Penna & Marlow

[2022] FedCFamC2F 1799

Federal Circuit and Family Court of Australia

(DIVISION 2)

Penna & Marlow [2022] FedCFamC2F 1799

File number(s):	NCC 2585 of 2022
Judgment of:	JUDGE t. YOUNG
Date of judgment:	19 December 2022
Catchwords:	FAMILY LAW -  application for review – parenting – concerning one child who is 12 years old and suffers from a medical condition – where the carer seeks sole parental responsibility for medical issues – where the child lives with the carer and spends time with the mother and father – where breakdown in the relationship between the carer and child’s parents following an incident on 10 March 2022 – where there is an allegation of inflicted harm of the child
Legislation:	Family Law Act 1975 (Cth) s 60CC
Division:	Division 2 Family Law
Number of paragraphs:	32
Date of hearing:	16 December 2022
Place:	Darwin
Solicitor for the Applicant:	Mr White of Powe & White Family Lawyers
Counsel for the First Respondent:	Mr Bithrey
Solicitor for the First Respondent:	Forge Legal
Solicitor for the Second Respondent:	Ms Taylor of Gillard Family Lawyers
Solicitor for the Independent Children's Lawyer:	Mr Street of Todd Street Lawyer

ORDERS

NCC2585 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR MARLOW

Applicant

AND:

MS PENNA

First Respondent

MS MARLOW

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE T. YOUNG
DATE OF ORDER:	19 DECEMBER 2022

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That order 4(c) of the order made by Senior Judicial Registrar Hoult on the 20 October 2022 be varied to:

“Commencing 31 December 2022 with the mother each alternate Saturday (not the weekend with the Father) from 10am to 1pm. If the child becomes distressed and cannot be settled she is to be returned to the applicant, [Ms Penna].”

2.That order 6 or the orders dated 20 October 2022 be discharged.

3.That the application for Review filed by the father on 25 October 2022 be otherwise dismissed.

4.That all other orders made remain in place.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 by this Court under a pseudonym Penna & Marlow has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
EX TEMPORE

JUDGE T. YOUNG

1. This is a review hearing about interim orders concerning a child, X, who is 12 years old.  X suffers from a medical condition, characterised by intellectual disability, delay in speech development, decreased sensitivity to pain and behavioural difficulties, including explosive and/or violent outbursts of anger.

2. On 20 October 2022, a Senior Judicial Registrar (SJR) made interim orders that, in summary, provided for X to live with her long-time carer, the applicant, Ms Penna, and that she, Ms Penna, have sole parental responsibility for medical and educational issues and the orders also provided for X to spend time with her mother and father.

3. The application flows from the breakdown in the relationship between Ms Penna and X’s parents following an incident on 10 March 2022 when X suffered a spiral fracture to the right tibia while in Ms Penna’s care.  The mother and father believe this was an inflicted injury, probably inflicted by Ms Penna’s husband, Mr B. 

4. Ms and Mr Penna state that the injury was accidental after X twisted her leg and fell while dancing and/or twirling when being put back to bed by Mr B early on the morning of that day, following toileting it appears.  The Pennas say that X caught her foot between her mattress and a rail or rigid part of her bed, twisting as she fell.  The general practitioner who saw X on that day and the emergency doctor at C Hospital were not satisfied that the injury was suspicious and did not make a mandatory report.  The matter was eventually reported to the Child Protection authorities, who were not satisfied that the child was at risk of harm.

   Background

5. X was placed in Ms Penna’s care by informal arrangement between Ms Penna and the parents, who are separated, in 2016.  Ms Penna says that she has some particular interest in and familiarity with children such as X, who suffer from a medical condition.  It appears that the child welfare authorities encouraged this arrangement because of the difficulties the mother was having with X’s care at the time.  It appears that these difficulties were and are compounded by the mother’s history of mental ill-health, including anxiety and depression. 

6. Nevertheless, the parents have retained guardianship of the child and have engaged cooperatively with Ms Penna until recent times.  The parents have maintained a keen involvement in the medical and rehabilitation aspects of X’s care and, have taken significant if not sole responsibility until recent times for those matters. 

7. X has continued to spend time, including overnight time, with her father.  The frequency of this was somewhat in dispute, but Ms Penna says it was one night a month, as I understood it, and the father says up to three nights, but, nevertheless, I think it appeared to be agreed that the order made by the SJR that X spend one night a fortnight with her father was reflective of the current arrangements.  The child has spent some overnight time with her mother since 2016, including in recent times, but it appears to have been somewhat sporadic and I am unable to make a clear finding about how frequent that time has been. 

8. In August 2022 the breakup in the relationship between the parents and Mr and Mrs Penna reached a crisis.  The father “withheld” the child for some days.  That, in turn, precipitated Ms Penna’s application to the Court. 

