Charr & Dalton
[2022] FedCFamC1F 841
Federal Circuit and Family Court of Australia
(DIVISION 1)
Charr & Dalton [2022] FedCFamC1F 841
File number: DUC 273 of 2021 Judgment of: GILL J Date of judgment: 2 November 2022 Catchwords: FAMILY LAW – CHILDREN – INTERIM ORDERS –Where the father is seeking a reversal of current living arrangements such that the child of the parties now live with him on an interim basis, pending the outcome of the upcoming final hearing – In context where the father has not been the child’s primary caregiver and there are prospects of disruption towards the child – Where there are allegations of family violence towards the father – Where there are concerns regarding the physical welfare of the child under the mother’s care – Father’s application is dismissed – Procedural safeguards placed upon the mother. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 65 Date of hearing: 26 October 2022 Place: Canberra Counsel for the Applicant: Mr Hogg Solicitor for the Applicant: Central West Legal Solicitor for the Respondent: Mr Pigott, JWP Lawyers Solicitor for the Independent Children’s Lawyer: Ms Higgins, Joplin Lawyers ORDERS
DUC 273 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHARR
Applicant
AND: MS DALTON
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
2 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the applicant father, Mr Charr (“the Father”) on 21 October 2022 is dismissed.
2.Until further order:
(a)The respondent mother, Ms Dalton (“the Mother”) shall provide no less than seven days’ notice to the father and the Independent Children’s Lawyer in writing prior to changing the current daycare arrangements of their child, X (“X”), born 2019, including as to the days on which she is to attend daycare;
(b)The mother shall forthwith authorise the daycare centre in writing to provide to the father and to the Independent Children’s Lawyer on their request, all information relating to X’s attendances upon the daycare centre;
(c)In the event that the mother wishes to be heard regarding Orders 2(a) or 2(b), then within seven days of these orders, she may seek the urgent relisting of the matter before Justice Gill; and
(d)In the event that there is a change in the daycare arrangements for X, then any party is entitled to seek the urgent relisting of the matter.
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 Charr & Dalton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction
This application concerns the parenting arrangements for X (“X”), born 2019 (currently aged three), the child of the applicant father, Mr Charr, and the respondent mother, Ms Dalton, pending the final trial of the matter scheduled for February 2023.
X currently lives with the mother in the City B area. She has lived with the mother since the parties separated in June 2021. She is spending regular supervised time with the father, who lives in C Town, New South Wales. Travel between the two places takes a number of hours one way.
Those current arrangements are the product of interim orders made firstly by Judge Dunkley following a contested interim hearing on 21 October 2021. They have since been the product of orders made by a Senior Judicial Registrar on 14 July 2022.
The present application is for a reversal of this arrangement, such that X live with the father and spend supervised time with the mother. This application, supported by the Independent Children’s Lawyer (“ICL”), follows the release of the Family Report prepared by the Court Children’s Expert on 12 September 2022, that identified risk concerns for X in the mother’s care. The release of the Family Report caused the court to list the matter for further determination.
Material Relied Upon
Applicant Father
As per the applicant father’s Case Outline Document filed 25 October 2022, he relied on the following:
(1)Application in a Proceeding filed 4 October 2022;
(2)Affidavit filed 4 October 2022;
(3)Affidavit of Ms D filed 11 October 2022;
(4)Affidavit of Mr E filed 11 October 2022;
(5)Affidavit of Ms F filed 11 October 2022;
(6)Affidavit of Ms G filed 11 October 2022;
(7)Undertakings filed by Ms D on 14 July 2022;
(8)Undertakings filed by Mr E on 14 July 2022;
(9)Undertakings filed by Mr H on 14 July 2022;
(10)Undertakings filed by Ms G on 14 July 2022;
(11)Family Report by Dr J dated 12 September 2022;
(12)ICL’s Tender Bundle; and
(13)Applicant’s Tender Bundle
Respondent Mother
As per the respondent mother Case Outline Document filed 26 October 2022, she relied on the following:
(1)Affidavit filed 25 October 2022; and
(2)Respondent’s Court Book
Independent Children’s Lawyer
As per the ICL’s Case Outline Document filed 21 October 2022, she relied on the following:
(1)ICL’s Tender Bundle; and
(2)Family Report by Dr J dated 12 September 2022
The issues in the case
Although issues were raised by the Family Report writer that covered subjects such as whether the mother is functioning as the primary carer for X, and whether the mother has adequate psychological support, it was accepted that the application is primarily reliant upon issues of risk to X in the mother’s home, including as to the nature of the care arrangements, whether the mother is homeless, whether X has sustained injuries in the mother’s care and, in particular, whether the mother is undermining X in being able to report such by painting her as a story teller.
