Butler and Hule
[2018] FamCA 338
•28 March 2018
FAMILY COURT OF AUSTRALIA
| BUTLER & HULE | [2018 ] FamCA 338 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother has passed away and the proceedings should have been abated – Where the maternal grandmother was allowed to file an application in the proceedings – Where the maternal grandmother was granted leave to file an initiating application – Where it is plausible that the father has caused physical harm to the children – Where the father present an unacceptable risk of harm to the children – Where the children are to live with the maternal grandmother pending further orders. |
| Family Law Act 1975 (Cth) ss 60CC |
| B & B (1993) FLC 92-357 SS & AH [2010] FamCAFC 13 |
| APPELLANT: | Ms Butler |
| RESPONDENT: | Mr Hule |
| FILE NUMBER: | SYC | 3774 | of | 2016 |
| DATE DELIVERED: | 28 March 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 28 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Batey |
| SOLICITOR FOR THE APPELLANT: | Newnhams Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Griffiths Family Law |
SOLICITOR FOR THE INDEPENDENT Mr Fernie and Ms Weates CHILDREN’S LAWYER:
Orders
That leave be given to the maternal grandmother to file an initiating application in this matter, with herself as the applicant, in Court.
That documents filed in respect to the previous application filed in this matter, be deemed to be documents filed in these proceedings.
That any documents produced to the Court in respect to the previous proceedings, being matter number SYC3774 of 2016, be deemed to be documents produced to the Court, in respect to these proceedings.
That the father, forthwith, sign all documents, give all necessary authorisations for the release to the Family Court of Australia, or the independent children’s lawyer the documents held by the K Town Constabulary, and the Family Court of the United Kingdom, relating to the father’s criminal record, and proceedings relating to:
(a) B, date of birth … 1992;
(b) C, date of birth … 1994;
(c) D, date of birth … 1995;
(d) E, date of birth … 1998; and
(e) F, also known as F.
Until Further Order;
That the children: G born … 2010, H born … 2012, and J born …2015, collectively referred to as “the children” live with the maternal grandmother; and
That the children spend time, and communicate with the father, as agreed.
That the father is to deliver the children to the maternal grandmother during the course of tomorrow, 29 March 2018, as agreed between the parties, and with the approval of the independent children’s lawyer and in the absence of agreement, by delivering the children to the second-floor of the Registry of the Family Court of Australia, in Goulburn Street, Sydney by 3.00 pm tomorrow, 29 March.; and
That costs be reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Butler & Hule has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
File Number: SYC 3774 of 2018
| Ms Butler |
Appellant
And
| Mr Hule |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This matter concerns an urgent application by the maternal grandmother of three children. The grandmother is Ms Butler; she is currently 68 years of age and is the mother of the late Ms Hule. The application is made in tragic circumstances where, unfortunately, Ms Hule passed away in late 2017, leaving three children to herself and the respondent, Mr Hule.
Those three children are: G, born in 2010, currently eight years of age; H, born in 2012, currently aged five years of age; and J, born in 2015, currently two years of age (“the children”).
The application is made by way of an initiating application which has been filed in Court pursuant to orders I made earlier today. Leave was given in circumstances where there has been some uncertainty within the Family Court Registry as to the impact of the death of the late Ms Hule, and in particular, whether her death resulted in the abatement of the proceedings. I have been provided with authority from Mr Batey of counsel, the matter of Feranti & Connor [2010] FamCA 71, a decision of Dawe J, dated 5 February 2010. That decision confirms that the death of Ms Hule resulted in the proceedings being abated. Her Honour summarised the relevant law as follows;
9. The case law also clearly confirms that proceedings between the parties abate on the death of one of the parties. The cases recognise that there is a doctrine of abatement in what was once called matrimonial causes and now called Family Law cases. This relates to proceedings in relation to children. The cases clearly indicate that the proceedings come to an end with the death of one of the parties.
10. In particular I refer to the High Court of Australia decision of Vitzdamm‑Jones v Vitzdamm‑Jones (1981) FLC 91-012, in which a distinct majority of the High Court of Australia (being Barwick CJ, Gibbs, Stephen, Mason, Aickin and Wilson JJ) expressed the clear opinion in that matter that the proceedings abated on the death of the father. The principles discussed in that case clearly apply to this case. In particular at page 76,161 of that case His Honour Gibbs J (as he then was) said:
“I return to the particular cases before the Court in the matter of Vitzdamm-Jones v Vitzdamm-Jones, the proceedings in which the applicant seeks to obtain custody of and access to a child of the marriage are brought by a stranger to the relevant marriage against the surviving party to the marriage. It follows from what I have said that the Family Court had jurisdiction to entertain the proceedings. However, Wendy’s application to intervene in the proceedings that were formerly pending between Bronwen and Alfred must be refused. Those proceedings abated on Alfred’s death.” (Emphasis added)
11. His Honour then refers to various authorities such as Williams v Williams (1951) VLR 362; Kemp v Pearce (1972) VR 805 and King v King (1973) 24 FLR 269; (1974) Qd R 253.
