ATKINSON & ATKINSON
[2013] FCCA 2439
•1 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATKINSON & ATKINSON | [2013] FCCA 2439 |
| Catchwords: FAMILY LAW – Children – interim parenting arrangements for three month old baby – unacceptable risk – departmental involvement – allegations of family violence. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CG, 60I, 61C, 61DA, 65DAA(5), 68B, 69ZA, 69ZB, 69ZN, 69ZT Evidence Act 1995, s.81 |
| Goode & Goode (2006) FLC 93-286 Johnson & Page [2007] FamCA 1235 Deacon & Castle [2013] FCCA 691 Green & Graham [2011] FamCAFC 248 |
| Applicant: | MS ATKINSON |
| Respondent: | MR ATKINSON |
| File Number: | PAC 4343 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 1 November 2013 |
| Date of Last Submission: | 1 November 2013 |
| Delivered at: | Albury |
| Delivered on: | 1 November 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Fioni of Legal Aid NSW Parramatta Family Law |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Matthews Folbigg Pty Ltd |
| Solicitors for the Independent Children's Lawyer: | Mr Meehan of Jpm Legal |
ORDERS
Discharge all prior orders with respect to the child X born (omitted) 2013.
X shall live with his Mother.
X shall spend time with his Father each Tuesday, Wednesday, Thursday and Sunday between 9.30am and 2.30pm.
For the purpose of changeover the Mother shall deliver X to the home of Ms F at the commencement of time and collect X at that address at the conclusion of time.
The Father shall collect X from the home of Ms F at the commencement of each period and provided that:
(a)The father shall be and is hereby restrained from being at, upon or within 100m of the home of Ms F between 9.15am and 9.45am and 2.15pm and 2.45pm each Tuesday, Wednesday, Thursday and Sunday; and
(b)The Father shall thus collect the child from his sister in law Ms F at or no earlier than 9.45am or 2.15pm.
Pursuant to section 68B of the Family Law Act 1975 the parents shall be and are hereby restrained from contacting or communicating with each other save to strictly relate to the welfare of X and comprising matters of his health and not otherwise.
Each parent shall keep the other advised at all times of any significant illness or injury suffered by X and to allow each parent to be advised of treatment of X.
The proceedings are adjourned to 9.30am on 6 February 2014 for further directions.
Note the parties propose to consider whether a Part 15 Report is required and if so seek to agree upon an available author, funding and timeframe for completion of such a report so that orders can be submitted to the Court and failing that on the next occasion a section 62G Family Report will be ordered.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Reserve the costs of the Independent Children’s Lawyer of and incidental to the interim hearing today.
THE COURT NOTES THAT:
The above order pursuant to section 68B is an order to which the provisions of section 68C of the Family Law Act 1975 apply and thus any Police Officer of the Australian Federal Police or any State or Territory Police Officer is satisfied that either parent has acted in breach of any order they shall be authorised to arrest that parent without further order or warrant and to then detain him/her until he/she can be brought before this Court and be dealt with under the provisions of the Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Atkinson & Atkinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
PAC 4343 of 2013
| MS ATKINSON |
Applicant
And
| MR ATKINSON |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications on both an interim and final basis with respect to a very young child, X born (omitted) 2013. X is three months of age.
The parties to the proceedings are X’s parents, being his mother, Ms Atkinson, who is the Applicant, and his father, Mr Atkinson, who is the Respondent.
This is the second interim determination of the proceedings within the space of a fortnight.
The proceedings were commenced by Application filed on 10 October 2013. Together with that Application an Affidavit and a Form 4 Notice of Abuse was filed. The Application was served upon the father on the following day, namely, 11 October 2013.
When the proceedings came before the Court on the first return date, 16 October 2013, both parties were present and represented. The father had not filed material at that time.
Material has now been filed by both parties and I will, in due course, identify all of the evidence considered by me.
On the first return date 16 October 2013, the parties were referred to a Family Consultant for the purpose of a Child Dispute Conference. A conference Memorandum was completed that day. The matter then proceeded to interim hearing and on the basis of oral evidence given by both parties and particularly so with respect to the father, absent written material. An interim determination was made and the proceedings were not concluded until nearly 7pm.
As a consequence of the age of this child and thus the urgency attached to determination of issues with respect to not only his best interests but, in this case, his welfare and safety, the proceedings have been afforded some real expedition.
Following interim hearing the matter was adjourned for a period of about two weeks and has proceeded today by video-link between the Albury and Parramatta Registries.
The Legal Aid Commission is to be thanked and commended for having assisted in facilitating the appointment of Independent Children’s Lawyer within that timeframe. The Court has been greatly assisted by the Commission and by the Independent Children’s Lawyer appointed.
An invitation was issued to the Department of Family and Community Services New South Wales to intervene. The Court is advised by the Department that they do not propose to intervene and thus the matter proceeds without their intervention.
On 16 October and when that request was made it was noted within the orders issued that the invitation was extended on three bases, namely:
a)On the evidence of the parties, if each were to be believed, neither party is an appropriate custodian – that is the terminology of the protocol between the Court and the Department;
b)The mother alleges a significant history of coercive, controlling violence by the father towards her;
c)The father alleges significant emotional/psychiatric disturbance of the mother, including the perpetration by her upon him of family violence and the infliction by her upon herself (her gaining the assistance of others in conspiracy to inflict injury upon her) of marks, bruises and other injuries such as to manufacture false allegations with respect to the father and including allegations that the mother had caused sufficient injury to herself such as to induce a miscarriage.
Even with that matrix of factual controversy each party asserting that the other is, in accordance with their applications and evidence today, an unsafe placement for the child and, indeed, unsafe to spend time with the child absent supervision, the Department has declined to intervene, that is with respect to the health and safety of a three-month-old child.
Material considered
In dealing with the proceedings today, I have read and considered the following documents and evidence.
In the mother’s case, I have read and considered:
a)Her Initiating Application and Affidavit, both filed 10 October 2013;
b)A Form 4 Notice of Abuse filed the same day; and
c)The mother’s Affidavit sworn or affirmed 30 October 2013.
In the father’s case, I have read and considered:
a)His Affidavit of evidence-in-chief filed 28 October 2013;
b)An Affidavit of Ms A, sworn or affirmed 28 October 2013; and
c)A Form 4 Notice of Abuse filed by the father 30 October 2013.
I have also had the benefit of case outline documents from each of the parties which have been read and considered.
I have read and considered the Child Dispute Conference Memorandum produced 16 October 2013.
There are also a volume of documents which are tendered in these proceedings and comprising:
a)Exhibit R1, a transcript, handwritten, of a chain of text message communication between the mother and a person identified as “(omitted)”; (whether (omitted) is one and the same as Ms A is unclear but probable);
b)Exhibit R2, being a statement by the mother as to both the preparation of which and its contents there is significant controversy;
c)Exhibit R3, a confidential psychology report prepared by psychologist Ms H and dated 12 September 2012.
