Sandford and Carne - [2012] FMCAfam 397

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANDFORD & CARNE

[2012] FMCAfam 397

FAMILY LAW – Interim arrangements for parenting of twins aged 10 – appointment of Independent Children’s Lawyer – allegations of sexual abuse – allegation of alcohol abuse – significant age gap between parents – psychiatric issues – allegations of parental alienation – assessment of risk – meaningful parental relationships – best interests.

Family Law Act 1975, s.60CC

Applicant:

MS SANDFORD

Respondent:

MR CARNE

File Number:

ADC 4688 of 2011

Judgment of:

Brown FM

Hearing date:

23 February 2012

Date of Last Submission:

23 February 2012

Delivered at:

Adelaide

Delivered on:

23 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr Hemsley

Solicitors for the Applicant:

Legal Services Commission of SA

Counsel for the Respondent:

Ms Horvat

Solicitors for the Respondent:

Jane Ekin-Smyth

Counsel for the Independent Children’s Lawyer:

Mr Bowler

Solicitors for the Independent Children’s Lawyer:

Ian Charman & Associates

ORDERS

Further consideration of the matter is adjourned to 29 March 2012 at 9:30am to enable the independent children’s lawyer to conduct further investigations into the matter.
The mother provide to the independent children’s lawyer an authority to enable him to obtain information from the mother’s treating psychologist Dr C, her DASA counsellor, Ms K and her attachment psychologist Ms W.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The children [X] and [Y] both born [in] 2001 live with each of their parents as follows:
(a)with the mother on each weekend from after school on Friday, commencing on Friday 24 February 2012, until school resumes the following Monday and to be subject to the conditions outlined in order 4 hereof; and
(b)with the father at all other times.
On condition that:
(a)the mother abstain from alcohol use in the period specified in order 3(a) and in the period 24 hours beforehand and continue to obey the directions of her treating general medical practitioner and psychologist regarding treatment from alcoholism and any other directions in respect of which she has been directed;
(b)the periods specified in order 3a hereof take place from 7.30pm until 6.30am either subject to the supervision of Ms M, Mr M or Ms J or those hours take place at one of those person’s homes; and
(c)the mother collect and return the children on each occasion they live with her to and from their school ([K] School).
The father is directed to provide to the Independent Children’s Lawyer an authority to enable him to obtain information from the children’s psychologist Ms A.
The parties be restrained and an injunction is hereby granted restraining them from discussing the matter in the presence or hearing of the children concerned.

IT IS NOTED that publication of this judgment under the pseudonym Sandford & Carne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 4688 of 2011

MS SANDFORD

Applicant

And

MR CARNE

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally, immediately following the interim hearing. Given the matter is proceeding further, the reasons have been transcribed.
Grammatical mistakes and errors in expression have been corrected and an attempt made to render the orally delivered reasons amenable to being read.
This afternoon, I have to deal with a difficult matter concerning interim arrangements for the care of twins, [Y] and [X], born [in] 2001.
The parties to the proceedings are the children’s mother, Ms Sandford, and their father, Mr Carne.
Ms Sandford commenced these proceedings on 9 December 2011. They were first listed before the Court on 9 February 2012.
On an interim basis, the mother seeks orders that the two children concerned live predominantly with her. In the alternate, she proposes that the children spend regular time with her on weekends and overnight on one evening of the school term.
In her affidavit in support of her application, she deposes that she was born in 1974 and Mr Carne was born in 1935. Accordingly, there is a significant age difference between the parties concerned. The mother is in her late 30’s. The father in his late 70’s.
It is reasonably common ground between the parties that they separated in September 2009 and, after the parties separated, the children lived mainly with their mother, at the former family home, which is in [omitted]. Mr Carne moved to a unit not far away. The children were attending [K] School.
In the middle of last year, it is also agreed between the parties that

Ms Sandford broke her ankle and was hospitalised. As a result of this accident, the children came into Mr Carne’s care and it is, I think, common ground between the parties that this situation has continued until the current time.
The father has responded to the mother’s application. He did so on 2 February 2012. In his affidavit material, he has raised very significant concerns about the mother. At an interim stage, it is his position that the two children concerned should live predominantly with him.
He would be opposed, at least in a formal sense, to the mother spending time with the children, at least until she provides more information about her mental health history and also provides physiological proof that she is not currently abusing either drugs or alcohol. In his application, Mr Carne also sought the urgent appointment of an Independent Children’s Lawyer.
When the matter first came before me, on 9 February, such an order was made. I am grateful that the Legal Services Commission has acceded to my request that the appointment be made urgently.
Mr Charman has been appointed as the Independent Children’s Lawyer. Today he has briefed Mr Bowler to appear on his behalf.

