KENNEDY & PEYTON - [2020] FCCA 3268

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENNEDY & PEYTON

[2020] FCCA 3268

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 5 and 3 – mother retained children on advice from Department for Child Protection – Department investigating injuries sustained by a child aged 1 that is not subject to these proceedings, whilst in the father’s care – whether children exposed to family violence as a result of these injuries – Department opposed to the father seeking an increase in his time with the children – assessment of risk – best interests of the children.

Legislation:

Family Law Act 1975 (Cth), ss. 4, 4AB, 60B, 60CA, 60CC, 61DA

Cases cited:

B & B (1993) FLC 92-357

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode & Goode (2006) FLC 92-286

Marvel & Marvel (No2) [2010] FamCAFC 101

Mazorski v Albright (2007) 37 FamLR 518

Slater & Light [2013] FamCAFC 4

Applicant:

MS KENNEDY

Respondent:

MR PEYTON

File Number:

ADC 4269 of 2020

Judgment of:

Judge Brown

Hearing date:

26 November 2020

Date of Last Submission:

26 November 2020

Delivered at:

Adelaide

Delivered on:

1 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Boehm

Solicitors for the Applicant:

Degaris Lawyers

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Jordan & Fowler Family Lawyers

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

That the children X born in 2015 and Y born in 2017 live with the mother.
That the parties follow all written direction of the Department for Child Protection in relation to the father’s supervised time spending with the said children.
The father be retrained and an injunction be granted restraining him from:
(a)Attending at the children’s kindergarten, child care and school;
(b)Attending at the children’s extra-curricular activities including but not limited to the upcoming Auskick presentations; and
(c)Approaching the mother and the children in any public place whether they are together or not.
The mother be permitted to seek such therapeutic assistance or counselling for the children as she may be advised by CAMHS in writing or by such other medical professionals.
Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection (Families SA) are ordered to provide to the court the following documents
(a)any notifications to the agency of suspected abuse of the children X born in 2015, Y born in 2017 and D born in 2020, or of suspected family violence affecting the children;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
Pursuant to section 69ZW of the Family Law Act, South Australia Police are ordered to provide to the court the following documents
(a)Copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MS KENNEDY born in 1988 or MR PEYTON born in 1981 or the children X born in 2015, Y born in 2017 or D born in 2020; and
(b)the outcome or findings of any such investigations including antecedent reports for each of the parties.
Pursuant to section 91B of the Family Law Act 1975, the Department for Child Protection (Families SA) is invited to intervene in these proceedings and provide a report to the Court of any involvement the Department has had with the parties to these proceedings.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2015 and Y born in 2017 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The parties are restrained and injunctions are granted restraining each of them from:
(a)Denigrating the other in the presence of the said children or allowing any other person to do so;
(b)Discussing the proceedings in the presence of the said children or allowing any other person to do so; and
(c)Consuming alcohol to excess or illicit substances for 12 hours prior to and during the time when the said children are in their care.
Further consideration of the matter is adjourned to 16 February 2021 at 9.30am for directions at Mount Gambier.

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 under the pseudonym Kennedy & Peyton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4269 of 2020

