Elkins and Elkins

[2015] FCCA 3585

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELKINS & ELKINS [2015] FCCA 3585

Catchwords:
FAMILY LAW – Parenting – interim application by the father for recovery of the children from the mother – mother refusing to return children in contravention of consent orders made on 14 February 2013 – allegations of abuse by the father and a step-sibling disclosed by eldest child to mother and the Department of Health and Human Services – application of primary considerations in s.60CC(2) of the Family Law Act 1975 – primary consideration in s.60CC(2)(b) found to be paramount – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(2A), 69ZT

M v M (1988) 166 CLR 69

Applicant: MR ELKINS

Respondent: MS ELKINS

File Number: MLC 5669 of 2012

Judgment of: Judge Wilson

Hearing date: 18 December 2015

Date of Last Submission: 18 December 2015

Delivered at: Melbourne

Delivered on: 18 December 2015

REPRESENTATION

Counsel for the Applicant: Mr D. Goddard

Solicitors for the Applicant: McClure Law

Counsel for the Respondent: Mr D. Laidlaw

Solicitors for the Respondent: Tyler Tipping & Woods

ORDERS

1. The Orders made 14 February 2013 are suspended.

2. The children X born (omitted) 2006 and Y born (omitted) 2007 (“the children”) live with the mother.

3. There be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 18 December 2015 (“the Minute”) and:

   (a)the Minute be placed on the Court file;

   (b)the solicitors for the Respondent engross the Minute and deliver a clean, certified, electronic copy of the Minute (“the copy”) to the Chambers of Judge Wilson by way of email to (omitted) within seven days; and

   (c)upon delivery of the copy to the Court, the within orders be extracted and the copy be attached hereto.

4. Pursuant to s.68L(2) of the Family Law Act 1975 (Cth) the children X born (omitted) 2006 and Y born (omitted) 2007 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:

   (a)forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon; and

   (c)the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.

5. The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the Final Hearing.

6. Pursuant to section 11F of the Family Law Act 1975 the parties and the children shall attend an appointment on 4 February 2016 with a Family Consultant of the Federal Circuit Court of Australia
   (“the Family Consultant”) Services in the Melbourne Registry of this Court. 

7. The party with the children is to attend upon this Registry at 9.00 a.m.

8. The party without the children is to attend upon this Registry at 10.00 a.m.

9. The Family Consultant is to provide a written report within 7 days.

10. The matter be adjourned to this Court on 23 February 2016 at 
    9.30 a.m. for mention.

IT IS NOTED that publication of this judgment under the pseudonym Elkins & Elkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5669 of 2012

MR ELKINS

Applicant

And

MS ELKINS

Respondent

REASONS FOR JUDGMENT

Introduction

1. On the last sitting day of the 2015 Court sittings and in a busy duty list, the applicant father, Mr Elkins (“the father”), sought interim orders for the return of the two children of the marriage X born (omitted) 2006 (“X”) and Y born (omitted) 2007 (“Y”) (collectively “the children”) from the respondent mother, Ms Elkins (“the mother”).

2. The father and the mother married in 2005, separated in 2012 and divorced in 2014.

3. Consent orders made on 14 February 2013 by his Honour Judge O’Sullivan provided for the children to ordinarily live with the father at (omitted) while the mother lived at (omitted). The children spent time with the mother on alternative weekends and for half of the school holidays. Those arrangements worked in their intended manner until 15 November 2015.

4. On 15 November 2015, the mother contacted the Department of Health and Human Services (“DHHS”) as a result of information given to her by X about physical abuse said to have been inflicted upon X by the father and by X’s stepbrother (the father’s son from another relationship). X then spoke privately with a DHHS worker about the allegations of abuse.

5. Following that discussion between X and the mother, the mother did not return the children to the care of the father. The father asserted that, in so doing, the mother contravened the Orders made by consent on 14 February 2013 by his Honour Judge O’Sullivan. On 25 November 2015, the father brought the present application for the recovery of the children on the basis of an unacceptable risk of harm to X and Y.[1]

   [1] Initiating Application filed by X on 25 November 2015.

6. After hearing argument on the application on 18 December 2015, I pronounced orders, ex tempore, informing counsel and the parties that I would provide reasons as soon as this Court resumed sitting in the new year.

7. These are my reasons for the Orders pronounced on 18 December 2015.

Synopsis

1. On the father’s application for a recovery order, I dismissed it.

   
   

   I made orders that the children live with the mother. Consent parenting orders were agreed.