Each of the documents R2 and R3 are also introduced into evidence as annexures to the husband’s material. All of the above had been tendered on 16 October 2013.
There are 12 further exhibits arising from today’s address of the matter and comprising the following:
a)Exhibit 1, a summary of COPS event entries produced by New South Wales Police;
b)Exhibit 2, a COPS event entry with respect to events on 23 September 2012;
c)Exhibit 3, a COPS event entry with respect to events 8 October 2012;
d)Exhibit 4, a COPS event entry created 5 August 2012 and relating to a number of suggested events;
e)Exhibit 5, handwritten notes, it would appear from a doctor or possibly several, the relevance of which is not readily apparent;
f)Exhibit 6, correspondence from the Department of Family and Community Services signed by case worker Ms D and Manager Casework Ms C and addressed to a Dr S. The letter does not appear to be dated;
g)Exhibit 7, an assessment document produced by (omitted) Hospital;
h)Exhibit 8, file note from the Department of Family and Community Services relating to an interview with the mother 18 October 2013. That note has assumed some significance as will be canvassed shortly;
i)Exhibit 9, a number of documents including four pages of clinical progress notes dated 13 February 2013;
j)Exhibit 10, a contact record from the Department of Family and Community Services and which would appear to be dated or created October 2013. It is also of some significance and will be returned to shortly;
k)Exhibit 11, an injury trauma and illness record produced by the preschool at which the young child X attends. It is to be noted that the author of that report is Ms A, who has sworn an Affidavit in the father’s case. The owner of the centre and, thus, employer of Ms A is the father. He has also signed the document as the child’s father; and
l)Exhibit 12, an assessment record from the Department of Family and Community Services dated 16 July 2013.
Issues
Significant issues arise in these proceedings relating to allegations of family violence. They are relevant in the case of both parties.
The mother asserts that she has been the victim of substantial and significant coercive, controlling family violence occurring throughout the relationship and, as would be apparent from the notation included within the orders 16 October 2013, to the extent of having caused or contributed to a miscarriage or death of a foetus.
The father does not cavil with the above event but denies any wrongdoing on his part as regards family violence. He asserts, as would also be apparent from the above notation, that the mother, through her own actions or in concert with others, has perpetrated injury to herself and that any injury that the mother has ever experienced has been caused by her or others and fabricated in that fashion so as to found false allegations against him.
The father asserts as a consequence – and appropriately so, in light of that allegation – that the mother must suffer from some form of mental or emotional disturbance, presently undiagnosed, but clearly suggested to pose a risk to the child. Counsel for the father, who has conducted the father’s case eruditely, suggests there are four bases for a finding of unacceptable risk to the child in the mother’s care or her unsupervised care, comprising:
a)The mother’s emotional instability and probable underlying mental health condition;
b)Serious concerns with respect to her behaviour, no doubt connected with the above or at least in part;
c)The suggested inconsistent and manufactured allegations of family violence; and
d)The suggested abandonment by the mother of children. One of the COPS event entries, an exhibit in the proceedings, related to an occasion when it is suggested that the mother had abandoned her three elder children from a previous relationship and left them without adult supervision. It is also suggested the mother has abandoned this young baby at different times and, indeed, the suggestion is, in the father’s case, that the child was delivered into his care on the date that the parties separated, on his allegation, being 10 August 2013. The mother suggests that the date of separation was significantly later and on or about 23 September 2013.
Ms A’s evidence
The father points to the corroboration of portions of his allegations by independent evidence from Ms A who addressed events known to her, particularly conversations between her and the mother and to which the father has not been a party. Thus the evidence would largely relate to admissions and be admissible as an exception to the hearsay rule pursuant to section 81 of the Evidence Act 1995.
I am urged to accept Ms A as a witness of truth and to thus accept her evidence as corroborative of the father’s position. It is important and instructive to consider her evidence, significant as it is.
Ms A has sworn an Affidavit of some four pages and 22 paragraphs.
Ms A suggests that, since March 2013, she has known both of the parties, both as an employee of the father and a friend of both. She suggests that, since she has been working at the centre, she has spent time with the mother and father for approximately nine and a half hours a day each day of the week and, at least, until the parents separated, (thus from the end of March 2013 to the end of August 2013 on the father’s allegation). During that period of time she suggests that she has also visited the parties at their home approximately twice a week and interacted with them outside of work.
It is suggested by Ms A that she had a conversation with the mother on 6 April 2013 in which it is suggested that the mother had said to Ms A:
Not long after the miscarriage I tried killing myself by taking a stack of Nurofen Plus. Mr Atkinson tried helping me by placing his hands in my mouth and trying to take the tablets out. It’s not the first time, there was another occasion I broke a mirror in the bedroom and I took a piece of glass to slit my wrists.
That evidence is entirely consistent and, if accepted, corroborative of the husband’s allegations.
The mother denies each of those allegations. The mother suggests that, rather than having taken any tablets whatsoever, that she was simply assaulted by the father and to the extent of having suffered significant injury, which is addressed in both her first and second affidavits. She suggests that her injuries were such, the suggested assault having occurred at about the time of the death of the foetus, that the Police intervened, arrested the father and took him into custody, charged him with assault and sought a domestic violence order on her behalf.
That is particularly relevant as regards exhibits R2 and R3, the statement and confidential psychology report, and particularly the latter. The father tendered those documents in his case on 16 October and they are now annexed to his material and thus retendered. The father asserts that those documents are proof positive of the mother’s psychiatric or emotional disturbance and that, as a consequence of the mother making admissions to the psychologist and a report being produced with respect thereto, that, upon that report being provided to either the Police or the court before whom the criminal charges were pending, that all matters were withdrawn and/or dismissed.
The Independent Children’s Lawyer has observed that the final paragraph of the report, some nine pages in length, includes under the heading “Recommendations”:
It is recommended that Ms Atkinson receive appropriate and long-term psychological intervention to help her cope with her psychological symptoms and relationship counselling is needed to ensure that their –
the mother and father’s–
communication and relationship improves.
The report commences with a heading “Referral”. It then makes clear that the report is prepared by the psychologist upon whom the mother has attended for a purposes connected with the proceedings, by the following:
An action brought by (omitted) Local Police against Mr Atkinson… de facto of Ms Atkinson where an apprehended domestic violence order has been made against Mr Atkinson towards Ms Atkinson. This led to AVO charges before the Local Court. Ms Atkinson requested a psychological report about her mental state to present to the Local Court for the matter listed on 13.09.2012.
The interviews for the report occurred in the week preceding that Court event, on 5 and 9 September 2012. It is suggested that there are four hours of interviews in total – with whom it is unclear – and that is a matter of real controversy between the parties.
