Granden & Langworth
[2023] FedCFamC2F 707
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Granden & Langworth [2023] FedCFamC2F 707
File number: WOC 1016 of 2022 Judgment of: JUDGE YOUNG Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – application for review – where the mother says there ought to be no time between the child and the father – where the parties had a short-lived relationship – where the child was injured in the father’s care – where the child suffered a fracture – where the injury was investigated by police and child welfare authorities – where no evidence of inflicted injury was found – where the mother refused to make the child available to spend time with the father – where the mother has made domestic violence allegations – where the mother alleges the father uses illicit drugs – where there is no evidence that those matters are of concern – where the application is dismissed. Legislation: Family Law Act1975 s 60CC Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 19 May 2023 Place: Darwin Solicitor for the Applicant: Self-Represented Litigant Counsel for the Respondent: Mr Watkins Solicitor for the Respondent: GA Lawyers Counsel for the Independent Children's Lawyer: Ms Makdo Solicitor for the Independent Children's Lawyer: Makdo Family Lawyers & Associates ORDERS
WOC 1016 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GRANDEN
Applicant
AND: MS LANGWORTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
19 MAY 2023
THE COURT ORDERS THAT:
1.That the order made by a Senior Judicial Registrar on 22 March 2023 remain in place with the exception of an additional order 3A in the following terms:
“The parties are forthwith to do all things necessary to enrol in the [B Contact Service]. If a time slot becomes available the parties may agree to substitute that service for [C Contact Service].”
2.That the Application for a Review filed by the mother on 31 March 2023 be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Young
This is a review application made by the mother following a hearing before a Registrar which took place on 22 March 2023. The substance of the orders made by the Registrar was that the child, X, who is four and a half years old, live with his mother and, noting that the father has not spent time with the child for close to two years, there be a graduated introduction to the father over time, under supervision of a private supervision service called C Contact Service.
The mother has sought a review of those orders. Her primary position is that there ought to be no time between the child and the father, pending further investigation of the father’s mental health and marijuana and illicit substance use.
In the alternative, the mother seeks that supervised time take place with a different supervision service - potentially a publicly subsidised supervised time centre. Although I have received no evidence about this, I am told from the bar table that the waiting period for a subsidised contact centre may be as little as one month, however it was also suggested that this was simply the waiting period for enrolment with the centre. If a subsidised contact centre had a waiting period of one month, this, in my experience, would be very unusual, as my experience is that the waiting times are invariably many months.
The background to the matter is as follows. X was born in 2018. At that stage the mother and the father did not live together. The mother and the father lived together for a short period, from about the time of X’s birth until they separated in April 2019.
In July 2020 they attended mediation. It was agreed that the child would spend overnight time with his father once a week on a Thursday night and that was to increase to two nights over time and there would be extra nights by agreement.
That arrangement seems to have been unfolding without particular difficulty until 20 March 2021 when the child was injured in the father’s care. The injury experienced by the child was a fracture, as the subsequent investigation at the hospital revealed. The child was, it seems, reasonably promptly taken to the hospital by, I think, the father and the mother and the child was treated for the fracture and discharged from the hospital after approximately two weeks. As fractures of children, particularly small children, are unusual injuries and seem to require the application of a high degree of force, such an injury is often associated with an inflicted injury. Inflicted injury is a technical phrase and it is referred to in the medical material in the tender bundle before me, meaning an injury deliberately inflicted on a child by another person, in other words, child abuse.
The medical staff at the hospital, having regard to the nature of the injury, reported the matter to the child welfare authorities and it seems that, in turn, the child welfare authorities referred the matter to the police.
Despite the submission of counsel for the mother that there does not appear to have been any conclusive investigation, there was an investigation by the child welfare authorities and the police. As part of the investigation the child welfare authorities sought a medical opinion about the plausibility of the explanation for the injury offered by the father. The explanation offered by the father – and this appears in the hospital notes from the day of the injury - was that the child slipped on the play area, which was wet. The father said that he was arranging to untangle a piece of play equipment while the child was near him. He did not actually see precisely how the child injured himself but he heard the child fall, turned around, and the child was lying down in an unusual position, evidently, as later events showed, with a broken bone.
The child welfare authorities sought a written opinion from a medical practitioner. The name of the practitioner is unclear because it has been redacted in the materials that are included in the tender bundle but I do not doubt that it was an inquiry directed to a medical practitioner. The child welfare worker, Ms D, inquired about:
Whether or not the explanation provided by [Mr Granden], that [X] slipped and fell, could result in a [fracture].
Part of the reply is redacted, unfortunately, but the reply records the history:
It seems that [X]’s father, [Mr Granden], says that the injury occurred when X slipped over whilst running on the back [play area], and that [X] was in an awkward position on the ground when [Mr Granden] turned around.
