Marvell and Marvell

[2020] FCCA 1084

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARVELL & MARVELL [2020] FCCA 1084

Catchwords:
FAMILY LAW – Parenting – where shared care arrangement agreed by consent – where father has made complaints that the child was harmed in the mother’s care – where child welfare authorities concluded the complaints did not meet the threshold for investigation – where independent evidence does not suggest the child was harmed by an injury inflicted by a person – not satisfied there is evidence the child has been harmed in the mother’s care – no unacceptable risk of harm.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth), r.13.04A

Applicant: MR MARVELL

Respondent: MS MARVELL

File Number: DNC 611 of 2019

Judgment of: Judge Young

Hearing date: 21 April 2020

Date of Last Submission: 21 April 2020

Delivered at: Darwin

Delivered on: 21 April 2020

REPRESENTATION

Counsel for the Applicant: Ms Czislowski

Solicitors for the Applicant: Ward Keller

Counsel for the Respondent: Mr Burton

Solicitors for the Respondent: Burton NT Legal

ORDERS

THE COURT ORDERS BY CONSENT:

1. That the parents have equal shared parental responsibility for the child X born in 2017.

2. That the child live with the father.

3. That the child spend time with the mother at all times as agreed between the parties, but failing agreement, each Monday from 7:00am to before childcare or 7:00am Thursday.

Special days

1. That, provided both parents are in the same location, in all even numbered years:

   (4.1) the child spend time with the father from 12 noon Christmas Eve until 12 noon Christmas Day; and

   (4.2)that the child spend time with the mother from 12 noon Christmas Day until 12 noon Boxing Day.

2. That, provided both parents are in the same location, in all odd numbered years:

   (5.1) the child spend time with the mother from 12 noon Christmas Eve until 12 noon Christmas Day; and

   (5.2) the child spend time with the father from 12 noon Christmas Day until 12 noon Boxing Day.

3. That the child spend time with the father from 9.00 am to 5.00 pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended.

4. That the child spend time with the mother from 9.00 am to 5.00 pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.

1. That the child spend equal time with the mother and the father on the child's birthday at times to be agreed between the mother and the father, and failing agreement, the child shall spend time with the parent whom they are not otherwise spending time from 3.00 pm until 7.00 pm.

Travel

1. That each parent is permitted to elect two weeks block time with the child each calendar year for the purposes of travelling interstate, and for the purposes of this Order the following shall apply:

   (9.1)The travelling parent must provide no less than 28 days written notice of their elected block time.

   (9.2)The mother is permitted to take her block time over Christmas in all even-numbered years.

   (9.3)The father is permitted to take his block time over Christmas in all odd-numbered years.

   (9.4)The travelling parent must provide a copy of the child's flight itinerary and accommodation details no less than 14 days prior to the proposed travel.

Communication

1. That the child shall communicate with the mother via FaceTime, Skype or telephone each Sunday and Friday at 6:00pm.

2. That the child communicate with the father via FaceTime, Skype or telephone each Monday and Wednesday at 6:00pm.

3. That the parents advise the other of any change of telephone number, email address or residential address within 48 hours of such change occurring.

4. Unless otherwise agreed between the parents or in an emergency that communications between the parents shall occur primarily via email and/or text message, and be limited to issues pertaining to the child only.

Other Issues

1. That each parent is hereby authorised to obtain from the children's schools all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.

2. That each parent shall be entitled to obtain copies of the child’s health-care records and to discuss matters with the child’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.

3. That the parents shall each ensure that the child has her own bed and bedroom and use their best endeavours to ensure that the child sleeps in her own bed.

4. That the parents are restrained by an injunction from the following:

   (17.1)Using corporal punishment on the child, that is, pinching, hitting, smacking or punching the child with their hand or anything else.

   (17.2)Denigrating the other parent or the parent’s partner or members of that parent’s family in the presence of or within the hearing of the child and each parent remove the child from the hearing of anyone else who may be denigrating the other parent or that parent’s partner or family.

   (17.3)Exposing the child to family violence or sexualised behaviour.

   (17.4)Using drugs of abuse.