Factual Background

1. The mother affirmed in her affidavit made 3 December 2015 that the children came into her care on Friday 13 November 2015 in accordance with the Orders made on 14 February 2013 by his Honour Judge O’Sullivan. The mother stated, in paragraphs 33 to 34 of her affidavit affirmed 3 December 2015, that on Sunday 15 November 2015, X became increasingly distressed at the prospect of having to return to the father’s care. The mother affirmed that she telephoned a particular helpline and let X speak privately to a counsellor. The mother also affirmed that X duly spoke to the counsellor after which X passed the telephone to the mother to enable the mother to talk to the counsellor. The mother further affirmed that she then spoke to the counsellor and that the counsellor advised the mother to telephone someone from DHHS because of the nature of the information given to the counsellor by X.

2. In paragraph 35 of her affidavit affirmed 3 December 2015, the mother affirmed that she then telephoned DHHS and that X spoke to a DHHS worker.

3. The mother stated that X then pointed to bruising on his legs and indicated that the bruising had been caused by the father along with the father’s son from another relationship - that is to say, X’s stepbrother. The mother affirmed that X regularly came into her care with bruising on his body but that she had not considered that the bruising had been deliberately inflicted. The mother affirmed that the DHHS worker recommended that the mother not return the children to the father’s care.

4. For the purposes of this application, the father did not file affidavit material in opposition to the affidavit material affirmed by the mother.

5. However, Mr Goddard, Counsel for the father, relied on various aspects of a family report prepared by Family Consultant Mr B (“Mr B”) dated 22 November 2012. In that report, Mr B recommended that the children live with the father. Further, Mr B recorded the father’s strong denials to the mother’s assertions that the father was violent towards the mother and to the children. To state the obvious, Mr B’s report was over three years old when this matter came before me. Compared to other, more probative evidence, I found the report to bear only marginally on the matters that fell for my determination on 18 December 2015.

6. Of much greater probative value was information obtained by subpoena from DHHS, tendered into evidence at the hearing. One DHHS report dated 17 November 2015 referred to information provided by X concerning regular physical and emotional abuse perpetrated upon him by the father and by X’s half sibling, resulting in injuries. That DHHS report addressed X’s fear of returning to the care of the father and that protective investigation was warranted. The DHHS report concluded by stating that, while the children remained in the mother’s care, a level of safety was provided because DHHS held concerns for the safety of the children while each remained in the father’s care.

7. In a different DHHS report from another DHHS caseworker, the abuse inflicted upon X was said to have been both physical and emotional, occurring over two years prior to the report dated 15 November 2015 and that it was regular, occurring once or twice per week, sometimes causing bruising and consisting of punches to the legs, arms or stomach. In that report, the DHHS worker also catalogued events earlier in 2015 consisting of the father slapping X to the face, knocking him to the ground then punching him to the face causing a black eye. In addition to physical assaults, the DHHS worker recorded that the father regularly swore at X, that the father laughed when X was struck by him and that the father did nothing when the step sibling struck X. The DHHS worker recorded X’s fear at being returned to his father’s care. The half sibling was aged 16 when he was allegedly engaging in physical abuse of X.

8. Mr Goddard pointed to there being no evidence of police intervention.

9. School reports for semester one 2015 were also adduced in evidence in relation to both of the children. For X, in respect of every subject, the report revealed that he was at the lower end of the expected level of achievement for six subjects studied by him, including interpersonal development, reading, writing and mathematics. X’s report revealed that he achieved his higher score for physical education. Y’s results were C standard.

Consideration

1. Mr Goddard pointed to the absence of any evidence of police involvement, as mentioned above. He submitted that I should exercise care in accepting uncorroborated assertions about matters bearing upon the risks to the children.

2. Even taking into account the urgency of this application and therefore the likelihood that proofs of certain matters may not have been to the degree one might have seen at a trial, I have proceeded with several propositions in mind. First, as this application involves allegations of physical and emotional abuse towards children, the Court should not rigidly require allegations of abuse to be corroborated to any predetermined forensic degree. However, corroboration is in fact found in the DHHS material albeit untested. That material corroborated the fact of X telephoning DHHS and informing DHHS about his fears of returning to the father’s care. Second, the mother’s evidence of the presence of bruises on X’s legs immediately after telephoning DHHS was consistent with injury to the part of the body that X had described. Third, DHHS records contained a long history of domestic violence between the father and mother and tended to support the proposition advanced by the mother, namely, that the father had behaved abusively (albeit not towards the mother) immediately prior to 13 November 2015.