The mother suggests that the father, through his lawyers representing him in those proceedings, arranged for the consultation as, in effect, a medico-legal consultation. She also suggests that the father attended with her and held himself out to be her brother so that he would be able to come into the interviews and participated in those interviews. That is in accordance with both her Affidavit filed yesterday and her oral evidence given on the last occasion.
The father denies that allegation.
It is unclear from the father’s evidence the basis upon which the mother came to attend the psychologist. However, he denies involvement of himself or his lawyers in either arranging it or providing information for the purpose of it. Clearly, the report was ultimately provided to the father and/or the father’s lawyers as a copy of correspondence forwarding the report to the Local Court, together with two statements by the mother, are annexed to his material and authored by his lawyers.
The statement forwarded to the Local Court is also somewhat curious. The statement, a typed document of some seven pages, is clearly prepared much later than the Local Court proceedings between the mother and father and at the end of September 2012. It had been asserted by the father in his oral evidence that it was prepared for those proceedings, but it is dated 8 July 2013, two days before X’s birth. At that time it is clear that the father was engaged in domestic violence proceedings before the Local Court with respect to his former wife. That would explain both the date of the statement and its contents, which relates, to a very large extent, to matters regarding the father’s former wife as well as canvassing and seeking to suggest her own culpability with respect to incidents such as the Nurofen ingestion suggested by the father in August 2012.
The mother says of that document that it was prepared not by her but by the father’s attorneys and that it was simply presented to her for signature. The mother also says that the father attended the interviews during which it was prepared and that her involvement in providing information was limited.
The father says that the mother prepared the document herself and that they had attended upon his attorneys purely for the purpose of its signature.
The document is not sworn. It is simply signed by the mother.
It is not possible at this point to clarify which version of events is more likely to be accurate as regards the preparation of the document, let alone its contents. However, a subpoena addressed to those attorneys will, no doubt, elicit production of their file and time-recording records which would should cast some light upon those issues. The attendances have occurred within the last seven years, and thus there is an obligation, pursuant to the Legal Profession Act2004 (NSW) as well as tax rules, to retain the file, and it could not be the subject of any claim for legal professional privilege, being advice completely unrelated to these proceeding and with respect to which the father has waived privilege.
In any event they are all documents that relate to that which is affirmed by Ms A with respect to the suggested conversation between her and the mother on 6 April. During same, it is also suggested that the mother had said to Ms A:
Mr Atkinson is very concerned for me. [(Mr Atkinson being the father] Anything triggers me to go off.
The mother is also suggested to have said:
Mr Atkinson at this time was very caring to her and he was a good husband. I made false allegations against Mr Atkinson to the police. I said that hit me (sic) and caused me to lose the baby. I do not feel right about this. Mr Atkinson is a good man.
It is then suggested the conversation concludes with:
I went back to the police and tried to withdraw the statement and the police said, you cannot withdraw the report.
Clearly, the report, whether withdrawn or not, was overtaken by the provision of the psychologist’s report and, as the mother asserts, her failure to attend Court at the request, if not insistence, of the father. These are all issues of factual controversy. Whilst they cannot be resolved today, they touch upon a number of elements of the case and particularly those relating to Ms A’s evidence and whether it is accepted.
It is suggested by Ms A at paragraph 11 of her Affidavit that on 20 July 2013, it being remembered that that is a time when these parties still lived together, and there is no issue that this was so, that the child was presented to the day care centre, owned by the father and where he also works with:
...very severe bum rash on X’s bottom. I observed that X’s skin was torn and bleeding around his inner bum cheek area.
It is suggested that some conversation then occurred with respect to that matter.
The evidence of the father, when the matter was before the Court on the last occasion, is that his hours of engagement at the centre are very flexible and that his attendance at the centre was for no specific period, his evidence being that he generally left for work and arrived at the centre at about 6 am before returning to the matrimonial home between 8.30am and 9am each day, staying home and thus, in support of his suggestion that he is the child’s primary carer and has been at all times, caring for the child before returning to the centre between 2.30pm and 3pm to be there for the close-up of the business. Accordingly, to the extent that that observation is suggested to have been made, it would clearly be a criticism of both parties. Indeed, on the father’s allegation of primary carer, it would be more a criticism of him.
It is also to be noted that, at the time of that suggested observation, this little boy was about 10 days old. No record from the centre is produced with respect to that suggested observation, and it would not appear that any action was taken at that time, nor is it intended to suggest that action was necessary.
Ms A also suggests that between 23 July and 30 September:
I observed Mr Atkinson and Ms Atkinson bring X with them to the child care centre every day. X would stay in a cot and in the office area.
There are then observations as to the father’s suggested involvement with the child.
That evidence is somewhat curious in light of the father’s evidence that separation occurred on 10 August and that the child was in his full-time care thereafter, as the mother expressed and practiced active disinterest in the child. The father’s evidence is that the mother did visit the child occasionally (and generally at the centre) for short periods. It is also curious because it would place the parties together beyond the date of separation suggested by the mother.
On 10 August, the date the father suggests the parents separate, it is suggested that the mother attended at the day care centre with the child. Of that, Ms A says at paragraph 14 of her Affidavit:
…Ms Atkinson attended the child care centre and she entered the foyer area. I was standing in the area chatting with Mr Atkinson and my colleague Ms V at the time. I then observed Ms Atkinson walk into the foyer area, holding X in her arms. Ms Atkinson said to Mr Atkinson, “I am going, here is X and you can have him as I am not coming back. I hate you and I hate him.” Ms Atkinson rushed out and left the child care centre.
The events of that day are dealt with in the father’s evidence. He asserts at paragraphs 57 and 58 of his Affidavit that:
On the morning of 10 August 2013, Ms Atkinson and I had a conversation where Ms Atkinson said words to the effect, “I want to leave the property and I want to live with my other kids” [The three elder children from a previous relationship. The father also has three children of a previous relationship]…That same day, Ms Atkinson left the (omitted) property. Ms Atkinson took X with her.
At paragraph 60 the father suggests that from 10 August 2013 to 23 September 2013, the date of separation asserted by the mother, “Ms Atkinson stayed two or three days at the (omitted) property”. It says in the preceding paragraph, “Ms Atkinson returned to the property on 12 August 2013”.
The father’s evidence does not suggest, by its terms, that the mother’s return was permanent.
Paragraph 58 of the father’s Affidavit deals with the incident at the day care centre. The father asserts:
Later that day [10 August] Ms Atkinson attended the child care centre and she entered the foyer and I observed that she was holding X in her arms. Ms Atkinson said to me, “I am going. Here is X and you can have him as I am not coming back. I hate you and I hate him.” Three staff members, including Ms M, Ms A and Ms V (sic).
