Carsen and Arrow-Carsen

[2018] FamCA 233

FAMILY COURT OF AUSTRALIA

Carsen & Arrow-Carsen [2018] FamCA 233

FAMILY LAW – CHILDREN – Interim proceedings – With whom a child spends time – Parental responsibility – Presumption of equal shared parental responsibility – Prior allegations of sexual abuse – Where allegations have been investigated by child protection authorities and are not substantiated – Assessment of risk to children – No unacceptable risk of harm found in relation to either parent – Best interests of the child – Whether time spent with a parent should be supervised – Whether time spent can gradually become unsupervised.

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 65DAA

Deiter & Deiter [2011] FamCAFC 82 Goode & Goode [2006] FamCA 1346 Keats & Keats [2016] FamCAFC 156 Marvel & Marvel [2010] FamCAFC 101 MRR v GR (2010) 240 CLR 461 [2010] HCA 4 SS & AH [2010] FamCAFC 13
APPLICANT:	Mr Carsen

RESPONDENT: Ms Arrow-Carsen

FILE NUMBER: ADC 4871 of 2017

DATE DELIVERED: 17 April 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 4 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Douglas Hoskins Legal

COUNSEL FOR THE RESpondent: Ms Wood

SOLICiTOR FOR THE RESPONDENT: Black & Wood Divorce & Family Lawyers

INDEPENDENT CHILDREN’S LAWYER: Mr Stephen, Legal Services Commission of South Australia

Orders

1. (1)      That the children B and C, both born … 2013 (“the children”) live with the mother.

2. (2)      That the children spend time with the father as follows:

   a.(a)      Each Saturday from 9am to 5pm provided that the children’s time with the father is supervised by Ms D Carsen;

   b.(b)      That the parties forthwith instruct Ms E (“Family Practitioner”) to observe four (4) sessions of the children spending time with the father supervised by her (in addition to the time as provided for in Order 2(a) hereof) on the following conditions:

   i.(i)       That the father shall pay the costs of the observed interactions;

   ii.(ii)      That the four (4) sessions are to be undertaken at a time and frequency and upon such terms and conditions as may be determined by the Family Practitioner, but that in any event, to be completed by Friday, 18 May 2018; and

   iii.(iii)     That a report of the observed interactions be prepared on or before 4 June 2018.

   c.(c)      From 9am on Saturday 19 May 2018 to 12 noon on the following Sunday and from 9am on Saturday 26 May 2018 to 5pm on the following Sunday provided that the father’s time is supervised by Ms D Carsen;

   d.(d)      As and from 6 June 2018 from the conclusion of kindergarten (or 3pm if a non-kindergarten day) on Wednesday to the commencement of kindergarten (or 9am if a non-kindergarten day) on Thursday and each alternate week thereafter; and

   e.(e)      From 15 June 2018 from the conclusion of kindergarten (or 3pm if a non-kindergarten day) Friday to the commencement of kindergarten (or 9amif a non-kindergarten day) Monday and each alternate week thereafter.

f.(3)      That the parties exchange a communication book at handover.

g.(4)      That all handovers that cannot be conducted at kindergarten occur by the parent delivering the children to the other parent at the conclusion of that parent’s time.

h.(5)      That the father be at liberty to receive all information from the children’s kindergarten that parents would normally be entitled to receive and that the mother shall give all necessary authority required for the father to receive such information.

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 Carsen & Arrow-Carsen 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 4871 of 2017

Mr Carsen

Applicant

And

Ms Arrow-Carsen

Respondent

REASONS FOR JUDGMENT

Introduction

a.1.          The proceedings between Mr Carsen (“the father”) and Ms Arrow-Carsen (“the mother”) concern settlement of property and the future parenting arrangements for B (“B”) and C (“C”), both born in 2013 (collectively “the children”).

b.2.          By Further Amended Initiating Application filed by the father on 11 January 2018, he seeks final orders that the parties have equal shared parental responsibility for the children and that upon them attaining the age of six years they live with the parties on an equal shared care arrangement on a week-about basis.