3. It seems to me that this Court should not be overly exacting on the hearing of an interim application of the sort as is made in this case by requiring strict proofs. This was an interim application. The primary considerations of s.60CC(2) of the Family Law Act1975 (“the Act”) call for the protection of the children from physical and/or psychological harm consequent upon them being subjected to or exposed to abuse, neglect or family violence. Strict proofs, or even corroborated proofs of the matters in s.60CC(2)(b) of the Act, seem anathema to the purpose that the section seeks to achieve.

4. Mr Goddard’s submissions did not go so far as to suggest that I should prefer the primary consideration in s.60CC(2)(a) of the Act over the primary consideration in s.60CC(2)(b) of the Act. Nor could

   
   

   Mr Goddard have made any such submission. That is because greater weight is to be accorded to s.60CC(2)(b) considerations than to s.60CC(2)(a) considerations by operation of s.60CC(2A) of the Act. As a result, it seems to me that the considerations recorded in s.60CC(2)(a) of the Act were, in the circumstances of this case, to be subordinated to the considerations recorded in s.60CC(2)(b) of the Act.

5. This was an interlocutory hearing. Self-evidently, at that hearing all facts were not ventilated nor were allegations tested. That was to be expected having regard to the urgency of the application, the precise day in the Court calendar on which the application was heard and the need for the Court to exercise its protective jurisdiction in necessitous circumstances involving the need for a swift response to a critical situation in which unacceptable child abuse was alleged.

6. I have been extremely careful to keep in mind the observations of the High Court of Australia in M v M.[2] There, the Court emphasised that the essential task for a first instance judge such as myself on the hearing of an application such as this one is not to determine the truth of the allegations about the children being the subject of physical and emotional abuse in the same way a criminal court might. Instead, I am required to treat and I have treated the best interests of the children as the paramount consideration. Proceeding in that manner is also consistent with the manner in which a child-related proceeding is to be conducted with a preference for the dispensation of evidentiary formalities. To my mind, the combined application of the observations in M v M as well as s.69ZT of the Act respond directly to

   
   

   Mr Goddard’s submission to the effect that I should require corroboration of the allegations of child abuse against the father.

   [2] (1988) 166 CLR 69.

7. I disagree. No such corroboration is called for.

8. It is sufficient for me to indicate that my preference is to proceed in accordance with my paramount obligations under s.60CC(2)(b) of the Act.

9. In my judgment, the material from DHHS provided sufficient evidentiary support of at least one critically important matter. It was that X had contacted DHHS complaining about physical injury occasioned to him while he was in the care of the father and that such physical injury was or was likely or may have been inflicted by the father or by the father as well as by the step sibling. As mentioned above, it is not necessary for me to make a definitive finding on that issue. It is enough to say that those allegations in and of themselves enlivened this Court’s protective jurisdiction so that s.60CC(2)(b) of the Act was triggered. The fact that the father disputed the allegations was neither here nor there as I was not required to engage in an investigation of them so as to determine the truth of those allegations. Instead, upon learning of the allegations, I was required to treat the best interests of the children as the paramount consideration. I have done that. The most obvious interest to be considered was their immediate removal from the risk of physical or emotional harm.

10. On behalf of the mother, Mr Laidlaw of Counsel submitted that I was required to embark on a four-stage enquiry. He said those stages were as follows -

    a)first, to ask whether any evidence existed upon which the Court could find that a risk of harm existed precluding the return of the children to the father;

    b)second, he submitted that if X’s disclosures were true, whether they would form a basis for a finding of the existence of risk;

    c)third, Mr Laidlaw submitted that the Court should enquire whether the children were safe in the care of the mother; and

    d)fourth, he submitted that the Court should consider making Orders in the best interests of the children.

11. While not necessarily embracing those steps as having legislative imprimatur, those four steps did reflect a sensible approach that was open to me to take in the circumstances of this case.

12. Mr Laidlaw highlighted how the children were soon to commence upon their long summer school vacation. To my mind, prolonged exposure to the risk of physical or emotional abuse at the hands of the father and the step sibling during long summer school holidays was not in the best interests of the children.

13. For those reasons, I made the Orders recorded in paragraphs 1 and 2 of the Orders pronounced on 18 December 2015. The other orders were made by consent.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 19 February 2016