MS KENNEDY

Applicant

And

MR PEYTON

Respondent

REASONS FOR JUDGMENT

Introduction

This is a case concerned with risk and its assessment in the context of a truncated interim hearing and against a background of Departmental and Police investigation of child abuse, in respect of a child who is not the actual subject of the proceedings.
Ms Kennedy “the mother” and Mr Peyton “the father” are the parents of X born in 2015 and Y born in 2017. Until recently, X and Y were parented in a shared parenting regime, spending extensive periods of time with both their mother and their father.
This arrangement has recently come to an end as a consequence of the involvement of the South Australian child protection authorities, who have been conducting an investigation into matters relating to the safety of another child.
The mother has two children from an earlier relationship. They are B born in 2011 and C born in 2012. Currently X, Y, B and C live with their mother. The father has a child from a subsequent relationship. He is D born in 2020. The investigation relates to D.
The mother and father commenced a de facto relationship in late 2013. During their relationship, they both worked at the Employer E – the father in a managerial role; the mother in administration. It is the mother’s case that the father had significant issues, with alcohol dependence, during their relationship.
In mid-2018, the father formed a sexual liaison with another person, who also worked at the Employer E. She is Ms F. She fell pregnant and believed Mr Peyton was the father of her child. A DNA test has subsequently confirmed that this is the case.
When the mother learnt of Ms F’s pregnancy and its circumstances, in 2019, she was upset and ended her relationship with Mr Peyton. The father took this separation badly and drank heavily for a period of time.
Against this background, the father was admitted to an in-patient rehabilitation centre, in 2019. It is his case that he no longer consumes alcohol and therefore issues to do with its consumption cannot pose any threat to the safety of either X or Y.
The mother alleges that her relationship with the father was one characterised by episodes of family violence committed against her by the father. The father acknowledges that the relationship was unhappy at times but denies that he has ever behaved inappropriately towards either X or Y, whom he deeply loves.
After the parties’ separation, the father hoped for reconciliation with Ms Kennedy. It is his position that he has a close relationship with not only X and Y, but also B and C, whom he regards as his own children.
The parties were not able to reconcile their relationship but it is the father’s case that he and Ms Kennedy initially remained on reasonably good terms. He moved out of the parties’ former family home in Town E and moved into rented accommodation in the town.
After a time, B and C ceased to spend time with Mr Peyton. On the mother’s case, this was their preference. From the father’s perspective, the children were subject to their mother’s influence, which related to a cooling of relations between Ms Kennedy and his parents, with whom she had previously been close.
Ms F gave birth to D in 2020. Following the paternity test undertaken in May of 2020, Mr Peyton began to spend regular periods of time with D. It is his case that he has a cooperative parenting relationship with Ms F and the two are able to communicate well.
In May and June of 2020, the parties undertook a process of mediation, in order to put in place a fixed regime for the care of X and Y. It was agreed that the father would spend time with X and Y for three nights each week and for one Sunday in every four. On his case, this equates to 43% of the time.
It is an essential plank of the father’s case that it is inconceivable that the mother would have agreed to this extensive regime of time, if she had any concerns about his capacity to parent X and Y safely for any reason whatsoever, including any previously held concern about his consumption of alcohol.
In early August of 2020, Ms Kennedy canvassed with Mr Peyton the prospect of her moving, with the children, to City G. The earlier parenting agreement mediated between the parties envisaged the children continuing to live in Town E.
Clearly, this was a contentious issue and is a feature of the current proceedings, which the mother commenced on 8 September 2020. It would seem to be the father’s view that this issue has increased the level of discord between the parties.
The catalyst for the mother’s application was the involvement of the Department for Child Protection “DCP” and South Australian Police “SAPOL” in investigating unexplained, but serious injuries, which had befallen D, whilst he was in the care of the father and Ms F.
It is the mother’s case that workers from DCP have told her not to agree to the father having any time with X and Y other than brief periods of time subject to departmental supervision. It is the father’s case that he has done nothing wrong and is the victim of an officious over-reaction by the Department.