And the opinion is expressed as follows:
Falls whilst running are a well-reported cause of fractures in this toddler age group, and if there is any twisting component to the fall (for example, a foot turning inwards during the fall), the fracture is likely to be [a break]. This does not, however, exclude the possibility of an inflicted injury.
That opinion was offered on 6 April 2021.
On a date that appears unclear from the tender bundle but could be 23 March 2021, that is, three days after the child’s injury, the child welfare case worker recorded the following case note:
Acting manager case work received an update from Detective Senior Constable [name redacted]. During the conversation, the following was discussed:
•Police have interviewed [Mr Granden], and at this stage will not be proceeding with a criminal investigation pending the skeletal scan which is meant to be occurring today.
•[Mr Granden] provided an account of what was happening prior to [X] sustaining the injury. [Mr Granden] stated he and X had been to [E Store] earlier in the day to purchase a [some play equipment]. [Mr Granden] stated they returned home, and he and [X] were on the back [play area] at his house, and he was erecting [the play equipment].
•[Mr Granden] stated he had his back to [X], and when he turned around, [X] was on the floor, so he did not witness what happened to [X].
•Police have organised to attend [Mr Granden]’s home to sight the [premises] and [the play equipment], to confirm [Mr Granden]’s explanation.
It is also clear from the child welfare report that a police officer and a child welfare worker did attend the father’s home, so the matter was investigated to that extent. There is reference that the hospital conducted a further scan of the child’s skeletal system to look for evidence of any other bony injuries or pre-existing injuries and there was no other evidence of skeletal injury.
The upshot of that was that, according to the hospital notes on page 86 of the tender bundle, the investigation:
‘Screened out’ serious non-accidental injury.
Other parts of that notes indicate that maybe the investigation was still ongoing so it is a little bit unclear whether there was a formal finding or a formal conclusion. No one has pointed me to such a formal conclusion. However, it is clear, I think, from those materials that the following occurred:
(1)Given the nature of the injury, the F Hospital conducted an appropriate medical examination of the child, including a skeletal scan, which revealed no other evidence of bony injury consistent with any history of abuse.
(2)The police interviewed the father and accompanied him to his home and examined the home to see whether what they observed was consistent with the father’s explanation for the child’s injury. It appears, also, that a child welfare worker may have accompanied the police, however that is a little bit unclear. Certainly, there was an indication that that was intended.
(3)The child welfare authorities obtained an expert medical opinion, presumably from a doctor or an orthopaedic surgeon within the hospital – again, it is somewhat unclear – as to whether the mechanism of injury described by the father, that is, the child slipping on a wet play area, was plausible and the advice was that was plausible, and indeed, in children that age, a broken bone suffered while running and falling was not uncommon, and further, if there was some degree of twisting in the fall, that could result in a fracture. The upshot of that was that the matter was taken no further.
In other words, all the material suggests there was an objective and appropriate inquiry by police, child welfare and medical authorities and no evidence of inflicted injury was found.
Nevertheless, from shortly after that date the mother refused to make the child available to spend time with the father. The mother says she was advised by her general practitioner that the injury was suspicious, and indeed, in an affidavit filed by Dr G on 17 March 2023, Dr G refers to some observations of the child, including him apparently telling Dr G that he did not want to see his father. No explanation for that was offered.
She says in relation to fractures:
My opinion regarding how he sustained a [fracture] – it would be most likely that non-accidental injury requiring a reasonable amount of force, such as being thrown, involved in a car accident, or dropped from a greater than one-metre height, could cause this fracture. [Fracture]s require force not able to be generated by small children. In my medical training, a [fracture] of the [leg] in a child was always explored (sic) a source of non-accidental injury, involving force and not a child play accident.
She goes on to make some reference to the father.
There are a couple of notable things about that. It was submitted by counsel for the mother, and he acknowledged that the submission was in error, that the opinion of Dr G was that the injury could have only occurred in essentially a non-accidental way described by Dr G. That is not the case. Dr G talks about what would be “most likely” and she also says:
[Fracture]s require a force not able to be generated by small children.
That assertion is inconsistent with the opinion that was offered to the child welfare authorities as it being plausible that a running child could fracture a leg and if there was a twisting involved that it could result in a fracture. Dr G is a general practitioner who has offered what purports to be an opinion and in my view this opinion fails to comply with the general requirements for expression of expert opinion, that is, appropriate experience and training. She does not give any detail about her experience with fractures in children or inflicted injuries. She refers to her knowledge coming from her medical training rather than anything post-training, such as orthopaedic, surgical or child welfare experience.