c.3.          The father seeks interim orders that the children live with the mother and spend time with the father on a two week rotating basis as follows:

d.a)        In week one from the conclusion of kindergarten or 3pm if a non-kindergarten day on Wednesday to the commencement of kindergarten or 9am if a non-kindergarten day on Thursday;

e.b)       In week two from the conclusion of kindergarten or 3pm if a non-kindergarten day on Tuesday to the commencement of kindergarten or 9am if a non-kindergarten day on Wednesday; and

f.c)        In week two from the conclusion of kindergarten or 3pm if a non-kindergarten day on Friday to the commencement of kindergarten or 9am if a non-kindergarten day on the following Monday.

g.4.          By her Amended Response filed 28 March 2018, the mother resists the orders sought by the father and seeks that the children live with her and spend limited time with the father, initially supervised by a children’s contact service or a professional supervisor in each alternate week and in the intervening week the children’s time with the father to be supervised by supervisors nominated by the mother.

h.5.          The mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 5 February 2018 that alleges the following:

a.a)        The father has allegedly sexually abused the children by inserting objects into their bottoms; and

a.b)       The father would regularly walk around the house naked where the children were living and would fondle his penis and testicles in full view of the children.

Background

a.6.          The father was born in 1952 and the mother was born in 1972.

b.7.          The father has two adult children from a previous relationship.

c.8.          The parties met online in 2006 and gradually built up an online friendship. They met in person in 2007 when the father travelled to the South America to meet the mother. Following the mother obtaining a Visa, she travelled to Australia and the parties were married in 2009.

d.9.          The father asserts that the parties had a happy relationship and that he was entirely supportive and engaged with the parenting of the children following their birth.

e.10.        The mother alleges that the father was “ambivalent”  as to the children’s care and it was the mother who engaged in the management of a number of developmental issues affecting B.

f.11.        The mother contends that she held concern that the father consumed alcohol to excess which then resulted in his behaviour being more abusive and aggressive. In addition to this concern, the mother contends that the father would engage in behaviours that she considered were “strange and abnormal”. By reference to the mother’s Affidavit filed 5 February 2018, the following alleged behaviours are characterised by the mother as “peculiar” at [34]:-

(a)he would place his dirty underwear on the dining table;

(b)he would trim his pubic hair and place the trimmed hair on the dining table. When I would complain about this behaviour, he would respond by saying that he was doing this because ‘since the kids were born, I don’t take the time to trim his pubic hair anymore’;

(c)he insisted that I lose weight after the children were born because he ‘hates fat people’;

(d)he would regularly walk around the house completely naked and in full view of the children;

(e)he would regularly walk on the lawn outside our house completely naked and would fondle himself, as he would inside the house too;

(f)he would often stand naked by our bedroom window after he showered, and dry himself in full view of any passers-by;

(g)on an occasion when we were at a social gathering, he was dancing and would pinch the bottoms of other women in full view of the other persons present.

a.12.        The father denies the alleged behaviour.

b.13.        Of greater concern are the allegations by the mother that the father has sexually abused the children.

c.14.        Paragraph 41 of the mother’s Affidavit filed 5 February 2018 sets out the initial allegations that caused her to become hyper vigilant to the father’s interaction with the children. When undressing C, the mother noticed some spots on her panties that looked like blood. She then checked C’s vulva and saw some marks which she considered to have been made by finger nails. The marks were scratches and the area was red in appearance. The mother concedes that she did not raise the allegation with the father.

d.15.        The mother then sought to investigate what assistance she might obtain given her belief that the father may have sexually abused the children.

e.16.        She saw a priest, may have spoken to a counsellor and consulted a General Practitioner.

f.17.        At [45] the mother describes that whilst waiting to see the General Practitioner, C was asking to kiss her in the mouth and “she would also pick up a rubber door stop from the floor and was pushing it over her clothes on her vagina area”.

g.18.        C was the subject of a genital examination by the doctor and a vaginal swab was taken. It is conceded by the mother that the test results were normal, but she alleges that the doctor questioned her about the father’s character and his relationship with his adult children.

h.19.        The mother’s summary at [46] of the doctor’s advice was that she was told that the doctor “could find no cogent reasons for C’s vaginal irritation”.

i.20.        Paragraph 47 details that over one year later, on 12 November 2017 the family were returning from a barbecue. The mother alleges that the father was drunk and as she was preparing a meal for the children she observed the father stand on the lawn, drop his trousers around his ankles and play with his penis and testicles. The father’s conduct apparently was in plain view of the children. She later saw the father in the children’s bedroom. Both children were completely naked and playing on top of him and the father had a “bemused smile on his face”.