Mr Hemsley appears for Ms Sandford and Ms Horvat appears for

Mr Carne. Mr Charman is to be regarded as a party of equal importance, in these proceedings, to the parents concerned.
The mother, I think, was aware that the father has concerns about her previous psychiatric and drug and alcohol history. With her application, she provided a report from her psychiatrist, Dr C.
Dr C has been involved with Ms Sandford for a long time, since 1995, and it seems clear to me that Ms Sandford has a complex history of various symptoms and has been diagnosed with a variety of conditions, including depression, anxiety and what is commonly called OCD or Obsessive Compulsive Disorder.
It is also clear from Dr C’s report that, following the parties’ separation, the mother experienced some difficulties with alcohol abuse. As a result the mother has been prescribed drugs to assist her in abstaining from alcohol use. The extent of the mother’s dependence on alcohol is obviously relevant to the interests of [X] and [Y].
The circumstances surrounding the fracture of Ms Sandford’s ankle are controversial. As such, I am not in a position to make findings of fact about them. The implication of the father’s case being that she was intoxicated at the time. It is his case that he was justified in retaining the children following the mother’s injury.
Dr C in her report, which is dated 13 October 2011, points out something that is self-apparent from the facts which I have outlined thus far, but is nonetheless a matter of central importance in this case, although also one which must be approached sensitively. Dr C writes:
“I am aware that Mr Carne is considerably older than

Ms Sandford, and it is therefore important that the children have ongoing involvement and a relationship with their mother, who probably remains the best long-term person to support them in the current situation”.
Dr C also points out that there have been which she terms “attachment issues” between as Ms Sandford and the children, which are more significant in respect of [X]. As a result of these issues, Dr C points out that Ms Sandford has sought assistance from various agencies in the past but particularly from a person who is described as an attachment therapist, Ms W.
I have not received any detailed report from her, but, at this stage it is clear to me, I think, that there are some complex issues which relate to the relationship between [X] and his mother, particularly regarding

Ms Sandford’s suggested difficulties in restraining her emotions when [X] displays behaviour which is challenging for her to manage.
Again, Dr C points out something which is axiomatic but nonetheless important – that alcohol, as a substance, has a disinhibiting effect – and therefore is not a useful thing for a person in Ms Sandford’s situation, who has been involved with caring for two young and challenging children.
In this context, Dr C opines that it is important for Ms Sandford to be actively engaged in strategies to deal with alcohol abuse, so that she can maintain and consolidate her relationship with the two children concerned.
In this context, Ms Sandford has provided me with a report from Ms K, who is a social worker at DASA, which is the Drug & Alcohol Service of South Australia, which indicates that Ms Sandford has been attending counselling with Ms K with the goal of remaining abstinent from alcohol.
It is the mother’s position that the father is somewhat controlling of her relationship with the children. More importantly, in the overall context of the case, it is also her position that the relationship between her and the two children is highly significant to [X] and [Y], because it was she who was the children’s primary carer after the parties separated. As such, she is concerned that the father has, in effect, unilaterally withheld the children from her, following her accident and disrupted this central relationship for the children.
It is her evidence that she has wished to avoid legal proceedings, if possible, between the parties. As a result, there has been a process of mediation between the parties. It is the mother’s case, I think, that although Mr Carne ostensibly agrees to move the matter forward, as far as her re-engaging with the children is concerned, when it comes to putting matters agreed into effect, he reneges on those arrangements at the last minute.
Most recently the parties attended a conference at the Legal Services Commission on 18 November 2011. On this occasion, it was agreed that the mother would start spending time with the children on weekends from 10.00 am on Saturday until noon the following day. That time was not to be subject to any supervision.
It is common ground between the parties that this arrangement was not implemented successfully. This was the background to the mother commencing these proceedings.
The father’s position is, I think, essentially that Dr C, although her report is a useful one, has not been in a position to give a full history of the mother’s psychiatric condition. He points to the fact that Dr C, who is a mandatory reporter of child abuse – that means she is required by legislation to notify the authorities if she is concerned about children being subject to neglect, or abuse, or some form of ill-treatment – has, in fact, made such a notification to the authorities in respect of the children.
Accordingly, it is his position that although he would want the children to have a proper level of relationship with their mother, he has very significant concerns about her because of her psychiatric condition and its implication for the children.
Another very significant issue has arisen, which has effected the children spending time with their mother. The father alleges that the children have recently disclosed to him and other that the mother has subjected them to serious and protracted episodes of abuse, some of which is of a sexual nature.
During the presentation of his case, through his counsel, the father has indicated that he recognises that, given his age, there is a probability that he will not be in a position to parent these children into their teenage years as fully as he might want. As such, in those circumstances, he ostensibly acknowledges that it is imperative that the children have a strong relationship with their mother.
This was the background to the orders which were made on 9 February 2012, some of which I have already alluded to. At that stage, I also invited the Department for Families and Communities to intervene in these proceedings and, importantly, provide details of their involvement with the family.
It being common ground between the parties that the Department had indeed been extensively involved with the family, not least as a result of the notification of Dr C but also as a result of other notifications of potential abuse of the children.
The hearing of 9 February 2012 was a long and complicated one because, amongst other matters, I asked questions of Ms Horvat, who is counsel for Mr Carne, about the allegations of sexual abuse which had been raised and, importantly, had been referred to the South Australian police for investigation.
Mr Carne conceded that the police were not proposing to lay any charges against the mother and had closed their file. However, the police indicated that they were concerned about the familial situation pertaining to the children. What was the extent of their concern was not delineated.
It is Mr Hemsley’s position that there is evidence to indicate that

