King and Hill

[2013] FamCA 815

FAMILY COURT OF AUSTRALIA

KING & HILL [2013] FamCA 815

FAMILY LAW – PARENTING – Interim Parenting Orders – Appeal from Local Court of New South Wales – Who the child should live with –Where each parent is alleging that the other parent caused bruising to the child - Where evidence has not been tested

Family Law Act 1975 (Cth)

APPLICANT: Ms King

RESPONDENT: Mr Hill

FILE NUMBER: SYC 4735 of 2013

DATE DELIVERED: 23 October 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 21 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Rowley & Ross Lawyers

COUNSEL FOR THE RESPONDENT: Ms Rebehy

SOLICITOR FOR THE RESPONDENT: Reimer Winter Williamson

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the child B born … 2012 live with the mother.

2. That the child spend time with the father each Monday, Wednesday and Friday between 10.00 a.m. and 4.00 p.m., the child to be collected by the paternal grandfather at McDonalds at Suburb C at the commencement of the time and collected by the mother at the home of the paternal grandparents at Suburb D at the end of the time.

IT IS ORDERED

1. That the parties and the child attend a Child Inclusive Conference at the Family Court Sydney Registry on 4 November 2013 at 2.00 p.m.

2. That pursuant to section 68L(2) an independent children’s lawyer be appointed on behalf of the child B (female) born … 2012 AND IT IS REQUESTED that Legal Aid Commission of New South Wales arrange such separate representation.

3. That forthwith upon appointment by the said Legal Aid Commission of New South Wales or otherwise the independent children’s lawyer file a Notice of Address for Service.

4. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

5. That upon their appointment, and after filing of an Address for Service, the independent children’s lawyer may inspect and, if permitted, copy all documents previously produced to the court in the proceedings and released to the parties.

6. That this application be listed for mention and directions before the Honourable Justice Rees at 10.00 a.m. on 2 December 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & Hill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4735  of 2013

Ms King

Applicant

And

Mr Hill

Respondent

REASONS FOR JUDGMENT

1. Before the Court are parenting proceedings in relation to the child B born in 2012.  The child’s parents are the applicant Ms King (“the mother”) and the respondent Mr Hill (“the father”).

2. The proceedings come before the Court by way of appeal against a decision of the Suburb E Local Court made on 15 August 2013. The father was granted sole parental responsibility for the child. An order was made that the child live with the father and spend time with her mother under the supervision of a responsible adult. The mother has appealed from that decision. The hearing before the Court proceeds as a hearing de novo.

3. Each of the father and the mother makes allegations that the other has caused bruising on the child. The mother alleges that the father has been violent towards her in the course of their relationship and the father denies those allegations.

4. These are interim proceedings and the evidence is untested. The Court was assisted by documents produced by the Child Protection Unit of F Hospital (“CHF”), the New South Wales Police (“Police”) and the Department of Family and Community Services (“DFCS”).

5. The father and the mother lived together from about June 2011 until June 2013 when the mother left the home they jointly shared and went with the child to a women’s refuge. After a period of about three weeks the parents were able to agree upon a regime whereby the father and the child spent time together.

6. The father’s primary affidavit was sworn by him on 18 October 2013. He also relied on an affidavit 13 August 2013. The only complaint he makes in those affidavits in relation to the mother’s care of the child prior to separation is that, on two occasions earlier in 2013, he saw the child bite her mother and the mother grabbed the child’s arm and bit her back. The father says he could see the imprint of the mother’s teeth on the child’s arm but he does not say that the child was distressed or cried.

7. The file produced by DFCS includes a record of a telephone call which, although anonymised, is clearly from the father. The caller told DFCS that the mother became frustrated with the child when the child didn’t sleep. Asked whether the mother harmed the child in any way, the caller said no, that she would “just huff and puff”.  

