Fontain and Pretre (No. 2)
[2018] FamCA 676
•27 August 2018
FAMILY COURT OF AUSTRALIA
| FONTAIN & PRETRE (NO. 2) | [2018] FamCA 676 |
| FAMILY LAW – CHILDREN – Child related proceedings – Best interests – Unacceptable risk – Where interim orders for the children to spend substantial and significant time with the father have been made – Where one of the children was found to have a large bruise on her leg and symptoms consistent with infection following time spent with the father – Where medical professionals expressed concerns upon treating the child that she was not earlier referred for examination – Where the child reported that the father had hit her – Where the child had also reported that she had sustained her injuries by falling and other means – Where the mother make an interim application that the children’s time with the father be supervised by a professional service – Court takes a conservative approach in these interim proceedings and makes orders in accordance with the mother’s application. |
| Family Law Act 1975 (Cth) ss. 60CC |
| B & B (1993) FLC 92-357 The Hon. John Fogarty AM, ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 |
| APPLICANT: | Ms Fontain |
| RESPONDENT: | Mr Pretre |
| FILE NUMBER: | SYC 5143 of 2018 |
| DATE DELIVERED: | 27 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 27 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingstone |
| SOLICITOR FOR THE APPLICANT: | Southern Waters Legal |
| SOLICITOR FOR THE RESPONDENT: | New South Lawyers |
Orders
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Orders 1 and 2 of the orders made 24 August 2018 be suspended.
Orders 3, 4, 5 and 6 of the orders sought in the mother’s Application in a Case filed on 24 August 2018 be made, as follows:
(a)That X, born … 2014 and Y, born … 2016 (“the children”) shall live with the mother.
(b)That subject to the recommendations of the Family Consultant, the children shall spend time with the father, as follows:
(i)For no less than 6 hours per week to be made up of three 2 hour blocks or two 3 hour blocks, as is able to be accommodated by a nominated supervisor and otherwise agreed between the parties; and
(ii)On significant days, as agreed, for no more than 3 hours at times as can be accommodated by the nominated supervisor.
(c)That the father's time pursuant to these orders be supervised at all times, at the father's sole cost, as follows:
(i)At a supervised Contact Centre to be agreed between the parties, or failing agreement, at the Contact Centre with the shortest waiting period from a list of three proposed by the Applicant mother; or
(ii)By a private supervisor from a supervision agency to be agreed between the parties, or failing agreement to be nominated by the Respondent father from a list of three proposed by the Applicant mother.
(d)That for the purposes of order 2c above, the Respondent father shall be at liberty to choose whether supervision should take place in accordance with order 2c(i) or 2c(ii).
Pursuant to s 68L of the Family Law Act 1975 (Cth), the children, X, born … 2014 and Y, born … 2016 be represented and I request that Legal Aid NSW provide that representation.
As soon as each party is notified by the Independent Children’s Lawyer (“ICL”) of the ICL’s appointment, each party shall serve copies of all applications and Affidavits filed by the party upon the ICL.
These proceedings are listed in the Judicial Duty list on 24 September 2018 at 9:30am.
The parties be granted liberty to apply on 48 hours’ written notice to the other party and to the Court.
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 Fontain & Pretre (No. 2) 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 5143 of 2018
| Ms Fontain |
Applicant
And
| Mr Pretre |
Respondent
EX TEMPORE JUDGMENT
Introduction
This hearing concerns an application for further interim orders following the hearing of the matter before Baumann J on 22 August 2018.
On 24 August 2018, Baumann J made orders for the children to spend substantial and significant time with both parties.
The mother makes this application in respect to events that occurred while the children were spending time with the father, immediately prior to those orders for substantial and significant time being made.
Evidence
I have had regard to the Application in a Case, Notice of Child Abuse or Risk of Family Violence and Affidavit filed by the mother on 24 August 2018.
From the father’s perspective, I have had regard to:
a)The Affidavit of the father filed on 21 August 2018;
b)The Affidavit of the father filed on 26 August 2018;
c)The Affidavit of Ms D filed on 26 August 2018; and
d)The Affidavit of Ms E Pretre filed on 26 August 2018.
I understand that Baumann J also had consideration to the Affidavit of the father filed on 21 August 2018.
I have also had regard to the contents of a video recording stored on a USB of a changeover that occurred between the father and the mother, which is marked Exhibit “PP4” in the proceedings before Baumann J.
Background
The father was born in 1978.
The mother was born in 1993.
The parties commenced cohabitation in about March 2012 and separated in May 2018.
