologist and the father was involved in that referral. Significantly that counselling ceased right at the Time when the first allegation was raised by the mother.
Without suggesting that the mother acted maliciously, she had come to the end of the counselling road for E with a psychologist. The evidence suggests that her reaction to seeing the children in the bath and her immediate thought that there had been sexual assault; was a coming together of her negative view of the father with her need to find a reason to shut him out of the children’s lives.
The mother readily made concessions. She conceded that E had at no time disclosed any sexual abuse to her psychologist Ms J. She did not seem to have a great degree of insight. In answer to a question from the Independent Children’s Lawyer’s Advocate about whether E was aware that the mother did not like the father, she said:
Mother:         I’ve tried hard to keep my emotions to myself. I believe   [E] is aware of feelings.
Question:      [E] is very much aware that you thought time with dad   was bad.
Answer:         No.
Clearly from the observation of Ms C that E told her that her parents fought over her and M all the time, “fight, fight, fight”, E very much knew that her mother thought time with the father was bad.
The mother reacted strangely at times. She gave flat tired responses. She agreed that she had not put any information in her affidavit about taping her conversations with E, although conceding the significance of the evidence. She was inclined to blame her former solicitor:
I gave a full chronological history to my former solicitor. I thought he would prepare an affidavit. He didn’t.
I do not accept this explanation. The mother changed lawyers and was able to give instructions for a full affidavit with annexures, which was filed in these proceedings. There is simply no reference to the mother’s interviews with the child. It may be that the mother had begun to understand that what she had done would not be regarded as helpful or appropriate:
I agree with some of my questions being leading due to my inexperience at asking questions.
Likewise the mother conceded that when she was talking to E about the allegations, that E had never said that anyone had “played” with her butterfly until the mother used that expression. In my view it is highly unlikely that E herself understood the adult implications of someone playing with her butterfly, rather than touching it. Both words have more than one meaning, including a sexual and non-sexual meaning.
The evidence also suggested that the mother does not have any particular knowledge of child development or age appropriate behaviour. She said she had been concerned prior to March 2012 about the children’s sexualised conduct, which she described in this way:
Dancing in a sexualised way and playing together, running around naked, playing with each other’s privates, M had her hand down her pants and one of the children had grabbed the private parts of her husband.
The mother had not included any of this information in her affidavit. The mother placed some emphasis on it being impossible for E and M to have seen anything that would lead to the conduct in the bath; that is M lying on E and kissing her on the face. There is no television in the mother’s home. The mother did not react to the proposition put by me that the conduct she had described might be normal childhood behaviour. I had the impression that the mother was going through the proceedings with a committed view that the father should be excluded from the children’s lives and if it could not be for the reasons relating to the sexual allegations, then it would have to be for another reason.
She appeared vague, flat and uninterested throughout most of her cross-examination. She either did not understand or was indifferent to the impact that it has had on the children both to lose all contact with their father and to be encouraged to a belief that he was a bad father, unsafe to be with.
In the same manner of calm denial, the mother conceded that she had agreed to an order that the children would not call Mr Vieth ‘daddy’ that they would only call their own father ‘dad’ or ‘daddy’.
Question:      You agreed to an order?
Answer:         Yes.
Question:      You failed to comply.
Answer:         Yes.
The mother’s attitude does not inspire any confidence that she will be more likely to comply in the future. Until her change of position on the fifth day of hearing the mother held the view that the father and his wife sexually molested both their daughters.
She agreed that E knew of a Safety Plan that had been put in put in place in this Court on 6 May 2013. She said she had had the impression that the safety plan was for the protection of the children, although later she had realised it was for her.
Implausibly she said that she believed that the safety plan would avoid the children coming to harm through the possibility of running into the father and his wife; that just seeing them again would do harm. She described the children as extremely scared, clinging on to her and needing that safety plan.
The mother readily conceded that she had been surprised by the positive interaction between the father and E reported in the family report. She also agreed that she had been angry and upset by the Family Consultant allowing that meeting between E and her father to take place. She said she was surprised about it because “[E] freaks out if she sees an orange car, she knows that [the father’s current wife] drives an orange car”.
I had the very strong impression that the mother does not draw a distinction between her own feelings, ideas and beliefs of the father and his wife, than the feelings, ideas and beliefs that E might independently hold about her father and step-mother. In my view the mother has not protected the children from her own fears.
The risk for E is that she will continue to pick up on her mother’s ideas and to please her, make them her own. For instance, E told the Family Consultant that her father and step-mother had “rocks in their head” and about her father, “he’s telling lies”.
The mother had a proposal in the event that the children lived with her and the Court ordered time with their father; nine days in the summer holidays and in the winter holidays. It may be that the flatness of her affect and apparent lack of interest reflected her belief that orders were likely to be made for the father to spend time and that however much she was against that, it was something she could not control.
The mother was asked questions by the father about the ADVO which was put in place in August 2012 for a period of two years. The father had been working at Business Z in the Town A area. The mother conceded that she and her husband had come into Business Z to shop from time to time.
Her demeanour in the witness box changed when answering questions from the father. She was somewhat dismissive of him and used a slow, emphatic, slightly self-righteous tone in her responses. Later in the proceedings, the father’s current wife gave evidence that in her view the mother was rude to the father, didn’t answer his genuine questions and put him down, “like he is a complete moron.” This evidence resonated with my observation of the mother’s response to the father in the witness box.
In re-examination the mother was asked whether, if there was a finding that the children were not at an unacceptable risk with the father and time was restored, she would be able to, with genuine and heartfelt praise, re-enforce that time with the father was a good thing.
Answer: I honestly admit it would be very hard.
Likewise in answer to a non-denigration order, the mother said she would try her hardest. She thought it would take E a long time to adjust to seeing her father again. In response to a question as to whether she could help E with that:
Answer: I could, although I would probably need assistance myself. If I could see they were happy and safe I could.
She was asked to concede that prior to the allegations of sexual abuse (March 2012) she had had no complaints about the Camkin’s household, as to the comfort, food, clothing and safety for the children. Her answer: “Clothing could have been better” reflected her overall negative attitude to the father and his wife.
The mother is deeply critical of the father and I accept that she would always have found it difficult to support the relationship between the girls and their father, even without the allegations having arisen.