Presumably the sentence was intended to conclude “were present”. It is suggested by the father that, thereafter, the child has remained in his care.
The mother denies that conclusion, that reality and that allegation. The mother suggests that at about that time disputes began to become active between these parents regarding the mother’s desire to re-establish contact/communication with her three elder children and that certainly the relationship was problematic from that time. The mother suggests that the father opposed her having a relationship with those children or them being brought to the home, and thus she would leave the home during the day to go and spend time with them, sometimes secretively.
Ms A’s evidence also suggests that, on 10 August and “later that day”, that she and Ms Atkinson, the mother, had a conversation wherein the mother is suggested to have said “I am on depression medication. I’m taking medicine called Indome. I’m not going to tell Mr Atkinson.”
Ms A suggests she advised the mother to see a doctor or “psychi (sic)” and the mother replied, “Mr Atkinson told me the same thing.”
It is suggested that, on 14 September 2013, a conversation occurred between Ms A and the mother in which the mother disclosed, “I tried to kill myself… I am depressed.”
The mother denies both the conversation and its contents.
Ms A suggests that on Monday, 23 September 2013 – the date that the mother suggests separation occurred – that she was present with both parents at their home at (omitted). The father suggests in his material (at paragraph 61) that the mother had returned to the home a few days before 23 September and had been staying at the home at (omitted). It is suggested the mother was sitting at a computer at the dining table. The father asked the mother for help with X and it is suggested that the mother then swung her arm forward and threw the television remote at the father, it landing on the floor and breaking. The mother was observed to move towards the father and scratch him on his arm and said, “I don’t want to stay here anymore. I don’t want X. I am leaving.”
The mother was told to calm down and she replied, “Shut up.”
On 30 September 2013, Ms A suggests an important event, in the context of the evidence and issues of credit. Ms A says that she was present at the day care centre in the toddlers’ room, that the mother was present and was breastfeeding X. It then continues:
I also observed Ms Atkinson holding her mobile phone in her left hand. I heard Ms Atkinson yell, “Shit. I lost the game.” I then observed Ms Atkinson drop her phone and clench her fingers and move her arms across X’s face and drag her nails across his face. I rushed towards Ms Atkinson and X and attempted to pull X from her arms. Ms Atkinson and I scuffled and Ms Atkinson pushed me back and I fell back. I observed Ms Atkinson pause and say, “I’m sorry. Please don’t tell Mr Atkinson.” Ms Atkinson walked out of the room.
In the following paragraph it is suggested that:
In early October 2013 [as events would transpire, it would seem on the 7th] I telephoned the Department of Community Services and I spoke to an officer. I do not recall the name. I said words to the effect of the following: “I wish to report many incidents I have witnessed between Ms Atkinson and her son, X.” The officer then took more details from me.
There are two documents tendered relating to that suggested event being exhibits 10 and 11.
Exhibit 11 is a record from the child care centre. That document of three pages is suggested to be completed by Ms A on 30 September 2013 at 12.20pm. It states:
Mr Atkinson began monitoring the baby more closely, coming and going from centre to monitor until she leaves [“she” being the mother] as she informed she is leaving Mr Atkinson and leaving X with Mr Atkinson.
It also indicates with respect to action taken:
“No, because Ms Atkinson refused to let me administer first aid. She took him home with his eye bleeding.”
The document is also signed by the father under the heading “Parent Acknowledgment” and he acknowledges that he has been notified of an injury to the child and, handwritten – in whose hand it is unclear, but presumably the father’s, but nothing turns upon it – “which was caused by mother”. The document is signed by the father the following day, 1 October 2013.
It is suggested in submissions that one would take Ms A’s allegations, particularly with respect to 30 September 2013, extremely seriously and that one would have no reason to doubt her evidence. I am not satisfied that there is no reason to doubt her evidence. Leaving aside for one moment the fact that she is an employee of the father, and the mother asserts that he may well have applied exerted pressure, duress or other influence over her consistent with what she describes as his behaviour towards her (whilst that submission is made, there is no evidence to suggest it could be accepted), exhibit 10, which is the contact record of Ms A’s call to the Department, creates some doubt about her evidence.
In that record, the caller, Ms A, said that:
The mother, Ms Atkinson, has three other children who have been living with their father for two years and only started seeing them last month. The caller said that Ms Atkinson had X but left Mr Atkinson two weeks ago.
This report, made on 7 October 2013, would provide some tacit support for the allegation as to the date of separation of the mother and would appear corroborative of it. The record continues, with respect to separation:
...because she wanted to be with the other children and didn’t want to be married to him anymore and said she didn’t want X any more. The caller said that X is with Mr Atkinson and Ms Atkinson has now come back and wants full custody of X and keeps sending Mr Atkinson text messages that she wants full custody of X.
It is to be remembered that it was submitted that this notification by Ms A was made before the proceedings were on foot and thus one would not imply or infer that there is any motivation of seeking to provide some support to the father or create mischief or nuisance for the mother by making the report. However, clearly, the mother had made her intentions well known at that time. It continues:
The caller thinks that X is not safe with Ms Atkinson. He has always had little scratches on his face from Ms Atkinson’s nails, and now he has been with Mr Atkinson he has not had scratches. Ms Atkinson told the caller she scratched X’s eyes accidentally when she was trying to send a text message while she was breastfeeding him.
That would suggest, with respect to that affirmed in relation to 30 September 2013, that:
a)It was something related to Ms A by the mother rather than from her observation; and
b)What was observed, if it was observed rather than told, was an accidental scratching of the child while sending a text message, not frustration and anger at losing a game played on the phone, clenching fists and deliberately scratching the child.
If it were the latter, it would provide significant support to the father’s position. I accept that Ms A is evidence on oath and the Department’s record is not. However, it is submitted that notification is corroboration of Ms A’s evidence. I am satisfied it does nothing of the sort. In fact the notification casts some real doubt upon the veracity of Ms A’s, its accuracy and its motivation.
The Departmental record continues:
The caller also stated that Ms Atkinson never changed X’s nappy properly because his bottom was always red and sometimes bleeding when he came to the centre and mustn’t have changed him all day.
That is again inconsistent with Ms A.
It continues:
The caller used to hear Mr Atkinson telling her to buy the good nappies but she would buy the cheap ones from Aldi. The caller said that now X is being cared for by Mr Atkinson he does not have nappy rash. The caller thinks he is better with Mr Atkinson. The caller said that X attended the centre for one month, five days a week initially, for a couple of hours; now he is there all the time as Mr Atkinson works in the centre. He is the owner, so the owner sees him all the time.