j.21.        On 14 November 2017 the mother alleges that B said to her that “its inside my bottom, its sore” and upon further enquiry, B allegedly revealed that with C’s assistance he had placed a toy “duplo piece” in his bottom and that “Daddy puts bigger things in [C’s] bottom”.

k.22.        The mother records C’s response as a denial of B’s assertion.

l.23.        The mother then arranged for C to consult with a Paediatrician and on 21 November 2017 she was taken to the F Hospital.

m.24.        Annexure “LJAC 1” to the mother’s affidavit is the report from the Paediatric Consultant. The letter confirms that the presenting problem was the mother’s allegation that C had been sexually abused; that C was a child at risk and the mother was advised to attend the police for further investigation.

n.25.        The Department for Child Protection (“DCP”) attended to the investigation with admirable urgency. The summary of their investigation and a determination that abuse had not been substantiated is encapsulated in the following paragraph taken from their letter of report to the mother dated 12 December 2017:

On 24 November 2017, the DCP workers met with [the father] to discuss the alleged concerns. [The father] indicated that the allegations were untrue and he appeared genuinely shocked by the allegations. After consultations with Child Protection Services (CPS) and South Australian Police (SAPOL) it was determined that due to no disclosures being made by the children, there was no further role for CPS to complete a forensic assessment of [C]. Further, the DCP do not have enough informaton (sic) to continue investigating the alleged concerns, is aware similar allegations were made in 2016, and question the motive of the allegations. The Department acknowledges that you are acting protectively of your children and doing what you feel is best for them. Given this information, the DCP assessed there was no further investigation required. As a result, the ground “SEX1 – Sexual act or exploitation” has not been substantiated.

a.26.        The father denies all of the mother’s allegations and considers that no uncertainty remains as to whether he presents any risk to the children.

b.27.        The father appears initially to have taken a non-confrontational approach and agreed to spend time with the children subject to supervision. The mother proposed that various friends, including the children’s godparents should supervise the father’s time with the children. Notwithstanding the agreement as to supervision, the time spent with the father has been limited.

c.28.        The mother struggles to accept that there is no substance to her belief that the father presents as a risk to the children and has sexually abused them.

d.29.        Paragraph 35 of the mother’s Affidavit filed 28 March 2018 sets out the mother’s current position:

A Child Protections Services investigation was carried out and the outcome of that investigation is now before the Court and I accept that no abuse of the children has been confirmed. I must now come to terms with that outcome and take steps to reconcile my own discomfort and concerns about the children’s wellbeing in the care of the father, in the light of this outcome. This will be difficult for me and I have always proceeded with the impetus to act protectively towards my children. I am unable to accept that the husband’s behaviour as detailed in my earlier Affidavit was innocuous or completely benign as that is simply not consistent with my own witnessing of it. I must, however, accept the outcome of the Child Protection Services investigation and there is nothing to support a finding that the children have been abused. It is my intention to seek the appropriate therapeutic support to enable me to reconcile my experience of the husband and of the events which occurred at separation with this information.

a.30.        There is no evidence to suggest that the mother has undertaken the therapeutic support that she clearly recognises is necessary.

b.31.        The mother’s counsel conceded that the contents of [35] were unequivocal. Whatever might be the current state of the mother’s belief, she accepts that no abuse has been confirmed and there is no evidence that is likely to be presented in the future.

c.32.        The consequence of counsel’s concession is that the father does not present as a risk to the children by reasons of sexual abuse or sexual assault.

d.33.        The mother does persist with her assertion that the father’s “peculiar” behaviour needs to be brought to account.

e.34.        No evidence is presented by the mother of whether her alleged observations are accurate that the behaviour could support a finding that the father presents as a risk to the children irrespective of the outcome of the Child Protection Services investigation that no abuse could be confirmed or substantiated.

