Badulf & Elkan
[2023] FedCFamC1F 924
•19 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Badulf & Elkan [2023] FedCFamC1F 924
File number(s): BRC 9439 of 2022 Judgment of: BAUMANN J Date of judgment: 19 October 2023 Catchwords: FAMILY LAW – PARENTING – Where the child is currently residing with the paternal grandmother in circumstances where both the mother and the father are currently incarcerated – Where the mother seeks orders for the child to communicate with her – Order made for the mother to post gifts and cards to the child, and for the child to travel overseas with the paternal grandmother Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 19 October 2023 Place: Brisbane Solicitor for the Applicant: Life Law Solutions Solicitor for the Respondent: Litigant in person Counsel for the Intervener: Mr Taylor Solicitor for the Intervener: SJP Law Independent Children’s Lawyer: Ms Gomes, Legal Aid Queensland ORDERS
BRC 9439 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BADULF
Applicant
AND: MS ELKAN
Respondent
MS BADULF
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
19 OCTOBER 2023
THE COURT ORDERS:
Overseas travel
1.That the paternal grandmother be permitted to take the child X born 2020 (“the child”) outside the Commonwealth of Australia on up to three (3) occasions in every twelve (12) months, on the following basis:
(a)That other than travel in November 2023, the paternal grandmother shall provide the mother and the father with not less than six (6) weeks’ notice of an intention to travel; and
(b)That the child’s total period of travel shall be no more than thirty (30) days on each occasion;
(c)That the paternal grandmother shall:
(i)provide to the mother and the father a copy of the child’s flight itinerary forthwith upon finalising same, with such itinerary to include:
1.the date of leaving Australia;
2.the date of return to Australia;
3.the details of where the child is staying in Country B; and
4.the details of any time that it is anticipated that the child will, during said travel, spend any time outside of Country B (other than in transit).
(ii)Facilitate any orders which are in place providing for communication between the child and the father and/or mother as at the notified date of travel by arranging a Facetime call where possible of not less than fifteen (15) minutes between the child and the father and/or mother on each day on which the child would otherwise have been communicating with that parent.
2.That in addition to the above Orders, the paternal grandmother be permitted to travel with the child to New Zealand for seven (7) days in a period falling between late December 2023 and early January 2023.
Communication with father
3.That the child spend time and communicate with the father as agreed between the paternal grandmother and the father.
Communication with mother
4.That the Respondent mother be granted leave to make an oral application for prescribed orders that the child be permitted to communicate with her.
5.That the Independent Children’s Lawyer shall use her best endeavours to procure from the family of the mother the most recent photograph of the child with the mother and shall cause that photograph to be provided to the paternal grandmother.
6.That the mother shall be permitted to send to a postal address, nominated by the paternal grandmother within fourteen (14) days and at the appropriate times:
(a)a birthday card and/or gift for the child;
(b)a Christmas card and/or gift for the child; and
(c)age-appropriate communication to the child in addition to these special events no more frequently, unless agreed, than monthly.
7.That the paternal grandmother shall use her best endeavours when observing what the mother sends or offers as a gift, and if she believes further guidance might assist her in making a decision, be entitled to decide when and in what form the letters, cards and gifts sent by the mother are both made available to the child and explained to him.
8.That these proceedings be adjourned for Directions Hearing before the judicial registrar at 2.00pm on 15 February 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
9.That the proceedings be re-listed before the Honourable Justice Baumann when either the mother or the father’s criminal proceedings have been finalised.
IT IS NOTED:
A.That the purpose of travel is primarily to allow the paternal grandmother and the child to spend time with the paternal grandfather who lives and works in Country B, and it is anticipated that while there may be some incidental travel out of that country, the time will be centred around Country B.
B.That in the determination of the serious issues involved in these proceedings, the Respondent mother having legal representation would be appropriate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Badulf & Elkan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
As the transcript reveals, having determined disputed issues relating to the paternal grandmother travelling overseas with the child, X, these published Reasons only relate to an oral application made by the mother for orders to spend time with the child.
I will give leave to the mother, who is currently in custody, to make what is effectively an oral application for prescribed orders that X, who is now three years of age, having been born in 2020, be permitted to communicate with her in a number of ways. The context briefly for the application is to be seen that at least up until mid-2022, X was in the primary care of the mother. It is a little uncertain as to what time the father or paternal family were having with X at that time as it seems, on the evidence not yet tested, the relationship between the parents was brief and spanned different periods of connectiveness between late 2019 and early 2021.