The next paragraph also is instructive as regards motivation and a demonstration of Ms A’s attitude towards the mother. It reads:
The caller said that Ms Atkinson is “not right in the head” and was always causing trouble at the centre and lies all the time –
The caller then gives what are suggested to be examples, indicating:
The caller said that one day Ms Atkinson was scratching herself on the arm with her nails and she said to the caller she was going to say Mr Atkinson did it, and the caller said to her, “You can’t say that because I’m here and saw you doing it.” The caller has also heard that Ms Atkinson previously got people to hurt her (beat her up) and leave marks on her around a year ago when she was just pregnant so she could go to the police and say, “Mr Atkinson did it.”
That, of course, does not rate mention in Ms A’s Affidavit. One would think that it would have if she had been told it by the mother. She has gone into some detail as to things that she suggests the mother has told her which are otherwise highly prejudicial to the mother’s position. Thus, one would assume the source of knowledge when she says that she has heard things, was not the mother and one can only presume it was the father. Accordingly, that would suggest a degree of proximity, collusion or, at the very least, discussion between the father and this witness.
The allegation is then made that Ms Atkinson was claiming money from Centrelink for X when she didn’t have him – how she would know that is unclear, if indeed it is true – and further complaints about expenditure of money given to the mother by the father are made.
It is suggested then that the last report, dated 10 October 2013, concerns the mother coming to visit with X and becoming upset when he started crying, saying, “You can have the fucking baby. Take the fucking baby,” and she gave the child back to the father with force. That presumably relates to the suggested events that occurred on 8 October when the father made a complaint to the Police, the mother provided a statement and the Police were satisfied that the viewed closed-circuit television footage at the day care centre was supportive of each version of events and made it difficult, if not impossible, to identify a victim.
It is suggested that the mother then said that she didn’t want to see X anymore and that he was crying because he didn’t like her. It is alleged that the mother then started hitting the father and scratched him on the arm while he was holding X. The mother is suggested to have taken the father’s keys from his pocket and have gone to her car, and the father went after her to try to retrieve them whereupon the mother got out of the car and again hit the father on the arm while he was holding X and a neighbour came and was also grabbing at X. The father went to the Police station to report the incident. That is all consistent with that contained in the relevant exhibit dealing with that event, being material produced by the Police.
There is then reference to the statements that had previously been made regarding domestic violence on 16 July 2013, 5 April 2013, 19 April 2013 and 14 February 2013.
The mother’s allegations of family violence are significant. What is described in her evidence, which time does not permit full and complete recitation of, falls within most aspects of the definition of “family violence” in section 4AB of the Family Law Act 1975. The mother suggests, by reference to subsection (2) thereof, that she has been assaulted, sexually assaulted, stalked and the subject of repeated derogatory taunts. There is no suggestion that her property has been damaged or animals of importance to her harmed, but she does allege that she has been denied financial autonomy, that financial support has been withheld, that she has been prevented from contacting and keeping connection with family members and culture and, at times. deprived of her liberty.
All of these matters were raised by each of the parties in the Child Dispute Conference and reported in the Memorandum. Therein, the mother asserts, consistent with her evidence and her contemporaneous reporting to the Police and/or Departmental officers and/or health workers, various specific events of physical and verbal violence.
The Family Consultant is told by Mr Atkinson that he has significant concerns for the mother’s mental health and that she has attempted suicide on four or five occasions that he is aware of. His evidence refers, as the Independent Children’s Lawyer has highlighted and summarised, to four separate occasions when it is suggested by him that this has been so and being in June 2012, 4 August 2012, January 2013 and June 2013.
The father had also reported to the Family Consultant that, whilst the mother has never been hospitalised as a result of her mental health, that she had seen a GP who referred her to a psychologist upon whom she attended for one session. The only evidence with respect to any attendance on a psychologist would appear to be the attendance or attendances for the purpose of the report referred to above. It seems unlikely that those attendances were by referral from a GP, although it is possible.
The Memorandum also indicates, under the heading “Issues Relating to Children” that both Ms Atkinson and Mr Atkinson claim they have been X’s “primary carer” prior to separation. Mr Atkinson also reported that Ms Atkinson had been neglecting X’s needs prior to separation and again there is reference to the occurrence of nappy rash. Mr Atkinson also reported that Ms Atkinson did not bathe X properly; had not applied cream, resulting in X having dry skin and had left X crying until he was “blue”.
The difficulty one is left with at this interim stage, when there is more substantial evidence than the last occasion but none of it has been properly tested, nor could it be in light of the difficulties with the matter being dealt with by video-link, is that one of the parents, if not – as the Independent Children’s Lawyer has suggested – possibly both, is either exaggerating, lying or manufacturing evidence.
The Full Court has urged grave caution in findings of fact at an interim stage. That is not to suggest that the Full Court has opined that findings of fact cannot be made (see paragraph 68 of Goode & Goode (2006) FLC 93-286). However, I am conscious that caution must be exercised.
What is raised in these proceedings on the case of each parent is that the child is exposed to an unacceptable risk if in the care or unsupervised care of the other. With respect to that test, I incorporate herein the relevant portions of my judgment in Deacon & Castle [2013] FCCA 691 canvassing Johnson & Page [2007] FamCA 1235 and the myriad of authorities and academic writings, including by Fogarty J, relating to that test and as follows:
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles”
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
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. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
Essentially, I am left in the invidious position where, absent Departmental involvement to offer or suggest an alternative placement, I either make no order or I make orders in favour of one party or the other as regards with whom this child will live.
The mother’s evidence in relation to family violence is not only serious as regards its content but the level of contemporaneous reporting made by her. Of course, the father suggests that those contemporaneous reports are mischievous. When there has been injury observed by others the father asserts that this has arisen not through any action of the father. The father does concede that bruising was caused to the mother’s face with respect to the August 2012 event, when it is suggested the mother had ingested or was attempting to ingest a significant quantity of Nurofen. Thus, the father would urge that his actions should, on that occasion, be seen as not only appropriate but heroic.
Exhibit 3 deals with the event of 8 October 2013. Clearly, on that occasion, when the mother arrived at the child care centre, the child was already in the father’s care. It is made clear by the father’s own statement that the mother was attending for the purpose of seeing the child. However, it would seem that both parties acted less than appropriately on that occasion.
Exhibit 4 is dated at the time of the suggested Nurofen incident, 5 August 2012. There is a page and a half of detail of that which the mother alleges with respect to violence. It is detailed. It is cogent. It is certainly consistent with the injuries to her observed. Again, there is some concession by the father of some injury occasioned and there is clearly the evidence that the father was arrested and charged. Those are the proceedings discontinued following the psychologist’s report a little over a month after the event.
Exhibit 6 confirms, albeit undated, that reports have been made by the mother to hospital staff and, through them, to the Department of Family and Community Services, about violence. The records of 9 August 2012, when the mother attended hospital as a consequence of the demise of the foetus she was carrying, refer to the mother’s disclosure of family violence with her current partner and within the last month. She refers also to an apprehended domestic violence order then in force.