12. The provisions of the Judiciary Act 1903 (Cth) clearly indicate, in particular by section 80, that the provisions of common law continue to apply to jurisdictions such as the Family Court of Australia.
Accordingly I am satisfied that a fresh application by the maternal grandmother was required.
The father, through his lawyers, was notified of the intention to file those proceedings on approximately 14 March 2018. However given the uncertainty to which I have referred, he was unsure as to precisely how the application would proceed. In those circumstances, I agreed to adjourn the consideration of the maternal grandmother’s application for interim orders until 16 April 2018, that being the next judicial duty list.
There is, however, is a significant issue to determine in the interim. That is where the children are to reside until the adjourned date.
As these are parenting proceedings, it is necessary for me to determine what order is in the best interests of the children, even in circumstances where it is, as described by Ms Weates, agent for the independent children’s lawyer, as effectively, an interim, interim order.
In order to reach that decision, I am guided by section 60CC of the Family Law Act 1975 (Cth) (“the Act”), which sets out matters that the Court is required to consider in determining what is in the best interests of the child.
While there are a range of factors set out in section 60CC, adopting a common sense approach, in Banks & Banks [2015] FamCAFC 36 (”Banks & Banks”), the Full Court said:
48. It should be also said in parenting proceedings, as in all civil litigation, it will be the issues that adjoin that will dictate which section 60CC factors are relevant, by their nature. Interim proceedings should be confined to those matters which the best interests of the children require a determination, prior to the proper determination at trial.
In accordance with Banks & Banks, I propose to primarily focus on what the parties have correctly identified as the two primary considerations which are set out in section 60CC(2) of the Act.
That is, I am required to consider the importance of the children having a meaningful relationship with the father. On the other hand, I must consider the issue of risk of the children being subject to risk of physical or psychological harm, or neglect or abuse.
In considering the first matter, that is the child maintaining a meaningful relationship with the father, I note that, in McCall & Clark (2009) FLC 93-405 at [122], the Full Court said:
No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child, by a Court attempting to pass orders to foster a relationship with one parent, if it would not be in the best interests.
In Fitton & Kimble [2017] FCWA 106 at [36], Walters J said:
That the Court is required to consider, as one of a large number of factors, the benefit of a child having such a meaningful relationship.
His Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster [2014] FamCAFC 127 at [123] where the Court noted that;
Having a meaningful relationship with both parents is but one of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered, before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both parents in the following terms:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In terms of the second issue to which I have referred, that is the issue of risk, I note that in, B & B (1993) FLC 92-357, the Full Court said that the task before the Court is essentially to achieve a balance between the risk of detriment to the child from abuse, and the possibility of benefit to the child from parental access.
Specifically, it is necessary to determine whether the risk of harm to the children in having access with a parent, outweighs the possible benefits to them from having that access.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility of determining risk. In SS & AH [2010] FamCAFC 13 (“SS & AH”) at [100], the majority of the Full Court, Boland and Thackray JJ said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the possibilities of competing applications, and the likely impact on a child in the event of that controversial assertion is acted upon or rejected. It is not always feasible, when dealing with the immediate welfare of children, simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that the reference, by the Full Court in SS v AH, to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk,[1] as long as there is a proper basis for those “possibilities”.
[1] Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.
In these proceedings, I have received into evidence;
·Medical records from Dr L at the M Medical Centre.
·Medical records from the M Hospital.
·Documents from the Department of Family and Community Services.
·Records produced by the Commissioner of Police.
The major concern arising from the content of those documents is a serious injury that the youngest child, J, received, in January of this year, to her shoulder and collar bone. That injury required the little girl to undergo surgery which was undertaken on 8 February of this year.
As a result of concerns raised by the hospital, the Department of Family and Community Services requested the father to obtain a medical opinion in respect to the injuries. The result of that examination is referred to in a report Dr L, which is exhibit 3 in these proceedings. In his report to Ms N, case worker with the Department of Family and Community Services, dated 14 March 2018, Dr L said;
[J’s] father had a letter served on him, for getting her checked by a medical officer for the need of care and protection. The father told me that [J] uses her right arm, as her left arm does not move as well, after her left-shoulder fracture. She tends to lean on the table with her right cheek, and that caused her bruises on her face. Also doing everything with her right hand, causes her to have bruises in her right arm, as well. Also her right eye is closed as she has conjunctivitis, and has been using chlorsig eye-drops to treat it. She was started on the eye-drops two days ago. When asked about [J’s] left-shoulder fracture she sustained previously, he told me that her sister pushed her over a few steps, and she had a fall. That was how she fractured her left shoulder. He told me that he just wants to get moving, and live a normal life with his kids, away from all the troubles he is getting from his late ex-wife’s family. I took his permission to examine her, and he permitted me to do so.