8. The mother in her primary affidavit sworn on 15 October 2013 makes a series of complaints about the father’s treatment of the child prior to separation. She alleges that in July or August 2012, the child was injured when her head was hit on the coffee table whilst being held by her father. The father admits the incident took place but denies that he was affected by alcohol and marijuana as the mother alleges.

9. The mother alleges that on Australia Day in 2013 the father was affected by alcohol and an argument ensued. The mother says she tried to take off her necklace and the father charged over to her, grabbed her by the throat and started to choke her. The father admits that he was involved in a drinking game on that day but says he does not recall saying the words that the mother attributes to him and denies the alleged incident of violence.

10. The mother alleges that in May 2013 the father threatened to kill her, pushed his finger hard into the middle of her forehead and said “I’m going to put a bullet right there”. The father denies this allegation.

11. The mother alleges that on a couple of occasions the father threatened to kill her if she took the child away from him. The father denies that allegation.

12. The mother entered the women’s refuge in July 2013. An affidavit was sworn by the manager. In that affidavit, sworn on 4 September 2013, when the manager had had the opportunity of observing the mother’s care of the child for almost two months, the manager observed that the mother was very caring with the child and acted appropriately for the child’s safety and wellbeing. The manager gives evidence that on 30 July 2013 the child was with the mother at the refuge. The manager was informed by a case worker that the mother had told the case worker that the child had fallen from a chair and banged her head. The case worker provided the mother with a cold pack to apply to the bruise and stated that the child did not appear to be distressed or in any way suffering other than having a bruise near her eye. The case worker suggested that the child be taken to see the General Practitioner (“GP”) and the manager was advised that this had been done.

13. The manager does not depose to having seen any other bruise on the child in the period when the child lived with her mother in the refuge.

14. On 7 August 2013 DFCS received a call from a person, who from the context of the notification was a refuge worker, who recounted the mother having sought help after the child fell, putting an ice pack on the child’s cheek and taking her to the doctor. The caller stated that the refuge has a register of injuries. The caller stated that the refuge had no concerns about the mother’s parenting.

15. The father in his affidavit sworn 18 October 2013 says that on 5 July 2013 he noticed that the child had bruising on her legs when he changed her nappy. The bruising is not described. The father says that he was at his mother’s residence at the time but there is no affidavit from his mother suggesting that she also saw the bruising or that it was brought to her attention.

16. The father says that on 12 July 2013, when the mother brought the child to the paternal grandmother’s home, the father noticed that the child had bruising around her temple and left cheek. He says he asked the mother what happened to the child and the mother replied “she fell”. The father does not describe the bruising and, if it was obvious, it is somewhat surprising there is no affidavit from his mother to describe the bruising. Stapled to the front of the father’s affidavit is a photograph of a child with a bruise to the right eye. Since there is no indication of the identity of the child, I do not propose to take it into account or give it any weight. I do not know whether the child is the child and I do not know when the photograph is said to have been taken.

17. The father says that on 19 July 2013, when the mother again brought the child to the paternal grandmother’s home, he noticed that the bruising on her temple and cheek had faded and did not observe any further injuries.

18. If the bruising that the father observed on 12 July 2013 and 19 July 2013 was as the father described then it is surprising that neither his mother nor his father has deposed to having seen the bruise and that it does not appear to have been observed by the manager of the refuge.

19. The father contacted DFCS on 22 July 2013. He reported the bruising which he had observed on 13 July 2013 and told the departmental worker that on 20 July 2013 he noticed that the child had two bruises on her legs. That is in contrast with his affidavit in which he deposed that he did not see any further injuries on the child that day.

20. On 26 July 2013 the father spent time with the child but did not notice any bruising.

21. On 2 August 2013 the mother dropped the child off at her paternal grandmother’s home. The mother told the father that the child had a black eye. When the father said “How did she do that?” the mother said “She fell. I don’t know how.” I infer that the black eye which the father observed is the same as that which the manager of the refuge refers to in her affidavit.

