Simen and Simen (No. 2)

[2014] FamCA 752

FAMILY COURT OF AUSTRALIA

SIMEN & SIMEN (NO. 2) [2014] FamCA 752

FAMILY LAW – CHILDREN – Interim Orders – where mother alleges father has sexually abused the children – where father admits addiction to pornography but denies any suggestion of child pornography – father seeks to spend supervised time with the children – mother opposed to any face to face time with the father – where parties face a period of delay by failing to register with a Children’s Contact Centre as per previous orders – whether father should undergo psychiatric or psychological assessment – best interests of the children – father to spend supervised time with the children at a Children’s Contact Centre – father’s time to be conditional upon therapeutic assessment of his admitted pornography addiction.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69

APPLICANT: Ms Simen

RESPONDENT: Mr Simen

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 1344 of 2014

DATE DELIVERED: 10 September 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 8 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dibden

SOLICITOR FOR THE APPLICANT: Franklin Legal

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Mellor Olsson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

UPON NOTING that the parties have now complied with paragraph 7 of orders made 28 May 2014 in that they have sought enrolment in the B Contact Centre program.

Orders

1. If after the assessment intake procedure, B Contact Centre is unable or unwilling to provide supervision of time THEN each party and the Independent Children’s Lawyer has leave to restore the matter for hearing before Justice Berman on 2 days written notice to the other party and to the Court.

2. If after assessment the parties are accepted by B Contact Centre as suitable for supervised time, MR SIMEN is to spend time with M born … 2008 and P born … 2011 for two (2) hours each fortnight on six (6) separate occasions at times nominated by the Director of B Contact Centre.

3. The periods of time to be spent provided for in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holidays and in such event, time will be spent at times when the service can be provided by the said Centre.

4. That the commencement of supervised time as provided for in paragraph (2) herein shall be conditional upon the father undergoing a psychological and/or psychiatric assessment and the publication of a report in respect of the said assessment directed to the following matters:-

   ·Could it be properly said that the father had an addiction to pornography;

   ·What is the implication for such addiction in respect of a party’s ability to discharge their parenting obligations and whether there are any child protection issues that arise other than the obvious namely, to ensure that a child does not come into contact with pornographic material;

   ·If an addiction to pornography can have adverse parenting consequences, then does the father still suffer from an addiction to pornography;

   ·If so, what is the appropriate treatment, management or recognised therapeutic approach;

   ·To the extent that the mother is concerned that the father has engaged in child pornography and the father denies that allegation, are there any psychological or behavioural indicators or markers in his presentation which is suggestive of a predisposition to child pornography;

   ·Whether the father poses a risk to the children;

   SUBJECT TO the following terms and conditions:-

   (a)   The identity of the psychologist/psychiatrist shall be as nominated by the Independent Children’s Lawyer;

   (b)  That the cost of such assessment shall be paid for by the father.

   (c)  That the assessment shall be undertaken as soon as is practicable.

5. That the children shall communicate with the father by telephone, electronic means or in writing upon such terms and conditions as the parties may agree.

6. That until further order the mother be restrained and an injunction granted restraining her from facilitating the involvement of the said children or either of them with any psychologist, psychiatrist, counsellor or therapist or any organisation involving such practitioner SAVE AND EXCEPT as to any single expert appointed by the Independent Children’s Lawyer, or as may be agreed.

7. That the proceedings are adjourned to 9.15am on 18 day of February 2015 for hearing (45 minutes allowed).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simen & Simen (No. 2) 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 ADELAIDE

FILE NUMBER: ADC 1344 of 2014

Ms Simen

Applicant

And

Mr Simen

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Following orders made by me on 28 May 2014, the proceedings were adjourned to enable the parties and children to attend upon an appropriately qualified expert to undertake a family assessment and to cause a report to be published prior to the adjourned date namely, 8 September 2014.