There are two children of the relationship, being X, born in 2014 and currently aged four years and Y, born in 2016 and currently aged two years.
As stated, on 24 August 2018, Baumann J made the following orders:
(1) That the children, X born … 2014 and Y born … 2016 (“the children”) shall live with the mother and father, unless otherwise agreed, as follows:
a. With the father:
i. each Tuesday commencing 28 August 2018 between 9.00am and 5.00pm;
ii. each alternate weekend from 5.00pm Friday to 9.00am Monday commencing 31 August 2018; and
iii. each alternate Thursday commencing 6 September 2018 from after daycare on Thursday until 5.00pm Friday.
b. With the mother at all other times.
2. That all changeovers not taking place under these Orders at the childcare facility for the children, shall occur at the home of the mother.
3. That both parents are restrained and an injunction issues restraining the parents from:
a. physically disciplining the children;
b. making any denigrating or hurtful comments about the other parent, the other parent’s family or lifestyle with or in the presence of the children; and
c. discussing these proceedings and other issues causing adult conflict, with or in the presence of the children.
Child Inclusive Conference
4. That the parents and the children shall attend an appointment with Family Consultant, Mr B or such other Family Consultant as nominated by the Senior Family Consultant of the Family Court, Sydney at 9.00am on 4 September 2018 at the Family Court of Australia, Level 2, Lionel Bowen Building, 97-99 Goulburn Street, Sydney.
5. That pursuant to s.11 of the Family Law Act 1975, the Family Consultant shall provide an advice to the Court and the parties that may include:
a. identification of the issues for the children;
b. a consideration of the relevant factors contained in s.60CC of the Act and an appropriate parenting plan for the children until there can be further investigations into the matter; and
c. such programs as may assist the parents establish a better functioning co- parenting relationship and more positive and effective communication or that might assist them in the development of their parenting skills ...
In light of the order for the Child Inclusive Conference, I propose making orders in these proceedings that will apply until further order and specifically, to arrange for this matter to be re-listed shortly after that conference.
The relevant law
As these are parenting proceedings, it is necessary for me to determine what orders are in the best interests of the children.
In order to reach that decision, I am guided by s 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 s 60CC, adopting a common sense approach, in Banks & Banks [2015] FLC 93-637 (”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 s 60CC(2) of the Act. That is, I am required to consider the importance of the children having a meaningful relationship with the father against the risk of the children being subject to risk of physical or psychological harm, neglect or abuse in his care.
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 issue of risk, in M v M (1988) 166 CLR 69 (“M v M”), the High Court noted that the Family Court “is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about will have a detrimental impact on the child’s welfare”.
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.
Writing extra-judicially, the Honourable John Fogarty AM, a former judge of this Court, said the following in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261:
… unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.
In M v M, the High Court said that in assessing whether a child faces an unacceptable risk of harm, the “existence and magnitude of the risk … is a fundamental matter to be taken into account”.
In N & S (1996) FLC 92-655 at 82,714, Fogarty J said that “the essential weight must be attached to the magnitude of the harm to which the risk relates”.
In Blinko & Blinko [2015] FamCAFC 146 at 83, the Full Court confirmed that having identified a risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”.
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 “possibilities” 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 of risk are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those possibilities.
Consideration
Having regard to the facts of this matter, in the context of the material that the parties have filed, I am satisfied that it is in the interests of the children to have a meaningful relationship with both parents. However, that goal must be balanced against the issue of risk.
In applying the authorities to which I have referred to a determination of risk in this matter, I intend to consider the following three related elements:
a)The magnitude of the risk of the children being in the unsupervised care of the father;
b)The possible consequences of any such risk to the children; and
c)The extent to which any such risk can be managed or ameliorated by building into the arrangements potential safeguards such as requiring supervision of the children’s time with the father.
It is contended, by the mother, that an issue of risk has arisen as a result of her having discovered an injury sustained by X, following to the changeover of the children from the care of the father to the mother on 22 August 2018. That injury is in the nature of a bruise to her left upper thigh and buttocks region, which was described as being approximately 7 centimetres long and 3 centimetres wide. There are photographs of that injury attached to the mother’s Affidavit.
The first task is to identify the nature of any risk to the children resulting from them spending unsupervised time with the father. In that context, the mother refers to an enquiry she made of X after X returned from the father’s care on 22 August 2018. The mother says at paragraph 8 of her Affidavit:
I said to [X] words to the effect, “What happened to your leg?” and [X] replied to the effect of, “Daddy hit me”.