22. The father took the child to see a general practitioner who suggested that she be taken to F Children’s Hospital. the child was seen at the hospital at F (“CHF”). On examination it was observed that the child had a bruise around the lateral aspect of her right eye which was blue and brownish in colour. She had another bruise on her left shin which was round, approximately one centimetre in diameter and brownish in colour.

23. The father in his affidavit says that the welfare officer at CHF suggested to him that he not return the child to the mother’s care. The notes of the department suggested a somewhat different turn of events. The notes record “[Mr Hill] had decided to keep the child with him and we agreed that was an appropriate safety plan.”

24. In summary the records produced by CHF record:

    On medical assessment the child was found to have a bruise around her right eye, a bruise on her left shin and faint red marks over her left neck. Both of the child’s bruises are at least 18 hours old given the brownish discoloration present. Given that the child is independently mobile and both described and observed to be an active child, it is possible that these injuries were sustained accidently by short falls. However, without a history from her mother who was reportedly her caregiver at the time when they were sustained, the cause remains unknown. These injuries are not serious in and of themselves but significant because they were unaccounted for. The faint red marks on her left neck are likely to be due to friction from her clothes and are thought to be insignificant.

25. In the course of his interview at CHF on 2 August 2013, the father said that for the last four to five weeks the child had bruises on her face and legs. This is not accurate, or at least is not consistent with his sworn evidence, since he does not give any evidence of bruises having been observed on 26 July 2013. The father reported that the child likes to climb but that he shadows her and refuses to let her climb on her own. He complains that the mother is not as vigilant as he is. Asked for information about the mother the father did not assert any drug use and refers to “occasional alcohol”. (The father told DFCS on 2 August 2013 that the mother had a history of drug use).

26. The father says that when he returned from the hospital on 2 August 2013 he was advised by Constable G at Suburb H Police Station to retain the child and not return her to her mother. There is no record in the documents produced by the Commissioner of Police to substantiate the father’s assertion in relation to that advice from police.

27. On 3 August 2013 when the mother arrived at the paternal grandmother’s residence to collect the child the father told her that he intended to retain the child and she has been in his care ever since. The father and the child live in a house owned by the father at Suburb I.

28. On 5 August 2013, by arrangement with CHF, the father took the child for blood tests. He was provided with a discharge summary and requested a letter recommending that he not return the child to her mother. He was told that no letter would be provided because CHF had no history from the mother who was the child’s primary carer and in whose care the child was at the time of the injury. The father told CHF that his solicitor had advised him not to return the child and CHF advised the father that he should focus on making decisions in the child’s best interests. CHF contacted the mother on 21 August 2013 and the mother told the caller that the child had fallen from a chair.

29. On 7 August 2013 the father took the child to the police station. The notes record “[The father] stated that on at least two occasions when [the mother] has dropped [B] to him he has found light bruising on the child, once on the inside of her leg and once on the right side of her face.” That report does not accord with the father’s sworn evidence. The notes record that the child did not have any visible injuries on her at the time.

30. The matter came before the Suburb E Local Court on 15 August 2013, and orders were made placing the child in the primary care of her father.

31. On 18 August 2013 the mother attended at the father’s home accompanied by her step-sister, Ms J, but the father refused to allow the child to go with the mother. The father claimed not to have known who the mother’s step-sister was.

32. On 21 August 2013 the mother, accompanied by Ms J, collected the child and spent six hours with her. Since that time the mother and the child have regularly spent time together each Monday, Wednesday and Saturday for six hours.

33. On 23 August 2013 when the mother collected the child, she says that the child had a number of small cuts on her face, on her eyelid, chin and mouth. She had a swelling on her lip and a small bruise on her left ear. The mother observed that the child had large dark circles under her eyes and she appeared, to the mother, to be very tired. The mother says that the child fell asleep as soon as she was settled into her seat in the car. The mother also observed that the child was dirty, there were small bruises on her leg, thigh and buttocks and her fingernails had not been cut. The mother observed the child to be quiet and withdrawn and to remain tired all day.