   (17.5)Consuming alcohol to excess when the child is in their care.

5. That if the parents are unable to reach agreement in respect of any parenting issue relating to the child, they shall attend upon a Registered Family Dispute Resolution Practitioner for the purposes of attempting to negotiate an agreement, with all costs associated with the FDR process to be shared equally between the parties.

1. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

2. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

3. That all extant applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 611 of 2019

MR MARVELL

Applicant

And

MS MARVELL

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter involving a child, X, who is about two and a half at the moment.  There are interim orders in place that she live with the father and spend time with her mother.  The parties have reached an agreement, I am pleased to say, about this child which will see her spending four nights a week with the father and three nights a week with the mother, effectively, a shared care arrangement, which is largely in conformity with the recommendations of the family consultant following a child dispute conference.

3. While I have not been addressed by the parties, as they are required to by Federal Circuit Court Rule 13.04A, on notice of risk issues I should make some reference to some of the background to this matter.  The father has, at different times, raised allegations about the standard of care the child has received in the mother’s care and, specifically, he has raised complaints that the child has suffered bruises or unexplained bruises in the mother’s care. 

4. In circumstances where it is implied, though not expressly alleged, that the child has been subjected to physical abuse in the mother’s care, the father has also made a number of complaints to the child welfare authorities.  I have received a notice of response to the notice of risk from Territory Families which indicates that the father has made complaints on six occasions to Territory Families about physical injuries to the child.  One complaint on 18 November 2019 indicated that the child had two small puncture wounds to her face, one below the eye, and the other on her lip.  The response from Territory Families noted that the child had fallen previously at child care on 23 November 2019.  The child was said to have 13 bruises and the father was taking her to Suburb A Hospital. 

5. The father was concerned that the child was being physically abused.  On 27 November 2019 the father took the child, or said at least to Territory Families he was taking the child, to hospital due to her having bruises.  On 2 December 2019, a further complaint by the father about bruises on the child expressed a concern that the child may be harmed in the mother’s care.  On 9 December 2019 a further complaint was made, though it’s unclear where that came from - possibly the mother after the father removed the child from her care. 

6. On 3 October 2019 another complaint, presumably from the father, was described as:

   Speculating the child may have been sexually abused in the mother’s care due to the child’s “sexualised behaviours” while in the father’s care.

7. Territory Families did not investigate any of those matters and concluded that they did not meet the threshold for investigation.  As far as I know, I have not been provided with any medical reports or hospital reports or any other objective or independent evidence that would suggest the child has been physically abused by a person. 

8. The only independent evidence on the subject is a discharge summary dated 29 November 2019.  On examination, the child was noted to have a bruise on her forehead.  The father, also, raised a concern about what he alleged was the child’s sexualised behaviour.  The child was examined by a doctor and she was noted to have some bruising on her right and left thigh, a superficial skin graze on the left foot and two small bruises on the lower back which were yellow, so they were presumably old, in addition to the three centimetre bruise on her forehead.  Otherwise, the child appeared to be in good health.  The note says under the heading impression:

   Reveal bruising?  Possible non-accidental injury?  Incidental bruising, no signs of acute clinical concern.

   She was then discharged and, it was said, Territory Families were notified. There is nothing in that note that suggests the child was harmed by an injury inflicted by a person. 

9. I am not satisfied that the child is at risk of harm in the mother’s care, indeed, the material suggests that the bruising is accidental.  I was also provided with some photographs more recently taken by the mother, who I might say, denies inflicting any harm on the child.  Those photographs do not indicate to me any significant bruising on the child.  The mother says that some of the bruises, as she believes, occurred in the father’s care, but the photographs do not, in my view, indicate anything of concern. 

10. That being the case, I have reviewed the material before me in relation to those allegations.  The father has consented to orders today that the child spend, effectively, equal time with him and the mother.  That is inconsistent, in my view, with him prosecuting earlier allegations, suspicions or concerns. 

11. I make a positive finding that I am not satisfied that there is evidence this child has been harmed in the mother’s care or, indeed, that the child has been intentionally harmed in anybody’s care.

12. I will make the orders as per the minute.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 6 May 2020