Bartholomew and Karlson

[2012] FamCA 269

FAMILY COURT OF AUSTRALIA

BARTHOLOMEW & KARLSON [2012] FamCA 269

FAMILY LAW - CHILDREN - With whom a child lives - Where there are allegations of sexual abuse of the child by the Father - Where the parties consent to the child living with the Mother and spending time with the Father supervised by the Father’s new partner

Family Law Rules 2004 (Cth)

APPLICANT: Ms Bartholomew

RESPONDENT: Mr Karlson

INDEPENDENT CHILDREN’S LAWYER: Mr D Carter

FILE NUMBER: BRC 518 of 2012

DATE DELIVERED: 24 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 24 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Cooper Grace Ward Lawyers

SOLICITOR FOR THE RESPONDENT: Quinn & Scattini

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Lawyers

Orders

UPON THE FOLLOWING UNDERTAKINGS GIVEN TO THE COURT BY THE FATHER TO

(a)       not spend any time with D (born … May 2000) (“the Child”) other than that which is supervised personally by Ms M (the “Supervisor”); and

(b)       not shower/bath or change the Child’s clothes.

UPON THE FOLLOWING UNDERTAKINGS GIVEN TO THE COURT BY Ms M TO

(a)       supervise all time that the Child spends with the Father or the paternal grandparents.

THEN IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. Order 8 of the Orders made 9 March 2012 be discharged.

2. The Child live with the Mother.

3. The Child spend time with the Father (supervised at all times by the Supervisor) as may be agreed between the parties in writing, and failing agreement as follows:

(a)       For a period of three (3) months from the date of these Orders, every Sunday (commencing 29 April 2012) from 10.00 am until 4.00 pm. Further, during this period, the Father be at liberty to attend the Child’s … classes with the Supervisor held each Saturday.

(b)       Thereafter, every second weekend, from noon Saturday until noon Sunday.

1. Changeovers occur with the Father (in the presence of the Supervisor) or the Supervisor to collect the Child from the Mother’s residence at the commencement of the Father’s time with the Child, and the Mother to collect the Child from the Father’s residence at the conclusion of the Father’s time with the Child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bartholomew & Karlson 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 BRISBANE

FILE NUMBER: BRC 518 of 2012

Ms Bartholomew

Applicant

And

Mr Karlson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are parenting proceedings concerning the child, D, who is 11 years old, having been born in May 2000.

2. Briefly, the background is that D’s mother is 33 years of age and is a consultant living in Suburb B. The Father, who is 37 years of age, is a machine operator and resides in Suburb C. The parties commenced cohabitation in May 1998 and married in October 1998. They separated on a final basis in about October or November 2000.

3. The Father resided with the paternal grandparents following separation for approximately nine years, and he asserts that he was the child’s primary carer from separation from when D was four months old, but the Mother disputes that statement and suggests that she was D’s primary carer until consent Orders were made in 2004.

4. The parties entered into consent Orders regarding parenting on 16 June 2004. Those Orders provided for the child to reside with the Father. The child was to spend time with the Mother for approximately ten days per month, from 5.00 pm Friday afternoon to the following Monday at 8.30 am. There was also provision for the child to spend half of all school holidays with each parent. The Mother and Father were to be jointly responsible for making decisions affecting D’s long-term welfare, care and development. It does not seem to be in issue that until recent issues arose giving rise to these proceedings, that D spent time with each of his parents in accordance with those Orders.

5. Unfortunately, D suffers from some health issues. He has left-sided haemoplegia, and is described by his mother as having limited movement in his left hand, and he requires ongoing Botox injections to treat his muscle spasticity. There is evidence as to D’s “inappropriate behaviour” as it is referred to by the Mother, with his cousin, J, who I understand is about five or six years D’s junior. The Mother deposes in her material to disclosures being made to the Department of Child Safety in relation to J, which led to D and J being interviewed at a police station in or around November 2011. The Mother deposes that she was advised by a police officer that D had sexually interfered with J.

