Denton and Eccles and Anor

[2018] FamCA 509

FAMILY COURT OF AUSTRALIA

DENTON & ECCLES & ANOR [2018] FamCA 509

FAMILY LAW – CHILDREN – INTERIM – With whom a child spends time – Whether time spent should be supervised – Whether a requirement for supervision should be gradually removed – History of child protection concerns – Substantiated historical child protection concerns – Where the family consultant considers it is important that the child maintains a meaningful relationship with both parents – Orders for a gradual increase in time with staged removal of the requirement for supervision.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3)

Banks & Banks [2015] FamCAFC 36
Dieter & Dieter [2011] FamCAFC 82
Marvel v Marvel [2010] FamCAFC 101

APPLICANT: Ms Denton

1st RESPONDENT: Mr Eccles

2nd RESPONDENT: Ms A Denton

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3861 of 2013

DATE DELIVERED: 12 July 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts

SOLICITOR FOR THE APPLICANT: Andrew Hill and Co

COUNSEL FOR THE 1ST RESPONDENT:	Mr Charman
SOLICITOR FOR THE 1ST RESPONDENT:	Ian Charman and Associates

COUNSEL FOR THE 2ND RESPONDENT: Mr Anderson-Morley

SOLICITOR FOR THE 2ND RESPONDENT: The Family Law Project

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Seymour

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

Orders

1. That paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of orders made 31 March 2014 are discharged.

2. That until further order X born … 2013 (“the child”) shall spend time with the mother as follows:-

   (a)       from the date hereof until 12 September 2018:-

   (i)from 9 am Friday until 5 pm Saturday each alternate week commencing 13 July 2018;

   (ii)from 1 pm until 6.30 pm on Tuesday each intervening week commencing 17 July 2018;

   (iii)that it is a condition of the mother’s time with the child that the maternal grandmother or maternal aunt Ms B shall be generally present from 7 pm on Friday until 7 am on the following Saturday;

   (b)       as and from 21 September 2018 as follows:-

   (i)from 9 am Friday until 5 pm Saturday each alternate weekend;

   (ii)from 1 pm until 6.30 pm on Tuesday each intervening week commencing 25 September 2018;

   (iii)that there is no requirement for the mother’s time with the child to be supervised.

   (c)       as and from 2 November 2018 as follows:-

   (i)from 9 am Friday until 6 pm Sunday each alternate weekend;

   (ii)from 1 pm until 6.30 pm on Tuesday each intervening week commencing 6 November 2018;

   (d)       as and from 28 December 2018 as follows:-

   (i)from 9 am Friday (or the commencement of school if during a school term) until 10 am on the following Monday (or the commencement of school if during a school term) each alternate weekend;

   (ii)from 9 am (or the conclusion of school if during a school term) until 6.30 pm on Tuesday each intervening week commencing 1 January 2019.

   (e)from 4 pm on 25 December until 4 pm on 26 December in each year provided that the mother’s time is suspended from 4 pm on 24 December until 4 pm 25 December in each year.

   (f)from 10 am until 4 pm on Mother’s Day.

3. That the mother is restrained and an injunction granted restraining her from allowing the child to be in the presence of Mr C at any time or allowing any other person to do so.

4. That each party shall ensure the other that they each have the telephone and other necessary contact details such that they each have a direct contact mobile telephone number for the other and they must each inform the other of any change thereto.

5. That the father or his nominee being the paternal grandmother shall deliver the child to the maternal grandmother’s home at the commencement of the mother’s time and the maternal grandmother shall return the child to the father (or the paternal grandmother) at the conclusion of her time.

6. That the maternal grandmother shall effect handover.

7. That each party shall advise the other of them as soon as is practicable of any serious injury or event involving the child.

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 Denton & Eccles and Anor 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 ADELAIDE

FILE NUMBER: ADC 3861 of 2013

Ms Denton

Applicant

And

Mr Eccles

1^st Respondent

And

Ms A Denton
2nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.Ms Denton (“the mother”) by her Application in a Case filed 24 April 2018 seeks that she spend time with X born in 2013 (“the child”) as follows:-

a)Each alternate weekend from 9 am Friday until 9 am Monday (unsupervised);

b)Each alternate Tuesday from 9 am until 7 pm Wednesday (unsupervised).

2.Mr Eccles (“the father”) opposes the mother’s application in his Response filed 23 June 2018. He is prepared to agree that the mother’s time with the child should be unsupervised on each alternate Tuesday from 4 pm to 6 pm but not otherwise.

3.The current order of 31 March 2014 provides for the child to live with the father and spend time with Ms A Denton (“the maternal grandmother”) from 9 am Friday until 5 pm Saturday in each alternate week and from 1 pm until 6.30 pm on Tuesday in each intervening week.