Whatever determination is to be made in the interim proceedings, it occurs against a background of serious allegations of other family violence against the father. While the father accepts that he did these things, he asserts that they were consensual. The father has a history of family violence proceedings against him, including an Apprehended Violence Order being obtained for the protection from him of a child previously under his care, and a history of mental health struggles, including as to potential self-harm. The self-harm thoughts, reported by the father to his general practitioner in early 2020, occurred in the context of conflict with previous partners. In early 2020, the father reported binge drinking to his general practitioner.
Whilst issues of exposure to family violence still appear to be likely to play a large part in the trial of the matter, one key allegation appears to have found some resolution in criminal proceedings in the Local Court at City K in favour of the father and against the mother, where she has been found guilty of intimidation in relation to an incident close to separation where each party alleged that the other had engaged in aggressive driving toward the other on the road between City K and C Town.
Also, on separation it is uncontroversial that an incident occurred between the mother and the father’s sister (X’s paternal aunt) who had been heavily involved in X’s care. Even on the paternal aunt’s description, the incident flowed from her physical blocking of the mother from leaving with X. Accordingly, the mother has voiced her opposition to the paternal aunt spending time with X without supervision. The full significance of this incident falls to be determined in the final trial.
Although these circumstances and their implications remain unresolved as yet, they speak to underlying risk issues in either household.
Importantly, it is uncontested that the father has never had the primary care of X, although he has the support of his family, who also provided extensive support for, and spent significant time with X pre-separation. Despite this, the Family Report writer observes that X has warm relationships with both parents and that, given her limited time with the father over the last year and a half since separation, this speaks to a strong underlying relationship with him.
Principles
Whether parenting proceedings are interim or final, they require that the child’s best interests be the paramount consideration, and that such be determined by having regard to the s 60CC considerations within the Family Law Act 1975 (Cth) (“the Act”). Those considerations are to be examined in the light of the Objects and Principles, and may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
Of the s 60CC considerations, the two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to abuse, neglect or family violence. Section 60CC(2A) of the Act requires the Court to place greater weight upon the second of these two primary considerations.
In interim proceedings, such as here, the Court is required to recognise the limitations that it faces in terms of fact finding, with fact finding being unavailable in the absence of testing of the evidence. Nonetheless the Court, whilst giving emphasis to the non-controversial matters and the matters that are otherwise objectively supported, is still required to give consideration to the risks to a child indicated by the material presented to it, and to consider how the best interests of the child are met in the light of those potential risks.
In this case, the key issues are as to the nature of the risks faced by X in remaining living with the mother pending the final hearing of the matter, as against the removal into the care of the father who has never been the primary carer, who is alleged to have been violent to the mother, and who has had limited supervised time with X since separation.
The Evidence
The evidence was primarily drawn from material produced to the Court by the NSW Department of Communities and Justice (“DCJ”), X’s daycare provider, L Centre, and the contact supervision service, M Centre. The particular aspects of those records identified by the parties are examined below.