The orders sought by the parties

In her amended application, filed on 2 October 2020, the mother seeks the following interim orders:
·She have sole parental responsibility for X and Y, who are to live with her;
·The parties follow the direction of DCP in respect of the father spending supervised time with the children;
·An injunction issue restraining the father from attending at any place or activity frequented by the children;
·DCP and SAPOL provide details of any notifications of child abuse involving X, Y and D;
·X and Y be independently represented in these proceedings;
·DCP be invited to intervene in these proceedings;
·The parties be restrained and an injunction issue restraining them from discussing the proceedings, denigrating the children, or consuming alcohol, when the children are in their respective care.
The mother seeks the following significant final orders:
·The settlement of de facto property issues between the parties;
·The settlement of these issues would involve the sale of the parties’ former family home situated at H Street, Town E;
·She be able to live with the children in City G.
The father responded to this amended application on 19 November 2020. It is his position that he should continue to spend time with the children as envisaged by the parenting agreement reached between the parties, which is currently from 8:30am each Monday until 8:30am the following Thursday; as well as on a week about basis, during the school holidays.
However, in deference to the ongoing investigation by DCP and SAPOL in respect of the injuries sustained by D, he proposes that this time be supervised by his parents, Mr J and Ms K, who live in Town L.
The father does not oppose the appointment of an independent children’s lawyer. However, it is his position that DCP have behaved in a cavalier and procedurally unfair manner towards him and Ms F. As such, he objects to either the formal or informal involvement of the Department in the current proceedings.
On an interim basis, Mr Peyton seeks the sale of the home presently occupied by Ms Kennedy. However, he concedes that this would cause her significant inconvenience and accordingly, he proposes that the issue be deferred until the parties have at least attempted to conciliate the property issues arising between them. The father opposes the relocation and seeks an equal time regime in respect of the parenting of X and Y.

Interim proceedings

This case arises against a background of acute familial crisis and controversy. Given the intensity and urgency of the crisis, it was necessary for the case to be listed expeditiously, so that appropriate measures could be put in place to regulate the parenting relationship between the parties in the light of that crisis.
Due to the degree of urgency, each party has, through necessity, been compelled to prepare documents expeditiously. The crisis necessarily, has heightened suspicions between all concerned. As a consequence, the parties themselves have no capacity to talk through the issues arising and work out some consensual response.
More significantly due to the pressure of its business, at this early stage, the court is not afforded the opportunity to conduct a lengthy hearing, involving cross-examination of the parties, which may enable some factual issues to be resolved, on the basis of findings of credit, at this interim stage. Accordingly, in many ways, an interim hearing is unsatisfactory given its outcome must inevitably be provisional in nature.
DCP has not as yet indicated any finalised position. However, as a consequence of protocols existing between the court and DCP, the court has been provided with some preliminary information regarding the Department’s involvement with the family. None of this information has been subject to any significant level of scrutiny.
Ms M, the DCP official who is embedded at the Family Law Courts, as the Department/Family Courts liaison person, appeared at the hearing of the parties’ competing interim applications. She had earlier provided a memorandum to the court setting out the Department’s past involvement with the family.
The Department is not as yet a party to the proceedings and this court has no authority to compel it to be. It can only invite the Department to intervene in proceedings, if it considers that the welfare of a child warrants such intervention.
Neither the father nor the mother objected to Ms M addressing the court. She clearly but briefly indicated that the Department strenuously objected to the father having any time with X and Y, which the Department did not directly oversee. In due course I will provide details of the memorandum which had earlier been provided to the court.
In addition, as will become evident in due course, both DCP and SAPOL continue to investigate the circumstances surrounding the injuries sustained by D. Their investigations are ongoing and I have not been provided with any definitive report in respect of their outcome. The information I have is brief and untested and from the father’s perspective, highly controversial.
The notion that any person, particularly a parent, would injure a child, in his or her care, is an anathema to all right-minded individuals. However, regrettably, it is the experience of courts and those who work in child protection that such assaults do occur from time to time. This is the essential dilemma in the case.
How should the court approach the injuries sustained by D, when it determines what are the appropriate arrangements for X and Y, who are not alleged to have suffered any injuries themselves, but who may conceivably have been present, in the father’s household, when D was injured.
In this context, it would appear to be the position that SAPOL and DCP workers wish to interview X. From the father’s perspective, he is unclear why they would wish to do so and he is deeply concerned about the prospect of such an interview. For obvious reasons, this has heightened the significant level of suspicion, which he holds for DCP and those workers with whom he has had recent contact.
Given the urgency of the situation, at this interim stage, there has not as yet been time for the parties themselves to commission an independent and expert report, which will be directed towards examining the nature of the relationship, which X and Y have with their parents.
In addition, at this early stage, pending the appointment of an independent children’s lawyer, there is limited documentary evidence relating to departmental involvement in the family. It may well be the case that the proceedings have some way to go until they are finally resolved.
In my view, this is an important factor which all concerned must bear in mind. This may be the first of many court hearings involving care arrangements for X and Y. This initial case will not resolve the controversies between the parties. As such, any orders made by the court, at this early stage, will be provisional in nature and capable of reversal later.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[1]
[1] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
In Marvel & Marvel[2] the Full Court indicated that very often, in interim proceedings, where issues of serious risk are raised, it is often incumbent on courts, such as this one, to adopt a cautious approach. The Full Court said as follows:
“Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.”
[2] See Marvel & Marvel (No2) [2010] FamCAFC 101 at [120]
The essential issue for the court, in the current matter, can be expressed in the following terms: is it acceptable to assess risk for one group of children by reference to what may have happened to another child, who does not share the characteristics of the children in the first group?
X and Y are five and three years of age respectively. Physically they are more robust than D, who is a baby. X, in particular, has some level of developed language and so can, to some degree, report what has happened to her. D cannot.
There is no suggestion that any specific harm has befallen X and Y. The mother does not allege that these children have made any disclosures of abuse to her. There is no indication that either of them has suffered any physical injury.
In these circumstances, the court must determine what is a proportionate response, to the degree of risk arising potentially to X and Y, when it does not know specifically what happened to D and what, if any, was the involvement of X and Y in it.