Exhibit 9, the four pages of clinical progress notes from February 2013, show the mother making significant allegations and disclosures of family violence including, consistent with the balance of her evidence, that violence was, at times, connected to her desire to pursue a relationship with her three elder children. The mother also refers to financial abuse and other elements of the family violence definition and including her separation and being kept apart from family members who would otherwise be supportive.
Exhibit 12 also represents contemporaneous reporting at the time that the mother was in hospital giving birth to X. It is submitted in the mother’s case that particular significance arises from the contents of that document. The document commences with:
The interview was cut short as the husband was on his way to the hospital and she was very worried should he find us there. He has been violent in the past and suspects that we were involved when she left him last year.
There is agreement that the parties had a separation of about a week in April 2012. It suggests that there was enough time to speak about current concerns and past domestic violence. That record, as well as the letter from the Department, exhibit 6, would appear to reflect involvement by a Ms C, the manager of the office for the area in which the parties live.
A document is tendered in the father’s case relating to an interview between the mother and Ms C in October 2013. It is tendered in support of the proposition that the mother is other than truthful and that she manufactures allegations. In particular, that document suggests, as an opinion or conclusion of its author, Ms C, two statements, one appearing on the second page of the document:
This is also another example of the information she supplied being different and incorrect.
That refers to the material above it and, in particular, the paragraph above, which reads:
She said that they had separated in April for one week. She got a unit in (omitted), got furniture, but didn’t spend a night there as Mr Atkinson convinced her to come back.
That is entirely consistent with the mother’s evidence. The mother’s evidence was sworn before this document was produced to the Court. It continues:
When interviewed at the hospital [thus, presumably following the demise of the foetus or in (omitted) 2013 when X was born] Ms Atkinson told me that she had been separated from Mr Atkinson for months and that she had got a unit in (omitted) and had lived there for three months and had got a car and everything so she knew she was independent and serious about leaving him.
The other opinion expressed is:
It appears that Ms Atkinson handles the truth carelessly, as she has not always been entirely truthful with me.
It goes on to suggest a number of examples. It also indicates, no doubt as a consequence of the allegations raised by Ms A and reported on 7 October:
I asked her about marks on X’s face near his eyes. She said that her nail on one occasion had come into contact with his face but denied that it was intentional. I am not sure of the full conversation about this, but Ms Atkinson did not indicate that she had been neglectful in any way.
Thus, that stated by the mother is entirely consistent with that which would appear to arise from exhibits 11 and 12 being that an accidental injury was caused to the child’s eye. That is in stark contradistinction to that suggested by Ms A to have occurred. There is nothing in the evidence to explain the significant difference between Ms A sworn towards the end of October 2013 and that which she reported to the Department and noted in a record at her place of employment on 7 October and 30 September 2013 respectively. Accordingly, the overwhelming evidence which is consistent, and internally so, is that the child on one occasion was accidentally scratched by the mother on his face, presumably near his eye.
That as well as the other discrepancies and concerns relating to her evidence referred to above then causes me some real concern as to the evidence of the suggested independent corroborative witness. Accordingly, I do not accept that her evidence could be relied upon by me as corroborative of the matters that she has referred to, particularly the specific incidents that I have identified.
That does not mean that I can entirely discount the husband’s allegations. However, with respect to unacceptable risk and the determination thereof, I am satisfied that a greater risk would be posed to this small child from being exposed to family violence than the potential that the mother may have some emotional or psychiatric disturbance, the proof of which would appear to be anything but objective or reliable, at least on its face.
The other concerns in relation to the evidence – and there are many of them which, regrettably, cannot be resolved today – are perhaps best categorised in the Independent Children’s Lawyer’s submission that it is possible that both parties are exaggerating or fabricating portions of their evidence.
There is some tacit support to the suggestions of violence perpetrated by the father through the preponderance of proceedings that would appear to have arisen. Certainly, in relation to his former wife, clearly an apprehended domestic violence order was made. The father suggests it was made by consent without admissions, but that would appear to be so notwithstanding the evidence that the father suggests he had available to him comprising two statements from the wife whom he suggests manufactures evidence, a statement from his brother, as well as his own evidence. One would think he would have had some confidence in defending that matter. But, in any event, the order has been made and the Police records that are exhibited would suggest that there has been some ongoing reportage with respect to those matters.
The other issue that concerns me with respect to evidence, particularly that of the father and Ms A, is that which is omitted from their material. Whilst I accept the matter has come on hurriedly, and necessarily and appropriately so in light of the allegations raised and the age of this child and thus of the urgent need for his protection, there are significant elements of the mother’s evidence that simply are not addressed by the father and of which he has had knowledge. Not the least of those arises from events which occurred between these parties by telecommunications on 22 October. The mother suggests that on that date, as set out by her at paragraph 174 of her Affidavit and annexures A and B, that she began to receive text messages from the father shortly before midnight.
The father, at paragraph 69 of his Affidavit, comments upon events on 22 October. He indicates in that paragraph that the mother had sent him a text message to the effect, “X has a very high temperature.” A suggestion that it was as high as 40 degrees has been put in submissions. It then continues:
At midday [thus he must have received the message from the mother in the morning] I replied “Tell me he’s going to be okay?” I did not hear back from Ms Atkinson. Later that night [it would seem quite late that night; nearly the next morning] I became very concerned so I visited Ms Atkinson at her house and knocked on the door requesting to see X. Ms Atkinson did not answer the door.
What the father omits are the four pages of text messages, not one of which refers to a temperature or any concern for the child. It commences, “I’m coming to see you and X.”
The mother repeatedly, from the first response, tells him not to, in fact, to not come anywhere near her or her home. She suggests that he should contact his solicitor. He suggests that the mother should withdraw her application before this Court. She says that she will not. He suggests that he holds affection for the mother and wants her and the child back with him as a family after the mother says clearly that that is not anything she wants; in fact, saying, “You killed all my feelings.” The father’s tone then changes and makes clear that this is not something he wants, but it then begins to escalate with messages such as, “Stop bullshit,” messages that are in (language omitted) rather than English and are not translated.
The mother indicates to the father that she does not trust him or love him anymore. There is some discussion about a person called Ms L, (her relevance is not readily apparent).There is inference in the mother’s messages that she believes the father has caused some criminal damage to her car. The father continues on and says at one point, “Bullshit, and all fabricated lies by you.”
The mother responds, “You’re the one that abuses people and especially women and you have a proven track record.”
The father responds in similar tone regarding various things and indicates, “Stop and concentrate on how we are going to share the baby.”
