Garber and Clacher

[2017] FCCA 2517

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARBER & CLACHER [2017] FCCA 2517

Catchwords:
FAMILY LAW – Parenting – interim hearing.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS GARBER

Respondent: MR CLACHER

File Number: ADC 1229 of 2015

Judgment of: Judge Young

Hearing date: 27 September 2017

Date of Last Submission: 27 September 2017

Delivered at: Darwin

Delivered on: 27 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Burckhardt

Solicitors for the Applicant: Adelaide Lawyers

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Matthew Mitchell

ORDERS

1. That paragraphs 3 and 4 of the orders made on 23 June 2017 be reinstated.

2. That pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born (omitted) 2013 and [Y] born (omitted) 2017 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavors to be in a position to make submissions to the Court on the adjourned date.

3. That immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

4. That pursuant to section 91B of the Family Law Act 1975 the Department for Child Protection is invited to intervene in these proceedings.

5. That pursuant to section 69ZW of the Family Law Act 1975 the Department for Education and Child Development (Families SA) provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising or relating to the children [X] born (omitted) 2013 and [Y] born (omitted) 2017;

   (b)any assessments or investigations into such abuse allegations;

   (c)the outcome or findings of any such assessments and  investigations;  and

   (d)copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.

6. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department for Child Protection without leave of the Court.

7. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship [X] born (omitted) 2013 and [Y] born (omitted) 2017 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 November 2017.

8. That the family report to deal with the following matters:

   (a)any views expressed by the said children and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

9. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

10. That the parties are to telephone the Case Coordinator Children Dispute Services on 08 8219 (omitted) fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

11. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

12. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

    NOTING:

    (i)At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

    (ii)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

    (iii)In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 12 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

13. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

14. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

15. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before  1 November 2017 as follows:

    (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

    (b)annexing such material as is considered relevant, with

    (c)the affidavit to be paginated, indexed and exhibits tagged.

16. That the matter be adjourned to 19 February 2017 at 9.30am for further consideration.

17. That the father’s Application in a Case filed 12 September 2017 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 1229 of 2015

MS GARBER

Applicant

And

MR CLACHER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read. 

2. This is a parenting matter involving two children. [X] is (omitted) years old. He has a disability of some kind, although it is clear from the report attached to the mother’s most recent affidavit by Associate Professor C, a clinical geneticist, that the various concerns about [X], including an early failure to thrive and some various other peculiarities of development are not well understood at the moment but, nevertheless, it appears to be that there is some basis for concern.  [Y] is two years old.  She just turned two in (omitted) of this year. 

3. The matter has a background.  Proceedings were initially instituted in this Court in 2015 but those proceedings were discontinued when the parties reconciled in September 2015 and all outstanding applications were dismissed on 1 October 2015.  The matter came back before me on 16 May 2017 when a location order was sought by the mother as the father had apparently disappeared with the two children.  The father filed a response to that material in July of 2017 and in his response materials he alleged that the child, [Y], had been living with him since separation. 

4. He had made allegations of the mother’s lack of ability to properly care for the children and referring to her inability to plan and so on.  It appears to be common ground that the mother has an intellectual disability.  He also made allegations that [X] had suffered physical injury in the mother’s care and implied, at least, that the child had been neglected or was the victim of neglect in the mother’s care.  There is also reference to an allegation that was denied by the father that he had slapped [X] at one point. 

5. On 23 June 2017 there was an order made that [X] live with the mother and spend time with the father from 11 am to 1 pm at (location omitted), and an order made that [Y] live with the father and spend time with the mother from 5 pm Friday to 5 pm Monday, that is, three nights a week.  The mother came on before me urgently with the allegations that I have referred to, essentially about abuse or neglect.  That has been a continuing theme in this matter and is a cause for very serious difficulty in adequately dealing with the matter in what have now been two interim hearings. 

6. So two interim hearings.  One resulted in the orders I have just mentioned on 23 June, and the further application made by the father on 12 September has been dealt with as an interim hearing over two days on 14 September, and today, on 27 September, again, on an urgent basis.  The section 11F memorandum was prepared on 6 September and dealt with interviews of the parties that had occurred on 29 August by Dr K.  She records there are allegations of family violence against the father made by the mother and allegations of marijuana use and cultivation against the father. 