Background

In early June of 2020, Ms F moved into rented accommodation in Town E with D. The father was living close by in the same street. As such, he was able to regularly care for D, whilst Ms F was working. In addition, it is the father’s case that X and Y regularly saw D, with whom they were each “besotted”.

On 10 August 2020, the father was at home with D, X and Y, when he heard cries of distress, from D, who was in another room, apparently with Y. The father deposes that Y gave him to understand that she had “dropped something on D”.
It is the father’s evidence that D quickly settled down and appeared to be fine, particularly after he had been given a bottle. He thought nothing more of the incident. A few days later, he deposes that there was some “very light bruising on D’s chest”.[3]
[3] See father’s affidavit filed 19 November 2020 at [63]
It is the effect of Mr Peyton’s evidence that the bruising, on D’s chest, became darker over the next few days. In this context, he asked Y what had happened and she disclosed that she had dropped a portable speaker on the child, which he (Mr Peyton) believes weighs approximately 2.2 kilograms.
As a consequence of this bruising, Mr Peyton and Ms F sought medical advice, from a general medical practitioner, in respect of D, on 18 August 2020. I have been provided with a copy of the consultation notes of the doctor concerned. These indicate that the child had a six centimetre bruise on his chest and a small scratch. No other abnormalities were apparently noted.
The clinical records end with the following note, under the heading “reason for visit: red flags given, mum reassured, safety issues for children at this age informed, chest trauma, parental concern”.[4] No explanation has been provided to me as to what this note means and what was the significance of the so-called red flags.
[4] Ibid at 2
The next major incident, relevant to these proceedings, is said by Mr Peyton to have occurred on 3 September 2020. He describes the relevant incident as follows:
“On 3 September 2020, whilst Ms F was working, I had D in my care at my residence and then at Ms F's residence. On two occasions that day I was playing with D by throwing him up in the air (I estimate 50cm or thereabouts). It was nothing that I have not seen many other parents do and that I had not done with other children when they were D's age, without any issue. I did it such that I would catch him carefully and with no sudden impacts. He seemed to be enjoying it, was smiling and showed no discomfort. I was also tickling him and he was laughing. He was happy and ate well. I bathed him and he had no visible bruising. I then put him to bed at Ms F's house.
On the morning of 4 September 2020 there was significant bruising on D's chest. D did not seem bothered by the bruising. Ms F has a video of him playing and laughing that morning. The doctor had previously told Ms F that if the bruising reappeared or spread then D should be brought back in.”[5]
[5] Ibid at [68] – [69]
It is the import of this evidence, amplified by the father’s extremely experienced counsel, Mr Bowler, that this incident reflected a normal interaction between a parent and an infant, to which no possible exception could be taken. In this context, Mr Bowler conjectured that the child may suffer from some congenital abnormality, which renders him liable to bruise. There is, as yet, no evidence to support such a hypothesis.
As a consequence of this bruising, the father and Ms F attended on the same doctor on the afternoon of 4 September 2020. The doctor concerned referred the child to the City N Hospital. The consultation record notes that D had “many bruises on his chest front and bruises on his elbows and knees and a one centimetre scratch on his elbow.” I have not been provided with a copy of the referral letter to the City N Hospital.
It is the effect of the father’s evidence that D did not present as being distressed, whilst he was examined at the hospital and whilst he underwent a variety of tests, including an ultrasound. For reasons which Mr Peyton is either unaware or has not, as yet, disclosed, someone notified DCP and SAPOL that D was at the hospital.
This must be the case, as Mr Peyton has deposed that he was questioned by two SAPOL officers, as was Ms F, later that day, at the hospital. The two were separated at the time of the questioning. Mr Peyton described the DCP worker, with whom he had contact, as being stone-faced and her conduct towards him as being unnecessarily unpleasant and her manner prejudicial.
D himself was transferred to the O Hospital in Adelaide by DCP staff. The father also asserts that he and Ms F were subject to a concocted and malicious allegation that they were regular users of alcohol and drugs. The information provided to the court by DCP in respect of D’s admission to the O Hospital reads as follows:
