HALLESON & ISIDRO

[2020] FamCA 456

FAMILY COURT OF AUSTRALIA

HALLESON & ISIDRO [2020] FamCA 456

FAMILY LAW – CHILDREN – withdrawal of child on basis of asserted risk of harm – conflicting accounts – risk to child of physical abuse outweighed by disruption of relationship with parent – disruptive proposal for make up time

Family Law Act 1975 (Cth)

APPLICANT: Ms Halleson

RESPONDENT: Mr Isidro

INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

FILE NUMBER: CAC 1988 of 2019

DATE DELIVERED: 4 June 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT: Strong Law Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

Orders

1. Leave is granted for the legal practitioners to exercise electronic access to the material produced on subpoena by the H Centre.

2. It is requested that the Canberra Registry of the Family Court of Australia promptly forward to each of the legal practitioners by email the electronic copy of those documents. 

IT IS FURTHER ORDERED THAT

1. The Mother's Amended Application in a Case is dismissed.

2. The Father's Response is dismissed.

3. The week about arrangement is to be resumed with handover of X to the Father to take place tomorrow pursuant to Order 2 of the Orders of 8 November 2019.

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 Halleson & Isidro 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 1988 of 2019

Ms Halleson

Applicant

And

Mr Isidro

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings occur in the overall context of a highly conflictual case between the parents.  There are disputes between them, even as to what name to use for their child.  Despite that degree of conflict they have equally shared time predominantly since February 2014.  That is a position they recently reinforced in November 2019 when they entered into consent terms reflecting such an arrangement.

2. The Mother has now withheld the child from the Father on the basis of an asserted risk of harm.  That assertion arises from circumstances taking place on 8 May 2020 when the child was returned to the Mother's care from spending time with her Father.  At that time the Mother observed a bruise on the child's inner thigh.  When questioned, the child indicated that there was no significance to the bruise.  The child was questioned twice in further days by the Mother about the bruising and again initially repeated that there was no significance to the bruising, but eventually asserted that the Father had struck her with an object like a wooden spoon when she had broken spoons.  The child then said that she had seen blood, although there is no evidence of an abrasion. 

3. The Mother attributes this description to the Father's conduct of potentially relating to impulsive or emotional conduct on his part if he experiences the child as oppositional.

4. The Father has previously conceded that he is prone to impulsive and emotional conduct in respect of the Mother. 

5. There is some suggestion that the Mother has been highly aggressive towards the Father which undermines to some extent her concerns about his impulsive and emotional nature. 

6. The Father on the other hand, denies that he has struck the child as described and raises concerns that the child has been placed under pressure which could be overt or unintended, being a pressure to make complaints against the Father.  That concern is raised in the context of what is an acrimonious relationship between the parents and in the context of questioning occurring of the child over a number of days.

7. The Mother made reports to CYPS, the Australian Federal Police and to the child's General Practitioner. 

8. The General Practitioner’s notes conflict with the Mother's account regarding the child’s interaction with the doctor.  That calls for some caution in relation to the Mother's account of what took place with the doctor, although does not give rise to any definitive findings in respect of that interaction with the doctor.  There are also raised in the discussions between the child and the doctor inconsistencies in the child's account as between what the Mother reports the child as saying to her and what the doctor reports the child as saying in their interview.  For example, rather than describing herself as having been struck by the object, the child describes to the doctor being touched by the object.  The doctor notes that the bruise was very small and faint by the time the doctor came to see it, which was some days after the Mother had first observed it. 

9. As noted, the Father denies there has been physical abuse of the child.  He described physical activities including bike riding, crashing, falling, and generally activities likely to produce bruises and other injuries in a child.

10. I am confronted with the possibility in this case that there is physical abuse that has taken place of the child, although I observe that the evidence is equivocal and inconsistent.  I am also confronted with the possibility that Mother has either concocted what has been claimed to have been said by the child or has applied pressure either knowingly or unknowingly upon the child.  Neither of these matters is able to be resolved in the interim proceedings in either way.  There is reason to be cautious in relation to reaching conclusions about any of these matters at this stage.  However, I am still required to consider the risks that they pose. 

11. I am also required to consider that the suspension of the Father's time as sought by the Mother has the undesirable effect of disrupting what is a long-standing care arrangement for the child with the Father.  It would disrupt what is an important relationship, its importance being identified by the equal time arrangement that the parties have entered into since February 2014 and recently recommitted to.  I am obliged to consider that the disruption of that relationship undermines the benefits of meaningful relationship that X might acquire from spending time with her Father. 

12. This is a matter that outweighs the risks posed by the Father, even if the description of X, at its highest, as described by the Mother is correct.  That is, it is not an unacceptable risk to return to week about time that outweighs the adverse effects on X of the interruption of X's relationship with the Father and accordingly I will refuse the Mother's application. 

13. The Father makes a proposal for make up time. That is also refused as it would add further disruption to X, which is not in her interests.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 June 2020.

Associate: 

Date:  5 June 2020