Jarmonds and Grace

[2018] FCCA 3991

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARMONDS & GRACE [2018] FCCA 3991

Catchwords:
FAMILY LAW – Parenting – father’s recovery application – allegations of abuse and neglect of children by father – allegations vague and inconsistent – no unacceptable risk of harm to children – children returned to father.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR JARMONDS

Respondent: MS GRACE

File Number: ADC 2185 of 2011

Judgment of: Judge Young

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Adelaide

Delivered on: 4 December 2018

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: NJ Ireland Barristers & Solicitors

Counsel for the Respondent: Ms Lindsay

Solicitors for the Respondent: Pacale Legal Barristers & Solicitors

Counsel for the Independent Children’s Lawyer Mr Hemsley

Solicitor for the Independent Children’s Lawyer Legal Services Commission of South Australia

ORDERS

1. That the children [X] born … 2007 and [Y] born … 2008 be returned to the father immediately at a place to be discussed between their legal representatives.

2. That leave is granted to the parties legal representatives (and to include the independent children’s lawyer (if appointed), any family consultant and family report writer) to inspect and copy the material MARKED CONFIDENTIAL produced by South Australian Police pursuant to s.69ZW order made on 23 August 2018 subject to any privilege claimed.  Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses.  Leave is granted on the condition that all copies are destroyed at the conclusion of the matter.

3. That the matter be adjourned to 5 March 2019 at 2.15pm for mention.

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

.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2185 of 2011

MR JARMONDS

Applicant

And

MS GRACE

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment 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 an interim parenting hearing concerning two children [X] and [Y] who are respectively 11 and 10 years old.  The matter first came before me on 16 August, I think, with the father's recovery application.  The mother on that day appeared unrepresented and told me that she had retained the children because the children had shown extensive bruising on their legs.  She made some other allegations but this is my memory of the oral allegations made at that stage from the bar table and I said that she ought to obtain some medical evidence if she wished to have the court accept that the bruising on the children's legs was a result of assaults or excessive discipline by the father. 

3. On 18 August she attended at the paediatric emergency department at the Women's and Children's Hospital and both children were examined. [Y] is reported to have told the examining doctor that Mr Jarmonds, that is a reference to the father, frequently drank alcohol to excess and often physically assaulted her and her brother [X].  Incidents included being hit and being kicked in the shins from which she sustained multiple bruises.  She also reported a lack of food.

4. On physical examination in the case of [Y], it was noted that she had “a thin white mark consistent with a very old scar on the left side of her neck as well as four small circular scars on her arms of heterogenous appearance”.  I am not entirely what the word "heterogenous" means in that context but I think that it means of varying origins or at least of differing appearances.  The note goes on:

   … or burns like scarring, three on the left and one on the right.

5. She had one scab on the right upper arm, 1 centimetre by 4 millimetres in the final stages of healing which she alleged was as a result of an assault from the father but she was unable to elaborate.  There were significant patterns of bruising on both shins which appeared to be pale brown fading and not significantly tender with no underlying bony deformity or tenderness.

6. In the case of [X], [X] stated that he had been physically assaulted many times, including assaults, where Mr Jarmonds would stand or step on his head and face in order to cause him pain.  He also reported a lack of food in the father's house.  On physical examination there was no evidence of acute scalp or head or neck injuries and no tenderness to palpation throughout.  There was one small bruise on [X]'s back approximately 3 centimetres, yellow and fading, just to the right of the L1-L3 vertebrae.  There were no significant patterns of abnormal bruising otherwise, with just a few small bruises on the legs near the knee consistent with recent playing of sport.

7. That is the evidence on a physical examination undertaken some 13 days after the mother alleged that the children first made complaints to her.  I think it is significant to note what the mother said in her initial affidavit which was prepared by a lawyer.  At paragraph 13 of her affidavit filed on 22 August, that is, apparently after the preparation of the discharge summary but I am not entirely sure, she said that, having collected the children on that day from the father to go to McDonald's:

   As we were driving [Y] complained to me that her legs were hurting.  [Y] then proceeded to tell me that her legs were sore because the father had hit her.  When we got out of the motor vehicle [Y] -

8. I think that is a misprint.  I think it should be "I" -

   when we got out of the motor vehicle I observed that [Y] had multiple dark bruises up both her legs.

9. That is all that is said by the mother in her affidavit.  There is no detail from the children or [Y], and indeed there is no mention of [X] at that point, about when this happened, as far as I can see. 