The father again accuses the mother of making false allegations. The mother responds thereto. She continues and continuously responds to ask him – indeed, tell him – not to come to her home. There is at one point in time a message referring to the mother neglecting the child and why will she not open the door, which is consistent both with the father’s and mother’s evidence.
It is that omission that causes me some real reservation with respect to the father’s evidence. It is behaviour very late at night which does not, from a single message annexed to the mother’s material, reflect anything relating to the child. I accept that submitted by the parties’ counsel that the parties have communicated a great deal more than that, but they are the messages I have in evidence. The messages relate much more to the father requiring that the mother act as he directs.
There is also omission by the father with respect to a number of other aspects of the mother’s serious allegations, particularly surrounding the events in mid-2012. Rather than responding to or addressing them in his own evidence, it is submitted that the father was only served with the mother’s material at the time of or after his Affidavit was sworn and thus could not respond to the mother’s material. But the father was fully aware of the mother’s allegations. She had filed the previous Affidavit. She had given oral evidence on 16 October. He has chosen to focus his attention on matters unrelated to and unconnected with the child’s welfare and in doing so has completely ignored and avoided the mother’s serious allegations.
On that basis, I am satisfied, whilst I cannot make specific findings of fact accepting one version over another, that the level of corroboration through contemporaneous reporting and at times through the observations of others, as referred to in the exhibits, which have been touched upon, lend more force to the mother’s position.
On that basis, thus, the issue of unacceptable risk favours the mother. That is not to suggest that there is not a risk with either. But I am satisfied that, to the extent that there is risk, unacceptable or otherwise, it is more probable to be heightened as regards the father.
Legislative pathway
Then, turning to the legislative pathway, I commence with the objects and principles in section 60B, which I incorporate herein:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It is not possible for all of the objects and principles to be achieved, in that they require, for example, that the Court endeavour to ensure that children have the benefit of both their parents having a meaningful involvement and spending time with both parents and requires that children be kept safe. That perhaps touches upon the position each urges with respect to supervision.
Each parent proposes limited periods of time, the father more so. Each proposes that any time be supervised by the sister-in-law of the father’s brother. The difficulty I have with that is twofold:
(1)The father’s brother is clearly partisan, having been a witness in the domestic violence proceedings and having provided a statement which is, in fact, annexed to the father’s material, and on the basis that it is so clearly inadmissible it has not been read nor has its tender been pressed.
b)The person proposed to supervise, Ms F, is not on oath or before the Court. Each party suggests that they consider her appropriate, but there is nothing to suggest that she has any understanding of what is required of her as a supervisor, is prepared to do it, understands her obligations or is available to meet them. There is simply no evidence. Accordingly, that could not be considered.
If supervision were found to be necessary (and, as I indicated to the parties before their submissions commenced), supervision would occur through a supervised contact service, that would of itself be problematic in light of the chronic under funding of those services and thus the significant delays which exist. However, those delays would be irrelevant if supervision was considered necessary.
By section 60CA of the Act, the Court is reminded that in all that the Court does, the child’s best interests are the paramount consideration.
I must then consider section 61DA and determine whether the presumption of equal shared parental responsibility applies. I am satisfied that it does not.
The presumption does not apply if the Court is satisfied on reasonable grounds that a parent has perpetrated abuse or family violence. If the presumption applies, it can be rebutted if the Court is satisfied that it would be other than in the child’s best interests for it to apply.
Parliament has insightfully included subsection (3), whereby the presumption need not be applied in interim proceedings if the Court considers it inappropriate. In light of the allegations each raises – they each suggest the other is an unacceptable risk to this three-month-old child – it should not apply and it would not be appropriate for it to apply on an interim level. I could not make any finding of fact as to my satisfaction that it would be so. Accordingly, and in due course, an order will be made pursuant to section 61C of the Act for each parent to have parental responsibility at such times as X is in their care.
That being so I am not obliged to consider substantial and significant or equal time before any other time arrangement. In any event:
a)Neither party proposes such an arrangement;
b)In light of the age of this child, it would be difficult to establish the benefit to the child of such an arrangement; and
c)I propose to consider all time arrangements at large and including the issue of supervision.
Turning to section 60CC of the Act, I must commence with the primary considerations, being:
a)The benefit of the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm.
Subsection (2A) prioritises the latter over the former. Clearly in this case that is significant.
The issue of a meaningful relationship is, to some extent, a misnomer in light of the age of this child. He is three months of age. The use of language such as “relationship” is somewhat irrelevant for him. He is at a stage – a very early stage, at that – of forming attachments and his needs are met by safety and security.
As regards the child’s protection from physical or psychological harm, the only allegations that suggest physical harm to the child would appear to be those of Ms A and which I do not accept as valid or entirely accurate.
As regards psychological harm through exposure to the behaviours that each complains of with respect to the other that remains real but cannot be authoritatively addressed or determined. I am not satisfied that those factors could assist in this case, even though they are the primary considerations.
In dealing with the additional considerations.
Views
The child is three months of age. His views are not expressed and not relevant. It might be suggested, however, that evidence such as the child being unsettled when the mother has collected him and wanting to thus return to the father for comfort might be a nonverbal expression of views. I do not accept that that is so.
The tension and conflict surrounding this child, not only since his birth but in utero, is such that, no doubt, it would impact upon him and if it continued, could affect his brain development and general physical and emotional health. Thus, it is entirely plausible and equally probable that his reactions, if they are as described, arise through tension and anxiety surrounding him and his parents. Indeed, tension and anxiety would seem to be circumjacent to everything relating to these parents.
Nature of the child’s relationship with each parent and other persons
Surprisingly, neither parent has spoken in much detail about their relationship with the child. Each has asserted primacy of care, but neither has given much detail about how that conclusion is arrived at and thus suggested.
What is clear is that, until mid to late September 2013, the child was being breastfed by the mother. She was expressing some milk, particularly at times when she says she was visiting her elder children. She asserts to the Department worker, Ms C that she continued to express after the child had left her care and delivered, somehow, although it is not made clear, that milk for the child but it was rejected and thrown out.
The mother also indicates in her evidence (and including her statements to the Family Consultant) that she had been mixing breast milk and formula in preparation of her leaving the father, which she had determined to do. That is perhaps the only factor, the fact that the child was breastfed until some weeks ago, that would suggest the potential for a stronger relationship with the mother, although it is only suggested, not found to be so.
The extent to which each parent has taken or failed to take the opportunity to participate in decision making
This is fundamental to the father’s case. He says the mother effectively abandoned the child with him, in fact, said that she hated the father and the child and no longer wanted anything to do with either. However, I am not satisfied that I could find that that was so. Even if it was so clearly the mother now desires the opportunity to participate in the child’s life and take care of him.
The Department, in interviewing the mother recently and after the child had come back into her care, was of the view that they had no ongoing concerns with respect to the child. They have expressed concern that the mother has a history of leaving the father then contacting him and returning. It is suggested, however, based upon information from both the mother and the father, that those actions were centred more on the relationship than care of the baby.