Mr Vieth, the husband of the mother

Mr Vieth was a quietly spoken and cooperative witness. However his answer to many questions was that he could not recall the details, had no memory of particular events or that he was not good on dates. I do not consider that Mr Vieth was a dishonest or evasive witness; his evidence rather suggested that he had listened to what the mother had to tell him about her fears, but had not become directly involved. He was clear to say that E had said nothing directly to him by way of complaint about her father.

Orders which provide for the children to remain at their current school without the written consent of both parents or further order of the Court will be made. Orders for the father to have duplicate information about the progress and welfare of the children at school will be made.
Although the mother will make the majority of day to day decisions, it should be the case that in the long term areas such as health, education and religious instruction, both parents have an input. It will be significant for the children to understand that their parents will have some discussion, even if it is only by electronic means, about important matters in their lives as they grow up.
Accordingly, I do consider that equal shared parental responsibility is appropriate.
The recommendation of the Family Consultant was that one parent should have sole parental responsibility. However I take into account the fact that the mother withdrew her allegations and committed herself to the children spending time with their father soon after the hearing. I also take into account the statements made through her counsel that she would join with the father in undoing some of the protective measures that have been put into place for E which are not necessary.
Although the parents undoubtedly have negative feelings about each other for different reasons, I am not satisfied that they lack the capacity to cooperate as parents. They were able to do so post separation, up until the time that the application for the mother to return to the Town A area was successfully made.
Further, I am bolstered in this view by the capacity of each of the step-parents. When the parties went to mediation early in 2012 the four adults agreed that it would be the mother’s husband and the father’s wife that would affect the changeovers. They are responsible people with affectionate loving relationships with the children. Each of them will have a positive impact in encouraging their respective spouses to maintain professional and respective relationships for the sake of the children.
For all those reasons I have made orders for the children to remain living with their mother, to spend time with their father twice yearly, other than in 2014, when there will be a short additional period by way of consolidation of the reintroduction which took place at the end of December 2013.
The father will also have the option to visit the children in the Town B area on a further two occasions per year for up to seven days on each occasion. Whether the father will use this opportunity will depend on his finances and ability to obtain leave from him employment.
The relationship between the children and their father and step-mother needs prompt restoration and continuation.
Orders have been made accordingly.

I certify that the preceding two hundred and fifty-nine (259) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 13 February 2014.

Associate:

Date: 13 February 2014

[2014] FamCA 68

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness

Standing

Natural Justice