10. It is the agreed position across the bar table that there is no mention in the affidavit of [X] making an allegation that his father stood or stomped on his head or face.  The mother annexed some black and white photographs to her affidavit which appear to show some marks on the children's legs, they could be small bruises, but with annotations on the photographs with, for example, a picture of [Y]'s leg with the annotation, "Bruises up past her kneecap from being smacked by Mr Jarmonds with a belt, right shin." 

11. There are similar annotations on other photographs indicating [Y] had been smacked by a belt by the father.  There are further allegations of belt marks which are said to be two weeks old on the annotation. It is notable that the report of the complaint made by the child to the mother mentions neither belts nor the age of the assault or the time of the assault, certainly not two weeks before.  That information only appears in annotations on the photograph.  A surprising omission, it appears to me. 

12. The presentation at the Women's and Children's Hospital on 18 August resulted in a notification to CARL, which I take it stands for Child Abuse Report Line, Department of Child Protection.  Presumably on the same date, the recording of the complaints are as follows, and I take it that this was from the Women's and Children's Hospital:

    It was alleged that [Y] reported that when she was in the care of Mr Jarmonds she is kicked in the shins. 

13. Now, that is the first note as far as I can recall of an allegation of the father kicking the child in the shins.  I do not recall that allegation actually being recorded in the discharge summary but it may be.  [Y] was observed to have a scab on her right shoulder and allegedly said this was a result of being hit by Mr Jarmonds. 

14. The notifier questioned [Y] as to the specifics of how she sustained the injury and [Y] said she could not remember.  The mother is then recorded as having interjected at this point and said, "Yes, you can't remember, you cannot remember."  The injury appeared to be a graze.  [X] allegedly said that when his father is drunk he punishes him by getting him on to the ground and Mr Jarmonds would "stomp on his cheek and jaw".  Consistently with the discharge summary the notifier observed no physical injuries to [X]'s face or jaw.  There are various other complaints about the father selling the children's clothing or their food or their toys for profit.

15. What is noteworthy there is that while the allegation of being hit and being kicked in the shins is recorded in the discharge summary, that is not an allegation recorded by the mother in her affidavit and appears first in the discharge summary.  It is also notable that the allegation that the children were hit by a belt, which is contained in the photographs in the annexures to the mother's affidavit is an allegation, as far as I can see, that is not raised in the discharge summary. 

16. The children attended on the family consultant on 5 November.  I will deal with the allegations first.  In relation to [Y], [Y] told the family consultant that Mr Jarmonds,  

    (who I will refer to as “the father” and who has been in loco parentis for [Y], indeed there is an order that [Y] live with him, but he is not the biological father) had hit her and caused bruising to her legs. She went on to say:

    He used to smack us with a belt.  If you ask the school they would say I came to school crying because he used to hit us with a hand on the legs and arms because I was naughty.  I don't remember why I was naughty, it has been so long.

17. [Y] said that she wanted to stay living with the mother.  In relation to that allegation that [Y] would attend school exhibiting distress as a result of assaults by Mr Jarmonds, there is a letter dated 15 August from the children's school, School A.  I will not read all of the letter. It is not from the principal of the school but it is from someone else who I take to be a teacher, at least, with authority to write on behalf of the school.  It says, and it is important to note that these observations were made while the children were in the father's care:

    Both children have presented as well looked after while in Mr Jarmonds care.  They are consistently wearing the appropriate school uniform which is clean and replaced when worn out.  They always have a hat available which Mr Jarmonds has re-purchased if a previous one has been misplaced.  Both children have been financially supported by Mr Jarmonds to attend all school excursions as well as overnight camps.  This has allowed them to foster close friendships with their peers at School A.  Since teaching both students their attendance rates have been high.  If they are absent due to illness or an appointment, Mr Jarmonds is very prompt at communicating with the school.  [Y] often displays affection for Mr Jarmonds at school drop-off and pick-up time.  She appears to be happy when in his company.  When [Y] is having friendship concerns, she confides in Mr Jarmonds and allows him to approach myself to help support [Y] through the situation.

18. That is the end of the relevant part of that.  I am satisfied that that report is quite inconsistent with [Y]'s claim that she attended school crying because she had been hit on the arms and legs by the father.  The family consultant observed that when the child [Y] made those claims her affect or appearance was not congruent with the allegations.  What she says is:

    Her disclosures about Mr Jarmonds hitting her, although said in a light-hearted fashion, seemed incongruent or dissonant with such statements of abuse.

19. She went on to say:

    Although she showed absolutely no sign of being fearful in Mr Jarmonds' presence, in fact the opposite was true.

