Selmy and Branfield

[2017] FCCA 918

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELMY & BRANFIELD [2017] FCCA 918

Catchwords:
FAMILY LAW – Interim arrangements for parenting of child aged 6 – allegations of abuse – allegation mother has intentionally bruised child and the facilitated child to make disclosure of physical abuse by father – mother alleged father’s partner has bruised child – parties have poor and mistrustful relationship – assessment of risk – is risk unacceptable – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4(1); 60CA; 60CC

Cases cited:
Deiter & Deiter [2011] FamCAFC 82

SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative (1996) FLC 92-655

W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant: MR SELMY

Respondent: MS BRANFIELD

File Number: ADC 1934 of 2012

Judgment of: Judge Brown

Hearing date: 31 March 2017

Date of Last Submission: 31 March 2017

Delivered at: Adelaide

Delivered on: 31 March 2017

REPRESENTATION

Counsel for the Applicant: Ms Goff

Solicitors for the Applicant: R J Cole & Partners

Counsel for the Respondent: Ms James

Solicitors for the Respondent: Franklin Legal

ORDERS

1. This matter be listed for final hearing before Judge Brown on 5, 6 & 7 February 2018 at 10.00am NOTING three (3) days hearing time has been allocated and will not be exceeded without leave of the Court.

2. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed as soon as is reasonably practicable to represent the interests of the child [X] born (omitted) 2009 born and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

3. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

4. The Application in a case filed by the father on 22 February 2017 be dismissed.

5. The current care arrangements for the child be resumed with the father to commence his time with the child from Monday 10 April 2017.

6. Further consideration of the matter is adjourned to 18 August 2017 at 9.30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1934 of 2012

MR SELMY

Applicant

And

MS BRANFIELD

Respondent

REASONS FOR JUDGMENT

Introduction

1. The suggestion that a parent would deliberately harm a child and then facilitate the child concerned to attribute the injury so inflicted to the other parent is an allegation so extreme and outlandish that one’s natural inclination is to disbelieve it. 

2. However, the sad reality is that children are very often subjected to serious abuse at the hands of their carers in all manner of ways and forms.  As a consequence, it is the responsibility of the court to take all allegations of abuse, no matter how strange they appear, extremely seriously. 

3. The child who is the subject of these proceedings is [X], born (omitted) 2009.  The parties to the proceedings are [X]’s father, Mr Selmy, and her mother, Ms Branfield. 

4. Mr Selmy was born in (omitted) in 1978.  He is a (omitted) by profession.  The parties met in Adelaide in mid-2008, at a university in South Australia, where both where studying at the time.  Ms Branfield was born in 1983. 

5. The parties lived together between March 2009 and September 2009.  They finally separated in November of 2009.  Accordingly, the parties have little, if any, experience of jointly caring for [X].  Currently, it is my apprehension that they neither like nor trust one another. 

6. The father first commenced proceedings, in this court, in May 2012, seeking what is commonly called an equal time parenting regime.  Obviously, at that stage, [X] was just a little bit over three years of age.  The father’s application was resisted by the mother, who at the time characterised the father as a controlling and abusive person. 

7. For his part, the father characterised the mother as not being willing to support and encourage his relationship with [X].  He asserted that Ms Branfield suffered some significant psychiatric frailties.  Each party asserted that there were significant communication difficulties in their relationship. 

8. Against this difficulty, a family report was prepared in April of 2013 to assist the court.  In the report, Ms P, its writer, identified both parties to be capable parents who, however, had differing competencies. 

9. She wrote as follows:

   “Both parties possess differing parenting strengths that are relevant to various aspects of the child’s development.  Ms Branfield presented as an empathetic and attuned parent with a sound understanding of [X]’s emotional needs, whilst Mr Selmy presented as having an appreciation for [X]’s educational and behavioural needs.”

10. Ms P identified Ms Branfield as [X]’s primary attachment figure.  At that stage in April of 2013, Ms P opined as follows:

    “It would be in [X]’s best interests to live with the mother and spend time with the father on each alternate weekend from 4 pm Friday until Monday at 8.15 am, this in addition to the current care arrangement in regards to the child’s time with the father on the intervening week of the fortnightly rotation from 4 pm Monday until 8.15 Wednesday.”

