SIMEN & SIMEN

[2014] FamCA 345

FAMILY COURT OF AUSTRALIA

SIMEN & SIMEN [2014] FamCA 345

FAMILY LAW – CHILDREN – Magellan – Interim Orders – with whom a child spends time with – allegations of sexual abuse – pornography addiction – mother sought orders preventing the father from having ‘face to face’ time with the children – father sought limited supervised time with children – best interests of the children – limited information before the Court – preparation of a Family Assessment Report during period of adjournment.

Family Law Act 1975 (Cth), s 68L

Family Law Rules 2004, r 2.04D

L & T (1999) FLC 92-879

APPLICANT: Ms Simen

RESPONDENT: Mr Simen

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 1344 of 2014

DATE DELIVERED: 28 May 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 27 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dixon

SOLICITOR FOR THE APPLICANT: Franklin Legal

COUNSEL FOR THE RESPONDENT: Mr Childs

SOLICITOR FOR THE RESPONDENT: Mellor Olssen

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Lindsay

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

Orders

1. That further consideration of the proceedings be adjourned to 9.15am on 5 September 2014.

2. That until further order the children of the marriage M born ... 2008 and P born … 2011 live with the mother.

3. That during the period of the adjournment 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 as may be ordered herein.

4. That the parties and the children do attend upon and at the direction of the Independent Children’s Lawyer an appropriately qualified psychologist or family consultant for the purpose of the preparation of a Family Assessment Report with such assessment to include at the discretion of the nominated practitioner, interaction between the father and the said children.

5. That at the conclusion of the assessment and observed interaction (if any) the said practitioner shall cause a Family Assessment Report to be completed and released by 27 August 2014.

6. That the parties shall each be responsible for one half of the costs and disbursements incurred in relation to the assessment and report.

1. That within 7 days of the date of this order the parties do all such things and sign all such documents as may be necessary to cause their enrolment and that of the said children in the B Contact Centre Program or such other Centre as the mother may nominate.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simen & Simen 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. The matter comes before me in respect of interim orders sought by Ms Simen, (“the mother”) as contained in her Initiating Application filed 11 April 2014.  The proceedings relate generally to parenting issues in respect of M born in 2008 and P born in 2011 (“the children”).  A summary of the orders sought by the mother are as follows:-

   (1)That until further order the children live with her.

   (2)That an injunction be granted restraining Mr Simen, (“the father”) from having any face to face contact time with the children.

1. Those interim orders can be seen against the background of the final orders sought namely that the mother have sole parental responsibility for the children, that they live with her and importantly, that there be no contact between the children and the father.

2. By Response filed 20 May 2014, the father seeks orders that are summarised as follows:-

   (1)That the children live with the mother.

   (2)That the parties have equal shared parental responsibility.

   (3)That the children spend time with the father as may be agreed between them but in default of agreement as follows:-

   (a)From 12 noon to 4pm each Saturday at the residence of the father’s Aunty S under her supervision;

   (b)By telephone or skype each Wednesday at 6pm;

   (c)Such other times as the parties may agree.

3. The hearing before me was the first time that the matter comes before the Court for a substantive hearing.

BACKGROUND

1. It is noted that on 16 April 2014 Registrar Paxton made orders for the children to be independently represented and that the appointment of an Independent Children’s Lawyer (“ICL”) pursuant to Section 68L of the Family Law Act 1975 (Cth) (as amended) be expedited. Further, consequent upon the mother filing a Notice of Child Abuse pursuant to Rule 2.04D of the Family Law Rules 2004, the Registrar ordered that the Department for Education and Child Development (“Families SA”) be requested to prepare a report as to the allegations contained in the said Form 4 Notice.

2. In addition, leave was granted to the ICL to issue a subpoena to Families SA for the production of their file and generally granted to the parties and the ICL to issue such subpoena to produce documents as they be advised with the issue of inspection and copy to be considered by the Magellan Judge.

3. Accordingly, at the hearing the parties were represented and counsel appeared for the ICL.

4. A short history of the matter is as follows:-

   … 1983         Date of birth of mother

   … 1984         Date of birth of father

   2001              Date of commencement of cohabitation

   … 2006         Date of marriage

   … 2008         Date of birth of M

   … 2011         Date of birth of P

   20.5.2013     Date of separation

5. The application of the mother is supported by her affidavit filed 11 April 2014 together with an affidavit of the maternal grandfather filed on the same date.

6. A summary of the mother’s evidence is that on 17 May 2013 the police attended at the family home with a warrant to search the premises.  The focus of the search warrant was to look for and if found, seize evidence of child pornography and child exploitation.  The father was not present.

7. Whatever the interaction was between the mother and the police, it was clearly highly distressing.  Ultimately and following an investigation, there were no charges laid by the police against the father.  But as a sequelae to the investigation it is alleged that the father admitted he had “an addiction to pornography”.  It appears that the father was aware that the investigation may have had as its focus child pornography, but his response is a denial that he has ever accessed such material.