6. These proceedings were commenced by the Mother on 20 January 2012. Together with her Initiating Application, the Mother filed a Notice of Child Abuse or Family Violence alleging that, “On 4 January 2012, the child, [D], disclosed to the Mother, [Ms Bartholomew], that the Father, [Mr Karlson], had touched his (the child’s) ‘rude bits’. The child also demonstrated to the Mother the act the Father asked him to perform by rubbing his fingers on the Mother’s finger in a massage-like back and forth motion.”

7. By his Response, the Father sought, amongst other things, a recovery Order and interim parenting Orders, as set out in that document, which was filed on 29 February 2012.

8. The Mother filed an updating affidavit on 23 March 2012, setting out details concerning D’s attendance upon one Dr K, a psychologist, and there is an affidavit from Dr K before the Court. D was also taken by the Mother to a Dr E on 17 and 19 January 2012.

9. After D had attended those appointments, the Mother initiated the current proceedings. She spoke to the representatives of Suburb C Primary School where D attended, who apparently advised the Mother that because the Father was D’s legal guardian, she should not expect the school to communicate with her in relation to D and his education. As a result, the Mother made arrangements for D to attend Suburb B Primary School. D commenced there on 22 January 2012. The Father and his new partner, Ms M, attended at Suburb B Primary School on 24 January 2012 to collect D and then provided the school with a copy of the consent Orders entered into in 2004. In the event, the Mother deposes in her material that she remained at the school so as to prevent the Father from removing D. In the result, arrangements were made for D to return to Suburb C Primary School as at 8 March 2012.

10. This matter was designated a Magellan matter by Order of Registrar Brooks on 6 February 2012, and the Registrar then appointed an Independent Children’s Lawyer for D, and Mr Carter, who appears before me today, appears in that capacity.

11. On 9 March 2012, Justice Forrest made consent Orders in this matter which included an Order for a Family Consultant to interview the parties and D and to prepare a short form written Family Assessment, including an assessment of the risk issues, the forecasted application for supervised time and an assessment of D’s cognisance. The Independent Children’s Lawyer was requested to determine the status of any police investigations or assessments by the Department of Child Safety, and leave was given to the Independent Children’s Lawyer for the issue of various subpoenae. The Mother was obliged to provide a report from Dr K, which has been forthcoming in the hearing before me via his affidavit. There was also leave given to the Mother to subpoena Dr K to produce documents and provide evidence if that were necessary at this interim hearing.

12. Under those Orders, the Father was to spend supervised time with D at the F Contact Centre each fortnight, but was not otherwise to attend D’s school or spend time with him. The Father and his parents and other members of D’s family were at liberty to have telephone communication at times specified in those Orders.

13. Pursuant to those Orders, Mr P prepared a Family Consultant Memorandum to the Court that was made available to the parties yesterday. In short, Mr P observed that D had positive relationships with both of his parents, and that the “reunion” between the Father and D at the interviews was, in Mr P’s description, “…quite emotional.” Mr P observed, “My observations of D with his father were some of the more fun-filled, spontaneous and natural interactions I had seen in some time.” Mr P concluded from his preliminary assessment that the level of risk to D of the alleged sexual abuse was not high enough to warrant the, “…very important development need…” of the relationship between D and his father being, “…interfered with.”

14. Mr P recommended that the child remain living with his mother, but that D spend each alternate weekend with his father, including overnight time, with the Father’s partner, Ms M, to be present at such times.

15. In the result, the parties, with the assistance of their respective lawyers and that of the Independent Children’s Lawyer, Mr Carter, have been able to reach consent Orders on this interim hearing, which have been provided to the Court.

16. I am satisfied that those Orders, in the current circumstances, meet D’s best interests. I am also satisfied as regards r 10.15A of the Family Law Rules 2004 (Cth) as to those Orders appropriately dealing with the allegations of abuse that currently exist. In those circumstances, and noting those reasons, I therefore make the Orders by consent that have been signed by the parties, including the Independent Children’s Lawyer, upon the undertakings that have been expressed in those Orders.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 24 April 2012.

Associate: 

Date:  26 April 2012