11. In the light of Ms P’s recommendations, on 7 May 2013, the parties were able to avoid a trial and agree on a raft of final orders in respect of [X].  Significantly, there is a notation to the orders made on 7 May 2013, which reads as follows:

    “The father’s proposal for a shared care arrangement on a week about basis be reviewed at mediation at Family Relationships Centre at (omitted) when the child turns seven years of age.” 

12. As indicated, it was agreed between the parties that [X] would spend time with her father, during school terms, in the first week of each fortnight from 5 pm Friday until 8.15 am the following Monday; and in the second week of each fortnight from 4 pm on Monday until 8.15 am the following Wednesday; as well as half of school holidays. 

13. Accordingly, it seems clear that Mr Selmy remained intent, in the longer term, in securing an equal time parenting arrangement for [X] when she was older.  As the notation indicated, from his perspective, the stage at which this was likely to be appropriate was when [X] turned seven years of age in August of 2016.

Background

1. The more recent round of proceedings was commenced by the father on 18 July 2016.  In this application, Mr Selmy seeks a week about care arrangement for [X].  Obviously [X] was about to turn seven years of age, a few days after this application was lodged. 

2. Given this background, it is clear to me that there has been no move towards the parties having a more organic or consensual form of parenting relationship with one another.  Both parties remain critical of one another as both parents and individuals.  In his supporting affidavit, the father asserted that the mother has consistently breached the orders of 7 May 2013. 

3. It is a requirement of the court’s rules that, in all cases concerning children, a notice of child abuse is filed.  When he commenced these proceedings, Mr Selmy did not assert that there were any issues of child abuse or family violence, in this particular case. 

4. In her response, the mother indicated that [X] was an anxious child, who was troubled by her current care arrangements and as such, was not agitating to spend more time with her father.  Ms Branfield further asserted that [X]’s anxieties had become heightened after the father had repartenered. 

5. In her affidavit filed on 8 September 2016, Ms Branfield deposed as follows:

   “The father has recently repartenered and he has insisted the child call the partner “mum” or “bonus mum”.  The new partner has a son and the child is required to refer to him as her brother.  The child is very distressed about both these demands.  Further, the new partner appears to be hostile to me.  On one occasion in May 2013 after returning from time with the father, the child broke down and sobbed hysterically.  The child said that the new partner had said to her that “she does not like you, mummy, that she hates you mummy”.  Also, [X] tells me that she is not allowed to talk about me at the father’s home.”

6. Further in her affidavit material, Ms Branfield alleges as follows:

   “I am concerned that the new partner is physically rough with [X] and insensitive to her.  I say on Monday 5 September the child returned home from time with the father with bruising on her left arm.  The placement of the bruise shows that she has been grabbed by an adult hand.  The child told me that she and [J] were laughing in bed and Ms A entered and told them to “stop fucking giggling” and threatened to separate them. 

   She grabbed the child [X] by the left arm and lifted her out of the bed by her arm and pulled her into another room.  Annexed here too and marked with the letter B is a true copy of a photograph of bruising received by the child.  I made a mandatory report online to Families SA.” 

7. Notwithstanding this matter, in her notice of risk filed on 8 September 2016, Ms Branfield has not raised any issues formally of child abuse.  The intention of the notice of risk form is to ensure that the court abides by its legislative obligations to provide notification to the child welfare authorities if there is a case involving allegations of child abuse and act as a flag in respect of such concerns. 

8. From this brief summary of the parties’ respective positions, at the outset of the second round of proceedings, it is clear, I think, that their parenting relationship is one characterised by mistrust.  Each essentially asserts that, for a variety of reasons, the other is a compromised parent. 

9. When the matter first came into court on 4 November 2016, the parties were able to agree on some orders, which dealt with the forthcoming long end of year holiday.  There were some significant events occurring in the father’s life at the time.  He was getting married on New Year’s Eve and he had family and friends visiting from the United States. 

10. Given that the parties had earlier been able to agree on arrangements in respect of [X]’s care and given that it was my impression that both were intelligent and professional people, I considered it potentially helpful if they attended a family dispute resolution conference at the Legal Services Commission. 

11. I did that because I suspected that, from [X]’s point of view, it would be helpful if she had a perception that her parents had been able to agree on arrangements for her care, rather than that they had come to the court to ask it to impose an outcome on the parties.