NSW Department of Communities and Justice
The DCJ’s records from 11 January 2022 include observations of bruising on X’s legs, purportedly in the shape of three middle fingers, with further such bruising also seen to X’s rib region. This was explained as X running into something or from the mother having grabbed her (it is unclear who provided the descriptions or explanations). It was further alleged that such bruising had also been seen previously.[1]
[1] Exhibit F1.
Exhibit ICL 1 contains a DCJ report that includes a record regarding bruising (the size of a ten cent coin) to both of X’s temples as at 30 March 2022. They were observed to have faded. The cause of the bruising was not identified. The DCJ records a report (unidentified in origin) that the mother queried X about the bruising, and when X nominated a (redacted) person as responsible the mother said “you always saying stuff like that.” A further report appeared to be that when the child was sent home from daycare for Covid like symptoms that the mother asked the daycare about the bruising, the daycare responding that they held photographs of X having such bruising on her arrival at the daycare centre. The record also notes in regards to the bruising, that the mother indicated like she “has been bashed around to get that”.
An explanation was later provided that X rubs her head on the ground.
The significance of the bruising is at this stage quite unclear.
The DCJ’s records note that X has abnormal, inconsistent living situations, and that the mother has her friend collecting X from the daycare, even when the mother was not working.[2]
[2] Exhibit F1.
L Centre
The ICL observed that X is regularly being signed into daycare between 10.30 am and 11.00 am, raising her concern that the mother is unable to get X to daycare at a reasonable time. Further, the majority of the drop offs and pickups are by Ms N, an associate of the mother’s. It was submitted that this was strongly suggestive that the mother is not providing the current and substantial care for the child.
I am unable to accept that this is sufficient to indicate such a conclusion, nor that there is something inherently deleterious in X being provided to daycare at a later hour of the morning.
More significant are the daycare records that indicate that X had frequently been collected after the allocated time.[3]
[3] Exhibit ICL1.
More important are the records that relate to the mother telling the daycare that X makes up stories, a matter of concern to the Family Report writer given its potential as a device to undermine information given to people by X.
In mid-2022, the mother and Ms N (an associate of the mother) arrived unannounced at the L Centre. The mother stated that X was “telling stories and did not want to come to school.” The mother was notified about “Mr O” dropping X off at the centre and that X was distressed by this, and there was concern about the way in which he brought her into the centre. The mother stated that Mr O “is my security guard.”[4]
[4] Exhibit F2.
The records from mid-2022 include Ms N suggesting by telephone (with the mother in the background) that the child care centre arrange for X to be sent home in a taxi (an obviously unsuitable arrangement for a three year old).[5]
[5] Exhibit F2.
The issue of X’s veracity has otherwise come under scrutiny. For example, a file note from the daycare centre of mid-2022 recorded X as reporting that she had seen her father and that he had tried to remove her from the mother’s arms, and had pushed them into the door.[6] Although, as will be seen below, X had recently spent time with the father, this was in supervised conditions and without the parties having come into contact with each other. X’s statement had no apparent relationship with reality. This incident was described by X as having occurred at her paternal aunt’s home, where she has not been for approximately eighteen months. The note taker further noted that “from time to time [X] does make up story.”
[6] Respondent Mother’s Court Book p.239.
The L Centre records include a conversation in mid-2022 between the mother and staff at L Centre. The mother told staff that Ms N had observed X interacting inappropriately with a guitar, that X had said that it had happened at the child care centre, and that she constantly told stories. The staff explained that they had not seen any such behaviours and that two educators were always present.[7]
[7] Exhibit F2.
In late 2022, the mother attended L Centre and spoke with staff about Ms N being upset regarding her belief that the centre had made a report to DCJ alleging abuse of X. The mother went on to say that X “continues to tell stories and if we could write them down and let her know.” Following the conversation with the mother, Ms Q spoke with Ms N, who confirmed that she had been contacted by DCJ that day stating that she had hurt X twice.[8]
[8] Exhibit F2.