9. The competing proposals are that Ms Penna seeks interim orders that the child live with her and spend time with the parents subject to the father having appropriate sleeping arrangements for the child and that that be one night a fortnight, reflecting, as I say, what appears to have been the arrangements in recent times.  In relation to the mother, Ms Penna seeks an order that the child spend time with her on alternate Saturdays from 10 till 1 under the supervision of “an approved adult”.  She seeks the same final orders.

10. The father, apparently relying on the fact that, currently, the parents equal shared guardianship of X has not been disturbed by orders, certainly prior to the SJR’s orders, simply seeks that Ms Penna’s application be dismissed.  The mother, in turn, seeks orders that she and the father have equal shared parental responsibility and that the child live with her and spend time with the father.  The independent children’s lawyer proposes a continuation of present arrangements with some minor changes to the SJR’s orders to include orders for the child to spend overnight time with the mother. 

11. In resolving this matter, I have had regard to the extremely serious allegations of abuse made by the parents. I have approached the matter on the basis that section 60CC(2)(b) of the Family Law Act 1975 is the predominating factor in assessing the best interests of the child at an interim hearing and, in particular, whether or not there is an unacceptable risk of harm to the child of physical abuse in the care of Ms Penna. 

12. The primary submission on the issue for the parents was made by Mr White, counsel for the father.  Mr White submitted that an examination of Ms Penna’s allegedly inconsistent explanations of how the child was injured must lead to a well-founded suspicion that X’s broken leg was an inflicted injury, probably inflicted by Mr B.  Mr White submitted there were five different and inconsistent explanations given by Ms Penna and/or Mr B for the injury. 

13. The first version was said to be that given at paragraph 43 of Ms Penna’s affidavit.  She, Ms Penna, said that she did not tell the mother that the child was injured in her husband’s care because she, the mother, was hostile to Mr B.  Ms Penna said that she told the mother about Mr B’s involvement some days later.  This was a foolish lack of frankness and has caused a breakdown in trust between the parents, on the one hand, and Mr and Ms Penna, on the other hand, that shows no signs of being repaired. 

14. The second version was, it was submitted, said to be that contained in Mr B’s affidavit at paragraph 12, where he explained that he was “twirling” the child back to her safety sleeper and, in doing so, the child’s foot:

    …landed between the edge of the safety sleeper as she was spinning.  Her foot stayed in one position while her body continued rotating, which caused her to fall down on the mattress.

15. Mr B said he heard a “pop” and thought the child may have dislocated her knee, but, nevertheless, the child was not showing any obvious signs of pain.  He said that Ms Penna then made arrangements to take X to the doctor that afternoon, which would have been some hours later.

16. The third version was said to be the history given by Ms Penna to a general practitioner, Dr D.  Dr D’s notes record the following as to the circumstances of the injury:

    Running around dancing this morning and fell into her bed.  She stayed in her floor bed and then, when trying to get up, there was pain.

17. The notes also referred to the child falling on a later occasion when her grandmother, which is presumably a reference to Ms Penna’s mother or Mr B’s mother, “changed her pull-up”. 

18. It is of note that Dr D recorded, presumably based on Ms Penna’s information, that it was “twisting-type injury”.  This was at a time when neither Ms Penna nor the doctor were aware that the child had suffered a spiral fracture of her tibia, which was not revealed until later in the day when the child was X-rayed.  It is also of note that Dr D later told Child Protection that she had no suspicion of inflicted injury and she knew Ms Penna and Mr B well from her clinic and did not believe the injury was inflicted.

19. The fourth version was said to be that recorded in the discharge notes of the C Hospital where X was taken after her X-ray revealed the spiral fracture.  The history recorded there was from the “mother”, but it seems likely that that is a reference to Ms Penna.  The notes record as follows:

    Dancing and unwitnessed.  Foot stuck in rail.

20. Counsel for the father said that history is false in two respects:  first, it was witnessed by Mr B and, second, that the child’s foot had not stuck in a “rail”.  In relation to the first, it is unquestioned that the child’s injury was witnessed, and the note is – it appears – obviously incorrect in that regard.  However, it is unknown whether this was the result of a deliberately false history or a misunderstanding by the doctor.  It is impossible to say at this stage.  It is possible that it was a continuation of Ms Penna’s earlier lack of frankness with the mother about Mr B’s presence, in which case it was untruthfulness, which was, at best, foolish, and destructive of trust.  However, I am not satisfied that I should infer that it may have been a deliberate falsehood intended to conceal a criminal offence as was submitted by counsel for the father.

21. In relation to the “rail” counsel for the father submitted there was no rail and this was another falsehood.  However, a close inspection of photographs attached to Ms Penna’s affidavit appears to show a rigid frame around the child’s flat safety bed at floor level.  That might merit the description “rail”.  If so, this would appear to demonstrate that the description given by Ms Penna and Mr B of how the child injured herself is plausible.  The fifth version is said to be discerned in paragraph 43 of Ms Penna’s affidavit, the same one containing what was said to be the first version.  I am unable to discern a fifth version described in that and I do not accept counsel’s submission that there is any discernible difference.  At best, it seems to be counsel was pointing to a distinction without a difference. 