Child responsive program memorandum

a.35.        The parties participated in an initial assessment conducted by Dr G  (“the Family Consultant”) on 27 February 2018.

b.36.        The Family Consultant was aware of the allegation that C had disclosed sexual abuse perpetrated by the father. She acknowledged that DCP considered that the key issue was the allegation of child sexual abuse and that following investigation the allegations were not substantiated.

c.37.        The father’s presentation of denial and distress at the allegation was consistent with his attitude during the initial investigation.

d.38.        Equally, the Family Consultant records the mother’s position that the children were at risk and she could not consider the possibility that abuse did not occur.

e.39.        She repeated her allegation with respect to the father’s exhibited “peculiar” behaviours and was challenged by the Family Consultant concerning her alleged observation of the father lying on the children’s bed with the children naked and “his jocks on, his pants down around his ankles” and a “face of satisfaction”. The point apparently being made by the Family Consultant is to question why the mother took no action then when faced with the father in an overtly compromising situation.

f.40.        At [19] of the Memorandum the following is reported:

The mother’s description of the alleged incident of sexual abuse was difficult to synthesise. The Duplo ‘sail mast’ incident would not be inconsistent with the children’s age and stage of development, in which exploration of their bodies (and other same age peers) occurs. That this alleged incident if it occurred as the mother described, took place in the toilet adds to the notion that the children may have been exploring their bodies together.

a.41.        The Family Consultant identified that the issue between the parties was that the mother considered the father presented as a risk to the children and was not prepared and could not accept the outcome of the DCP investigation.

b.42.        The Family Consultant considered that the dispute between the parties was intractable.

c.43.        The Family Consultant made four recommendations:

a.a)        That the children spend time with the father each Saturday from 9am to 5pm under the supervision of the children’s godparents, with the father to be at liberty to include members of his family during his time with the children;

b.b)       That the children spend additional time with the father at a children’s contact centre with an observation report to be provided or in the alternative that observed interaction be undertaken by a private practitioner;

c.c)        That the mother be restrained from taking the children to consult with any therapist; and

d.d)       That there be a family assessment to further assess the allegations and the children’s relationship with each of their parents.

Interim parenting

a.44.        In Marvel & Marvel [2010] FamCAFC 101 the Full Court considered the caution that should be exercised in interim proceedings. The issue of findings on contested evidence was considered 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 (s 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.

a.45.        In Deiter & Deiter [2011] FamCAFC 82 the Court considered an even more cautious approach should be adopted where the issue involved an assessment of the risk. The following appears at [61]:

The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. 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 on the evidence that is before the Court.

a.46.        Nonetheless, it does not mean that in an appropriate case it is not open to a Judge to be overly cautious and as the Full Court considered in Keats & Keats [2016] FamCAFC 156 at [9]:

… the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may 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. …

a.47.        The Full Court in Goode & Goode [2006] FamCAFC 1346 considered the principles applicable to parenting and interim proceedings and the principles have been reaffirmed by the High Court in MRR v GR (2010) 240 CLR 461..

b.48. Section 60B of the Family Law Act 1975 (“the Act”) outlines the principles underlying Part VII of the Act.

c.49. Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration.

d.50. The Court is then obliged to consider the provisions of s 60CC as to the primary considerations ins 60CC(2) and the additional considerations in s 60CC(3).

e.51. In particular, when applying the considerations set out in s 60CC(2), per s 60CC(2A) the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

f.52. Section 61DA of the Act provides that when making a parenting order the Court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility, but that the presumption does not apply where:

a.a)        there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence;

b.b)       in interim proceedings the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order; and

c.c)        the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

a.53. When the presumption applies and the Court makes an order for equal shared parental responsibility regard must be had to the operation of s 65DAA which requires the Court to consider whether equal time or substantial or significant time with each parent is in the child’s best interests and whether such time is reasonably practicable.

Parenting considerations

a.54.        There is little doubt that the children should have a meaningful relationship with both of their parents. The children’s relationship with their father is supported by the initial remarks of the Family Consultant and while the mother’s position remains mistrustful of the father, she concedes that he should spend time with the children albeit under strict conditions of supervision.

b.55.        Consideration needs to be given to whether the orders sought by the mother are justified by reference to the mother’s allegation that the father presents as a risk, either by reason of an allegation of sexual assault or from the mother’s observations of what she considers to be “peculiar” behaviour by the father.

c.56.        The father argues that there is no substance to the allegations and the mother’s clear concession that there is no evidence to support the allegation brings that aspect of the proceedings to an end. It is a relevant consideration that part of the basis for the DCP outcome that abuse was not substantiated was that the children did not make any disclosure. The mother’s counsel agreed that no other evidence was available or was to be presented either now or in the future.