34. On 24 August 2013 the mother attended to collect the child with the maternal grandmother. The mother says that the child smelled badly and had a small cut on the right side of her face. The mother says she had to wake the child at 2.50 p.m. in order to return her to the father.

35. The father says that on 24 August 2013 the child was picked up by the mother in the company of Ms J. I note that both the mother and the maternal grandmother say that it was the maternal grandmother who attended. The father says that when the child was returned he noticed that she had some bruising which was not evident to him until he went inside the house. He took photographs of the bruises which are annexed to his affidavit. The bruises in the photograph are a brownish colour. I note the contents of the report from CHF to the effect that bruises of that colour are approximately 18 hours old. I note that the mother and the child were only together for six hours. It is unlikely on the basis of the information contained in the report from CHF that the child could have sustained the bruises to which the father refers in the time she spent with the mother.

36. On 26 August 2013 the mother says that when she collected the child there was a new scratch and bruise on the left side of the child’s forehead. The child had large dark circles underneath her eyes and appeared very tired. The mother says that when the child was settled in the car she fell asleep almost immediately. She says that the child had in ground dirt on and around her hands, neck and ears. The nappy that she was wearing had dirt on the inside and the child was very quiet and withdrawn. The child slept in the car for the whole of the trip to the mother’s home from 1.00 p.m. until 3.00 p.m. and again in the car for one and half hours on the trip back to the father’s home.

37. On 2 September 2013 the mother says she observed that the child had a large scratch on her cheek and large dark circles under her eyes. She appeared to be very tired, she was dirty, her clothes were dirty and the child herself had an unwashed odour.

38. On 7 September 2013 the mother observed that the child had shoes and socks on that were too small for her and had an unpleasant smell. The mother bathed the child.

39. On 11 September 2013 when the mother collected the child she says that there was a large scratch on the child’s leg.

40. The father says that on 12 September 2013 when the mother returned the child he noticed three fingerprint marks on the child’s right leg and one on the back of her thigh. 12 September 2013 was a Tuesday and not a day when the mother would have had time with the child. Whenever the incident took place, the father has annexed to his affidavit a photograph of the bruising which, again, is brown and is unlikely to have occurred in the six hours when the child was with her mother.

41. On 13 September 2013 the father again brought the child to the CHF asking for bruises on her leg to be examined. Doctors declined to examine the child and expressed concerns that the child was being caught in a battle between her parents in the Family Court. The notes expressed concern that the examination would be intrusive for the child, and that there was risk of emotional harm. The notes record that the father seemed agitated but denied drug use. The father is described as accepting but unhappy.

42. The father says that on 17 September 2013 when the mother returned the child to him she had two bruises on her shin of which he took a photograph. 17 September is a Tuesday and it is unlikely that the mother had the child on that day. Again the photograph which is annexed to the father’s affidavit shows a brown bruise on the child’s calf and it is unlikely that that would have developed in the time that the child was with her mother.

43. The father says that when he later examined the child he noticed that she had bruises on both legs, her thigh, and her left upper arm. He annexes to his affidavit one photograph which shows bruises on the child’s upper leg. Again the bruise is brown and is unlikely to have occurred in the time that the child spent with her mother. The father says that he reported this bruising to his general practitioner on 26 September 2013, some nine days later.

44. On 25 September 2013 the mother says that while she was bathing the child she noticed bruises on her thigh and the underside of her left upper arm.

45. The mother collected the child on 28 September 2013. She says that one of the child’s toes was infected and again the child smelt badly. There was a bruise on the child’s right cheek and on her leg. The father says that on 28 September 2013 when the mother dropped the child back to him, he noted that she had a bruise on her thigh. A photograph of the bruising is annexed to his affidavit but it is difficult to see anything other than a small brownish bruise on the child’s shin. Again, it is unlikely that the bruise would have been incurred during the time with the mother and it is consistent with the mother’s observation of a bruise on the child’s leg.