On that same day, notes from the daycare record X telling staff that she was not going to tell bad stories any more.
In late 2022 the mother is recorded as asking the centre whether X had been telling any stories that day. The mother then explained that when she had spoken to DCJ the other day they reported that X had said that Ms N had been hitting her.[9]
[9] Exhibit F2.
M Centre
Issues were also raised from the notes provided by the contact centre currently supervising the father’s time with X.
In the visit in mid-2022 comments by X indicated her exposure to conflict between the parents, asking the father if he had “killed” her and referring to the police.[10] Although it did not appear to be contentious that X was exposed to the police on multiple occasions at the time of separation, the reference to “killed” was at least suggestive of some exposure of X to the dispute between the parents.
[10] Exhibit F3.
X was also reported to say to the father that he had pushed her out of bed. When he said that he had not, she then said that the mother had pushed her out of bed.[11] It is not appropriate to, at this interim stage, place any weight on these apparently contradictory statements made by X as indicative of risk.
[11] Exhibit F3.
The report of the visit indicated positive interactions between the father and X.
In another visit in mid-2022, the centre recorded that the mother did not comply with the requirements as to where she was not permitted to be during the visit, as disclosed by the contact centre’s use of a GPS app with the parents. The mother apologised and explained that she was finding a toilet, and that she was mistaken about the zone that she was in, although the centre identified that there were other toilets that were available to the mother and with which she was familiar. The circumstances at present appear ambiguous.
During a visit in mid-2022, X told another child, in response to a query about what had happened to her hand, that she had fallen down the stairs and that her mother had pushed her.[12] X was also reported to have a sore neck, and that she appeared to be “scattered.” When asked about this the mother denied that X had fallen down stairs, but advised that X was on new medication. She also told the centre that X often said things that were not true, including that she said that at daycare the boys had played with her vagina, which was not true.
[12] Exhibit F3.
In the notes for a visit in late 2022, concerns were expressed that the mother’s car looked like it was packed for moving.[13]
[13] Exhibit F3.
During a visit in late 2022, staff at M Centre noticed a mark on X’s lip again. Staff said to X “oh you have a mark on your lip” to which she responded saying “that happened at [Ms N’s] house, when [Ms N] pushed me into a fan and there was blood.”[14]
[14] Exhibit F3.
The Family Report
The Family Report writer identified a number of concerns relating to the mother that underpinned her view that there should be a change in the care arrangements for X. These were the mother’s multiple assertions that X makes things up, the mother’s presentation at the assessment, a recent child protection report and the issue relating to both the history of and current arrangements for primary care, which she considered pointed to the mother not being the primary carer for X.
The DCJ intervention, referred to above where the mother suspected that the day care had made a report was, she had explained the product of an accidental injury to X’s head occasioned by Ms N, and X making things up.
The primary care issues relate, in particular to the involvement of the father’s family pre-separation and the role of Ms N at present. Neither lead to a clear indication of risk or inadequacy of arrangements such as to indicate significant risk on an interim basis.
The significance of the mother’s affect during the assessment also falls to be determined at the trial of this matter and is not, at present, sufficient to indicate a significant and immediate risk to X.
Consideration
X faces a suite of factors that potentially undermine her well-being.
The mother has significant mental health history, although there is little reference to this having significance during the relationship. There are issues arising from the mother’s resort to violent behaviour, as indicated by her being found guilty of a criminal charge in relation to the father and an associated charge in relation to the paternal aunt. There are concerns regarding the mother’s capacity to care for X, seen in X being late to, and collected late from daycare, in the mother’s presentation with a car full of belongings suggestive of housing instability, and in the mother’s heavy reliance upon third parties such as the paternal aunt during the relationship and Ms N now. Those issues are somewhat heightened in the mother’s sending of a person she referred to as a security guard to collect X from daycare. Further issues of exposure to harm arise from X’s presentation with injuries, X’s claims in relation to such, and in the mother’s characterisation of X as a storyteller.