12. In addition one of the major benefits of an agreement which is consensually arrived upon, is that it does not lead to a sense, in one party’s mind that he or she is a loser, and in the other party’s mind he or she is a winner, which of itself has a natural tendency to perpetuate disputes and conflict between parents, which in turn is not helpful to the child or children concerned. 

13. In any event, when the matter returned to court, it was apparent that the parties had not been able to move forward or reach any agreement about future parenting arrangements for [X]. 

14. On that basis, on 17 February 2017, I directed that the parties commission an expert, to be agreed between them, to prepare a family report.  The major issue to which the report was to be directed being whether the parties’ parenting relationship is such that it is likely to be able to sustain the equal time regime to which Mr Selmy aspires. 

15. In addition, I fixed the matter for final hearing on 5, 6 and 7 February 2018.  At that stage due to the pressures of business on the court, that was the earliest date that was available to me.

16. As I have indicated, in her material filed in September 2016, the mother had raised issues that the father’s partner does not enjoy a good relationship with [X] and had treated her roughly.  It was also my impression at court on 17 February 2017 that there was a significant level of tension between the parties. 

The current application

1. On 22 February 2017 Mr Selmy filed an application in a case.  He prepared it himself.  It was supported by an affidavit, which he had deposed, along with a further affidavit deposed by his wife, Ms A. 

2. In his application in a case Mr Selmy sought the following orders:

   ·the application be listed urgently;

   ·all current orders be suspended;

   ·[X] live with him full time; and

   ·an independent children's lawyer for [X] be appointed. 

3. No notice of risk was filed with the application.  I suspect that was because it had not been asked for because it was an application in a case rather than a final application.   Although, as I will outline, the application clearly goes to issues of child abuse. 

4. In his affidavit Mr Selmy outlined some of his current circumstances.  He deposed that he is living with his current wife, Ms A, and that he has two children from an earlier relationship, they are [J], born (omitted) 2012, currently aged 5, and [K], born (omitted) 2013, currently aged 3.

Recent Events

1. It is now necessary, as best I can, to outline the sequence of events leading to the father making an allegation that the mother has subjected [X] to serious physical and emotional abuse.  In so doing, I am well aware that it is likely to be difficult, if not impossible, for me to resolve definitively these allegation, given the nature of these proceedings, rather, what I must do is assess the degree of risk arising for [X].  Risk cuts both ways. 

2. There are risks in the child being returned to a person who has abused her, but there are also risks in depriving the child of having a worthwhile relationship with a parent on grounds that are unreliable and doubtful.  It is also obvious to me that the current conflicted and mistrustful circumstances of the parties provide fertile grounds for suspicions to grow and multiply.

3. The father asserted in his affidavit that on 14 February 2017, some three days prior to the parties coming back to court, that [X] had what was described as a major meltdown at her father’s home.  As a consequence, arrangements were made between the parties for [X] to be returned to her mother.  Mr Selmy described the event as follows:

   “[X] had a major meltdown and was physically violent for the first time.  We tried a number of strategies to calm her and keep the others safe.”

   And by this he means [J] and [K]:

   “The final strategy to help [X] to calm down was to offer her to go to her mother’s, which she accepted.”

4. Ms Branfield confirms this situation and has provided a copy of the text which Mr Selmy sent to her.  When [X] came into her mother’s care, Ms Branfield describes her as being in school uniform, un-showered and without any shoes.  She says that when [X] got into her car, she burst into tears and alleged that she been locked out of her father’s house by her father. 

5. Once she was back inside the house, the child had allegedly disclosed she had been restrained in her bedroom on the bed, and to do this the father had grabbed the child’s arms, while Ms A had grabbed her feet and lower legs.  [X] allegedly told her mother that Ms A referred to her as an animal, whilst she was doing this. 

6. [X] was apparently saying that she had been taken inside and locked in her bedroom, and the bedroom door had been secured by a rope.  Later, [X] said that she had come out of her bedroom and been forced to eat her dinner, which she did not want to do. 

7. So it is clear that on 14 February 2017 there was an instance in which [X] became quite upset.  Why that was, is not particularly clear to me, but it was a significant moment for Mr Selmy to contact Ms Branfield and ask for her to collect [X]. 

8. After [X] had come back into her mother’s care, Ms Branfield deposes that she observed the child to have some bruises on her legs.  [X] apparently indicated that this was where she had been grabbed by Ms A.  Ms Branfield took photographs of the bruises.  She also elected to go to the (omitted) on 15 February and made a complaint. 