1. On 21 September 2013 when the mother collected the child she says that the child had an unpleasant smell.

2. On 23 September 2013 when the mother collected the child she observed a bruise on the child’s face, a scrape on her knee and minor bruising near her ribs. The father says that he was not aware of any bruising of the nature described by the mother.

3. On 25 September 2013 the mother says that whilst giving the child a bath she observed bruises on her thigh and the underside of her left upper arm.

4. On 28 September 2013 the mother observed that one of the child’s toes was infected. the child smelt badly and the mother observed a bruise on her right cheek and her leg.

5. On 30 September 2013 the mother, when bathing the child, says she noticed a new bruise on the child’s left leg near her knee and the bruises on her cheek were becoming darker.  The child had bruising on her shins and her toe was infected.

6. On 2 October 2013 the mother said she noticed further new bruising on the child and the child again smelt badly.

7. On 5 October 2013 the mother noticed that the child had a bruise on her leg and her lower back. Her nails needed cutting. She had dried mucus on her cheek and on her nose.

8. On 7 October 2013 the mother says that the child had a scab under her left eye, she was tired and fell asleep in the car. The mother says the child had further scrapes on her legs and a small bruise near the top of her thigh.

9. The mother’s observations of the child are corroborated by her mother as to the events on 24 August, 31 August, 7 September, 11 September, 14 September, 15 September, 18 September, 21 September, 23 September, 25 September, 28 September, 2 October, 5 October and 7 October.

10. Her evidence in relation to the child’s fall on 30 July 3013 is corroborated by the refuge manager.

11. There is no corroboration by any family member, or friend, of the father’s observations.

12. I am acutely aware that the evidence of all of the witnesses is untested and, as between the mother and the father, contested. I have some assistance from objective material in the evidence of the refuge manager, the notes kept by police, CHF and DFCS. To a lesser extent, I am assisted by the corroborative evidence of the maternal grandmother, although I am conscious that she may be a partisan witness in the mother’s case.

13. In so far as the father alleges that the mother has used illegal substances, she has voluntarily undergone screening on 23 August 2013, 30 August 2013 and 5 September 2013 and the tests have been negative for amphetamines, which is the drug she is alleged to use.

14. The father does not allege that the mother did not care properly for the child when the parties lived together, other than the biting incident to which I have earlier referred.

15. I have noted the inconsistencies between the father’s sworn evidence and the reports to police, FACS and CHF.

16. The mother has been the child’s primary carer from her birth, at least until the father ceased working due to injury in April 2013. There is no evidence that the child had been separated from her mother for any significant period of time before she was removed on 3 August 2013. It is likely that the child is primarily attached to her mother

17. When the parents separated, the mother went to a refuge. Her allegations of violence against the father were made to refuge workers as reported to DFCS on 7 August 2013. On 16 May 2013 the mother made a report to police alleging paranoid behaviour by the father including talking to himself and threatening her. The notes record that the mother was not sufficiently afraid to apply for an ADVO. Those allegations, which are denied by the father, will no doubt be the subject of further evidence but I am not in a position to evaluate them further.

18. Each of the parties asks that the child live with him or her. The mother seeks orders that the child spend time with the father each Saturday. The father seeks orders that the child spend six hours with the mother on three occasions each week. Having regard to the child’s age, I consider that three non-consecutive periods of six hours each week is an appropriate time for the child to spend with her non-resident parent, whether that be the mother or the father.

19. The Family Law Act (1975) (Cth) in section 60CC sets out the process for determining what is in the child’s best interests. The primary considerations require a balancing of the benefit to the child of having a meaningful relationship with each parent against the need to protect her from physical or psychological harm or exposure to abuse, neglect or family violence. In the present proceedings each party potentially alleges that the other has been violent towards the child, in that she has suffered bruising. In addition, the mother alleges that the father has been violent towards her.

20. In circumstances where I cannot be satisfied that either party has intentionally harmed the child and where the allegations of violence cannot be determined on the available evidence, I note that each party seeks orders which will involve the child in spending time with the other. For that reason it is appropriate for the child to continue to do that, until all the allegations can be properly investigated. The report of CHF does not indicate serious risk to the child from the bruises observed on examination.