The Departmental record suggests that, given the history as they now know it, they have no concerns for the care of the baby.
X is the mother’s fourth child and, whilst nothing is known about her care of the other children, the Department would appear to infer that this gives her some capacity.
Certainly, the notification made by Ms A appeared to infer that the three elder children had left the mother’s care and that, consequently, something should be assumed as to the mother’s competence. Nothing is available other than the mother’s evidence as to why that arrangement has come to be. The mother’s evidence is plausible and unchallenged. In any event, I am not satisfied that I could rely upon that factor.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
There is no evidence.
Likely effect of change in the child’s circumstance, including separation from either parent or any other child or person
This child clearly needs stability. The child is three months of age. His safety is important. His development will be impacted by exposure to the type of behaviours that each of these parents, albeit from different perspectives and through different lenses, suggest have permeated his life.
I am satisfied that these parents should stay well and truly away from each other and apart. I am satisfied also that there would be a detrimental impact upon the child of being separated from the parent with whom he primarily lives overnight and that there would be a detriment if he was not then spending regular and frequent time with the other parent. Too little or too much time would cause his relationship, such as it may be, or his attachment with each parent, to be compromised.
That would give some support, based upon the evidence discussed above, to the mother’s position.
Practical difficulty and expense I will deal with as part of section 65DAA(5) of the Act.
Capacity of each of the child’s parents to meet the child’s needs, including emotional and intellectual needs
Each party suggests that the other is entirely incapable of doing so. There would not appear to be any concern held by the Department, from the minimal information available from their records as tendered, to suggest any absence of capacity in the child’s present care arrangement with the mother.
Maturity, sex, lifestyle and background
It cannot be emphasised highly enough that this is a three-month-old child whose safety has been brought to the attention of the Police, the Department, health authorities and, by the Court’s own request, again, the Department. No action has been taken to address the significant concerns until now, and that responsibility now rests with the Court.
This child, at this age, needs an absence of conflict from his life. It will affect his neurological development as well as his emotional development and physical development. He needs regular, consistent care. There is no suggestion that, until the separation of the parties, save the one example being given of nappy rash when the parties were still together, that the child’s needs are not being met.
Aboriginality
The child is not from an Aboriginal or Torres Strait Islander background.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents
Each is abundantly critical of the other and perhaps with some merit; however, it is neutral in this determination.
Family violence
I am not in a position to make a finding of fact with respect to the mother’s allegations or the father’s. However, I must emphasise the importance of family violence in decisions made by this Court.
Consideration of family violence commences before parties even approach the Court. It is of fundamental importance, as expressed in section 60I of the Act, to the assessment of the practicality and suitability of family dispute resolution.
Once proceedings are commenced the legislative pathway requires as the first step a consideration of the objects and principles. Therein attention must be paid to the protection of children from family violence.
Section 60CG requires that the Court must, to the extent that it is possible to do so, make orders that are consistent with family violence orders and which do not expose a person to an unacceptable risk of family violence. That would include the parties and their child.
There are obligations imposed upon the parties to alert the Court to allegations of both family violence and abuse and, thus, it is necessary for the parties, as they now have done, to file Notices pursuant to section 69ZB of the Act.
The Family Consultant has made a notification, it would seem, pursuant to section 69ZA.
The Court has an obligation pursuant to section 67ZBB to take prompt action with respect to allegations of family violence. That includes an obligation to ensure appropriate evidence is gathered as expeditiously as possible and to make orders for the protection of children and parties. All of that is to occur within the context of and, to some extent, in significant conflict with, the principles for the conduct of child proceedings, as set out in section 69ZN, and with some real regard to section 69ZT and its impact upon the rules of evidence, these being serious and significant allegations.
Thus, family violence is fundamentally important.
To the extent that the mother’s evidence reflects consistent, contemporaneous reportage, even though the father suggests that each report has been calculated, manufactured and with a purpose in mind of creating havoc and mischief in his life, it is to be preferred.
Family violence orders
There are none.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
There is little that can be done to address this factor at this time other than to make orders which, in all probability, will be workable and sustainable.
As regards supervision, and again by reference to the unacceptable risk each suggests, I am satisfied that a case is not made out for supervision. The closest that one would come is by reference to authorities such as Green & Graham [2011] FamCAFC 248 and thus supervision imposed to provide some reassurance and amelioration of anxiety for the mother. However, her evidence does not specifically speak to that issue, again accepting that it has been put on hurriedly.
I am satisfied that, for the limited periods, the types of time that I am contemplating ordering, that it is entirely appropriate that time be unsupervised, albeit with the additional comfort or protection of changeovers occurring through the home of the father’s brother’s wife, as each has proposed. Each has suggested that her home is available for that purpose and, if it is not, then, sadly, further proceedings will not be avoided, as the arrangements will no doubt break down quickly.
Being conscious of the obligations with respect to family violence to which I have referred as well as the child’s age, I propose to make time frequent but short and propose to make orders pursuant to section 68B of the Act to ensure that the parties do not come into contact with each other. Those orders, if breached, expose the culpable party to arrest without warrant.
That is not to suggest that I do not have concerns that the paternal family may seek to exert influence upon the mother in relation to the proceedings. However, the evidence is not such that I could be satisfied that it will or would be so.
It had also been proposed that changeovers might occur at a Police station. Thankfully, this child is so young he would not be cognisant of those arrangements. Clearly, if difficulties occur with respect to the changeover through a family member’s home then that is the next step and will, in all probability, be ordered.
I had also flagged the possibility of changeovers occurring through the day care owned by the father and with which the child is familiar. However, that is opposed, and on balance I am satisfied appropriately so. Whilst there is some comfort that it is familiar for the child, clearly there have been a significant number of events there between these parties, as recently as 8 October, involving the Police. Also there is now the added complication of staff at the centre being partisan and thus the mother feeling that she would be exposed to further events, allegations or unwarranted comment.
In dealing with reasonable practicality, pursuant to section 65DAA(5):
a)The parties live very close together. However, that is not the real test of reasonable practicality.
b)The parties’ capacity to implement an arrangement is demonstrated by the fact that regular and frequent time is proposed by the mother and accepted in the alternative by the father.
c)The parents’ current and future capacity to communicate is highly problematic indeed. The concluding paragraph of the Child Dispute Conference Memorandum indicates that both parties were of the view that they had no effective communication. That is, of itself, a factor against shared parental responsibility, equal or otherwise.
d)As to the impact of the arrangement on the child I am satisfied that this child requires nurture, care, safety and stability. That would best be achieved, at this point in his life, by living primarily with one parent and spending regular and frequent time for short periods with the other.
I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 13 March 2015
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