The mother also referred to X being very warm and having a pale complexion. When she took her temperature, X had a temperature of 40 degrees. As a result, the mother took X to the F Hospital Emergency Department. There are several reports relating to that admission on 22 August 2018. The first is a document signed by Dr G, Registrar, which states:
[X] was brought in by her mum today with fever and cough. It is unknown how many days she had been unwell. She has been in her father’s care for the last 12 days. On assessment, [X] was febrile, mildly tachycardic, but otherwise appeared to be well with no signs of respiratory distress.
In the following paragraph, of relevance, it is stated:
[X] was noted to have a bruise on her left posterior thigh, approximately 7 x 3cm which she states she sustained when falling over in a playground several days ago. The bruise appears to be two to three days old. No other injuries were detected in a top to toe examination.
The further document of relevance is a discharge referral note dated 23 August 2018 addressed to Dr H. It provides, under the heading “Summary of Care”, a reference to a discussion between the author and X, as follows:
She volunteered to stand off the bed and pull her trousers to show me the bruise on her L thigh (presumably left thigh). I note that yesterday she said she fell in the playground, however, she volunteered to me that she was hit. When asked what hit her, she said “a cockroach” then changed her answer to “daddy”.
…
I can’t find evidence of additional injuries and further I understand that [X] hasn’t received immunisation since four months because of paternal choice.
In that respect, I note there is an issue as to whether it is, in fact, the case that the father had objected to the immunisation of X. The mother contends that he does so object and the father denies that that is the case. In any event, both parties acknowledge that X has not been properly immunised.
There is a further reference in the discharge summary:
I have further discussed the case with SW regarding my consultation and disclosure that her father had hit her.
It is understood and I infer that “SW” refers to a “social worker”.
Under the heading “Plan” it is stated:
I have informed Dr J of the medical issues. Happy to DC home [which I assume is “discharge” home] with PO ABX for tonsillitis. Concerns of abuse, FACS have been informed yesterday and today ED SW has made a second referral. They are due to go to court Monday for custody allocation.
There is then a following paragraph which states:
[X’s] welfare is of concern; NAI (non-accidental injury) cannot be ruled out at this stage with conflicting mechanisms reported (father states, patient states playground/father hit her).
There is a further statement:
Concerns regarding the care provided during her time in the care of her father, supervision/lack of medical attention sought for significant bruising and infective symptoms/nutrition/hydration and regression in toileting.
The issues raised in that report, in my view, establish the existence of risk to the children in the father’s care. In that respect, even though these are interim proceedings and I have difficulty in making findings of fact where there is a controversy in respect of those matters, I am not relieved of the responsibility of determining the issue of risk.
I have also had regard to the evidence of Ms D (“Ms D”), who was caring for the children on 17 August 2018 and states that she was an eyewitness to X falling onto her left thigh. Ms D’s Affidavit states at paragraphs 3 to 6:
During the morning the children were playing with paint and they became very dirty and as such I decided to bath them both. When the bath was nearly finished, the children’s grandparents arrived and assisted in finishing the bath.
After the bath, everyone went downstairs and the children starting playing in the family room with the grandparents while I was preparing the food.
After the children were fed, the grandparents left and the children continued to play.
At one point, [Y] ran towards a door leading to the backyard. Me and [X] ran towards the door to prevent [Y] from leaving so he did not get ill on account of the cold weather. At that moment, both me and [X] grabbed [Y] and [Y] tugged [X’s] hair heavily. During this I was holding [Y] and trying to loosen [Y’s] hand from [X’s] hair but [Y] pulled so hard that [X] lost her footing and fell on the sliding door.
Ms D then referred to steps she took to contact the father to advise him of the injury. Included in Ms D’s Affidavit are photographs of the footing of the sliding door. Similar photographs are attached to the Affidavit of the father and the Affidavit of Ms E Pretre (“Ms Pretre”) includes some photographs of the area around the door.
In circumstances where neither the father, nor Ms Pretre, claim to be witnesses to the relevant event and in circumstances where their accounts of the event are substantially in accordance with that of Ms D, I have referred only to Ms D’s evidence.
It is certainly possible that X’s injuries may have been sustained as described by Ms D.
However, as previously noted, it is clear that in assessing whether there is a risk that something may happen, such possibilities are a legitimate basis for a finding that there is such a risk, as long as there is a proper basis for those possibilities.
In this matter, having regard to the statements made by X to the mother and the practitioner at the F Hospital that her father had hit her, there is, in my view, a risk that she has in fact suffered a significant injury to her left thigh at the hand of the father, resulting in a significant bruising.
