Gazzard & Gazzard

[2009] FamCA 474

FAMILY COURT OF AUSTRALIA

GAZZARD & GAZZARD [2009] FamCA 474

FAMILY LAW – CHILDREN – allegations of unacceptable risk of harm to a child – whether in the best interests of the children for the father to have supervised periods of time with the children – interim orders

Family Law Act 1975 (Cth)

M and M (1988) FLC 91-979

APPLICANT: Mr Gazzard

RESPONDENT: Ms Gazzard

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 541 of 2009

DATE DELIVERED: 20 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Rose

HEARING DATE: 20 May 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Sizeland
of Egan Simpson, Solicitors

SOLICITOR FOR THE RESPONDENT: Mr Peedom
of O'Reilly & Sochacki, Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle
of Legal Aid Queensland

Orders

1. That the parties ensure that the father is able to have the two children of the parties’ relationship X born … December 2003 and M born … August 2005 (“the children”) in his care.

2. That the periods of time that the children are in the father’s care take place on such days of the week during such periods and at such places as the parties are able to agree with the proposed supervisor, Ms A.

3. That the periods of time that the children spend in the father’s care be supervised throughout by Ms A or in the event of her unavailability by such other supervisor that the parties agree upon.

4. That in the event of neither Ms A or an alternative private supervisor being the subject of agreement between the parties or having appropriate availability then the parties shall do all things necessary to ensure that the father has the care of the children on a supervised basis each week on Sunday during but not necessarily throughout the hours from 9.00am until 4.00pm at a contact centre that first becomes available for that purpose as notified to the parties by the independent children’s lawyer.

NOTATION:

A.The father undertook that in the event of there being periods of unsupervised care of the children at his home that he will personally care and supervise them throughout each of such periods.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC541 of 2009

MR GAZZARD

Applicant

And

MS GAZZARD

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings each of the parties seeks different interim parenting orders as is apparent from the applicant father’s Application in a Case filed 24 February 2009 and the respondent mother’s Response in a Case filed 23 February 2009.

2. The father is 35 years of age and employed as a retail worker.

3. The mother is 38 years of age and engaged as a student.

4. The two children who are the subject of these proceedings are:  X born in December 2003 (“the eldest child”) and M born in August 2005 (“the youngest child”) (hereinafter referred to as “the children”).

5. The parties commenced cohabitation on about 1 May 2001 and subsequently married in October 2004.

6. The parties separated during 2006.  However, there is an issue as to whether there were earlier separations, and if so, the relevant periods involved.  This is not an issue that requires determination today.

7. So far as I am aware the marriage still subsists.

8. The father lives in a de facto marriage relationship.

9. The mother lives alone, save and except that she has the primary care of the children and this has been the position throughout the period since the parties separated.

10. The children have different periods of time in the father’s care culminating with the last occasion being the end of 2008.

11. The proceedings were instituted in the Federal Magistrates Court.  For reasons not apparent to me, the interim proceedings were transferred to this Court.

12. On 14 May 2009, Murphy J made directions and orders which included the preparation of a Magellan report pursuant to s 69ZW of the Act and that such report be filed within 28 days.  The interim applications heard by me today were listed for hearing by Murphy J.  In addition, the substantive proceedings were adjourned by His Honour to the Magellan directions list in August 2009.

13. The central issue which occupied the focus of the parties in the evidence before me is whether or not the children or either of them would be exposed to an unacceptable risk or harm should there be orders made which provides for them to spend periods of time in the care of the father on an unsupervised basis.

14. The father seeks an order that he have periods of time with the children on an unsupervised basis, and principally at his home.  Such care is to be provided by himself and the father’s partner.

15. The mother does not oppose periods of time to be spent by the children with the father.

16. However, the parties differ as to the circumstances in which those periods of time take place.

17. The mother contends that it is in the children’s best interests, on an interim basis, that the father have supervised periods of time with them each Saturday from 9.00am until 4.00pm at the Gold Coast Contact Centre.

18. A Notice of Child Abuse was filed on behalf of the mother on 28 April 2009.

19. The particulars of alleged abuse are as set out on page 3 of the Notice of Child Abuse filed 28 April 2009.  In essence, the following is alleged.

20. On 7 October 2008 it was apparent to the mother that the eldest child was showing signs of large bruises, finger bruise marks, and two finger nail puncture wounds, as well as a black mark to the left of his back.  The mother contends, and there is no dispute so far as the date is concerned, that the child had just returned from a period of time in the care of the father.