21. Turning to the factors set out in s60CC(3) which are relevant:

    B is too young to have expressed any views. The nature of her relationship with her parents has not been assessed by any professional. For the reasons expressed above, it is likely that the child’s primary attachment is to her mother. The refuge manager noted that the mother was very caring for the child and appropriate in her care in circumstances where she had the opportunity to observe the mother and the child for a period of almost two months. A playgroup supervisor employed by Anglicare observed the father to be attentive to the child’s needs. A Community Project Worker employed by Mission Australia observed a close bond between the child and the father but her qualifications are unknown.

22. The parties and the child will see a Family Consultant for a Child Inclusive Conference on 4 November 2013 and the report may assist with expert observation of the child and her attachments. In the meantime, I will presume that her primary attachment is to her mother.

23. I am concerned that the child may have been affected by separation from her mother, given her young age and her mother’s continuous presence in her day to day life. After the parties separated and organised a regime of time with the father for the child, neither party suggests that the child showed signs of missing her father or any distress at being separated from him.

24. The mother says that when she first attended at the father’s house after the orders of the Local Court, the child tried to come to her, screaming loudly. The father in his response to the mother’s affidavit, does not respond to that paragraph. I therefore find that he does not take issue with her evidence. On the evidence available, I am satisfied, on the limited evidence available, that it is likely that the child is affected by the separation from her mother to a greater degree than she is affected by the separation from her father.

25. There is no practical difficulty in maintaining a regime of frequent time with each parent. Although the father is disqualified from driving, and has been since 2000, the paternal grandfather will transport the child provided that he can do so in the mornings. The mother can drive and has a car. The parties have agreed on appropriate venues for pick-up and delivery and changeovers will take place between the mother, or her representative, and the paternal grandfather.

26. The capacity of each of the parents to care for the child is the subject of contested evidence. Both parents allege the other has caused bruising to her. The father’s belief that the child has sustained bruising in the six hour period she spends with her mother is not supported by the report of CHF. Neither has it been demonstrated that the child’s bruises are other than normal toddler injuries from an adventurous child.

27. Equally as concerning as the evidence about bruising, is the evidence of the mother and the maternal grandmother about the child’s condition when she is collected by her mother and the observations of the child during her time with the mother.

28. I place particular weight on the observations of the refuge manager of the mother’s care of the child and on the lack of complaint by the father about the mother’s day to day care of the child during the time they lived together.

29. It is a matter of some concern, in relation to the father’s parenting capacity, that the father did not allow the mother to spend time with the child on 18 August 2013, supervised by Ms J, when the child had been in his care since 3 August 2013 and had not seen her mother during that period. Ms J is the mother’s step-sister, a fact of which the father must have been aware. He accepted her as an appropriate supervisor on 21 August 2013 by which time the child had not seen her mother for 18 days.

30. Annexed to the mother’s affidavit are copies of text messages to the mother and Facebook postings by the father. The tenor of his comments to and about the mother raises concerns about as to his willingness to facilitate the child’s relationship with her. The father is apparently unaware of the provisions of s 121 of the Family Law Act prohibiting the publication of information which identifies parties to family law proceedings. It is certainly not in the child’s interests that the father maintain a commentary on the dispute between her parents on Facebook. This should cease immediately.

31. Both the parties have behaved inappropriately in front of the child on changeover, a fact which both of their legal representatives acknowledged. For that reason they were asked to agree on arrangements for changeover which did not involve face to face meeting and were able to do so with the assistance of the paternal grandfather.

32. Having regard to all of these matters, I am of the view that the child’s best interests require that she live in the primary care of her mother and spend regular time with her father.

33. Both parties have requested that an Independent Children’s Lawyer be appointed for the child and that they have an opportunity to confer with a Family Consultant. Those orders will be made.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 October 2013.

Associate:

Date:  23 October 2013