Kalant & Jordain (No. 6)

[2020] FamCA 890

FAMILY COURT OF AUSTRALIA

Kalant & Jordain (No. 6) [2020] FamCA 890

File number(s):	PAC 2727 of 2015
Judgment of:	GILL J
Date of judgment:	22 October 2020
Catchwords:	FAMILY LAW – where Mother seeks interim suspension of time with the Father – where Mother says that the child has been harmed in the Father’s care – where Father denies harming the child – where Mother says that child is at further risk in the Father’s care – where Mother says that suspension should last until investigations by NSW police and CYPS are completed – where child appears at ease in the Father’s care in photographs – where source of bruising is unknown – where child’s description appears inherently unlikely – risk of damage to relationship between child and Father if time is suspended – risk of harm to child – where it is not in the child’s best interests to displace current arrangements for time with the Father
Legislation:	Family Law Act 1975 (Cth) s 60CC
Cases cited:	SS v AH [2010] FamCAFC 13
Number of paragraphs:	30
Date of hearing:	22 October 2020
Place:	Canberra
Solicitor for the Applicant:	Bainbridge Legal
Solicitor for the Respondent:	Jeanine Lloyd & Associates
Solicitor for the Independent Children's Lawyer:	Mary Burgess

ORDERS

PAC 2727 of 2015

BETWEEN:

MR KALANT

Applicant

AND:

MS JORDAIN

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	22 OCTOBER 2020

THE COURT ORDERS THAT:

1.The Mother’s application for suspension of time is 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (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 the pseudonym Kalant & Jordain has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

GILL J

1. This matter comes before me, in the context of final orders made by Judge Tonkin on 5 October 2018 and, more recently, extensive contravention proceedings before me.  The parties have both sought the reopening of the final proceedings which are procedurally progressing to a further final hearing.  In that context the Mother seeks the interim suspension of orders for the child of the relationship, X, to spend time with her Father.  She says that the suspension should be for an indefinite period until investigations by the NSW police and CYPS are completed in relation to the circumstances set out below.

2. In general terms the orders to spend time with the Father provide for the child to have half of school holidays and every third weekend during term time with the Father.  Those orders were supplemented with compensatory time ordered on 25 September 2020, following contravention proceedings.

3. On 25 September 2020 a suspended term of imprisonment was imposed on the Mother with a bond that required that she comply with orders.  The Father was ordered makeup time, which meant that he was to spend time with the child for the first time in many months across the recent school holiday period and, in addition to each third weekend was to spend time with the Father the first two weekends of the current term.

4. On Monday 19 October 2020 the matter was listed for directions to prepare the matter for trial. The child had spent time with the Father the previous weekend and is due to spend time with him this coming weekend.

5. During the proceedings that day the Mother alleged that the child had been harmed by the Father. She said that she would comply with the orders to provide the child this weekend, but that the child had been harmed during her time with the Father the previous weekend.

6. The Mother said that she would be taking the child to a doctor and the police to make a complaint.

7. The Mother was asked about the allegation that the Father had harmed the child:

   HIS HONOUR: Can you tell me what the incident - - -

   MS JORDAIN: Sorry.

   HIS HONOUR: - - - is that you allege, please.

   MS JORDAIN: Sorry, not me. It’s the child that alleges it because - - -

   HIS HONOUR: Well, what did the child say?

   MS JORDAIN: - - - I was putting her - - -

   HIS HONOUR: What did the child say to you, Ms Jordain?

   MS JORDAIN: Okay. I’ll just let you know the story. So last night I showered her after dinner and got her in her jammies and I noticed, like – well, before I got her in pyjamas, she walked out in her towel and I noticed quite deep bruising on her inner arm. There was a bruise that – probably just above where your wrist whilst it would sit and it’s quite a heavy bruise. And then there’s a lighter bruise just below her 15 inner elbow. And she – I said, “What happened?” And she said, “Daddy grabbed me and smacked me. And I said, “Why?” And she just looked at me like she didn’t want to tell me. And I said, “It’s okay, you’re not going to be in trouble. Just tell me what happened,” and she said, “I was just sitting, Mummy, and he told me to shut the fuck up and he told me to fucking shut up.” And then he hit her, that’s what she said 20 when she said, “I just ..... know why Daddy doesn’t like me.” So I think she’s told me ..... told to take her ..... photos of the bruises ..... noticed them. And because ..... I rang ..... last night and they don’t have people qualified to speak with children during the night. And the child was exhausted and I – she was ..... go to bed. But they said ..... come out today.

8. The matter was then promptly listed to today, the following Thursday, to deal with the allegation that the child is at risk if she spends time with the Father this coming weekend, on the basis that it was the Mother’s assertion that the child will be at risk.

9. In some contrast to the Mother’s description above is the description offered by her affidavit filed 20 October 2020, which stated that when the child was returned to the Mother’s care and was showering the Mother noticed that the child had “significant bruising on her right forearm” [6]. The Mother said that she asked the child what had happened and that the child said “Dad grabbed me and smacked me on the bum” [7]. When the Mother asked whether the child had a mark on her bottom, the Mother said the child turned around and pointed to her bottom and said “there was a big mark there” when the Mother said that she could not see anything [7]. The Mother asked the child whether she did something that was naughty, to which the child allegedly said “I was singing Mummy and Daddy doesn’t like that”, and that the Father had told her to “shut up” and used the “F” word [8]. The Mother said that when she asked the child what she did on the weekend with the Father, that the child responded words to the effect that “Daddy went to work and left me at home alone” [9] and said words to the effect that “she poos and wees her pants every day she is at Dad’s place” [10]. The Mother said that since the child returned from Sydney that she has been “particularly clingy towards me and her brother Y and very emotional” [11]. The Mother provided photos that she had taken on her mobile phone [Annexure A].