8. Soon after the father’s return, the parties separated and there then followed interaction between the mother and Families SA which she says ultimately required the Department to be satisfied that she was able to appropriately supervise and protect the children.

9. For a period of time the mother supervised visits between the children and their father.

10. She describes the arrangement in the following terms:-

    [21]In the following few weeks, I was doing supervised visits with the children and the father and his parents were spending time with them.  Visits would consist of outings for dinner, a trip to the movies and other public activities.

11. On the mother’s case, Families SA was satisfied that she was being “a protective mother” and closed their investigation and involvement with the matter on 7 June 2013.

12. Shortly thereafter the mother alleges that the child M made a disclosure of sexual abuse.  The allegation is that on 3 July 2013 M disclosed that on an occasion that the father had bathed her there had been “the spider in the bath”.  It apparently went up her leg and into “the hole”.  M reported that it really hurt.

13. The mother attempted to place the matter into a chronological context and at paragraph of her affidavit she suggests that it may have occurred on or about 9 March 2013 when she went out with her girlfriends leaving the children alone with the father.

14. The mother acted promptly in reporting the matter to the police.  The child was subsequently seen by Child Protection Services (“CPS”) at C Hospital.  The mother says that following the disclosure the child began to wet the bed, commenced wearing underpants in the bath, would have nightmares and would talk about the father hurting her.

15. There then followed a period of what appears to be a confusing presentation by the child to the mother.  On 3 October 2013 the mother records that the child said to her “I fibbed about it all”.  The mother subsequently records that the child went on to make a further disclosure namely that “her Daddy had kissed her and cuddled on her “[BB]” (which is the word we use for vagina)”.

16. Following these further discussions with the child it appears the mother ceased to allow M to spend any time with the father.

17. It appears that notwithstanding further disclosures made by the child in February 2014 and the subsequent reporting of same by the mother to the Child Abuse Hotline, Families SA have declined to take the matter further.

18. The mother sought assistance from her general practitioner Dr N on or about 20 January 2014.  Annexure “B” to the mother’s affidavit contains a mental health assessment conducted by the doctor which lists the problems as “abuse, sexual, child, victim”.  As a social history it records the following:-

    In July 2013 [M] disclosed to her mother, father using his finger and pushes into her vagina and was very painful.

    On 17/5/13 detective was investigated [M’s] father for child exploitation.

    Families SA May 13, want to take [M] and [P] away from [the mother].  Closed file at present – proven mother was protective.  Another new file was opened when [M] was disclosed with child sexual abuse.

19. By way of a “mental status examination” conducted on or about 17 January 2014 it was recorded that the child “felt sad because father really hurting her, feels his hand”, but was “too young but [M] wants to talk to someone to help her overcome her fear”.

20. Accordingly, a mental health treatment plan was prepared by the doctor with a diagnosis that the child suffered from post-traumatic stress disorder (“PTSD”), does not want to dream about her father hurting her and “reduce her thought of her father injured her”.

21. The child was subsequently referred for counselling to Ms A of D Psychologists to help her with “anxiety about the abuse, her behaviour and confidence and so she can feel safe again”.

22. The mother’s position in respect of any time that M should spend with the father is to be influenced by whatever advice the psychologist may ultimately provide.

23. Whilst there was some issue as to whether the child was being seen by Ms A for purported sequelae following sexual abuse, I am left in no doubt that the only purpose for Ms A to see the child arises from the disclosures of abuse made by her.

24. Whilst there appears to have been initially some agreement between the parties, the mother alleges that the father began to react aggressively to not spending any time with M and to having his residual telephone contact with P terminated in or about March 2014.

25. The mother has clearly become vigilant in respect of any attempt by the father to communicate or contact the children and on her case, given that the father has not been charged by the police and there is not any ongoing investigation by Families SA or positive finding of sexual abuse by Child Protection Services, there has now been engendered a level of hostility between the parties and their respective extended families.

26. The mother’s position is that whilst she does not rule out there being a stage in the future when the father might resume supervised visits with the children, she needs to be satisfied that they will be physically safe and emotionally protected when seeing their father.

27. For his part, the father responds to the allegations of the mother in his affidavit filed 20 May 2014.

28. When advised of the police raid, he admits that he had an internet pornography addiction.  His concern arises from a possibility that he “had inadvertently and unknowingly accessed pornography that contained images of children”.

29. He makes a denial that he has ever knowingly accessed child pornography and whilst he has a pornography addiction, he now recognises the problem and has sought some psychological intervention to modify his behaviour.

30. The father confirms that as far as he is aware there is no ongoing police investigation.

31. He denies the mother’s allegations and in particular that there is any suggestion he has interfered with the child M.

32. It seems that whilst the parties had at least some arrangement whereby the father could remain in contact with the children, he was prepared to not press significant time with them.