21. In relation to that allegation it is the evidence of the mother that the child was examined by medical practitioners and the advice given to her, especially from a paediatrician, was that those marks were consistent with having been caused within the previous 24 to 48 hour period.  The mother contends that during that relevant period the eldest child was in the care of the father.

22. The mother further contends that in December 2008 whilst bathing the eldest child, she noticed a large graze on the child’s left shoulder blade and a human bite mark on his left arm and bruise to his left jaw.  Again, the mother contends that the child had been in the care of the father that day.  There is no dispute that that had been the case.

23. On 21 December 2008 the mother contends that the youngest child made a disclosure of what could be interpreted as child sexual abuse in the circumstances set out in more detail in the mother’s affidavit evidence.

24. The mother has made it clear in her evidence, and no contrary submission was made by the mother’s solicitor, that she does not allege child abuse of both or either of the children by the father as perpetrator.  The mother’s case has been consistently that the eldest child especially has been physically abused during a period when the child was in the care of the father, implicitly by a person or persons unknown.

25. The father contends that the eldest child is a child who does suffer bruises from time to time because of his behaviour which is linked to the health issue of the child suffering from severe autism.

26. The father makes it clear that both he and his partner love both children and have been devoted to their care.  In addition, during the course of that care on the occasions in question or otherwise they have not engaged in any behaviour towards both or either of the children which would amount to abuse.

27. The father also submits through his solicitor that the evidence demonstrates that the periods when the eldest child in particular has suffered bruises he had been in the care of staff at the ABC Learning Centre.

28. Neither of the legal representatives for the parties, or the independent children’s lawyer sought to cross-examine either of the parties.

29. As is often the case in the hearing of interim parenting proceedings, the hearing proceeded on the papers and important questions of fact may not be able to be resolved due to conflicting evidence and the lack of testing of that evidence.

30. I have emphasised to the parties through their legal representatives, my obligation under s 60CA of the Act is to make such parenting order or orders which are in the best interests of the children and that is the paramount consideration.

31. The evidence presented has been supplemented by records from the NSW Police, as well as certain documents subpoenaed to be produced by the Proper Officer, ABC Learning Centre.

32. It is clear that notifications have been made to the NSW Department of Community Services, and NSW Police have referred the mother to their specialist unit known as “JIRT”.  The files opened by each of such organisations have been closed.  No further action was recommended or intimated to be taken by either JIRT or the NSW Department of Community Services.  The explanation for that, at least so far as the Department is concerned, is that its officers were of the view that as the mother had laid a complaint which resulted in the police commencing proceedings for an apprehended violence order that was sufficient from their viewpoint.  So far as the police are concerned, given the lack of detailed reliable disclosures by both or either of the children, they were not in a position to consider whether further action should be taken.  Consequently, no action was taken.

33. As I observed to the legal representatives, the evidence is further restricted in that there is no material before me which suggests that any caseworker with the Department had conducted enquiries at the ABC Learning Centre.  In addition, there is an absence of clinical notes tendered in these proceedings, being the notes taken and recorded by the medical practitioners referred to in the mother’s evidence.

34. I have been assisted by the Family Report dated 20 April 2009.

35. The family consultant provided a detailed report and noted that the father maintained the position to which earlier reference has been made, as has the mother.

36. For the reasons given by the family consultant, she was of the view that to negate any potential risk of harm to the children whilst in the care of the father, they have weekly supervised periods of time with him at the Gold Coast Contact Centre, subject to its availability.

37. In relation to the availability of the Gold Coast Contact Centre, I was informed by the independent children’s lawyer that there is currently a 10 week waiting list.

38. The independent children’s lawyer also informed me, and it was not disputed, that there were certain hourly rates depending upon the day of the week in which the services of the contact centre were utilised.  It is not contended by both or either of the parties that they are unable to afford those rates.

Relevant legal principles

1. So far as the matter of unacceptable risk is concerned, the principles were established in the High Court’s judgment of M and M.[1]  The judgment referred to the gravity of allegations made and the caution to be exercised in being satisfied that the civil onus of proof on the balance of probabilities has been established.  That common law approach is now encapsulated in s 140 of the Act.

