MEDWELL & CALVETT

[2014] FamCA 50

FAMILY COURT OF AUSTRALIA

MEDWELL & CALVETT [2014] FamCA 50

FAMILY LAW – CHILDREN – Interim Orders – with whom a child spends time with – infant child lives with mother - father seeking time spent with the child – significant injury to the child but cause of injury unclear – mother alleges father caused injury – best interests of the child - orders made that father not spend any time with the child.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Medwell

RESPONDENT: Mr Calvett

FILE NUMBER: ADC 4367 of 2013

DATE DELIVERED: 31 January 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 31 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Read

SOLICITOR FOR THE APPLICANT: Radin Legal

COUNSEL FOR THE RESPONDENT: Mr Perrie

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Rights Movement Inc

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWEYR: Mr Charman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

Orders

1. Until further order paragraphs 2, 3 and 6 of the Orders made on 6 December 2013 are continued SAVE AND EXCEPT paragraph 6 to read:

   the mother and father are to undertake one [1] more random drug urinalysis tests pursuant to the chain of custody protocol pursuant to AS:NZ 4308:2008 within 24 hours of a written request for same being communicated to the mother and father’s solicitors by the Independent Children’s Lawyer and that such result shall be forwarded to the Independent Children’s Lawyer within seven [7] days of receipt of same.

2. The final application proceedings be referred to the list of matters awaiting trial allocation and are adjourned for trial directions before Registrar Paxton on a date to be advised by the Court UPON NOTING the parties currently estimate the length of trial to be 7 to 10 days AND UPON FURTHER NOTING the matter should have priority as a Magellan matter.

3. The mother’s Case Application filed on 20 November 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medwell & Calvett 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 ADELAIDE

FILE NUMBER: ADC 4367 of 2013

Ms Medwell

Applicant

And

Mr Calvett

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an interim hearing in relation to orders that are being sought concerning the child S who was born in May 2013, (“the child”), so is approximately eight months old now.  The proceedings were commenced in November 2013 and have previously been before the Court when other interim orders and directions were made.  Before me today is the application by the father pressing that he have some time spent with the child.  That is opposed by the mother and is also opposed by the Independent Children’s Lawyer.  The matter has to be seen in the context of the very concerning history which is set out in the affidavits which are before the Court.

2. In particular the concerns include the very significant injury which occurred to the child which resulted in the intervention of Families and Community Services and proceedings in the Youth Court.  The serious injury occurred when the child was very young, the injury occurring in late June 2013 with the child only born in early May 2013. 

3. There is considerable dispute as to the cause of the medical emergency, the response to the medical emergency, and who may or may not have been involved in causing that serious medical emergency.  What is clear, however, from the department and CPS documents which have been forwarded to the Court pursuant to the orders, is that following the investigations the department intervened.

4. In due course, the child has been placed in the care of the mother.  It is also clear from the affidavit material on the Court file that the mother raises concerns that the father was responsible for the injury.  The father strenuously denies that he is responsible in any way for the injury. 

5. Issues were also raised as to the capacity of the father to provide appropriate care, even on an access basis, for the child. 

6. The material before the Court is strongly contested.  There is no capacity of the Court on an interim basis to make decisions about which version of several events should be accepted, or which interpretation of the parties’ capacity and attitude should be accepted.

7. It is therefore difficult for the Court to make a finding as to the significant matters which would otherwise be required, but the primary obligation of the Court is clearly to ensure that the best interests of the child are paramount.  One of the significant issues is to protect the child from any risk of harm.  The Court has therefore to consider not only the risk of harm to the child from any physical harm, but developmentally and psychologically, even bearing in mind the young age of the child. 

8. I also take into account the circumstances concerning the assistance the mother has been given, and the previous concerns that have been expressed in the department documents about the mother’s capacity.

9. What is clear, however, is that the child is currently in the care of the mother, who is receiving assistance in relation to the care of the child, and the mother has expressed a serious concern about the father’s capacity to provide safe care for the child. 

10. I accept the submissions of the Independent Children’s Lawyer that in a matter such as this, particularly one involving such a young child, the Court should progress cautiously, ensuring as much as can be that the best interests of the child are protected.

11. Taking into account the age of the child and the limited interaction which would be appropriate for the father in these circumstances, and the other factors particularly set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”), I am not satisfied that it is currently in the best interests of the child to make an order for the father to spend any time, albeit even supervised time. I do so on the basis that the significant factors are that the father has, as yet, not established a relationship with the child due to the circumstances which have intervened since late June 2013 and the possible likely effect of any change in the child’s circumstances by being removed, even on a temporary, short term basis, from the care of the mother.

12. The issues before the Court will need to be determined.  There are significant matters.  In particular the father has indicated in his affidavit that he pleaded guilty to aggravated assault on a domestic partner, and threatened to kill, and has been sentenced to, albeit a suspended sentence, in relation to that some time ago.  He has more recently, in November 2013, been charged with driving while under the influence, and has yet to face the Court outcome of that proceeding.  It is promising to see that he has made arrangements to attend upon a psychologist, and steps have been taken to also enrol him in courses to assist him in understanding the parenting role.

13. These matters will be all matters which will assist the father when the matter is finally determined. 

14. In relation to the drug testing, I am told that the Independent Children’s Lawyer apologised to the Court for not requiring the testing which was previously ordered until very recently, and that those tests are yet to be performed.  Obviously that was part of the orders that were made on 6 December, which were anticipated to be able to assist the Court, bearing in mind the background to the history of both of the parents.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 31 January 2014.

Associate: 

Date:  10 February 2014