A response from the Department of Child Safety, Seniors and Disability Services before the Court provides an excerpt from the Queensland Health outline in relation to injuries which X suffered. I read from the report and record the following information. What is recorded is that:
[In mid-2022], [X] presents with multiple injuries evident at two different times of presentation. [X] has multiple bony injuries – […] - of different ages detected on presentation, [early 2022]. [X] had sustained a bony injury ([…]) on presentation to [C Hospital in late 2021]. Next, [X] sustained multiple cutaneous injuries on both presentation to [D Hospital] with additional bruising injuries demonstrated in the video and photograph provided by Queensland Police.
Bruising follows blunt force trauma either with direct impact or excessive pressure to the skin. Mobile children typically have bruises located over bodily prominences in a forward-facing aspect as being sites commonly injured in accidental day-to-day minor trauma in children of this age. In relation to photograph 1, this injury could represent (a) a burn, direct contact with a heat source enough to be definitive regarding causation. In either incident, [X] would have been in severe pain and review by a medical practitioner should have been sought to ensure appropriate dressing, pain relief and improvement.
In addition, in relation to photograph 2, bruises can be seen […] consistent with finger pad marks. This is likely from squeezing […]. In relation to photograph 4, the two linear bruises over the [genital area] are suggestive of patent bruising inflicted with an implement. The remaining bruises are likely the result of direct trauma and are also consistent with non-accidental injury. […].
[X] sustained a […] fracture […], believed to be non-accidental, with no history having been provided to account for the […] fracture at the time. [X] sustained [another] fracture, which are typically a result of following direct blunt force trauma to the area or a fall […]. No history has been provided to account for the […] fracture at this time. [X] was also found to have [another] fracture. [This type of fracture is] uncommon in children. No history provided to account for this injury at this time. [X] sustained [another] fracture, reasoning given that he fell backwards whilst foot caught under blanket in cot.
The mother has been charged with a range of offences that allege she is the person responsible for the significant injuries and effects upon the child who, at the time, was at best a toddler and possibly still a baby. The mother, as she is perfectly entitled to do, in an affidavit filed in this Court from prison where she is held in custody on remand, she not having yet been required to plead to the offence, says:
I would firstly like to let the Court know I have been advised by my lawyer that I cannot discuss my criminal matters at this moment in time. I’m willing to work with the department regarding issues regarding my son [X].
The mother is entitled to the presumption of innocence. The mother is not required and, in fact, should not in a civil court be required to waive her right of silence. However, that does not mean the Court can ignore, and the Court does not ignore, the very serious allegations of abuse suffered by X said by the police, but not yet established beyond reasonable doubt, by the mother.
In these circumstances, the Court should be entirely cautious about what is the nature of time the child spends or communicates with the mother. If, for example, the mother was convicted of these serious offences of abuse of the child, it may well be that no time will occur between the child and the mother during his infancy. I do not say that is what will occur. It will depend very much on the nature of the criminal proceedings and any findings made by a criminal court. However, it cannot be excluded that that could be a possibility. Certainly, if the mother was convicted of these serious charges, she is likely to face a term of imprisonment for some years. Again, this is all speculation.
Until that aspect of the matter is clarified by the processes in the criminal court, orders have been put in place upon the intervention by the paternal grandmother, it being noted that the father himself, who was the primary carer after the injuries suffered by the child until he himself was incarcerated without bail awaiting trial on charges that relate to domestic violence. The paternal grandmother has taken on the day-to-day care and responsibility for X. All the evidence suggests that that arrangement is working well for X in these difficult circumstances, and in many ways, X is very lucky to have a person of the quality of the paternal grandmother prepared to adjust her life; her life with her husband who works under contract in Country B, and the needs of this child, putting aside what might normally have been regarded as the retirement plans and lifestyle of a person who had already undertaken a parenting role.
The mother asks that the Court make orders that the child be provided with a photograph of her and the child before she was incarcerated. Clearly, that is the only photograph that would be available. I have no evidence where that photograph is or if it is available, but having heard the submissions, I am prepared to order that the Independent Children’s Lawyer use her best endeavours to procure from the family of the mother the most recent photograph of the child X with the mother and shall cause that photograph to be provided to the paternal grandmother.