Mr Carne, in association with the children’s maternal grandfather,

Mr S, were acting to alienate the two children from their mother, which, given Mr Carne’s age, had the potential to be extremely deleterious to the children, as it may rob them of their only long-term viably functioning parenting relationship.
Mr Hemsley pointed to the fact that the allegations, which the children had allegedly made were lacking in specifics and context and vehemently denied. It also seemed to be the case that the police were not taking matters further.
The father’s position was that the matter, given the allegations raised, warranted a gradual and cautious approach, pending further investigation. On that basis, I made orders that the children would spend only three hours, on the weekend, with their mother. That time was to be subject to supervision by either the mother’s brother or sister-in-law, until further information was provided by Families SA.
I have now been provided with a lengthy report by Families SA. It is seven pages in length and indicates that the Department has been involved in terms of child protection concerns in 2002, 2011 and 2012. In summary, the report says that – and this is at January 2012:
“A comprehensive investigation of all concerns raised regarding the physical abuse of [X] and alleged sexual abuse of children by their mother was conducted. It was reported that there was no evidence to support any of the concerns, and no further police action will be taken. Despite this, SAPOL raised concerns for the children in the context of the current situation, in that there is a current custody dispute now in the Family Court, and in the light of no evidence to substantiate allegations, the children may be ordered to return home to their mother. Information provided suggests the children want to remain with their father.
The situation is very convoluted and complicated, given likely mental health issues of the father, his old age (76 years), and conflicting family dynamics. In light of the SAPOL investigation outcome, Families SA opinion is now also that the children have been subject of significant maternal alienation. However, Families SA nor the police have basis to oppose the children being returned to their mother, and have a degree of concern for the children in this situation, regardless of which of the parents’ households they reside in”.
That is the end of the quotation. The father and Mr S Senior have each filed further affidavits, and in particular, Mr S Senior has annexed to his affidavit what are said to be more specific accounts of the disclosures or abuse, which the children have made.
In his original affidavit, Mr Carne said that [X] had informed him that abuse had been going on for five or six years. However, he did not give any more details than that. He did however say that the children had made a disclosure to a psychologist that they had both been raped with a dildo by Ms Sandford (that is Ms Sandford). The psychologist, concerned, had referred the matter to the police.
I have not got any specific evidence from the psychologist concerned. Ms Horvat I think points to that lack of evidence as supporting her current submission that the court should act cautiously, given the obvious gravity of an allegation involving penetration of young children with a dildo.
More recently, as I say, Mr S Senior has provided what he says are documents, which have been compiled by the children themselves, which gives what is said to be the children’s account of what has happened to them in the past.
I should also say that I indicated to Ms Horvat, in court, on 9 February, my concerns about the lack of context for these alleged notifications of abuse, the detail, and the exact words used by the children concerned. Mr S Senior has now allegedly been able to supply this context through his engagement with the children.
It is, I think, clear to anyone who reads the documents concerned, which are computer generated that there is now a great deal of detail provided. [X] says that he was raped by his mother when he was seven years old, eight years old, and eight and a half years old. He, in the document concerned with him, uses quotation marks, punctuation, and other devices such as that.
[Y] talks of a history that goes back to when she was age six. She raises concerns about being exposed to pornographic videos, when she was seven. She has other serious criticisms of her mother.
Mr Bowler has been provided with this material fairly recently. He is concerned at the apparent sophistication exhibited in the documents concerned. As a result, Mr Bowler is somewhat dubious about the material, particularly in the context of Families SA’s concerns about the possibilities of the children being alienated from their mother. Those are concerns which are shared by Mr Hemsley.
Ms Horvat, no doubt on instructions from her client, submits that the children concerned are very intelligent children. I am told that they are computer-literate. In this day and age I accept that that is likely to be so.
It is also submitted that the only adult assistance provided in the compilation of the documents has been in terms of the spelling of professional people whom the mother has seen, including a gentleman by the name of Mr P.
I am also informed by Ms Horvat that there are other documents, which are in the children’s own handwriting, but they were not brought to Court today and have not been attached to the affidavit in question. Accordingly they are not before the court.
In many ways, this is a sad case because it is clear to me that the various aspects of [Y] and [X]’s family are now in vehement dispute with one another. In particular, Mr M, who is the son of Mr S Senior and the brother of the applicant, deposes as to his concerns about his father’s health, which, from his perspective, has some neurological component.
Whether there is or is not any truth to this assertion, I am not in a position to say at this juncture. Mr Carne himself refutes any suggestion that he has any mental health issues. Mr S Senior says that his health concerns relate to sciatica, and that there are no issues to do with his memory.
This is a very complicated matter for all sorts of reasons. At this point I think it is self-apparent that it is not appropriate for the presumption of equal shared parental responsibility to be applied, and I do not think either of the parties seriously argues that it should be.