33. Of assistance is a report prepared by Ms E of CPS dated 5 May 2014.

34. The general conclusion of the investigation is to be found in the final paragraph of the report:-

    Given the opinion held by the CPS, it was difficult to map a pathway forward for the future of [M], as well as [P’s] relationship with [the father].  [The mother] reported that [M] had continued to maintain her perception that she had been hurt by [the father] in the manner described and had provided additional worrying information about her experiences with her father since the CPS interview of her.  It was also indicated by [the mother] that [M] had continued to display emotional and behavioural difficulties following her disclosure of sexual abuse for which she was now being provided with a therapeutic service at [D Psychologists] to begin to address these difficulties.  Alongside of this, [the father] denied the sexual abuse allegations which had been raised against him by [M] and he refuted and minimised the concerns about his engagement in activities relating to child exploration material.  As such, [the father] did not convey that he was of the opinion that he required specialised therapeutic intervention to address the concerns raised by [M] about her interactions with him and which were held about his behaviour.  Given this, and the fact that [M] had already attempted to raise her perception of her experience with [the father] and he had refuted any knowledge of this, it was difficult to see how [M] and [P’s] emotional and physical safety could be ensured with any future contact by [the father].  It was considered that careful consideration of [the father] would need to be undertaken that an independent assessment of [M] and [P’s] needs may be required to assist the Family Court to make decisions in this regard.

35. The father’s position in respect of the report is that he denies that it was proper for the report writer to have regard to what she described as “activities relating to child exploration material”.  Whilst the father is prepared to admit an addictive involvement with internet pornography, he denies that it includes child pornography.  He further denies that any of the materials initially seized (but later returned) or viewed by the police as part of their search and seizure, was in any way referable to “child pornography”.  Obviously that is a matter for evidence and potentially expert opinion as to pornography addiction may impact adversely on the parenting of the children.

SUBMISSIONS

1. By oral application made by the father’s counsel, there was effectively a concession that the Court was unlikely to accede to an order which would see the father’s time with the children being supervised by “Aunt [S]”.  It was however submitted that it would be appropriate for the Court to make an order that the father see the children within the security as offered by a Children’s Contact Centre.  Without making a determination on this point, it was conceded by all parties that this was at least an option.

2. It was further argued on behalf of the father that the Court should obtain an independent assessment of the children’s needs and this met with the ready approval of the ICL and the mother. It also is a part of the recommendation in the CPS Report.

3. An enquiry as to the availability of supervised time by a Children’s Contact Centre revealed that in the relevant area (where the mother apparently resides), the waiting list is between 12 and 18 weeks for inclusion in the program.

4. Given that it was not pressed that I should make an order that would see the father spending time with the children other than in the setting of such a program, an appropriate way forward was to seek the advantage of an assessment report, require the parties to do all things necessary to enrol in the relevant Children’s Contact Program, but to adjourn the matter for further consideration to a date when the foreshadowed report can be made available and prior to the contact program commencing.

5. Effectively the parties and the ICL were in agreement as to a way forward.

6. The area that remained under challenge was whether an injunction should be put in place which would restrain the mother from taking M to any further appointments with Ms A.

7. At present M attends upon Ms A for one appointment each month.  There is no evidence as to how long that process is intended to be undertaken.  Consistent with my earlier findings, I am confident that the focus of the interaction is directly related to the allegation that M has been the subject of sexual abuse at the hands of her father.  Whilst the evidence is scant, I do not consider that there is any adverse consequence to the child that is likely to flow from the cessation of the child’s appointments with Ms A or indeed, any other health professional save as may be necessary for the day to day routine medical needs and requirements of M and P.

CONCLUSION

1. I propose to make the orders sought to apply during the period of the adjournment noting that on that basis it has the support of the ICL.

2. Counsel for the ICL sought an order that the father provide a report as to the therapeutic involvement that he has undertaken with his psychologist seeking treatment for his “addiction to pornography”.

3. I do not consider that I have the ability to make an order that would require the father to either attend upon a psychologist or, undergo therapy and order a report to follow.  In L & T (1999) FLC 92-879 the Full Court comprising Kay, Brown and Coleman JJ said:-

   [51]Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order.  The Court’s power to make any orders in circumstances such as these has to be found within the confines of Section 65D (1), 67ZC, 68B or 114.

4. That said, it is clearly a matter for the father to present and promote his case in the best light.  There is clearly a focus by the mother on the father’s admitted addiction to pornography and whilst it may well be a live issue as to the inter-relationship between such behaviour and any proposed parenting order sought, nonetheless positive action on behalf of the father may assist in removing some of the inherent uncertainties that currently exist.

5. I note that counsel for the ICL sought leave to issue further subpoena to organisations other than Families SA.  Whilst I am not adverse to granting leave, particularly to a subpoena as may be directed to SAPOL, I note that leave has already been granted as contained in the order of Registrar Paxton made 16 April 2014. 

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

I certify that the preceding fifty two (52)) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 May 2014.

Associate: 

Date:  28 May 2014