10. While the inconsistencies call for some caution, there is little significance that can, at this stage of the proceedings be attributed to them.  They may well be the subject of reasonable explanation.

11. The Father’s affidavit material painted a very different story.  He denied smacking or abusing the child.  He accepted that the child had some bruising to her arm, such being noticed by the Father and his partner when the child had a bath after she had been handed over to the Father.  The child explained to the Father’s partner that she did not know where the bruises had come from, saying “I’m not sure, dance maybe.”

12. Further, the Father denied that the child had soiled herself over the weekend, and denied that she had been left at home alone while he went to work.  He observed that he was between jobs that weekend and there was no work to be gone to.

13. The Father also annexed to his affidavit a series of photographs of the child across the weekend.  They show that the child had the bruising complained of by the Mother on the weekend that she was with the Father.  They also show the child, apparently, enjoying her interactions with the Father.  While such photographs have inherent limitations (due to the risk that they only paint a partial picture) they at least show the child’s evident enjoyment of her Father.

14. The Independent Children’s Lawyer noted (via ExhibitC1) that CYPS have prepared a report recently in the case that, in part, notes the potential for psychological harm to be done to the child, by the Father if he is in fact abusive of the child, or by the Mother if he is not.

    Principles

15. Whether proceedings are final or interim, they are to be determined with the child’s best interests as the paramount consideration. That consideration is to be determined on an assessment of the considerations set out at s 60CC, as they arise in the particular case.

16. In interim proceedings the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests.  It is necessary [SS v AH [2010] FamCAFC 13 at [81]] to:

    keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made

17. At an interim hearing the court is to give emphasis to evidence that is objectively supported or uncontroversial.  Despite this limitation [SS v AH [2010] FamCAFC 13 at [100]]:

    Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

18. Here the focus of the s 60CC considerations is narrowly confined, in large part centred on the two primary considerations as they relate to the benefits of meaningful relationship for the child with her Father, and the issue raised by the Mother that the child is at risk of harm from neglect and abuse in the care of the Father.

19. These issues can only receive partial resolution at the interim phase of proceedings given the inability to resolve factual disputes in the absence of testing of the underlying evidence.

20. However, a number of observations may be made that indicate that it is not in the child’s best interests to displace the current arrangements for her to spend time with her Father.

21. The first is that there can be no confidence that the bruising identified by the Mother has its source in the child’s time with the Father, as opposed to the child’s time at dance (while under the care of the Mother).  It may be observed that there is nothing identified in the nature of the bruising suggestive of the bruising having an abusive cause. This observation is in the context of the understanding that the timing of the source of the bruise is unable to be determined at this stage.

22. The second is that even if the Mother has accurately recounted what was said by the child, the child’s description appears inherently unlikely.

23. Part of the child’s description related to being abandoned at the home by the Father.  This appears inherently unlikely, given both the Father’s description of his work arrangements, but perhaps more fundamentally, the extreme steps the Father has had to take to spend any time with the child in the face of the Mother’s trenchant opposition to the child spending time with him, an opposition so strong that it has required the imposition of a suspended term of imprisonment to force compliance with orders for the child to spend time with him.

24. This observation also calls for caution in relation to the Mother’s claims in relation to what she was told by the child, or the circumstances of being told such, although it cannot be resolved one way or another at this stage whether the conversation with the child occurred as reported.

25. The observation also calls for caution, even if the Mother has accurately recorded what the child has said in relation to the bruising, as the report occurs in a context of the Mother’s high resistance to the child spending time with the Father.  Under such circumstances there is an underlying risk of unconscious influence of the child.  Again, this cannot be established one way or the other in the current interim hearing, but should be recognised as a factor that points to caution in assessing the evidence.

26. It may be concluded that, even at an interim stage, the evidence paint a weak picture of risk to the child by the Father. The ICL submitted that, even taking the risk at its highest, in terms of the allegation of physical abuse, the risk does not appear to be one of high magnitude.

27. Against this, there is evidence that points to detriment if there is yet another disruption to the child’s time with her Father.  Noting that, until the recent school holidays, the child had not spent time with her Father since January 2020 due to the Mother’s non-compliance with orders, the Father’s affidavit is indicative of a positive time for the child with the Father last weekend.  Again, this is not a conclusion that can be reached with certainty at this stage of the proceedings.  However, the presence of limited photographic evidence in support of the child’s ease and enjoyment with the Father is supportive of the benefit that the child receives that would be displaced on suspension of the child’s time with the Father.

28. Further, this issue needs to also be considered in the light of the CYPS report that indicates the potential risk of psychological harm to the child in the Mother’s pursuit of claims of harm.

29. On balance, weighing the possibilities of the competing claims and assessing the likely impact if a controversial assertion is acted upon or rejected, in the light of the s 60CC considerations, the risks identified by the Mother are of such uncertainty, and of uncertain consequence, as to be outweighed by the potential disruption to the benefits of meaningful relationship with the Father, which have some limited support provided by the photographic evidence.

30. The current orders will not be suspended.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       22 October 2020