2. The parties attended upon Ms F psychologist on 11 July 2014 and exercising the discretion given to her pursuant to paragraph 4 of orders made 28 May 2014, the assessment included observed interaction between the father and M born in 2008 and P born in 2011 (“the children”).

3. Ms F has published a report of the observed interaction and her assessment dated 18 August 2014 which appears as Annexure A to the affidavit of the Independent Children’s Lawyer (“ICL”) filed 28 August 2014.

BACKGROUND

1. I have had regard to my reasons for judgment contained in Simen & Simen [2014] FamCA 345. I do not propose to repeat the matters set out therein.

2. Other than the Family Assessment Report, the husband filed an affidavit of his aunt, Aunty S who offers to be a supervisor of any period when the father would spend time with the children.

3. I expressed a preliminary view that if ultimately the Court considered it was in the best interests of the children to spend time with the father, then it would likely occur in the environment of a children’s contact centre and not private supervision.

4. On the adjourned date, counsel for the father did not press the immediate involvement of Aunty S.

5. Unfortunately, and not withstanding paragraph 7 of orders made 28 May 2014 neither the mother, but in particular the father acted with any alacrity in seeking their enrolment and that of the children at “the [B] Contact Centre Program or such other centre as the mother may nominate”.

6. On the last occasion, it was considered that the Court would be assisted by a Family Assessment Report. One of the possible range of options would be for a formal resumption of time between the father and the children, but at first instance in the secure environment of a children’s contact centre.  It was understood by all counsel that the enrolment period can take 12 weeks.

7. The effect of non-compliance with my order is that there is no evidence whether the parties and the children would be successful in their enrolment and if so ordered by the Court when observed time could reasonably commence.

8. It is entirely possible that the delay in enrolling in the centre may be significant.

MATTERS IN ISSUE

1. Paragraph 3 of my orders restrained the mother from “facilitating the involvement of the said children or either of them with any psychologist, psychiatrist, counsellor or therapist, or any organisation involving such practitioner save as may be ordered herein”.  That order was during the period of the adjournment.  The father and the ICL seek that the order be extended, whereas the mother seeks that there be no impediment to her ability to access appropriate intervention from health professionals. 

2. The substantive issue however is whether having considered the Family Assessment Report and the submissions of counsel on behalf of the parties and the ICL, an order should be made for the children to spend time with the father.

3. Given what has been said, the focus is narrow, namely, if the father spends time with the children it will only be under the strict supervision environment that a Children’s Contact Centre can provide.

4. A third issue arose during the submissions namely whether either by way of separate assessment or conditional upon the parenting orders being made, the father should undergo some form of psychological and/or psychiatric assessment as to matters that might be germane to the preparedness of the Court to put in place parenting orders that would see the father and the children coming into contact with each other.

5. The issue was raised by me in my reasons for judgment in response to a submission then put on behalf of the ICL that the father provide a report as to the therapeutic involvement that he has undertaken in relation to his “addiction to pornography”.

6. Obliquely, Ms F considered that the father should address some aspects of his conduct namely, his attitude towards his niece G and comments made by him over social media.

7. Ms F formed the view that “this suggests an inability to manage himself emotionally, put his own needs to the side and to be sensitive to his niece’s vulnerability and experiences as a child and now young woman even if he believes her claims were unfounded”.  Ms F considered that the father may gain assistance from seeing Mr H or Mr I of J Counsellors.

8. I reiterate my view that I do not have the jurisdiction to require the father to undergo psychological or psychiatric assessment as a “self-standing order”.

9. I do have that power where such an order would be ancillary to a parenting order made.

10. The preferable approach would be for the father to adopt a proactive stance and to place material before the Court which would lend weight to his contention that notwithstanding the matters raised in the proceedings, they either have no basis or do not adversely affect his ability to parent the children.

11. The father has filed no further material and accordingly, I will need to decide whether to accede to the submissions of counsel on behalf of the ICL that an order enabling the father to spend time with the children would be supported if it was supervised within the environment of a Children’s Contact Centre and the father would undergo appropriate assessment directed towards his admitted pornography addiction and how this would impact upon parenting, the reliability of his current position namely, that he is no longer subordinate to his addiction and whether he has any propensity to view child pornography.