“D was removed from the care of Mr Peyton and Ms F on 4 September 2020 and was admitted at O Hospital between 5 September 2020 and 11 September 2020 for treatment for his injuries and a comprehensive Child Protection Services (CPS) forensic medical assessment. The assessment of D determined the injuries were inflicted through excessive force on multiple occasions. D was confirmed to have had an extensive amount of bruising over multiple parts of his body (involving scalp, forehead, chest, upper abdomen, back, left upper limb and both lower limbs), he had 30 confirmed rib fractures in various stages of healing (over front, back and outer part of his chest) involving 16 ribs, and he had an injury to his liver.”
Both Mr Peyton and Ms F have been interviewed by SAPOL. I have not been provided with a copy of these interviews. However, it is the preliminary view of DCP that they have not provided an adequate explanation to account for the degree and extent of the injuries suffered by D.
In the context of its assessment of the degree of harm suffered by D, DCP has advised the court as follows:
·It is seriously concerned about the safety of X and Y, in Mr Peyton’s care, given the severity of D’s experience of harm;
·D has been placed in foster care;
·A safety plan had been negotiated pursuant to which X and Y have been placed in their mother’s care, whilst further investigations took place;
·The father had initially agreed to this plan but had withdrawn his agreement on receiving legal advice, as there was no evidence that X and Y had experienced any harm;
·DCP disagree with this assertion, given from its perspective what occurred to D remains unresolved;
·As such, DCP wish to undertake a parenting capacity assessment of Mr Peyton to determine his ability to parent X and Y safely;
·DCP wish Mr Peyton to undergo a psychiatric assessment and to be subject to regular drug screen testing.
The Departmental memo provided to the court concludes as follows: “It is of paramount concern to the Department that X and Y be kept safe and protected whilst the critical investigations and assessment planned are completed.
In this context, DCP suggested that, in the event the court adopted the course advocated by the father, it would commence proceedings in the Youth Court of South Australia, pursuant to the legislation applicable to its operations,[6] to ensure what it regarded as the safety of X and Y. Any order made in the Youth Court would have primacy over any order made by this court under the provisions of the Family Law Act 1975 (Cth).
[6] The Children and Young People (Safety) Act 2017 (SA)
It is the father’s evidence that he has been honest and candid in all his dealings with DCP and SAPOL. He deposes that he has never been the subject of any previous allegations that he has neglected or abused any of his other children. He has undertaken the psychiatric report required by DCP but has not been advised of its outcome or been provided with a copy of the paediatric report in respect of D.
He is currently spending only one hour per week with X and Y, subject to departmental supervision, which he does not consider is sufficient to maintain a meaningful level of relationship with them. He fears that the DCP investigations will be unnecessarily time consuming and bureaucratic in nature.
As such, he is concerned that it will take the Department an inordinate and excessive period of time to ascertain what he believes will be an exculpatory explanation for D’s injuries, and X and Y will be deprived of a proper level of relationship with him, which will not be in their best interests.
In these circumstances, he contends that an appropriate prophylactic measure to the degree of risk arising, which on the submission of his counsel Mr Bowler is not extreme given the absence of any concrete allegations concerning X and Y specifically, would be supervision of all relevant periods by their paternal grandparents.
For her part, the mother is content to abide by the directions of DCP and is therefore strongly opposed to the father’s position. In her recent affidavit material she has raised concerns that the father did not properly supervise X and Y, whilst they were in his care and left them to supervise D.
It would appear also to be her case that she is further concerned that it might be suggested, by someone in the small community of Town E, that it was one of X or Y who harmed D and she wishes to protect the children from any such gossip and innuendo.
In addition, the mother does not believe that the paternal grandparents are suitable supervisors, given their ages and in Mr Peyton Senior’s case, his compromised health – he is alleged to require oxygen support. This is particularly so given the extent of time sought by the father.
In all these circumstances, she proposes that the court should make the orders proposed by her, whilst the Department continues its inquiries. For his part, the father asserts that this will take too long and is a response disproportionate to the degree of risk, given his denial of abusive behaviour and the lack of connection of any such behaviour to X and Y specifically.