22. While I have identified an admitted lack of frankness by Ms Penna, I am not satisfied that the “versions” identified by counsel are inconsistent.  They contain some differences, but in my mind not to the extent of giving rise to a suspicion of dishonesty intended to cover an offence. 

23. Further, I think that one aspect of the history points to the mechanism of injury being as described by Mr B and Ms Penna.  Ms Penna told Dr D that the child suffered a “twisting injury” at a time when she, Ms Penna, was not likely to be aware that the child had suffered a spiral fracture.  That was not revealed until a later X-ray.  The child’s injury, that is, a spiral fracture, appears to me to be likely consistent with a twisting injury.

24. If the child was injured as the result of an inflicted injury, this would appear to show an implausible degree of foresight by Ms Penna in my view.  Of course, it is possible that she was aware that Mr B inflicted a twisting injury on the child and described this but in my view that would involve an implausible degree of calculation and an awareness that the false description of the injury would need to match what was, as yet, unknown – that is, the nature of the fracture.  In my view, that is unlikely.  The material before me therefore suggests an accidental injury, despite the foolish lack of frankness demonstrated by Ms Penna.  I am not satisfied there is an unacceptable risk of harm to the child in Ms Penna’s care. 

25. In reaching that conclusion, I also take into account the father’s claim that in December 2021, the child pointed to her wrist and said, “Mr B hurt.”  It seems the child might have hurt her wrist at one point but it was not a serious injury and no bruises or marks were seen by the father.  The mother said that on 11 March 2022 – that is, the day after X broke her leg – X came to her home and said:

    “[Mr B] broke me, [Mr B] scary.” 

    The child is described as non-verbal in some material, but it appears that she is able to verbalise to some degree.  It is noteworthy that the child did not make any complaint about Mr B to any third party such as Dr D, the radiographer, or the doctor at C Hospital on 10 March 2022.  I am not persuaded that this further evidence should tip the weight in favour of a finding of an unacceptable risk of harm.

26. The other issue between the parties concerns the time the child is to spend with the parents in particular.  The parties seek different time arrangements.  The applicant seeks a restriction on the time, and the parents seek an expansion of the time to one night each weekend, alternating between the parents.  The independent children’s lawyer supports the parents in this aspect.  The SJR’s orders in respect of that provide for the child to spend one night with the father on alternate weekends.  That arrangement will remain.  The ICL also proposed that the child spend one overnight weekend on the other weekend with the mother, which is opposed by Ms Penna on the ground of the mother’s mental health and questions about the mother’s capacity to care for the child.

27. It is the fact that in the past and as recently as August 2022 that the child has spent overnight time in the care of the mother.  However, there is dispute about how well that has gone.  The mother has suffered from anxiety and depression and there is evidence of threats of suicide as early as earlier this year.  However, her treating psychologist, Ms E, has written a letter of support and, indeed, a short report on the mother’s present mental health, which indicates a marked improvement in her mental health as at September 2022 compared to earlier in the year when it appears that the mother was quite unwell and had made threats of suicide.

28. I am not persuaded that the mother constitutes a risk of harm to the child, although whether she is able to cope with the child – particularly on an overnight basis – is difficult to say, in my opinion.  I should note that the mother is also responsible for three other children in her care, and there has never been any suggestion that she was unable to care for those children.  But rather, the question marks about her capacity relate primarily to the sometimes immense difficulties in managing X because of her condition.  Nevertheless, there has to be a cautious approach to the question of X spending time with her mother, particularly overnight time. 

29. In May 2022, according to the report of an occupational therapist who was apparently familiar with the family, the therapist was not supportive of any increase in X’s time with her mother because she was concerned that X may not respond well to such changes and for her there was a question mark about the mother’s level of support and preparedness to have X spend frequent overnight time with her.  I think those concerns have to be given appropriate weight at this stage of an interim hearing.  A family report is being prepared and the father and the mother’s capacity to care for the child will be a significant subject covered by that report. 

30. I think that any real change in circumstances must await the publication of that report.  However, one of the orders made by the SJR was that if X were to spend daytime with the mother “an approved person” was required.

31. I am not satisfied that there is a necessity for an approved person.  I consider that the mother, particularly having regard to the report from Ms E, is probably able to manage the child for three hours during the day.  But if she is not, I intend to vary the current order to provide that if the child is distressed she is to be returned to Ms Penna.

32. In the longer term, given the breakdown in trust between the parents and Ms Penna, it may be in the child’s best interest that the current arrangements be brought to an end.  However, until these questions are determined at trial, I do not propose to make any significant changes to the present arrangements.  I am particularly influenced by the uncertain effect of any changes, having regard to matters set out in subsection 60CC (3)(d).  The orders I propose to make will be to leave the SJR’s orders in place, with the exception of order 4(c).  I propose to remove the requirement for an approved adult to be present.  I propose to order the weekend the child spends with the mother not be the same weekend that the child spends with her father.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge T. Young.

Associate:

Dated:       19 December 2022