7. The father alleged that the mother has mental health issues and even made the allegation that the mother suffers what he described as “Munchausen by proxy” which Dr K, a psychologist, pointed out is known these days as a “factitious disorder imposed on another”.  The apparent subject of that allegation was [X] who the mother is clearly concerned about and of whom the father says there is nothing wrong and the mother is making it up. 

8. That would appear to be inconsistent with the serious concerns recorded by Associate Professor C in his report dated 3 November 2014.  What has happened with [X] since then is a little bit unclear, but there was certainly, it appears, some basis at least for concerns when he was a baby.  Dr K also referred to the fact that there are outstanding sexual abuse allegations against the father’s brother.  I understand some of those allegations are no longer being investigated by the police and they are not proceeding further. The allegations concerns the mother’s two older daughters from another relationship.  As I understand it, there is, however, still at least some investigation ongoing as a result of that.

9. Dr K observed that the father appeared focused on denigrating the mother in the interview with him and she noted that the father had no specific concerns or details.  That appears to be slightly inaccurate because in evidence to me today she said in relation to the father’s observations, apparently agreed to by the mother, that the child had quite a large number of bruises in July.  Dr K confirmed that the father had raised that with her and she consulted her notes. She said she had noted “Three weeks bruising on forehead.  She tripped.  Didn’t write in the communication book.”  That is, the mother did not write in the communication book.  “No mention at the servo.”  That is a reference to the mother apparently not mentioning the bruises at changeover.  “And the father’s observation that the mother needs to be more vigilant of the child.”  That is a reference to supervision.  I accept that the father did raise this issue of the child’s bruising with Dr K. 

10. As I have mentioned, the interview was conducted on 29 August 2017 which was before the bruising noticed by the father on 4 September which resulted in an attendance at the (omitted) Hospital and a GP, Dr P.  It was that bruising that appears to have elicited the father’s application in a case on 12 September when he sought orders that the child, [X], live with him and that [Y]’s time with the mother be suspended.  Nevertheless, he did make proposals for the children to spend time with the mother or [X], at least, from 5 pm Friday until 5 pm Monday on alternate weekends and in the primary orders there was no time that [Y] was to spend with the mother. 

11. In the father’s affidavit in support of that application in a case he referred to having observed bruising on four separate dates.  On 3 July 2017 he observed the child to have bruising on the right forehead.  On 10 July 2017 he observed a bruise above the child’s left eye. On 17 July 2017 he observed a bruise on the child’s right forehead.  The mother agreed that the child had a bruise on that date but said that the child, [X], had pushed [Y] over. 

12. On 4 September 2017 he observed a bruise and a lump over [Y]’s right eye and as a result of that he took the child, as I understand it, initially to the (omitted) Hospital and then subsequently to a treating GP, Dr P.  He annexed some clinical notes to his affidavit dated 8 September 2017 from Dr P where Dr P referred to the child having a closed head injury.  He or she – I am not sure of the sex of Dr P – observed that, “[Y] has been walking around pointing to her head and saying, ‘Mum naughty’ in her own language.”

13. I have little doubt that that raised and was intended to raise an insinuation or an implication that the child may have been assaulted by her mother.  I was concerned about the provenance of the note made by Dr P: whether that was something observed by Dr P or something Dr P had been told and I made an order that the father file an affidavit from Dr P, an order that has been complied with.  I will come to that in a moment. 

14. On 13 September the mother filed a responding affidavit.  In that affidavit she refers to a history of bruises and marks on the child and implies, but with no express claim, that these bruises and marks were suffered by the child in the father’s care.  She says at paragraph 10 that that she wrote in the communication book that [X] had pushed [Y] off the couch on two occasions on the Friday and that [Y] and [X] had both jumped off a toy box on Saturday.  That appears to be not disputed. 

15. The mother says that, in summary, the bruises on [Y] are the normal bruises that a child picks up and she denies any wrongdoing herself.  On 20 September the father filed an affidavit and he refers at paragraph 6 to telling Dr K his concerns about the bruises.  He says that he told Dr K that the child came to him three weeks in a row with bruises.  Dr K was asked about that in cross-examination and she said her note was not exactly to that effect.  She said that her note was the father said the child has come with bruising or the child had bruises three weeks ago.  She conceded that it was possible that the father told her that but her note was suggestive of something else.  I do accept that the father made mention of the bruising to Dr K.   

