Mordington and Gilson

[2013] FamCA 920

FAMILY COURT OF AUSTRALIA

MORDINGTON & GILSON [2013] FamCA 920

FAMILY LAW – CHILDREN – Variation of interim orders - with whom the children shall live and spend time – children to live with the father – father to have sole parental responsibility in regards to medical issues – mother to spend time with the children for two days per week, with no overnight time – the mother’s time to be supervised – where there is an ongoing investigation into an injury sustained by the youngest child, if it is found that the injury was accidental then supervision of the mother’s time may be lifted - where the children have a half sibling that resides with the mother

FAMILY LAW – CHILDREN – Injunctions – the mother is restrained from allowing the children to have contact with persons other than her family while in her care – the mother is restrained from taking the children for medical care except in an emergency

Family Law Act 1975 (Cth) s60CC

APPLICANT: Mr Mordington

RESPONDENT: Ms Gilson

INDEPENDENT CHILDREN’S LAWYER: Mr David Coyle

FILE NUMBER: NCC 556 of 2013

DATE DELIVERED:

Ex Tempore

8 July 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 8 July 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associates (Ms Pudner-Hoy)

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

(Ms Kelso)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Family Law Firm

(Mr Coyle)

Orders

1. That the children B born … 2009 and C born … 2010 (“the children”) live with the father.

2. That the children spend time with the mother as follows:

   (a)       each Wednesday from 9.30 am until 4.30 pm;

   (b)       each Sunday from 10.00 am until 5.00 pm

   NOTING that time is suspended on 31 July 2013 and 4 August 2013 for the purposes of a holiday for the children with the father.

3. That for the purposes of Order 2 the mother shall spend time with the children in the presence of either Ms D or Ms E either in her home or the home of one of those two women.

4. That for the purposes of facilitating the mother spending time with the children the mother or Ms D or Ms E shall collect the children from the father or his nominee at his home at the commencement of such time and by the father collecting the children from the home of the mother (or the home of Ms D or Ms E) at the conclusion of each period.

5. That for the purpose of Order 4 the mother shall advise the father by text message 48 hours before a period of time as to which home he or his nominee are to collect the children from on each occasion.

6. In the event that the mother takes the children outside of the home of Ms D or Ms E or her own home, then the mother is to be accompanied by one of them at all times and be under their direct supervision.

7. The mother shall be at liberty to telephone the children each evening other than on Wednesday and Sunday evening between 5.00 pm and 5.30 pm and the father shall ensure that the children are available to take the telephone call and ensure that they take the telephone call in private.

8. The mother is restrained from allowing the children to spend time with anyone other than family members of the mother.

9. That each party is restrained from criticising or making rude remarks about the other party and family members in the presence and/or hearing of the children and further each party shall make his and her best efforts to ensure that third parties are similarly restrained.

10. Each party is restrained from discussing these Court proceedings in the presence or hearing of the children and shall make his or her best efforts to ensure that third parties are similarly restrained.

11. The father is to have sole parental responsibility for medical issues involving the children and shall keep the mother advised of any particular advice he is given in that regard.

12. The mother is restrained from taking the children for medical attention other than in the event of accident emergency or serious illness and in that event she shall contact the father immediately to advise him of the situation and give him relevant particulars of treatment or attendance on doctors or hospitals.

13. In the event that the JIRT inquiry into the circumstances of the injury on or about 20 February 2013 to C born … 2010 concludes that the injury to C was accidental, then the requirement for time to be spent by the mother in the presence of Ms D or Ms E is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mordington & Gilson 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 NEWCASTLE

FILE NUMBER: (P)NCC 556 of 2013

Mr Mordington

Applicant

And

Ms Gilson

Respondent

REASONS FOR JUDGMENT

1. These are competing interim applications by parents in respect of two young children.  The father filed an Initiating Application on 14 March 2013 together with a Notice of Child Abuse.  The mother filed a Response on 13 May 2013.  The father has kept the children in his care pursuant to a safety plan executed with the Department of Family and Community Services on 28 February 2013.  The father has raised serious allegations of child abuse through the mother’s neglect of the children.  The family is currently being investigated by the Joint Investigations Response Teams (“JIRT”) with particular reference to an injury to the younger child, C, aged two, in February 2013. 