Together, these raise risk factors for X both of harm and of inadequacy of care, albeit in each case clothed with ambiguity.
Of these issues, the most pressing are the issues flowing from the combination of X having presented with bruising, having attributed responsibility to the mother and Ms N, accompanied by the mother’s repeated assertions about X making up stories.
It may be observed that the instances of injury, and even X’s comments about them do not point with clarity to abuse having taken place. What becomes particularly troubling is the issue identified by the Family Report writer as to whether the mother is undermining X in order to ensure that she is not believed should she make a claim of abuse.
This is a difficult issue. On the one hand, if X is at risk of harm in the mother’s household, whether from the mother or from Ms N, then her exposure to daycare and ability to tell the daycare what is wrong are important protections. If the mother’s representations are calculated to undermine X’s reports of actual abuse then they speak of a risk of harm and of corresponding cover-up of such. Under such circumstances the mother could not be considered to be acting in a manner that is protective of X, and X should be seen as at risk of harm.
On the other hand, if there is a genuine issue of X making up stories then the mother’s representations are both accurate and protective of X being harmed by her own misrepresentations. The records identified by the parties indicate that there is a genuine issue as to whether X is, in the description of the mother, making up stories.
These are not issues capable of resolution outside the conduct of the final trial in the matter, but they remain matters to be considered to the extent that they suggest that X is at risk.
The father too has a significant mental health history, incorporating issues of his consideration of serious self-harm. There are serious allegations of family violence against the father, incorporating allegations of actual bodily harm upon the mother, where the bodily harm is admitted although asserted to be consensual.
Again, these are not issues that are capable of resolution at this stage.
Importantly, the father has never functioned as the primary caregiver for X, and has had limited recent opportunity for relationship, although the relationship has been observed to be positive.
It is in this context that the father’s proposal is that X immediately move into his care and spend limited supervised time with the mother. Whilst the prospect of X moving into the care of her paternal aunt was floated, the paternal aunt is not a party to the proceedings, and should not be the subject of such an order. Nevertheless, it should be recognised that if X was to live with the father he would have significant support from the paternal aunt and from the rest of his family, just as it appears the parties enjoyed prior to separation.
While there is uncertainty surrounding the risk factors presented in the care of each of the adults, it may be taken that the move to live with the father will constitute significant disruption to X. She would face removal from the mother and those around her that care for her, to be cared for by the father who has never filled the role of primary carer, and into the care of his family who have had no significant contact with X since shortly after separation.
That significant disruption would occur in the context of a fast approaching final trial, and be accompanied by the prospect of further reversal and disruption depending upon the outcome of the trial.
Conclusion
The significant prospects for disruption in this instance outweigh the potential risk in the mother’s household pending the trial in this matter. This balancing of the matter means that the father’s application, as supported by the ICL should be dismissed.
However, the circumstances revealed by the application call for further safeguards to be put into place pending the trial.
Although not canvassed by the parties, it appears appropriate for the protection of X that she remain under the scrutiny provided by her current daycare arrangements, given that the subpoenaed material indicates the diligence with which they have discharged their obligations toward X.
As the issue was not raised by the parties at the interim hearing, the obligation placed upon the mother should be procedural rather than substantive. They should require the mother to notify the father and the ICL prior to a change being made to X’s daycare arrangements, coupled with an obligation upon the mother to authorise the daycare to provide to the father and ICL information as to X’s attendances at daycare. This in turn will be coupled to a liberty to seek an urgent relisting of the matter in the event of the daycare records either indicating an immediate risk or a diminution in the scrutiny of X’s circumstances due to a variation in her daycare arrangements.
Given these are not substantive it is doubtful that questions of procedural fairness arise. However, to ensure that there is no such issue the mother will be at liberty to relist the matter before me in the next seven days should she contest, or wish to be heard in relation to the orders regarding daycare as outlined above.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 2 November 2022
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