How the court determines a child’s best interests

At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (b);(i);(j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (j), directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[7] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[7] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
This is the essence of Mr Peyton’s case. It is his position that the current regime, overseen by DCP, which allows him to interact with X and Y for only an hour each week, in the stilted and institutional setting of the DCP office, is not sufficient to maintain the children having a sufficiently meaningful relationship with him, who has hitherto been close to a daily presence in their lives.
Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
It is not alleged that either X or Y have been assaulted; sexually abused or subject to serious neglect. The tenor of the DCP memorandum, adopted by Ms Kennedy, is that there is a significant risk that they may be assaulted or are, in some way, at risk of suffering harm, in both a psychological and physical sense, as a consequence of being exposed to family violence.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
D is X and Y’s half sibling. They have shared the same household for significant periods of their lives to date. D is a member of X and Y’s family. I have reasonable cause to believe that D has been subject to family violence, whilst he was a member of X and Y’s family.
This arises because of the extent of the injuries suffered by D and the fact that DCP do not believe that those injuries were accidentally inflicted or have been otherwise subject to satisfactory explanation.
Certainly, it would appear to be the preliminary view of DCP that the multiple injuries sustained by D, which required his inpatient treatment, were not consistent with either an accident or the child being bounced in his father’s arms.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
Whether X or Y were present when D suffered his injuries is unclear to me. However, it is incontrovertibly the case that they have been exposed to the forensic sequellae of his injuries. The children have been interviewed by DCP workers, particularly X. As such, I accept that they have each experienced the effect of family violence, which has involved a member of their family.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[8]
[8] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
In Deiter & Deiter,[9] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[9] See Deiter & Deiter [2011] FamCAFC 82
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [10]
[10] Slater & Light [2013] FamCAFC 4 at [37]
At this interim stage, it is difficult, if not close to impossible, to ascertain definitively whether X and Y have been exposed to some form of family violence and, if so, what are the psychological implications of this for them. In addition, given the lack of information about what Mr Peyton and Ms F did or did not do, so far as D’s injuries are concerned, it is difficult to assess the level of risk for X and Y of interacting with their father.
However, on any view, the injuries suffered by D must be regarded as extremely serious. The statutory authority in South Australia charged with the responsibility for child protection in this state regards them as such and has directed that a cautious approach be taken, so far as X and Y are concerned.