2. On 24 May 2013, when the matter was first before the Court, orders were made by consent that the children live with the father and see the mother each Saturday and Sunday between the hours of 10.00 am and 5.00 pm under supervision.  This was done pending a full interim hearing on 3 July 2013. 

3. The two children in question are C, born in 2010, and B, born in 2009.  The applicant father is aged 32.  He lives in Newcastle with his now de-facto partner, Ms F. 

4. The mother is aged 25 and lives in Newcastle.  She has a child from a subsequent relationship, G, born in 2012.  The relationship between the mother and G’s father is said to have ended after G’s father was incarcerated for a charge of break and enter.  G has recently been first removed and then replaced into his mother’s care. 

5. The matter that particularly brought the family to attention was an injury to C on a day in February 2013.  It requires some analysis.  Not so much for whether or not the injury was accidental; that is a matter that is being investigated by the JIRT team and that inquiry has not yet been concluded.    Rather for the light it sheds on the capacity and responsibility of each parent. 

6. The father sets out his version of events in pars 52 to 68 of his affidavit as follows:

   He was due for his usual Wednesday afternoon visit, commencing at 4.00 pm on Wednesday, 20 February.  He says the mother rang him and said that [C] had burnt himself on the tap, ‘I’ve only just settled him down’.

7. The father did not see the children on that day.  The father says he offered to take C to hospital and asserts that the mother said she would take the child to the doctor.  The father says he texted on the next day, Thursday, and the mother responded, “He’s fine.  You can see him on Monday”.  This was a reference to the father’s next scheduled visit. 

8. On 25 February 2013, that is the following Monday, at 4.00 pm, the mother brought the children for time with the father and said she had taken C to the hospital on Thursday and gave the father some instructions. 

9. The father became very concerned about C immediately on sight.  He said the child was lethargic and when he checked the burn on his chest and stomach, was horrified and took him straight to hospital.  He waited in the emergency department for several hours until 11.00 pm.  The father texted the mother that he was at the hospital overnight with C.  The doctors at the hospital called in social workers.  The father stayed with C that night and the father’s partner took B home. 

10. On the morning of Tuesday, 26 February 2013, the mother arrived.  She took B, asserting that it was his day for pre-school, although that proves to have been a miscalculation.  The father took time off work to stay in the hospital with C. 

11. On 28 February 2013, the father was required to complete a safety plan with doctors with no time for the mother without court orders.  C was discharged after having spent three nights in hospital. 

12. The mother’s version of events is contained in par 108 of her affidavit: 

    She says that on or about Wednesday, 20 February 2013, she was bathing her three sons.  She does not nominate a particular time but it was probably in the morning of that day.  She said she had responded to a scream from the bathroom from [C] while she was attending to the baby in the nearby room.  She removed [C] from the bath and put frozen vegetables on what she described as a hand-sized burn. 

13. Shortly thereafter, her friend Mr H arrived.  She put the three children in the car and drove Mr H, who did not have a licence, to the chemist.  The mother did not go into the chemist or take C into the chemist.  There is no explanation for why the mother didn’t go with C to the chemist, leaving her friend in charge of the other children.  The mother says she rang the father at that time.  On her own evidence, the mother did not take C to a doctor or to the hospital. 

14. On 25 February 2013 the mother said she met for the contact visit and the father did not return the children, and she subsequently had a text from the father in the very early hours of Tuesday morning. 