d.57.        The river is unlikely to rise above its source and whatever the mother’s personal misgivings may be, it could not be said that the mother’s allegations were not taken seriously. They were the subject of apparently rigorous consideration by DCP and the police. The mother’s clear dissatisfaction with the outcome of the investigation is a relevant consideration in terms of how she presents, but in the absence of any evidence or identification of lack of diligence by the relevant authorities, it is reasonable to find that as matters are presently presented, the outcome of the investigation of a finding of abuse not substantiated should be given significant weight.

e.58.        The attitude of a party who holds a real belief that abuse has occurred, albeit without any justification for such a view, is a relevant consideration. The children are subjected to the conduct of their parents. The mother frankly concedes that the only way forward for her is to seek some counselling to assist her in reconciling her own fears and concerns with the reality of the circumstances that now face her. She has not undertaken any counselling and there is no indication either in her affidavit material or in submissions made on her behalf that she has engaged an appropriate therapist to assist her to regain some perspective.

f.59.        The recommendations of the Family Consultant were made prior to the mother’s Affidavit filed 28 March 2018 where the mother now recognises that she must accept the outcome of the DCP investigation and that she will seek appropriate therapeutic support.

g.60.        The mother’s observations of the father’s “peculiar” behaviour, even if they were to be unchallenged by the father, do not easily support a finding that the father may present a risk to the children. The father denies the accuracy of the mother’s observations and it could not be said that even if accurate the matters raised by the mother are of such moment that they “speak for themselves” as to the question of risk.

h.61.        The allegation of the mother that she observed the father lying on the children’s bed with the children naked was a matter considered by the DCP. There is some basis for the scepticism with which the Family Consultant viewed the allegation.

i.62.        Absent any evidence that would support a finding that the father presents as a risk to the children, careful consideration must be given as to whether there is a need for the father’s time with the children to be supervised and if that condition is no longer necessary then the extent of time that the children should spend with the father. I do not consider that the evidence supports a finding that the father presents as a risk to the children. It may well be a potential issue to determine the extent to which the children may be at risk if the mother is not able to reconcile her own view of the father with the reality that there is no evidence to support her fears and concerns. That position has not yet been reached, but at a relevantly early stage of the proceedings some regard should be had to giving the mother an opportunity to undertake the counselling she considers she needs to be able to properly support the children’s relationship with their father.

j.63.        That is more likely to assist the mother if it is taken in circumstances where the father’s time is the subject of supervision.

k.64.        The father has already indicated that he is prepared to cover the cost of a private practitioner to observe the interaction. I do not consider that it should require more than four sessions of supervised time with a report as to observations to follow.

l.65.        I do not consider there is any need for the father’s time to be the subject of supervision by the children’s godparents or indeed any other persons that may be nominated by the mother.

m.66.        The father relies upon the evidence of his adult daughter Ms D Carsen and having considered the contents and her previous involvement with the children, her presence will create a more natural environment for the children.

n.67.        At the conclusion of the four sessions of professional supervision thereafter the father’s time should be unsupervised and I propose to gradually increase the duration of the time the children spend with him.

Parental responsibility

a.68.        At this stage of the proceedings there appears to be no good reason why the parties should not enjoy equal shared parental responsibility. I do not propose that the presumption be rebutted or that it would be in the best interests of the children that the mother have sole parental responsibility.

b.69.        There is no good reason why the parties should not confer in respect of any major or long term issues that will affect the children. There is reason why the parties share information in relation to the children’s health, education, general development and wellbeing.

c.70.        In maintaining the presumption of equal shared parental responsibility the Court is obliged to consider whether the children should spend equal time with the parties, or if not in their best interests then significant and substantial time.

d.71.        By reference to the particular circumstances of this case, the orders that best suit the interests of the children are those necessary to maintain and foster a developing relationship between the children and their father but do so in a way that minimises the distress experienced by the mother until she has had an opportunity to obtain the necessary therapeutic assistance to place what has happened to the family consequent upon the parties’ separation in proper context.

e.72.        It is not in the children’s best interests that there be equal time or significant and substantial time at this stage of the proceedings.

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 17 April 2018.

Associate:     

Date:   17 April 2018