French and Wallace

[2017] FamCA 799

FAMILY COURT OF AUSTRALIA

FRENCH & WALLACE [2017] FamCA 799

FAMILY LAW – Whether existence of unacceptable risk of harm – interim proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr French

RESPONDENT: Ms Wallace

FILE NUMBER: CAC 2092 of 2016

DATE DELIVERED: 3 October 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 3 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Campbell & Co Lawyers

SOLICITOR FOR THE RESPONDENT: Infinity Legal

Orders

1. I dismiss the mother’s application for suspension of the current orders.

2. I dismiss the father’s application for make-up time.

3. I reserve the question of costs to the final trial of the matter.

4. I adjourned the proceedings into the Registrar’s list to a date to be notified.

5. I vacate the directions listed for 4 December 2017.

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 French & Wallace 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 CANBERRA

FILE NUMBER: CAC 2092 of 2016

Mr French

Applicant

And

Ms Wallace

Respondent

REASONS FOR JUDGMENT

1. Consent orders are in place in relation this matter from the 22 August 2017, they were made before Judge Neville.  Those orders provided for the father to spend time with his son, B (the child) although he was to live primarily with his mother.  The orders are just on the cusp of transition such that the father will spend slightly more time with the child than he has been spending.  The general pattern of the time is that he spends each second weekend with his son and one night or one afternoon so far in the off-week.  The last time that they spent time together was the weekend before last, which was one of the weekend times that the child was due to spend with his father. 

2. He has since been withheld for the last period, that is, an after childcare period that was due to take place last Wednesday. That withholding from time was accompanied by an email sent to the father saying that the child would not be provided to him.  The father sought an explanation as to why the child was not being provided; the only explanation that he received at that stage was limited to an assertion from the solicitors for the mother that the child had made some disclosures and that the mother was concerned for his safety.  The father in response to this made a veiled threat to the mother to call the police. This seems to be an inflammatory response when it is the first response given; however, he also took the step of filing in this Court immediately to deal with the withholding of the child.  By the time that the child had been withheld it had been made clear through email traffic that it was the mother’s intention to continue to withhold him.  Court time became available and hence the matter was made returnable almost immediately.  The first that the father knew of the content of the mother’s concerns was shortly before the mother filed in Court today her response and her affidavit and the Notice of Risk of Abuse.

3. The critical factors identified by the mother for the suspension of time that she seeks, because it should be clear that the mother seeks a suspension of time, the father seeks that the current time continue and that there be some compensatory time for him, but the critical factors identified by the mother as justifying a suspension of the current orders are as follows. One, that the child has been soiling himself since the last return from his father’s home at a high frequency.  Two, the child says that his father punched and kicked him off the toilet and told them to go in his pants. Three, there are marks on the child shown at annexure A to the mother’s affidavit being a slight cut to his knee and some bruising to his shins. 

4. The mother is concerned that the child is at risk from the father.  Over the past week the mother has been to see the Australian Federal Police twice, once with the child.  She has seen the New South Wales police in C Town once it seems, they have spoken to the child although it is not clear how much they have spoken to the child, and they have taken photographs of the injuries that the mother alleges.  While it may seem odd that there are attendances both on the Australian Federal Police and the C Town police it needs to be noted that the father’s residence is across the border from the Australian Capital Territory in New South Wales.  The mother has taken the child to be examined by a general practitioner; there has been a referral to the Department responsible for the welfare of children in New South Wales.  The mother has apparently obtained a protection order in the Australian Capital Territory.  The mother has also obtained a provisional apprehended violence order in New South Wales.

5. Turning them to the critical factors identified by the mother firstly, there is the issue of the child soiling himself.  The mother by her affidavit notes that the child still wears nappies at night.  She has said that since April 2017 he has had more of a problem with wetting himself and soiling his pants and that this is an ongoing issue.  The fact that it is an issue that predates the particular matters that she raises now is reinforced in her affidavit of March 2017, where she alleged that there was an ongoing issue with the child soiling himself with the father and accepted that there was also an issue, though she asserted to a lesser degree, with the child soiling himself with her.  The fact of the child soiling himself is not such as to enable me to draw an inference from that soiling that there is a risk of harm indicated by it.  The second issue arises from the questioning of the child about why it was that he was soiling himself.  the child gave an explanation, he said that the father was telling him to poo his pants and that if he tried to sit on the toilet the father would kick, punch or push off the toilet.  This explanation from the child appears at face value to be inherently incredible.  To the credit of the mother when the child alleged that he had been punched to his arm by the father the mother has reported in her affidavit that she observed no such injury.  That assists in undermining the explanation which as I have indicated is inherently unlikely.  The explanation given by the child is not such as to enable me to draw an inference of risk from the father.  The third issue is the marks to the child’s knee and shins.  There is a small red mark on his right knee that he is reported as saying is “from the bottom of daddy’s shoe when he kicked me.”  It is a small mark and there is some bruising depicted on the child’s shins. 

6. The nature of those marks is insufficient at this stage to be persuasive that there is an unacceptable risk of harm to the child.  I note some support for this position in that the father’s mother provided affidavit material for these proceedings under circumstances where it was not clear what the allegation would be.  Her evidence was such that it did not support the notion that trauma to the child had occurred during his last visit to his father.  Even though I accept that it is unlikely that she was present at all moments that the child was with his father, she has not reported anything untoward as occurring.  Whatever level of risk might be raised from these matters it is insufficient to qualify as an unacceptable level of risk such as to justify the ending of the visits between the child and the father.  Having assessed each of these three matters I do not accept that they demonstrate that there is any appreciable risk to the child.  

7. Accordingly, I decline to suspend the current order between the parents as to the arrangements for the child to spend time with the father and I decline to curtail the child’s relationship with his father. 

8. While the father seeks make up time it is only a small period of time that he has missed.  I appreciate the parents may regard all time with each child as being important however, is not sufficient as to justify a departure from the overall scheme of the orders.  It seems here where the parents are in sharp conflict as to what might be best for the child it is important to keep the arrangements in their current structure and as regular as possible. 

9. No particular order it seems to me is required in respect of maintaining the current orders they are in place and will remain in place.  Each of the family violence orders which have been exhibited, the provisional order from New South Wales and the interim family violence order made in the Magistrates Court of the Australian Capital Territory appear to accommodate time between the father and the child when that is in accordance with orders made under the Family Law Act, hence the current orders are not inconsistent as far as I can discern with the protection order and the provisional order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 October 2017.

Associate:

Date:  3 October 2017