15. On 27 February 2013 the mother was interviewed by the JIRT team.  In exhibit 4 of the material tendered into evidence at flag F2, the mother reported concerns that she believed the father would report her to the Family Community Services if she sought medical treatment for C.  This is, in my view, a clear statement that she was putting her own concerns ahead of the child’s physical needs.  The version of the mother’s friend, Mr H, is as follows:  he doesn’t remember the date when he had a phone call with the mother in the morning at 9.30 am to say that he was coming over to see her.  His evidence is that he instituted the call and that the mother responded with a request for help. 

16. Mr H observed a burn on C which he described as the size of his hand, red in the middle and pink around the edges.  When C was placed into the car, Mr H says that he reacted with some pain to being put into his seatbelt and by the time that they had arrived at the chemist, was in considerable pain from the seatbelt having moved around on the burnt area.  Mr H said that he had lost his licence through having previously driven the mother’s car, which was a modified car, that he was not entitled to drive on red Provisional plates.  Mr H spoke to “one of the female staff” in the chemist. 

17. On his own evidence, the person he spoke to was not a pharmacist.  He repeated a long conversation which he said he had with this person, which concluded with the alleged advice to him, “If it gets infected, go to the doctor or to the hospital if it’s really bad”.  Mr H said he relayed the information to the mother.  The mother asked him, “Do you think we need to take him to the hospital?”  Mr H expressed the view that they did not and the child wasn’t taken.  Mr H said two days later he went back to visit the mother and examined C and that the skin had broken on C’s stomach and blistered. 

18. Mr H said the mother asked him about going to the doctor again and he again expressed the view that there was no need, which the mother apparently accepted.  Mr H went on to say that he again visited after a few days and inspected C and it looked to him “as if the wound was drying out”.  The mother is said to have again asked Mr H whether she should take C to the doctors and Mr H had again said no, which the mother apparently, again, accepted. 

19. In the material tendered in respect of the Department of Family and Community Services, there is a record of the JIRT team having contacted the relevant pharmacy, who identified the purchase that Mr H alleged that he made.  However, the chemist in charge noted that no one in the pharmacy had dealt with an inquiry about a burn to a two year old child, and further, proffered the view that no one would have suggested Betadine for such an injury. 

20. The issue of how the injury to C took place is a matter, first, for the JIRT inquiry to conclude and then for a final hearing in this matter, if there is one.  But on the evidence of the mother and her witness, she failed to attend to C’s immediate needs and did not, as a precaution, seek medical advice from any person between the time when the burn took place on or before

    
    

    20 February 2013, until the father took the child on the hospital on 25 February 2013.

Best interests of the children – primary considerations

1. In considering what parenting order to make in relation to the children, I have taken into account the matters set out in s 60CC(2) and (3) of the Act.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents

1. Of primary consideration is the benefit of a child having a meaningful relationship with both of the child’s parents.  In this case, both boys do have a meaningful relationship with both their parents and are dependent on them at age four and two. 

Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse or family violence

1. In this case, there is the possibility of one or both of the children having been exposed to abuse and neglect in the mother’s household and in the past, to family violence by the father in relation to the mother. 

Additional considerations

1. The additional considerations are set out in section 60CC(3). Of particular relevance are the following matters.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

1. There has already been a change of household for these two children.  They have been living with their father since the end of February this year.  They appear to have settled reasonably well, although, no doubt, they very much miss their mother and baby brother.  In this context, I will refer to the submissions made by the Independent Children’s Lawyer. 

Submissions made by Independent Children’s Lawyer

1. The Independent Children’s Lawyer submitted that in his view, the issue for the Court was to balance the adverse consequences of the scalding injury and the uncertainties around how that happened against what the children would suffer and also the baby, G, if the children continue to be separated from their mother. 

2. One of the matters raised by the Independent Children’s Lawyer was that the father had not been willing to facilitate and encourage a close, continuing relationship between the children and the mother, as evidenced by withholding the children for a period of three months.  I reject that submission.  The father acted promptly and appropriately to protect the child and to seek appropriate medical care for him.  He was then a party to a safety plan, which compelled him not to allow the children to be with their mother unless there were Court orders in place.  He was compliant with that requirement. 