As against identifying that risk, it should be noted that there is an inconsistency in X’s evidence insofar as she also stated that she fell in the playground and had been hit by a cockroach.
Further, there are two issues in relation to the father’s disclosure that concern me. In that respect, I note that the Family Law Rules, at clause (1)(6)(i) of Part 2 of Schedule 1, state:
(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:
…
(i) the duty to make full and frank disclosure of all material facts, documents and other information as relevant to the dispute.
In my view, the injury sustained by X on 17 August 2018, according to the evidence to which I have referred, is an event that caused a significant injury to her left thigh. As such, it should have been disclosed to the mother and it should have been disclosed to the Court prior to the hearing before Baumann J on 22 August 2018.
A further concern that I have is that the first disclosure of that incident was made to the mother at 3:39 pm on 22 August 2018, when she received a text message from the father which read:
[Ms Fontain], just to inform you [X] has slipped outside at the backyard veranda is on CCTV footage and have also witnessed that she has incurred a bruise under her backside and also she has the 'flu, and you can decide if she is well enough to attend child care tomorrow. I'm of the opinion most probably not. I will leave that with you.
Counsel for the mother contended that a reasonable inference from that message was that the father had viewed the CCTV footage and further that he was in a position to state how the injury occurred. In fact, that is not the case.
In the proceedings today, I offered to facilitate the Court visiting the premises of the father with a view to the parties and the Court inspecting the CCTV footage. However, the father advised the Court that he was unable to access the CCTV footage without the assistance of his brother. He stated that, unfortunately, his brother is unavailable to provide that assistance today.
I required that evidence to be given in the witness box, rather than through Counsel. Under cross-examination, the father stated that he had not, in fact, viewed the CCTV footage.
In my view, it would have been reasonable in the period subsequent to 17 August 2018 for the father to have satisfied himself, by accessing the CCTV footage, as to how X came to injure herself. Even if there was a period of delay in doing so, certainly, in the period since he became aware of the controversy arising from the hospital notes to which I have referred, it would have been reasonable for the father to have accessed the CCTV footage. If the incident is shown on the CCTV footage, it would be of great assistance to the Court in determining how X sustained her injury.
In the absence of that material being provided to the Court, there are three possible conclusions:
a)That X did, in fact, slip and sustain an injury to her left thigh as described by Ms D;
b)That the injury was sustained, as described by X on two occasions, by the father hitting her; or
c)That X fell in the playground, as she had also stated.
Counsel for the mother acknowledged that the Court would not be in a position to make a finding, on the balance of probabilities, that the father had struck X. That is certainly the situation. However, in light of the statements made by X, there is a possibility that she has been struck by the father and, in light of her statements, there is a proper basis for that possibility.
In addition, the hospital discharge summary to which I have referred also describes concerns regarding the supervision of the children while they are in the father’s care and the fact that appropriate medical attention was not sought for the significant bruising and the infective symptoms exhibited by X. There is also a reference to an issue of nutrition and hydration. Clearly, more information would be required in respect to those matters before any positive finding of neglect could be made. However, they have been reported as matters of concern by trained medical professionals and there is, in those circumstances, a further proper basis for determining that there is a risk of the children being neglected in the father’s care.
In other words, the risk does not simply pertain to X having been possibly struck by the father, but also to the lack of supervision and medical treatment provided, while the children were in his care.
The solicitor for the father submitted that the father’s ability to attend to seek medical advice in respect to X’s symptoms was limited, as the parties were present in Court at the hearing before Baumann J on 22 August 2018. This does not, however, explain the father’s failure to obtain treatment for X’s symptoms in circumstances where he contends that her injury occurred on 17 August 2018.
In the circumstances, and given that this matter is further listed in a duty list on 24 September 2018, it is my conclusion that there is an unacceptable risk associated with the possibility that X has been struck by the father. There is a further unacceptable risk associated with the fact that X was not provided with appropriate care in respect to the symptoms that she exhibited following the injury to her leg.
That risk needs to be seen in the context of these interim proceedings, where the Court does not have the opportunity of exploring in greater detail the relevant circumstances surrounding that incident and obtaining the advice of a social science professional, who can interview the parties and the children.
It is, therefore, appropriate for the Court to take a conservative approach by making the interim orders sought by the mother and bringing the matter back before the Court shortly after the Child Inclusive Conference.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 27 August 2018.
Associate:
Date: 3 September 2018
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