4.Any time that the mother spends with the child is required to be under the direct supervision of the maternal grandmother, the maternal aunt Ms B, the maternal great-grandmother Ms D Denton or an officer of the Department of Child Protection.

5.The orders specifically prohibit the child coming into the presence of Mr C at any time.

6.It appears that there have been attempts to explore both the lifting of the condition of supervision and an extension of the time that the child spends with the mother. The parties have not been able to reach agreement other than by implication that the father is now prepared to accept that any involvement by the maternal grandmother would be as a nominated supervisor rather than a party to the proceedings.

BACKGROUND

7.The narrow focus of the application belies a complex history. The father is 27 years of age and the mother is 25 years of age. The parties met in August 2011 and cohabited for only a few months in 2012.

8.After separation the mother commenced cohabitation with Mr C.

9.On 11 August 2013 the child sustained and was diagnosed with “substantial non-accidental injuries including broken ribs, a broken ankle, some apparently old healed fractures and possible brain swelling and bruising”.

10.The mother and Mr C either denied responsibility for the injuries sustained to the child or at the least were not able to provide an explanation. Whilst a police investigation was unable to identify the person responsible, all other possible perpetrators were ruled out.

11.The mother denied causing injuries to the child but appeared either unable or reluctant to accept that if not her then Mr C was responsible.

12.If the mother did not cause the injuries then at the very least her lack of ability to protect the child placed her as an unacceptable risk.

13.Ultimately the child was placed in the care of the father.

14.The mother continued her relationship with Mr C up until December 2014. On 25 June 2014 Families SA (as it then was) (“the Department”) received a child protection notification in relation to the mother’s unborn child.

15.The mother’s circumstances were then closely monitored with the principal concern being the potential risk following the birth of the child as may be presented either by the mother or Mr C.

16.The concern of the Department was the mother continuing to “demonstrate a lack of empathy and emotion” when discussing the child’s injuries and experiences and her reluctance to consider the seriousness of the situation by her continued relationship with Mr C given that she denied causing the child’s injuries.

17.Y was born in 2014 (“Y”). Upon discharge from hospital Y was placed in the temporary care of the maternal grandmother.

18.It was considered that Y would be at significant risk of physical, emotional and psychological harm if placed in the care of the mother and Mr C. A twelve month Care and Protection Order was made which placed Y in the care of the maternal grandmother.

19.The mother sought the return of Y to her care and agreed to enter into an intensive intervention program. The mother received psychotherapy at the E Hospital and commenced a reunification program.

20.Some months prior to the expiration of the twelve month Care and Protection Order, Y was returned to the mother’s full-time care on 14 July 2015.

21.The mother continues to work with the Department and under its direction arrangements are made for Mr C to spend time with Y supervised by the mother.

22.It appears that the mother recognises the risk posed to the child by Mr C and adequate steps are taken to ensure that the child does not come into contact with him. There is nothing to suggest that the Department has any current concern with the mother’s parenting of Y and the child.

COMPETING PROPOSALS OF THE PARTIES

23.The mother seeks a significant increase in the time that the child spends with her. The most significant consideration is whether the mother’s time with the child should be supervised, save as to the period of two hours on each intervening Tuesday as conceded by the father.

24.For his part, the father seeks that there be no increase in time and that the maternal grandmother continue to supervise the mother’s time.

25.The Independent Children’s Lawyer (“ICL”) supports the mother’s application for increased time.  It is to gradually increase over the balance of 2018, with the requirement for supervision to be discharged.

ATTITUDE OF THE FATHER AND HIS FAMILY

26.The father remains opposed to the mother’s application. He remains mistrustful of her and relies upon an initial determination of the Department that the injuries occasioned to the child were likely caused by the mother and not Mr C or other persons. The father considers that without supervision the child would be at risk in the mother’s care. The father does not consider that the mother has been honest in her explanation of how the child sustained her injuries and without the mother accepting responsibility and then demonstrating that she has addressed her anger-management, it is unlikely that he would be sufficiently reassured of the child’s safety to consent to the requirement for supervision being removed.

27.He does accept that the recent periods of unsupervised time have been uneventful and without incident.

28.The father’s attitude is shared by his extended family. The paternal grandmother has prepared affidavits that speak of her concern for the child if left in the unsupervised care of the mother.

29.The Department referred the mother, Mr C and Y to the F Group, an independent organisation tasked with preserving and reunifying Y and the mother. Part of the consideration was the inter-relationship with the father and the overarching concerns as to the mother’s ability to safely parent Y given the injuries sustained by the child.

30.Counsel for the mother tendered a bundle of documents including a final assessment report from the F Group dated 1 March 2016.

31.The complexity that arises in circumstances of the unexplained injuries to the child resulted in the various child protection authorities having a different view as to the way forward.