3. The next submission by the Independent Children’s Lawyer was, “I don’t think anybody is suggesting that it was anything other than an act of carelessness on the mother’s part.  This is a reference to the injury to C.  I reject that submission.  There is, indeed, an inquiry by the JIRT team into whether or not the injury to C was accidental or non-accidental. 

4. The next submission was that the mother had been the primary carer of the children and that this relationship should be restored.  I reject this submission.  It is to overlook the fact that there is a potential risk to the children of injury or, more significantly, a failure of the mother to appropriately protect the children if she considers that she will come in for adverse criticism or complaint by the father and/or the Court.

5. The next submission by the Independent Children’s Lawyer was that it would be more appropriate for the children to be in the mother’s care since the father was not available Monday to Friday to care for the children.  I reject this submission.  The father is in fulltime employment and is in a position to support the children, which is appropriate.  There are arrangements in place for proper supervision and care of the children when the father is not available himself.

6. The next submission of the Independent Children’s Lawyer is that the injury to C was an isolated injury “and hopefully the mother might have learnt a lesson.”  She has spent a lot of time with Department of Family and Community Services officers and she has had very salutary reminders of the consequences for her children and for herself of any failure on her part to take proper care of her children. I reject this submission. It is an encouragement for the Court to take a risk with the safety of the children in a spirit of optimism that if there was a lesson to be learned about the mother’s conduct with the children that she might have learnt it.

7. The Court is required to be very cautious and careful in the protection of the interests of children, especially a child as young as C, who, although speaking, cannot fully communicate all that happens in the care of the adults who have responsibility for him. 

8. On 20 June 2013, the Independent Children’s Lawyer indicated that he would be seeing the children prior to the hearing on 3 July 2013.  If that is the case and the Independent Children’s Lawyer did see the children, there was no indication of it in the submissions, nor any suggestion that the children had been spoken to or inspected, which might have been appropriate in the circumstances of this case.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent

1. The children are currently spending time with their mother both days of the weekend in the presence and supervision of two nominated persons who are acceptable to both parties.  It is the case that that situation should continue until there is clarity about the injury to C.  There is some inconvenience in the arrangements, in that both parties will have some travelling to do, but more significantly the supervisors will be involved for a period of time.

2. It is the only practical way to ensure that the children maintain their relationship with their mother and their younger brother during this interim period. 

Section 60CC(3)(f) - the capacity of the children’s parents to provide for the needs of the children, including emotional and intellectual needs

1. The capacity of the parents is not fully tested.  That would be a matter for final hearing.  However, although the children have been in the care of their mother mainly throughout their lives, the father has certainly shown a capacity to protect their interests and to meet their needs in the context of his own full-time employment.  He also has the support of a partner, who is well known to the children.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

1. It is this subsection that relates to the mother’s failure to obtain medical attention for C with her own evidence that the reason that she did so over a period of at least five days was to avoid trouble for herself. 

Section 60CC(3)(j) & (k)– any family violence involving the children or a member of the children’s family

1. There is a family violence order in place and has been since 27 July 2011.  The mother alleges that the father was violent towards her.  He is said to have come over to her home, pulled her hair, belittled her, punched the bonnet of her car and spat on its window.

2. An order was made that has been referred to in these Reasons for that reason.  Clearly, the father’s conduct towards the mother and any past violence in the relationship is a relevant matter for these proceedings on a final basis.  There is no evidence before me that there has been a repeat of that conduct or similar since the order was put in place.  It is a serious matter. 

1. Accordingly, for the reasons stated, the current orders have been varied so that the children continue to spend two days a week with their mother, but one weekend day and one week day and in the event that the JIRT inquiry is concluded so as to find that the injury was an accidental one, then the requirement for supervision will be lifted without further reference to the Court.  I distribute the orders accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex tempore on 8 July 2013.

Associate: 

Date:  10 September 2013