She is correct in the sense that such an injury would usually result in an exploration of the possibility of non-accidental injury, as occurred in this case. To the extent that Dr G is to be understood as expressing an opinion that this child could only have experienced a fracture of the leg through an inflicted injury, then, in my view, such an opinion is inconsistent with the opinion offered by what would appear to be the F Hospital in the course of the child welfare investigation.
There is no evidence from the mother that she engaged with anyone else other than Dr G. There is no evidence that she endeavoured to speak to the surgeon, if indeed it was a surgeon or an orthopaedic surgeon who offered the opinion to the child welfare authorities, or has undertaken any other inquiries about the injury.
In her affidavit, the mother refers to various hearsay remarks by a nurse about the suspicious nature of such a fracture. She refers to hearsay from a surgeon, at paragraph 25, Dr H, who according to her, said that it is nearly impossible for X to have sustained this injury without falling from a significant height, etcetera. Dr H is said to have examined the notes before expressing that opinion but Dr H has not filed an affidavit.
The mother has not, in fact, provided for any expert opinion apart from the opinion from Dr G, who is a GP, and I am not satisfied she is able to express an opinion, if it is to be understood as an opinion, that the mechanism of injury offered by the father was impossible or unlikely. Dr G does not refer to the mechanism of injury referred to by the father. Dr G does not grapple with any of the results of the inquiry. I give her opinion very limited weight.
Notwithstanding the conclusion by the hospital, the child welfare authorities and the police that there was insufficient evidence to conclude that the child was injured as a result of abuse, the mother has clearly maintained that opinion, as is clear, I think, from the presentation of her case today and her affidavit material. I am of the view that it seems unlikely, from this material, that the mother will change her view.
It was said by her counsel that I ought to take a cautious approach in dealing with this matter because, ultimately, there is a contest or a conflict in evidence about how this child was injured. I do not accept that submission. I consider it highly unlikely that in any trial there will be any further resolution of this question. An investigation was made at the time by the hospital, which revealed no other evidence of bony injury, and by the police, which considered the explanation offered by the father to be plausible and consistent with what they observed at his home and consistent with the medical opinion obtained by the child welfare authorities, all of which led to a conclusion that the matter was not to be pursued.
Unfortunately, because the un-redacted version of the child welfare notes is unavailable, I am unable to be certain about the identity of the medical practitioner who offered the opinion to the child welfare authorities about the mechanism of injury given by the father as being plausible. However, it was certainly enough for the child welfare authorities. I consider, in all those circumstances that there is unlikely to be any further resolution of these questions and indeed, if the mother wished to pursue that, then it is up to her and was up to her, to provide expert opinion compliant with the rules.
Curiously, the submissions of counsel for the mother today were that the mother does not know what the mechanism of injury was. It was put, I thought surprisingly, that one option, or one alternative explanation might be, that the child was neglected while the father was under the influence of cannabis. I do not know that I need to say anything more about that.
Curiously, while the mother seeks an order that the child spend no time with the father, the condition she seeks is not that there be a trial, as her counsel suggested, concerning the mechanism of the child’s injury but there should be further investigation undertaken into the father’s mental health, marijuana and illicit substance use. There was no mention of there being no time between the father and X until the mechanism of injury suffered on 20 March 2021 was resolved. I find that difficult to understand, given the way her case has been framed, which is that this child suffered an inflicted injury, regardless of what formally might have been said in submissions.
I am not satisfied there is any reliable evidence, or indeed, any evidence at all to suggest that this child suffered an inflicted injury, or an injury inflicted by his father. Given that, I am not satisfied that the mother was justified in doing what she did post the child’s injury on 20 March 2021, that is, withhold the child and prevent the child spending any time with the father.
The mother has raised, more recently, further allegations about the father relating, as was indicated a moment ago, to his mental health and drug use and family violence. I am not satisfied there is any evidence that those matters are of particular concern at this stage. I will turn to the issue of cannabis use in a moment.
Prior to the mother ceasing the child’s time with the father she had agreed to the child spending time with him. She had done that following mediation. It is perhaps understandable that the mother would, I conclude, leap to a conclusion. She and the father had a very short-lived relationship. There was no period in which they could build up trust or get to know each other and their relationship ended after a few months. The mother alleges that the father was growing cannabis at that point, something that the father denies, and the father’s mother also denies in an affidavit filed by her.
The father underwent a hair follicle test in December 2022. It was negative for any drugs, or illicit drugs, except cannabis. The father was the subject of a serious injury many years ago and he suffers from chronic pain. He said – and this is not challenged, and indeed, a letter from his treating doctor is included in his affidavit – that he was prescribed medicinal cannabis to deal with chronic pain and he says that the cannabis that was detected in his hair during the testing in December last year is a result of the medicinal cannabis he is prescribed for chronic pain. The father’s explanation about that is plausible.