12. The issue raised by Ms F, whilst tangential to the matters before the Court nonetheless may be of relevance in that it targets the father’s level of insight into his behaviour and the effect that it has on others.

REPORT OF MS F

1. Ms F records that the central issue is the allegation that the father has sexually abused M.

2. The mother’s formal position is recorded as follows:-

   [The mother’s] formal application is for no face to face contact between the children and their father.  In her interview with me during this assessment, however, she said that she recognised the possibility of supervised contact.

3. In her interview with the mother, Ms F recorded that the father had last had contact with M (and P) in July 2013.  The children had spoken to their father by phone but even this contact had ceased in January 2014.  Accordingly, as at the date of the assessment and observed interaction, the father had not spent time with the children for about 11 months.

4. There was uncertainty as to the attitude of M seeing her father.  The mother was uncertain whether M would be “capable” of seeing him.  The mother related a history of M having nightmares and ongoing distress.

5. It was also recorded by Ms F that the mother had been taking M for counselling.  It was suggested that M was seeing a counsellor at school but not in relation to allegations of sexual abuse but rather, bullying.  The mother reports that the child expressed fears and concerns that her father would “take her away”.  This conversation occurred in the context of the mother trying to explain the basis for the injunction restraining her from taking the child to any further counselling or therapy.

6. It is convenient to record the mother’s evidence in paragraph 38 of her affidavit filed 11 April 2014 namely, that M was referred for counselling and therapy to Ms A of D Psychologists to assist the child “with her anxiety about the abuse, her behaviour and confidence, and so she can feel safe again”.  It may be the case that M is the victim of bullying at school and if so, without knowing more, it may well be appropriate for M to receive some assistance from the school counsellor.  The focus of the order of injunction and restraint is in respect of the therapeutic process engaged in between the child and Ms A in circumstances where it could not be said that there is a proper basis for the therapeutic involvement.

7. It would appear that the child has continued to make further disclosures since the CPS Report.  Ms F records at page 5 the following:-

   She said that he has penetrated her bottom.  She drew pictures of it last year.  The picture was of her in bed and [the father] was whispering in her ear.  A few months ago [M] was scared to go to bed which is uncharacteristic for her.  [The mother] that [the father] doesn’t know where they live and they have security dogs.  [M] said “but Daddy whispered in my ear that he was going to hurt you and [P]”.

8. There was also a point where M said she was thinking about it that much that she could feel the father hurting her down there.

9. The mother reports that the child continues to be disturbed and distressed even to the point where M was upset at learning that she would have a male teacher and on one occasion she was not able to listen to the news because the newsreader sounded like the father.

10. The mother has kept diaries of M’s behaviour and reported to Ms F that the child has taken the opportunity to write on a chalk board the words “I don’t like Dad” and as a note of explanation to a drawing made she recorded “I don’t love Dad he hurt my heart”.  The mother is disturbed by the depressing pictures drawn by M depicting the father smashing her dinner and ripping out her heart.

11. When spoken to, M reported that she hadn’t seen her father because he had hurt her.  She says she thinks about it a “medium” amount of time but when asked how she would feel about seeing him said “but I want to see him…maybe I will give him a hug or a kiss”.

12. It is clear that M senses her mother’s anxiety about the father, but when pressed the child was clear that she would not be upset by seeing her father and that it would be “good”.

13. The observed interaction between M and the father was demonstrably warm and affectionate.  She was comfortable in his company and there was mutual and appropriate affection.  Ms F records that M seemed relaxed and not upset or scared.  For his part, P was happy to be in his presence.

14. M reported that it was fun to see her father and she was “excited and happy”.

15. Importantly, M reports that “I nearly cried when he go-ed.  I really missed him.  It was really fun…I forgot how lovely he was, how he looked, how he smiled, I missed him”. At the conclusion of the interaction and her report to Ms F, I accept that M was happy and not distressed.