Examination: [J] was sitting on the seat, closer to my desk, and was reacting normally with her father. She was holding a mobile phone, and watching a cartoon on her phone. I noticed that she moved her left arm with her sound right arm, as she still could not lift the arm by herself. She had a closed right eye with suppurative discharge. When I approached her to open it, she refused and winced. And she pushed my hand back, and started to cry. I could not open her eye, due to the fact that it seemed to distress her. I noticed bluish-yellow bruises on her right cheek, arranged in a horizontal line, and another one above the right eyebrow. She had two right upper arm bluish-yellow bruises. She also had two more bluish-yellow bruises on her right upper back. She had three more bluish-yellow bruises on her left upper arm, which were swollen above the left elbow, and had an operative scar at the left shoulder, denoting a previous surgical procedure. She had two left leg bluish-yellow bruises.
Plan: I expressed my concern to the father and asked him if someone was abusing her, and he indicated that he did not know, but has a friend who has access to his kids that might be abusing her, but he was not sure. He said he would like to move away from that friend. I indicated to him that I have to write a report, and he should leave the papers with me. He put [J] in the pram nicely, and left. In my opinion, I do not think that [J] leaning on a table would cause her right cheek bruises, and also would not explain the multiple other bruises at different parts of her body. I think [J] was harmed, and I consider that she could be at risk of further harm. The multiplicity of her bruises, with no plausible explanation, and the significant trauma to her left shoulder - needing open reduction and internal fixation, would worry me. I recommend further assessment and treatment by a paediatrician - with particular expertise on child abuse, as soon as possible.
In response to the concerns about possible abuse, the solicitor for the father submitted that the Court should note that, in interviews with representatives of the Department of Community Services, G advised that he saw J fall down the stairs. That report indicates that J has been observed to be clingy with her father, and not indicating any fear of him.
In terms of the observed bruises, the solicitor for the father refers to medical evidence, which is attached to the hospital records from the Suburb O Medical Centre, indicating that the child has a low red blood cell count, and that she is also on antibiotics. Both of these factors, it was submitted, may have resulted in a child being susceptible to bruising.
It was also suggested that, as a young child running around, she is liable to receive bruising.
In order to make the inferences that the solicitor for the father invites the court to make, there needs to be evidence in support of those possible inferences. At this stage there is no such evidence. This is particularly so in respect to the husband’s contention that the existence of a low red blood cell count or the taking antibiotics creates a susceptibility to bruising. That is not to say, with appropriate research, the father may not be able to advance such a case.
What I have to determine at this stage of the proceedings, is not whether it is probable that the injuries referred to by Dr L occurred as a result of the actions of or neglect by the father, but rather whether there is a plausible possibility that the injuries did so occur because of abuse or neglect.
In the context of the observations made by Dr L, which are consistent with photos that have been produced by the M Hospital, I am satisfied that it is probable that J has sustained injuries that have caused bruising.
She unquestionably has sustained an injury that has caused a fracture of her collar bone and right shoulder. At this stage of these interim proceedings, I am not in a position to determine that, as a matter of probability, those injuries were inflicted by the father. Clearly, those matters will have to be determined at a subsequent time, in light of all evidence that is reasonably available.
As I have indicated - by reference to the authorities to which I have earlier referred - my job at this stage, is to determine whether there is a plausible possibility that those injuries were inflicted upon J.
I am of the view that there is such a plausible possibility that the injuries to J were caused by the father and/or a person who the father referred to as friend who has access to his children. In either event there is a concern about the children remaining in the care of the father.
Having regard to those plausible possibilities, it is my view that J is at an unacceptable risk of injury and neglect in the care of the father.
There is also an issue as to whether G who, in the middle of last year, reported that he had been choked by his father, was subject to such conduct or whether he was coached by his mother to make a statement to police to that effect.
Again, in these proceedings, it is unnecessary for me to determine that issue, other than to raise it as an issue where there is a plausible possibility that such an event did occur. In that context I note that the interviewing police officer records a concern that G may have been coached “to a degree” in reporting the events not that he necessarily disbelieved the child.
I accept that there is no evidence of H, who is five years old, having received injury. However, having regard to the other matters referred to in section 60CC of the Act - one of which is the children’s relationship with other significant persons in their life - I accept the submission, of Mr Batey, that it is desirable for the children to remain together.
The other relevant matter, in my considering whether to make orders as sought by the material grandmother, is her capacity to care for the children. In that respect, I have had regard to the affidavit of the maternal grandmother, indicating she is 68 years of age, she has flexibility in her employment, she lives with her partner on a 40-acre rural property. At that property the children would have their own room. In summary I am satisfied that the maternal grandmother has the means and capacity to properly care for the children.
Accordingly, for all the reasons that I have set out, I am satisfied that there is a plausible possibility that J, in particular, sustained injuries at the hands of her father, or that she received injuries from a person known to her father, in circumstances when she was in the father’s care. As a result of that finding I am satisfied that there is an unacceptable risk to, in particular, J, being left in the care of the father in the interim period, pending further consideration of this matter on 16 April 2018.
I am also satisfied that it is important to keep the children together.
On that basis I make orders as sought by the maternal grandmother. I also make orders facilitating that occurring together with additional procedural orders as set out above.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 28 March 2018.
Associate:
Date: 15 April 2018
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