The next issue is whether the child should receive cards, gifts and the like from his biological mother whilst she is in prison. It is, in my view, important for this child’s sense of identity that he understand that he does have a biological mother. There is nothing in the evidence to suggest that the paternal grandmother has in any way sought to suggest that she is the biological mother of this child. Prior to these unhappy events in this child’s life, she played some role, although uncertain as to how much, as a grandmother – loving and caring, no doubt. It is important that the grandmother understand that to suggest factual differences to the reality to this child could well cause him more confusion and more long-term emotional damage.
It is hard to understand how this little boy has adjusted to the very significant changes to his attachments, firstly with the mother who was his primary attachment until mid-2022, and then for the short period from then until the father was incarcerated. The effect of that disruption to his attachment and development may not be known for some time. The Court is comforted by the evidence provided by experienced psychologist Ms E in her affidavit, which attaches a report, that the paternal grandmother is aware of these difficulties for the child and has taken professional advice. I accept, as the grandmother indicates, that she has a history working with children and therefore has been involved with young children apart from family members.
However, in my view on all the evidence, it would be more likely to cause long-term developmental issues for the child if the mother at this uncertain time in her criminal history was in some way airbrushed out of his life. No one is really suggesting that occur. Everyone is concerned that whatever level of communication the child has from the mother, it is such that it will not disrupt what the grandmother in these difficult circumstances is seeking to preserve for him, quite properly. Having heard the submissions and having read the evidence of Ms E, I will order that the mother be permitted to send to a postal address nominated by the paternal grandmother within 14 days and at the appropriate times, a birthday card and/or gift for the child; a Christmas card and gift to the child; and an age-appropriate communication to the child in addition to these special events no more frequently, unless agreed, than monthly.
I will order that the paternal grandmother use her best endeavours when observing what the mother sends or offers as a gift and, if she believes further guidance might assist her in making a decision, be entitled to decide when and in what form the letters, cards and gifts sent by the mother are both made available to the child and explained to him. That is the order I propose to make.
An explanation of that last order – let me make it clear that my position is as follows. I will cause these Reasons to be published so everybody knows. I can well understand that the mother in her circumstances could be quite emotional, and that emotion might reflect in cards, age‑appropriate letters or even maybe gifts that she wishes to be given to her child. I accept that, as I have already indicated, at this stage it would not be appropriate for the child to lose the sense of identity he has with the mother, who was his primary carer at least until mid-2022.
However, bearing in mind that I have no way of filtering what she says, I have every confidence that the grandmother will appropriately, and with advice, ensure that what the mother provides to be presented to the child is in fact appropriate and that is not likely, depending on other factors going on in his life at the time, to cause him upset or distress. Hopefully what will be achieved by the orders I make in respect of the time or, more likely, the communication the child has with the mother in this difficult period pending the criminal proceedings being dealt with, is the grandmother will have sufficient ammunition and material to appropriately discuss the child’s birth mother.
I do not propose to give any guidance to the paternal grandmother as to how she explains the absence of the mother in the child’s life, but that is something, obviously, which will come up, most likely between the child and the grandmother when he gets regular communications from her. I have every confidence, on the evidence, although untested today, that with the assistance of Ms E, age-appropriate explanations to this child which do not demonise the mother or do not seek to minimise what might have been her criminal conduct, as difficult as it may be, can be shaped with sensitivity.
They are the orders of the Court today, as are set out at the commencement of these Reasons. In terms of the future case management of this matter, in my view, it should return to the registrar cohort but with an indication that, in the absence of any new Application in a Proceeding being filed, the matter should be listed before me as Case Management Judge for Division 1 Queensland, when the criminal proceedings in relation to either the mother or father have at least been finalised. In my view, there is no real utility, in the absence of an Application in a Proceeding, in the matter returning earlier. I record my discussions with the mother from her place of custody today that if a member of her family seeks some defined orders for X to spend time with them or X’s one-year-old sibling F, then of course that application will be dealt with in accordance with law in the usual way. Until then, there seems little more that can happen in this case until clarification of the criminal proceedings in respect of the mother and/or the father in whatever order they are resolved take place.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 26 October 2023
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