16. At paragraph 2.6 of the report, the following is recorded:-

    I told [the mother] what [M] had said to me and she said she knows that supervised visits with [the father] are a possibility.  When I asked her who would supervise, she said she is fine with doing it.  She said she has never ruled it out and she is worried about the custody issue.  [The mother] also said that she has no doubt in her mind that abuse has occurred and the emotional impact is huge.  She doesn’t want to grow up hating [the father] and she doesn’t want [M] to hate him.  She is open-minded and her daughter’s needs come first, even though it hurts.  Other options for supervision would be her dad and her mum.

17. It would seem that the mother is not trenchantly opposed to the children spending time with the father providing they are safe and protected.

18. The father’s position is that whilst he continues to strongly deny that he has acted inappropriately with M, or that he accessed as a matter of deliberate action sites involving child pornography, he did admit that he had an addiction to pornography and that he would require to engage in that activity every day.  He now says that he has gained some insight into his behaviour.  He maintained that he had always been very hands-on with the children and to the extent that M demonstrates distress this is more likely to be caused by his removal from their life rather than an indication that he has acted inappropriately.

19. After the assessment, the mother contacted Ms F and advised her that M had reverted to nightmares and wearing knickers in the bath.  She reported that M had told her mother “she missed Dad and that she cannot stop thinking about him hurting her”.  As a result of the mother’s observations of M’s anxiety and distress following the observed interaction, she is now not so certain that there would be any advantage in the father spending supervised time with the children.

20. P impressed Ms F as “a delightful little boy who seemed happy and well-adjusted”.  It is interesting that P understood the allegation that the father had done something to M.  It is surprising that at his age he would have any understanding of those matters unless he had been told of them.

21. Ms F was presumably asked to comment on the likelihood of sexual abuse having taken place.  She considered information that she had received which strengthened the claim of abuse but then, considered the information that weakened the claim of abuse.

22. She found the father to demonstrate remarkable naivety and/or poor judgment in respect of his reaction to the allegation of sexual assault made by his niece, his acquittal and the inappropriate comments made by him over social media.

23. Ms F was clearly of the view that the father at the very least lacks insight into his behaviour.

24. Ms F opines that the Court should take a cautious and careful approach to the matter and is of the view that there remains considerable uncertainty as to the voracity of the allegations of sexual abuse, then this is a case where the Court should strive to maintain a meaningful relationship between the father and the children but in circumstances where their safety is paramount.

25. At this stage there has been no evidentiary rigor to the allegations of sexual abuse and it is likely that this will need a trial to enable the Court to determine the extent to which, if any, the father may present an unacceptable risk to the children.

26. The relationship between the children and their father was startlingly positive.  That does not mean that that in and of itself is an indicator that the father poses no risk to the children, but rather it reinforces the obligation that must be fulfilled namely, to promote a meaningful relationship between the father and the children but only in circumstances where they can be protected both physically and emotionally.

27. I am also alive to the need for the mother to be supported in order that she can provide the best ongoing care that she is capable of.

28. These proceedings are not likely to reach a final hearing for many months and it is therefore important to craft orders that ameliorate the potential for the important relationships between the parties and the children to be further damaged by the sheer efflux of time.

RELEVANT PRINCIPLES

1. In interim proceedings involving parenting issues, I have regard to what has been described “the legislative pathway” in Goode & Goode (2006) FLC 93-286. Because of the truncated nature of the proceedings, reasons may be short and obviously the Court has not had the opportunity to hear the parties on their oath. I have regard generally to the following matters:-

   (a)The competing proposals of the parties;

   (b)The identification of the issues in dispute;

   (c)The identification of any agreed or uncontroversial facts;

   (d)The matters that are relevant in Section 60CC but in particular taking into account the primary considerations and then the additional considerations;

   (e)There are no issues in respect of the presumption in Section 61DA that it is in the best interests of the children for the parties to have equal shared parental responsibility in circumstances where there is an allegation of sexual abuse and the other factors referred to such that the Court would not consider it appropriate to apply the presumption.