20. Ms C went on to say that perhaps there should be some further investigation of those allegations.  Those observations were fleshed out in the body of the report where [Y] was seen to take pleasure in her father's company, calling him "father" and was excited about seeing the paternal grandmother.  Nevertheless, [Y] did express a wish to remain living with her mother.

21. Mr Jarmonds resiled from the allegations that he had earlier made about the father at the Women's and Children's Hospital on 18 August.  He said:

    [X] denied that his father had ever bashed him or stomped on his head as is claimed.

22. He said:

    [Y] blamed my dad for her bruises.  I told mum that they are just because [Y] falls over when she's on the bike and even when she's playing sport.

23. He added:

    [Y] and I are really active.  She wears thongs all the time and they don't give a good grip.

24. [X], apparently close to tears, reiterated that he wanted to go back and live with his father.  He reiterated that his father had not hurt him.  Perhaps concerningly:

    [X] denied ever having told anyone, including his mother, that his father had hit him and [Y].  'I never said dad hit me.  Someone called Mr B, I spoke to him, I told Mr B dad didn't hit me'.

25. I am satisfied that is untrue and that [X] has certainly made a complaint at the Women's and Children's Hospital about his father which, I repeat, concerned stomping or standing on [X]'s head or face of which there was no evidence whatsoever on examination.  It is possible, of course, and I have to take account of this, that if a child is strongly attached to a parent and is removed from that parent, even if the parent has abused a child or acted wrongly or improperly, a child may sometimes lie about that such is the strength of the attachment and the desire to return to living with that loved parent.  I do not dismiss the possibility of that here.

26. The overall impression I have is that there is a vagueness and inconsistency about the allegations that suggest to me that they may be false.  It is an interim hearing and I do not propose to make any finding about that.  But the fact that there is no physical evidence to support the allegations, the fact that the allegations have been made inconsistently, most noticeably in the case of [X] where he said one thing at the Women's and Children's Hospital, a very florid allegation that he was stomped on by his father, and then denied to the family consultant. 

27. The inconsistency in [Y]'s allegations is that she was kicked in the shins at one point, with no mention of being struck by a belt at the Women's and Children's Hospital and, I think, with Ms C no mention of being kicked but an allegation of being hit with a belt to Ms C, the family consultant, very strongly undermines the apparent reliability of those claims.  Again, I do not propose to make any findings.

28. In relation to Ms C’s recommendation that she said that [X] desperately missed his father and, in her view, should be returned to his father's care immediately, that was not opposed by the mother and I propose to make that order.  In relation to [Y], Ms C said that notwithstanding the apparent incongruent affect displayed by [Y] when she made the allegations, that is, she did not appear fearful of her father but, on the contrary, she appeared to take pleasure in his company and the company of the paternal grandmother, nevertheless she felt some further investigation would be required.

29. These matters have been reported to the child welfare authorities and in the response to the notice of risk sent to the court there is an indication of an outcome in relation to these allegations as follows: “Open intake phase scheduled for closure”.  I infer from that that the child welfare authorities do not propose to investigate these claims any further.  So Ms C’s recommendations there should be some further investigation raises the question of “What investigation by whom?”  I am satisfied that there is unlikely to be any further investigation.  If there is, interested parties can adduce further evidence and if need be the matter will be reconsidered after some investigation. 

30. As I say, there is no indication at present that there will be any further investigation by the authorities of these claims.  Having regard to my analysis of the inconsistency of some of the claims and the lack of objective evidence that they are true, I consider it unlikely that there will be any further investigation by anyone. 

31. Some other allegations were made by the mother about the children lacking food or the father drinking too much, etcetera.  I do not propose to deal with those allegations.  I am satisfied that there is no unacceptable risk in both children being returned to the care of their father.  Those other allegations are vague and of their nature simply incapable of resolution at an interim hearing. 

32. Even if there were any substance to them, I am not satisfied that an interim hearing is the place to deal with them.  Submissions were made about the credibility of the mother.  I do not propose to make any findings about that.  It is clear that the mother has a troubled history involving dependence on methamphetamine and periods of imprisonment for, apparently, a crime of violence.  They are not the matters that, in my view, are determinative of the outcome of this case. 

33. What is determinative is that I am satisfied that having regard to the nature of the evidence of the allegations that the allegations are unsubstantiated and supported only by inconsistent and unsatisfactory evidence.  I am not satisfied there is any unacceptable risk in having the children returned to their father and that is the order I make. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date:         28 March 2019