Rather, in the context of a shortened interim hearing, where it is impossible for me to make findings of fact about the very many matters in dispute between the parties, what I have to do is focus on the section 60CC factors. They are the matters set out in the Family Law Act to which I must have regard in determining what is the best outcome for these children.
There are two categories of matters: primary considerations and a lengthier list of additional considerations. The two primary considerations are germane in this case. Firstly, I have to consider the benefits which will come to a child of having a meaningful level of relationship with both of his or her parents, and secondly, I must consider the possible psychological and physical consequences of exposing a child to neglect, abuse, or family violence.
It is the mother’s case essentially that these two children, because of the age of their father, have a pressing need to have a meaningful level of relationship with her, as she was, until the middle of 2011, their main provider of care.
Accordingly, she asserts that the Court needs to do something urgently and expeditiously to reinstate that relationship for the children. The father’s position is at this stage that the Court ought to give more weight to the need to protect the children from harm, given the issues raised by him about neglect and abuse.
In my view, this is a case about risk. I accept that there are risks in the mother’s household. It seems clear that she has a complicated medical history. It also seems clear that she has issues to do with alcohol abuse. I also accept that her relationship with [X] in particular has, at times, been troubled, so there are elements of risk there.
But there are also risks – and they are particularly acute, in this case – of the children losing a potentially viable relationship with their mother because the court places too much emphasis on the matters raised by the father and this results in [X] and [Y] becoming more and more estranged from their mother.
I am not in a position, of course, to ignore the allegations of serious sexual abuse which are raised in this matter. It is, of course, abhorrent to think that any parent would rape a child of tender years with a dildo. One’s natural reaction to such an allegation is abhorrence and disbelief, but sadly it is not unknown for parents to seriously abuse their vulnerable children.
So, for those reasons, the court is duty-bound to take such allegations seriously. But in this case, the allegations have been investigated by the police and no charges are to be laid. It would also seem to be the case, from the Families SA report, that the investigation has been an extensive one. It is described in the Department’s report as having being comprehensive, and nothing has come to light from it.
To the contrary, issues have been raised about the possibility of a process, initiated by Mr Carne, perhaps either a conscious process or even an unconscious one – I am not in a position to say, at this point – leading to the children’s relationship with their mother being undermined.
A balance has to be struck between these various, but different kinds of risk, with the aim of bringing about the best result for the children in this very difficult and complicated situation, at the interim stage.
I think it is significant that in the past, Mr Carne has agreed to the children spending time with the children, but following that agreement, more serious allegations have come to light which have been investigated, and to some extent, dismissed.
It is the father’s position that he would dearly love the children to go and spend time with their mother, but they refuse to, and there is some suggestion of that in the Families SA report. However, I note that the time I ordered on 9 February apparently took place, and from Mr M’s and Ms J’ point of view, what successful.
I think in terms of balancing the various risks involved in this matter, it would not be unacceptable if the children spent some time with their mother, including overnight time. In my view, this would be a proportionate response to the degree of risk that the night-time aspect of that time be subject to some form of supervision.
I am told that there are three potential supervisors available. They are Mr M, Ms J, or the mother’s aunt, Ms M. I am told by Mr Bowler that each of those persons is regarded by him as being responsible, and if, by any chance, the mother does drink or is not in a fit condition to be with the children, they would take some appropriate action.
Risk cuts both ways. I also think it is a proportionate response to the risk of the children being alienated from their mother that there be some overnight time.
So for all those reasons, it is appropriate to adjourn the proceedings to allow Mr Charman to investigate the matter further, and at this stage I propose essentially to make the orders which the independent children’s lawyer submits are appropriate, and which are acceded to by Mr Hemsley.
At this juncture, I do not think it is warranted to confine the mother’s time to daylight hours only. In reaching this conclusion, I am informed by the fact that she was the children’s primary carer until the middle of last year, and in terms of the children having a meaningful engagement with their mother, it seems to me that it would be useful if she is able to interact with them in an overnight setting.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 23 February 2012