1. The parameters of the dispute are narrow.  The father concedes that if he is able to see the children it will only be under the most strict supervision and if that is the preferred approach then whether there will be further or other conditions attached to his time in respect of any assessment that may be directed to the father’s ability to discharge his parenting obligations given his admitted addiction to pornography, his perceived lack of insight in respect of the reference to his niece and whether there is any aspect to his presentation that would adversely affect his parental role.

2. I am mindful of the tension between Section 60CC (2) (a) and Subsection 60CC (2) (b).

3. It is also timely to be reminded of the High Court’s decision in M & M (1988) 166 CLR 69 which highlights the relevant principles where an allegation of unacceptable risk is made:-

   In proceedings under Part VII of the Act in relation to a child, the Court is enjoined to “regard the welfare of the child as the paramount consideration” (Section 60D).  The paramountcy of this consideration in proceedings for custody or access is preserved by Section 64 (1).  The consequence is that the ultimate and paramount issue to be decided in the proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.  The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, although the Court’s finding on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that case… In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima face in a child’s interests to maintain the filial relationship with both parents; cfJ v Lieschke (1987) 162 CLR 447 at pp 4450, 458, 462, 463-464.

   Viewed in this setting the resolution of an allegation of sexual abuse against the parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child…In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.

CONCLUSION

1. I have weighed the risks of abuse, but also have had regard to the mother’s claim that after the observed interaction the child displayed adverse and anxious behaviour.  I am also mindful that the mother in her capacity as the primary carer of the children needs to be supported in that role.

2. The children however have clearly missed their father and providing they can be adequately protected, the focus must be on preserving the filial relationship between the children and their father to avoid the possibility that the inherent delay in this matter reaching trial does not become a self-fulfilling prophecy.

3. In all the circumstances, the children should spend time with their father but in the setting of a Children’s Contact Centre for six visits.

4. The ICL and the mother are properly concerned as to whether the father has taken steps to put into context his admitted pornography addiction and his demonstrable lack of insight in respect of the treatment of his niece post acquittal. The father has not been proactive in dispelling these concerns.

5. There would seem to be no good reason why the Court should not consider that the time between the father and the children is likely to be more beneficial if the mother’s fears and concerns are at least to some degree given proper regard.

6. In that respect, I propose to make the resumption of the father’s time with the children conditional on him obtaining an assessment as to the following matters:-

   ·Could it be properly said that the father had an addiction to pornography.

   ·What is the implication for such addiction in respect of a party’s ability to discharge their parenting obligations and whether there are any child protection issues that arise other than the obvious namely, to ensure that a child does not come into contact with pornographic material.

   ·If an addiction to pornography can have adverse parenting consequences, then does the father still suffer from an addiction to pornography.

   ·If so, what is the appropriate treatment, management or recognised therapeutic approach.

   ·To the extent that the mother is concerned that the father has engaged in child pornography and the father denies that allegation, are there any psychological or behavioural indicators or markers in his presentation which is suggestive of a predisposition to child pornography.

   ·Whether the father poses a risk to the children.

7. The issues raised are not matters indicative of mental health issues.  They are behavioural and whilst they may have less relevance in respect of time that the children will spend with their father under supervision of a children’s contact service, the proposed assessment may be more central to the father’s ultimate goal which is to resume a normal arrangement where he spends significant and substantial time with the children without supervision or condition.

8. I propose to order that the ICL can nominate the assessment process that he considers the father should undertake.

9. I propose to continue until further order the restraint on the mother from facilitating the involvement of the children with any psychologist, psychiatrist, counsellor or therapist.

10. Accordingly, I make orders as set out at the commencement of these reasons.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 September 2014.

Associate: 

Date:  10 September 2014