In all these circumstances, it seems to me that the Department is currently the best placed authority to assess risk. The Department has explicitly indicated that an outcome which sees the children spending extensive time with their father, outside department remit, is one which is unacceptable to it.
In my view, given the involvement of the Department and its knowledge of the dynamic of this situation as it pertains to D, it would be imprudent for this court to ignore the Department’s assessment of risk.
However, at the same time, it is the father’s position that the risk of either X or Y being physically injured must be considered a modest one on the basis there is no evidence that these children have been subject to any direct form of abuse or some form of psychological injury.
In this context, he points to the formulation provided by Dieter and asserts that, as nothing adverse has happened specifically to X and Y in the past, the prospect of such an adverse event happening in the foreseeable future is negligible and therefore the safeguard proposed by him is a more than proportionate one to the risk so identified.
The mother’s position is that she has received advice from DCP, which she accepts. As such, she would not be comfortable with the court making an order which is not congruent with the manner in which the Department has assessed the risk. In B & B[11] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[11] B & B (1993) FLC 92-357 at 79,780
As a result of what has occurred recently, Ms Kennedy is the children’s primary carer. If she is anxious about future arrangements in respect of the children spending time with their father, including the efficacy of the proposed lay supervision, it will not assist her to parent the children to the full extent of her capacity.
Her view, in this regard, may conceivably change when further information is to hand, including the departmental assessment of Mr Peyton’s parental capacity. This is a further element of the case which remains unclear, at this interim stage.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:
·consider the section 60CC matters that are relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Conclusions

On balance, given the formulation provided by section 4AB of the Act, it seems more likely than not that X and Y have been exposed to family violence, involving a member of their family. At this stage, the extent of that violence appears extreme given the actions taken by DCP.
Although it is likely to be the case that the children have hitherto had a significant level of relationship with their father, protective concerns are to be given precedence. In these circumstances, the court is likely to be best served by adopting a conservative approach to the assessment of risk. This is particularly so given the attitude expressed by the Department.
The presumption of equal shared parental responsibility is rebutted in the case because the court has reason to believe that the children have been exposed to family violence. As such, it is not necessary for the court to consider either an equal time regime or a substantial and significant time regime.
Rather, it is necessary for the court to consider the various 60CC factors relevant, as best it can, bearing in mind the provisional nature of the hearing before it; the impossibility of resolving controversies of fact; and the lack of independent expert evidence.
Although I accept that there is no evidence to indicate either X or Y have come to any specific form of harm, the injuries suffered by D, at this stage, appear extreme in their implications for his safety. Although he is not a child who is subject to these proceedings, he is a member of X and Y’s family. As such, in my view, issues germane to him are relevant to the assessment of any risk arising for X and Y.
Given that it remains unclear how D sustained his injuries, it is difficult to assess risk and equally difficult to put in place a proportionate response to such an inchoate risk. As such, in my view, it behoves the court to act cautiously. This caution can be reversed, at a later stage, if fresh evidence comes to light regarding D’s injuries.
In my view, it would be an incautious or ill-advised response, if the court was to ignore the recommendations of the Department, in a matter of child safety, which has arisen, whilst the Department is investigating a matter falling within its area of statutory responsibility.
At this juncture, I do not know what are the precise allegations, likely to be made by DCP and SAPOL, in respect of how D came to be injured. I must be careful not to fall into the trap of conjecture. On the one hand, there may be an innocent explanation for the injuries; on the other, the injuries may have their origins in a heinous episode of conduct. At this stage, I do not know and am not in a position to make even an educated guess.
In these circumstances, I do not consider that I am in a position to ascertain whether the lay supervision, potentially to be provided by the paternal grandparents, is or is not a proportionate response to the risk arising because I do not know what the risk is until the Department has provided more information following its further investigations.
I appreciate that it is likely to be frustrating for Mr Peyton given his perception, based on his experience to date, that these investigations will take some time to be concluded but, in my view, such delay does not absolve the court of its obligation to act protectively.
In all these circumstances, I will make the orders as proposed by the mother in the interim and adjourn the case to the next sitting of the court to Mount Gambier for directions.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty three (123) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 1 December 2020