16. The remarkable, to my mind, aspect of the father’s affidavit filed on 20 September is how he describes the provenance of Dr P’s note about the child pointing to a bruise on her head saying, “Mum naughty.”  The father described it in these terms:

    I explained to Dr P how [Y] was behaving when she returned to my care and that I took [Y] to the (omitted) Hospital and the (omitted) Hospital.  I told Dr P that [Y] had been walking around pointing to the bruise on her head and saying, “Mum,” to which I would reply, “Naughty”.  My mother also told Dr P that she had seen [Y] doing this. 

17. And in the next paragraph 15:

    I replied, “Naughty,” to [Y] to convey my opinion that what happened was naughty as I consider that the mother did not properly supervise [Y] and [X] when [Y] sustained the injury to her head.

18. I am concerned about that passage of evidence.  I can think of no reasonable explanation of why the father would conduct himself in that way.  The suspicion occurs to me, and I cannot make any finding about this, but it occurs to me that one potential interpretation of that is that the child was being coached to, in substance, make an allegation.  Given that she is only two years old, one would think that would be doomed to failure.  But the suspicion is heightened because the information conveyed to Dr P, that is, that the child points to her head and said, “Mum naughty,” was untrue.  That is not what the child was doing.  And Dr P was misinformed on a very serious issue.

19. There is no explanation in the father’s affidavit material as soon as to why Dr P was misinformed.  Dr P’s affidavit is unequivocal.  At paragraph 11 he or she said:

    The paternal grandmother who also attended [Y]’s consultation informed me that [Y] had been pointing to her head whilst saying, “Naughty mum,” in her own language.   I did not witness [Y] doing this, so I cannot comment on what [Y] may have been trying to indicate.

20. I have referred to Dr P’s affidavit and it is clear, in my view, that Dr P was told something that was untrue.  The mother filed an affidavit on 21 September which, in a way, does not carry matters much further.  But she did refer to the report from Associate Professor C that I have already referred to.  Having regard to all of the evidence, I am satisfied that there is no evidence to suggest that the child, [Y], was the victim of an assault by the mother. 

21. I am satisfied that – well, I should rephrase that because this is an interim hearing and it is very difficult, if not impossible, to make factual findings.  However, on examination, the evidence in Dr P’s clinical notes which may have insinuated or implied an assault on the child, [Y], appears to have evaporated into thin air.  So it is in that sense that I am satisfied that there is no present evidence before me that suggests the mother has been guilty of an assault on the child.

22. That is not to say that there is not a basis for suspicion about the bruising on this child.  However, the mother says unequivocally this happened through play and there are bruises and marks that the child had with the father as well.  I might say that particularly the bruising on 4 September does raise concerns about whether the mother is being adequately vigilant in her supervision of the two children in her care.  The mother has an intellectual disability and while there is no independent evidence that that means she is unable to care for the children properly it is a part of the background.

23. I consider that there is some basis for concern about whether the mother is adequately supervising the children, particularly [Y].  However, as I have said, there is no evidence to suggest that anything worse than that.  The father, at least, in his interview with Dr K on 29 August, while raising the bruises, had no suggestion that there was any question of assault although he did raise the question of whether the mother was adequately vigilant.

24. I think there are possibly concerns about that, but in my view, there is not a proper basis for suspending the child’s time with the mother.  I would expect that as a result of this application that the mother will exercise a higher degree of vigilance in future.  I am not satisfied that there is any unacceptable risk to the child, [Y], in spending time under the pre-existing orders or the orders until suspended and I propose to re-instate those orders. 

25. Nevertheless, I also have, in regard to the allegations and suspicions a concern, a real concern about this case.  There appear to me to be very serious welfare issues involved stemming from the mother’s intellectual disability, and about what one might think is explained but perhaps unduly frequent bruising on the child. Despite the suspicion that the allegations or insinuations raised by the father are simply made in furtherance of his case I have real welfare concerns about these children and I propose on that basis to request the Minister to intervene.

1. I also propose to make an order appointing an independent children’s lawyer and I propose to make an order for a family report and an order for pursuant to section 69ZW to the child welfare authorities.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 17 October 2017