9. According to the normal regime of care, [X] was due to return to her father’s care on 17 February 2017.  Although Ms Branfield had consulted her solicitor about the issue, the child was made available as required.  From Mr Selmy perspective there was some unfinished business, arising from what had happened on 14 February. 

10. He asserts that when the child had gone back into her mother’s care, she had said that she had not been given her dinner, which from his perspective was not true.  In that context, he asserts that he broached with [X] the topic of lying and how important it is not to lie, that apparently distressed [X] and she ran away angrily. 

11. It is in this context that a short time later the child is alleged to have made the allegations, which she did to Ms A.  Ms A was aggrieved at any suggestion that she had ever harmed [X].  [X] is alleged to have said to Ms A that her mother was pinching her and was being told to say that her father was doing it so that she could have more time with her mother, or words to that general effect. 

12. This arose in the context of [X] disclosing that she had been taken to the police station by her mother a few days earlier.  [X] is alleged to have said to Ms A:

    “Remember when I told you mum pinches me?  Well, I heard her tell them that you guys do that, but you don’t.  She does it.”  

13. After this alleged disclosure, Ms A elected to tape-record the child on her mobile phone.  I have heard that conversation.  The child is bright and cheerful.  She certainly says what she has asserted to have done in Ms A’s affidavit, but it is difficult to get any clear narrative from the child.  And, as I say, what she says is not delivered in anything other than a bright and cheerful tone. 

14. Against this background, Mr Selmy elected to make his own complaint to the police and to withdraw the child from her mother.  In a period of just over five weeks the child has not had any direct physical contact with her mother.  In addition, the child has been prevented from going to school.  The rationale provided by Mr Selmy for this course was that he was both attempting to protect the child and more significantly prevent her from being coerced, by her mother, into withdrawing the allegation. 

15. The father also took the child to doctors on four separate occasions.  I have been provided with the doctor’s notes.  On 17 February, she consulted a Dr L.  He noted a right calf low bruise, about three centimetres in length.  When he asked [X] about this bruise, she said she did not remember where it came from.  The ostensible reason for the visit was gastroenteritis and the bruise.  She was advised to return, if she did not improve and take Hydrolyte. 

16. The next note occurs on 19 February 2017.  The bruise is noted as resolving and the child is reported as being happy and cheerful.  No other red flags were observed.  On 22 February 2017, there is another visit.  Again, nil red flags observed, but the reason for the visit is described as being anxiety behavioural difficulties on a background of family problems and child abuse being investigated.  The child is attending, apparently, for a GP mental health care plan, and there is an indication that she will be attending at a CAMHS appointment already booked. 

17. The next visit is on 5 March.  The child is described as having increasing agitation, restlessness and disturbed sleep.  At that stage, there is a discussion about clonidine being prescribed and the parties, who include the doctor, her father and the child, are said to be happy about this.  Mr Selmy is recorded as telling the doctor that he had been told by the CAMHS psychiatrist to discuss medicating the child with clonidine. 

1. In this context, the mother is particularly concerned about the prescription of clonidine for the child.  She was not consulted about that, and it is her position that Mr Selmy was not being frank with the doctor about any discussions with a CAMHS psychiatrist. 

2. It is her position that it was inappropriate for the child to receive that medication which, when prescribed for a child of [X]’s age, has a sedating effect.  She conjectures that possibly the child was agitated and upset because she had been deprived of having any time with her mother for a significant period of time. 

3. The complaints of Mr Selmy have been investigated by the police.  The child has apparently been interviewed.  I have not seen or been provided with any copy of either a transcript of the interview or a tape.  Ms Branfield has also been interviewed and it is the position that the police are not going to lay any charges against her and the case has been closed.  The matter has also been referred to the Department of Child Protection and the matter has been closed with no action to be taken. 

4. Mr Selmy has prepared most of his affidavit material up to this stage.  With the greatest respect to him, it was not always easy to follow his case, particularly in respect of what exactly was the alleged abuse suffered by [X] and when it occurred.  Ms Branfield and her solicitor, Ms James, have also filed material.   I have tried to piece together, this evidence, as best I can, whilst bearing in mind it remains untested.