32.The issue is highlighted in the final assessment report which forms part of Exhibit “1” in the proceedings and the following extract sets out the conundrum in stark terms:-

It is not uncommon in child protection work for there to be dispute over what has happened and what needs to be done. These differences may escalate into conflict or even splits in professional views with an associated high level of tension.  This was the situation when the consultant began work with the family. Families SA and DOPM had a significant difference of opinion over the assessment of risk and how to manage it. The consultant concurring with the DOPM view escalated the professional conflict. Positively, case transfer resulted in coordinated action that moved the case along in a very productive way.

Such issues are not normally discussed in assessment reports, but the consultant is doing so because there is a significant ethical issue still unresolved regarding [the child]. On the basis of opinion formed by CPS early on that [the mother] was the most likely perpetrator of [the child’s] injuries, Families SA adopted this position, as is the usual practice of Families SA taking advice from specialist child protection assessments. The next decision was to support [the child] being cared for her by her biological father and his mother, rather than attempt reunification with [the mother], who had been her primary caregiver. The consequence of this arrangement, coupled with [the child’s] paternal family’s animosity towards [the mother], has been that [the child’s] relationship with her mother was become weakened, even threatened. [The mother] and her family are very keen to strengthen it so that [the child] has a strong and positive relationship with them.

Part of the reason why the relationship between [the child’s] paternal and maternal families is so acrimonious is that the paternal family is basing their opposition on their belief that [the mother] has injured [the child] and therefore continues to pose a risk to her. An acknowledgement that this is very unlikely to have been the case may help significantly in progressing family court action, such that [the child] has an opportunity to have regular contact and a close relationship with her mother, as is her right.

FAMILY REPORT

33.Following an order made 31 March 2014, Dr G (“family consultant”) prepared a family report dated 5 September 2016 which forms annexure “AWD2” to the mother’s affidavit filed 16 February 2017. The family consultant clearly identified the issues in dispute and appropriately records that the father and the paternal grandmother did not consider that the child was safe in the maternal family’s extended care and certainly not in the presence of the mother if unsupervised.

34.The mother disputes that she posed any risk to the child and repeated her position that there was no circumstance where the child would come into contact with Mr C.

35.The family consultant considered the importance to the child of maintaining her attachment to the mother in circumstances where the father’s trenchant opposition may put that at risk.

36.The following appears at [61]:-

… On the other hand, it appears that as [the father’s] seemingly acute fears for [the child’s] physical safety and overall wellbeing could possibly be instrumental in his discounting any consideration of how important this child’s attachment to her mother might be now and in the longer term. Further it appears that [the father] may not perceive that [the child’s] mother/child attachment and her immediate and long term emotional and psychological wellbeing and development may be critical to [the child’s] future wellbeing together with [the child’s] potential wishes to spend time with her mother and her small half-sister now and in the future.

37.Further, at  [86] the following appears:-

Overall it appeared [the paternal grandmother] is sincere in her concerns for [the child]. Nevertheless it also appeared that she and [the father] may have, and may continue to determinedly seek out and focus negatively on any aspect of [the mother’s] family, and any associated person such as [the mother’s partner] or [Mr C]…

38.The observations of the child at age three years with each of the parties but in particular the mother was unexceptional. The child responded happily in her presence and her conduct was appropriate and appeared to engender delight in the child.

39.The evaluation of the family consultant at [107] was that the child’s best interests would benefit:-

… from a meaningful relationship with each of her parents now and in the long-term. It appeared clear that in earlier years [the child] was in need of immediate care and protection, notwithstanding that no-one was identified as the perpetrator of the very serious injuries the child suffered. …

40.A further consequence of the paternal family’s mistrust of the mother and their heightened level of vigilance in respect of the child is evidenced by the child having undergone a number of physical examinations by medical staff and health professionals. The family consultant considered that the child “would have experienced some insecurity, confusion, unrest, stress and uncertainty throughout these times”.

41.It appears that whilst the animosity between the maternal and paternal families may not have dissipated, the child has at least settled into a routine not marred by adverse incident.

42.The family consultant proposed that there should be a resumption of time between the mother and the child subject to certain information being provided to provide support for the mother’s contention that the child was not at risk.

43.The mother provided a history of her engagement with the Department which included weekly and fortnightly classes and other interventions to assist her to understand what may constitute “safe, empathic, protective and nurturing care of her children”. The family consultant considered it an important and promising indicator of the mother’s development that the Department were satisfied to return Y to her fulltime care.

44.The support of the ICL for an increase in the mother’s time and the removal of the requirement for supervision appears to gain support from the observations of the family consultant and the period of two years that has now elapsed since the report during which there has been no further involvement by the Department, the mother retains the sole and unrestricted care of Y and there is little by way of further complaint in respect of the time that the child has spent with her.