   [1] M and M (1988) FLC 91-979

2. I accept the submissions made on behalf of the father that the eldest child is a child who has displayed bruising from time to time, not as a result of any untoward action taken by either of the mother or father, or the father’s partner, or indeed so far as the father is aware by any other adult.  It is merely a reflection of boisterous activity of a young child.  That circumstance is accentuated because of the particular behaviour in which the child engages which it is contended is a manifestation of his health issue.

3. Were it not for the matter of finger marks and marks on the child’s body associated apparently due to finger nails, I would have concluded that there is an unacceptable risk in accordance with the principles to be applied in terms of the child being in the care of the father.

4. However, what does concern me greatly are the injuries or marks to the eldest child’s body on two occasions reflecting pressure put on the child consistent with finger marks due to finger nails.  In addition, there is the albeit indirect expert evidence of a paediatrician referred to by the mother in her affidavit evidence suggesting that not only were the marks overall including the bruises consistent with a period of time when the child was in the father’s care, that notification would be made to the relevant authorities.  Presumably, notification would not be made in a responsible way should there be merely light bruises or nothing out of the ordinary in terms of their shape or colour consistent with a small child having hurt himself in the course of some boisterous activity.

5. In view of that evidence, substantiated to some degree by medical evidence referred to by the mother in her affidavit, I have concluded that there is an unacceptable risk to the child in terms of the period of time that he is in the care of the father, as opposed to the father representing an unacceptable risk in relation to his personal direct care of the child.  As I have mentioned earlier, the mother does not allege that the father is the perpetrator of child abuse.

6. That leaves the issue of more thorough evidence which can be tested in relation to these disturbing allegations.  The allegations are not only disturbing for the child, but also for the parents.  It is understandable that the father in the circumstances referred considers it an affront to his parenting ability and his dedication to the child as he sees it, that he is even remotely linked to allegations of child abuse.

7. As I emphasised to the father’s solicitor, and in the hearing of the father, the nature of interim parenting proceedings means that generally speaking allegations are untested and it is a truncated hearing.

8. In those circumstances, I am obliged to consider evidence that may indicate an unacceptable risk.

9. That evidence in this case represents the nature and extent of the injuries to the child which are not limited to bruises, but also the other marks to which I have referred and the advice and subsequent actions by medical practitioners having examined the child.

10. So far as the youngest child is concerned, the evidence is even more obscure.

11. Whilst the alleged notification followed a period of time with the father, the limited notification made by the mother does not seem to involve as a personality either the father or the father’s partner.

12. Consequently, on an interim basis only, I am not persuaded that there is an unacceptable risk of harm to the youngest child in the care of the father.

13. The prospect was raised by the solicitor for the father of there being a possible supervised period of time for the eldest child, but unsupervised for the youngest child.  This of course is against a background that no concession was made of any supervised period of time.  However, when I raised with the solicitor for the father the implications in terms of the two children, especially the eldest child who already has a significant emotional health issue of the prospect of him spending more limited period of time with the father compared to the youngest child, the solicitor for the father responsibly in my view withdrew that submission.

14. Neither of the parties suggests that the children should be separated so far as periods of time with the father are concerned.  It follows that there is to be supervision of the eldest child then that supervision will also occur when the youngest child is with the father.

15. For the reasons indicated herein, I have concluded that there is an unacceptable risk as contended by the solicitor for the mother.  I should emphasise that I consider the case was finely balanced in terms of reaching that conclusion, and that it may well be that after the mother has been more fully tested and investigated, and in that regard I note there is a Magellan report pending in these proceedings, then depending upon the quality of that report and the extent of investigations, it is a matter then for the trial Judge to conclude as to whether or not there is an unacceptable risk to both or either of the children in the care of the father having regard to the merits of the case.

16. It follows that I have concluded that periods of time with the father will need to be supervised.

17. The prospect of supervision at the Gold Coast Contact Centre is an unattractive one because of the waiting time of approximately 10 weeks, apart from the fact that it is likely to be far more conducive to the benefit of the children, as well as their relationship with the father, for periods of time to take place at his home, or otherwise at an alternative agreed place.

18. I was informed that the parties do agree in principle that an acceptable supervisor is the mother’s stepmother, Ms A.  For reasons of no fault of the parties, Ms A could not be contacted during the course of the hearing to ascertain her willingness to be a supervisor, periods of time that she is available, the place at which supervision should occur and the regularity of it.  However, the parties may make further enquiries as soon as possible today.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  4 June 2009