5. What is clear, however, from this plethora of material is that the parties themselves have no facility whatsoever to talk to the other, particularly in order to discuss how [X] has presented with each of them; what she has told each of them; and perhaps discuss other possibilities, in a calm and rational manner at to how the child may have come to have a bruise on her calf and perhaps consider whether there is some other explanation for that bruise, other than that the child has been deliberately or intentionally abused or assaulted. 

6. Rather. the parties each have a strong tendency to think the worst of the other and, as such, reach an adverse conclusion about his or her conduct.  On 28 March 2017, when the matter was vigorously argued, I opined that in some ways it was analogous to the children’s game of Chinese whispers, in the sense that there was no meeting of the parties’ minds to discuss what had actually happened and unpack it.  Rather, they dealt indirectly with one another, which led to some level of garbling of facts between them. 

7. At any event, on 28 March 2017, I was concerned that [X] had not interacted with her mother for a significant period of time.  I did not think that could not be a good thing for her, given the significance of the child’s relationship with her mother.  I considered it important for her on-going emotional equilibrium that she touch base with her mother sooner rather than later.

8. I was also of the view that the material that had been filed with the court and which I have now analysed, I hope, in some detail, did not disclose any risk to the child which was unacceptable to her, if she returned to her mother’s care.  I also was of the view that it was important that [X] be independently represented in these proceedings and that such an order should be made again sooner rather than later. 

The applicable legal principles

1. It is now necessary for me to explain the legal principles which I have applied in coming to that conclusion.  The central issue in this case, at this stage, centre on child protection issues.  However, as I have already pointed out, at this interim stage and perhaps even after a final hearing, the court will not be in a position to make definitive findings as to whether or not [X] has been the subject to some form of physical and emotional abuse. 

2. [X] is a child of tender years.  As such, she is not fully mature and her linguistic, verbal and cognitive skills are not fully developed.  She is also well aware, it would seem, that she is at the centre of a bitter dispute between her parents, each of whom has taken her to the police to have claims of her being subjected to abuse, at the hands of the other, investigated by the relevant authorities. 

3. It is also the case that she is currently an emotionally conflicted child.  She may not have a fully developed sense of right or wrong, or what is true and what is not true, particularly given her possible perception of the agendas of the adults around her.  She may be misconceived about all manner of things.  She is likely to want to please those around her. 

4. Many other factors unknown to me may also well be impacting upon her.  In all these circumstances, she may not now be able to provide a coherent and accurate account of how she came to be bruised.  In addition, the bruise may have been inflicted innocently at some stage or by mistake during the meltdown of 14 February.  It may have been inflicted at play by another child.  If it was malignly inflicted, the person who did so is not now likely to admit to doing so, given the moment such an admission is likely to have in these proceedings. 

5. [X] will not be a witness in the proceedings and it would be highly inappropriate if she was.  In all these circumstances, the only person, who is likely to know how she was injured, is [X] herself, and necessarily her account must be treated with a significant level of caution. 

6. Notwithstanding these evidentiary difficulties arising at the interim stage, the court must still nonetheless make a decision and put in place the orders which it considers will best regulate the situation so far as [X] is concerned, according to the relevant principles contained in the Family Law Act. 

7. In this context, it is clear that the court is required to consider child protection issues, in its decision-making processes, and should not defer its responsibility in this regard because of deficiencies in the evidence before it, or, more importantly, because it is not in the position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues. 

8. In Deiter & Deiter[1], the Full Court said as follows: 

   “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements:  the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

   [1]  Deiter & Deiter [2011] FamCAFC 82 at [61]

9. In SS & AH[2], the Full Court indicated, in the context of discussing the obligations of the Court while conducting interim children’s proceedings in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children, concerns as follows: 

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weight the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.” 

   [2]  SS v AH [2010] FamCAFC 13 at [100]

10. In Eaby & Spdelmann[3], the Full Court endorsed this approach as enabling the court to approach and carefully deal with contentious issues relevant to the welfare of the child and for those issues to not be ignored.  In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definitive resolution at the interim stage.  This is the position in the matter currently before the Court. 

    [3]  Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

11. With those strictures in mind, I now turn to the specific provisions within the Act, dealing with the making of parenting orders and the relevance of allegations of abuse to such orders.  In this context, it is to be noted that although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

12. In deciding whether to make any particular parenting order in relation to a child, the court must regard the best interests of that child is the paramount or most important consideration [Family Law Act 1975, section 60CA].

13. The matter which the Court must take into account in deciding how a child’s best interests are to be served is set out specifically in list form in section 60CC. 