Counsel for the mother points out that the father was also ordered, in the Registrar’s orders from March of this year, to obtain a report from the drug testing firm about whether or not the level of cannabis detected was consistent with therapeutic use. The father has not done that. He says that he cannot afford to do so at this stage. I heard evidence from the father orally this morning on an application for an adjournment. He said that he is unemployed at the moment. He said that he does not have money. Indeed, he is unable to pay his lawyers, who ceased acting for him. Whether it was as a result of that, or something else, is unclear, but he was cross-examined about that. It was not put to him that he can afford lawyers and it was, I think, apparent that his explanation of being short of money at the moment is plausible.
There are other issues raised about family violence, denigration and the like but that is clearly very historical and the mother and father have had next to nothing to do with each other for the past two years or so. I am not satisfied that that poses any unacceptable risk to the mother or the child.
There is also a suggestion that the father may be using other illicit drugs but the hair follicle test showed nothing and I am not satisfied that there is any unacceptable risk flowing from that.
I am, as I have already indicated, not satisfied that there is any unacceptable risk of harm to the child flowing from any propensity to violence. There is no evidence of it.
The mother also raises questions about the father’s mental health. Again, I am not satisfied that there is any current evidence that the father suffers from any serious mental health disorder. He apparently has not complied with a request to provide the names of his treating doctors over the past few years but I am not satisfied that that is necessarily something that gives rise to a suspicion that the father suffers from any serious mental ill health. As I said, I heard him give evidence this morning and I heard him cross-examined. There does not appear to be any real indication of him suffering any serious mental ill-health.
The court must have regard to the legislative pathway set out in section 60CC, subsections (2) and (3) in particular. I am to have regard, as a primary consideration, to the benefit to the child of having relationship with both of his parents. It appears to me that that is the most significant factor at work here as I am not satisfied that section 60CC(2)(b) is a factor in this case.
The child has been prevented from spending any time with his father for upwards of two years and I consider that, over such a period, there is a very high degree of risk of the child being deprived of a meaningful relationship with his father, and indeed, such is the length of the separation that I consider, indeed, there is a risk of psychological harm to the child from that, in the long term.
The additional considerations are set out in subsection (3). I do not propose to go through each of those but the child apparently has not expressed any wishes. Though, at different times, the mother has said in her evidence that the child has said that he is afraid of his father, or does not want to see him, which evidence strikes me as a little bit unusual after two years of the child having not seen or had any contact with him at all. So I give that claim limited weight.
In relation to (b), the nature of the relationship with the child with each of the child’s parents, I think it must be apparent that, with a child who, from the age of two and a half to four and a half, has not spent any time with his father, that that relationship must be approaching vestigial, if not severed altogether, and that is a factor that is of the utmost importance in this case.
The other matters, particularly in (ca), (d) and (e) are not of particular significance here, though in relation to (e), the father said in his evidence today that the cost of the supervision through a private supervisor, C Contact Service, was $300 a session and he was struggling to find the money and was not able to afford that until he borrowed money from his mother, which is apparently in train. The expense of the child spending time with the father, albeit under supervision, is very significant and I think, perhaps, attention needs to be given to the Registrar’s orders to deal with that.
I do not propose to make any particular remarks about (f) and (g).
Paragraph (h) is not relevant.
In relation to (i), I do not propose to make any remarks about.
In relation to (j), there have been allegations of family violence but I am unable to reach any conclusions about those and in any event they are from a period some years ago, not after the parties separated in early 2019. I am not aware of any family violence order that applies or has applied
I have regard to (l) and (m).
In all the circumstances it appears to me that it is necessary for the court to put in place orders that are calculated to attempt to rebuild the relationship between the child and his father. The use of a private supervisor provides an appropriate level of monitoring and I assume, at the end of any period of supervision, the supervisor will be asked to provide a report. It would seem to be necessary.
The other orders the Registrar has made, in my view, are orders that are appropriate and the father really does need to comply with them. If money is a problem, he needs to deal with that promptly by either finding the money or some other measure.
The father appears to have been somewhat passive in his response to the mother ceasing the child’s time with him and appears to lack initiative in conducting himself in this litigation. It is most important that he comply with orders.
I propose simply to endorse the orders of the Registrar, which appear to me to be appropriate in all the circumstances.
With the exception of order 3A, which I have inserted, the application is dismissed.
On the prompting of counsel I will correct part of what I said. The child welfare authorities closed their investigation on 30 April 2021 with an assessment as follows:
Assessments indicate child/young person is not in need of care and protection.
The closure reason and closure rationale is as follows:
[City F] joint child protection response program have finalised the field assessment for [X]. Physical abuse could not be substantiated throughout the assessment, and future risk is assessed as low. Case closure endorsed [names of case workers].
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 19 May 2023
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