INTERIM PROCEEDINGS

45.The principal focus in the determination of this application is the extent to which the mother may pose a risk to the child if supervision is not maintained.

46.The Full Court has considered the extent to which findings can be made on contested evidence in interim proceedings. In Marvel v Marvel [2010] FamCAFC 101 the following discussion is helpful:-

[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

…

[122]In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:-

In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

[123]Later, at paragraph 100 their Honours amplified their comments and said:-

The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints present the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a 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.

47.Where an assessment of risk is required at an interim hearing, the Full Court in Dieter & Dieter [2011] FamCAFC 82 considered particular care should be exercised in the following terms:-

[61]…risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

48.In Banks & Banks [2015] FamCAFC 36 the Full Court said:-

[47]As the Full Court pointed out in Goode, the fact that there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

[48]It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists make it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

[49]Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

[50]When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

PARENTING CONSIDERATIONS

49.Section 60B of the Family Law Act 1975 (Cth) outlines the principles underlying Part VII of the Act.

50.Section 60CA requires that in deciding whether to make a particular parenting order, the best interests of a child or children are the paramount consideration.

51.The Court is then obliged to consider the provisions of s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).

52.In particular, when applying the considerations as set out in s 60CC(2) and considering s 60CC(2A) the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

53.The present application must be seen against the backdrop of the current orders. Whilst they refer to the child spending time with the maternal grandmother and acknowledging that the mother will have an involvement, the reality is that the child is cared for by the mother with her time supervised by the maternal grandmother.

54.The current orders have the support of the family consultant in that providing the child was safe, her best interests are served by maintaining a close attachment with the mother and the extended maternal family. The current orders acknowledge that a meaningful relationship must be maintained between the child and the mother.

55.The mother seeks to significantly extend the time and to dispense with the requirement for supervision.

56.The mother’s current circumstances is that she is not in paid employment and supervises Y on a full-time basis. Y has commenced preschool and attends occasional care twice weekly.

57.The mother and Y reside in rental accommodation. Her health appears stable and she is monitored by her general practitioner.

58.She seeks an extension of the time that the child spends with her to enable a wider range of activities to be undertaken. The mother is also concerned that the current orders are insufficient to promote the child’s sibling relationship with Y. It is difficult for the mother to arrange even a short holiday given the current limitations of both time and supervision.

59.By reference to an affidavit of the maternal grandmother filed 6 June 2018, she sets out the extent to which she supervises the mother’s time with the child and her observations of interaction.

60.The maternal grandmother is categorical in her statement that there have been no incidents involving the child and that she observes that the child appears strongly attached to the mother and that she is attentive to the child.

61.She has supervised the mother’s time for four years and nine months without incident. The father’s recent concession for the removal of supervision on Tuesday has also been uneventful.

62.If the Court makes orders as sought by the mother, the maternal grandmother confirms that she will continue to maintain a vigilant presence and be available to assist the mother as may be requested.

DETERMINATION OF RISK

63.It is difficult to argue with the proposition that at the time the child was removed from the mother’s care the risk posed by her was unacceptable. Whilst not capable of determination, it is at least arguable that it was not the mother that caused the child’s injuries but rather Mr C. Even if that proves to be the case, the mother was not able to protect the child from harm.

64.Five years has now elapsed since the child was first taken into care and it would seem uncontroversial that the mother has undertaken various steps to rehabilitate herself and to ameliorate what were clearly significant deficiencies in her parenting capacity.

65.The mother’s involvement with the Department appears to have been intensive and it is reasonable to draw the conclusion that whatever the previous misgivings were, noting that at the time Department Officers held differing views, Y was returned to the mother’s care and the restoration of that relationship has been without incident.

66.The current orders are now of long standing and without incident.

67.The support of the ICL for the mother’s application is an important consideration. It is reasonable to assume that the ICL has made appropriate enquiries and has considered subpoenaed material that enabled a strong submission in favour of extended time and a removal of the requirement for supervision.

68.The father has maintained a strong concern that without supervision the child may well be at risk in the mother’s care. It is a relevant consideration that whether his concern is presently justified, it is nonetheless genuinely held.

69.The family consultant considered that the child may well be adversely affected by the nature of the conflict between the paternal and maternal families.

70.It is reasonable to bring to account the concerns of the family consultant that unless a cautious approach is adopted, their mistrust of the mother and her family may adversely impact on the child and affect her relationship with the mother.

71.Given the time that has elapsed, the lack of incident and the circumstances of the mother having had the fulltime care of Y for some years, it is reasonable to consider that the child will benefit from increased time with the mother and Y.

72.I consider that a gradual increase in the mother’s time and a staged removal of the requirement for supervision will promote and foster the child’s current close attachment with her and enable the father to monitor any adverse presentation by the child.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 July 2018.

Associate:

Date: 12 July 2018