14. The section creates two classes of consideration which are relevant:  primary considerations and a longer list of additional considerations. Generally speaking, the Court should give greater weight to the primary considerations which closely tie in with the overall objects and principles that the Family Law Act set out in section 60B. 

15. There are two primary considerations, which are as follows:

    a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

16. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

17. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

18. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

19. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

20. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[4]

    [4]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

21. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[5]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[6] 

    [5]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [6]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

22. Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act.  It means:

    “(a)  an assault, including a sexual assault, of the child; or

    (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)    serious neglect of the child.”

Conclusions

1. If the mother has been deliberately assaulting the child and then coercing her to complain that the father injured her so as to restrict the child’s time with the father, this is clearly abuse of the most significant kind.  Firstly, the child has been assaulted.  Secondly, and more seriously, the child has been directed to lie in order to harm a loved relative.  She has been made complicit in a wicked conspiracy.  This has the obvious potential to do her serious harm. 

2. On the other hand, if this is a case of mistake or misapprehension about what [X] has said, arising in the bitterly conflicted and confused circumstance currently prevailing between the parties and it has resulted in the disruption of the child’s life and a prolonged separation from a much loved parent, this too has the potential to do untold emotional harm to [X].  It would not be in her best interests to deprive her of such a worthwhile relationship on the basis of a risk which his nebulous or elusive in nature.

3. As indicated above in Deiter, the Full Court has directed that in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity to any individual, particularly any child who will be potentially affected by it. 

4. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in any every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising on an objective basis.

5. The court is frequently called upon to assess all manner of potential risk to the children concerned in proceedings coming before it.  Those risks include the risk of exposing the child to a parent who is incapacitated by the consumption of drugs or alcohol;  compromised parenting as a result of psychological illness or personality disorder;  possible risk relating to the exposure of a child to an angry and unpredictable parent;  and, as in some very regrettable cases, fortunately not this one, the risk of a child being exposed to a parent’s sexual behaviour or, more seriously, the child being sexually assaulted or used as an object of sexual gratification.

6. The Full Court, in Slater & Light[7], expressed the task of assessing risk in the following terms:

   “The nature of the risk is best expressed by the term “unacceptable risk”.  It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”

   In some cases, allegations of abuse (and subsequent allegations that some manipulation of a child has occurred in order to secure some form of damaging disclosure) occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion. 

   For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or, indeed, be manipulated.  Regrettably, it is also not unknown for allegations of abuse to be made for tactical or mischievous reasons.  It may be difficult to differentiate between these very scenarios.  And in some cases, there may be a conflation of them. 

   [7]  Slater & Light [2013] FamCAFC 4 at [37]

7. As Fogarty J said in N&S and the Separate Representative:

   “…courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.”[8]

   [8]  See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655

8. In W and W [Abuse allegations: unacceptable risk][9] the Full Court summarised a number of authorities dealing with abuse allegations.  I acknowledge that the considerations delineated are more relevant to final hearing situations.  However, in my view, they remain a useful yardstick to assist the court in assessing whether an unacceptable risk arises, in any particular parenting situation.  They include the following:

   [9]  W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892

   ·What is the nature of the events alleged to have taken place;

   ·Who has made the allegations;

   ·To whom have the allegations been made;

   ·What level of detail do they involve;

   ·Over what period of time are the events alleged to have occurred;

   ·What are the effects exhibited by the child;

   ·What expert evidence has been provided;

   ·Are there satisfaction explanations for the allegations apart from abuse;

   ·What are the likely future effects on the child.

9. In this context, the relationship between the parties is extremely poor and they communicate with extreme difficulty.  Each has made a complaint that the other or a person related to one of them has deliberately injured [X]. 

10. These complaints have been referred to the authorities for investigation and have been found not to warrant further attention.  The parties themselves have no capacity to analyse objectively what happened between 14 and 17 February and consider other explanations for [X]’s disturbing behaviour and injuries.  Rather, they have each reached the conclusion that the other is responsible for some malign behaviour.

11. In the current case, there are many possible explanations as to how [X] came to be bruised.  Apart from the child’s alleged disclosure to Ms A, there is no concrete evidence that the mother has behaved wrongly.  The police are taking no action against her.  The CPU has not deemed the matter as warranting further investigation. 

12. Significantly, the child did not make any concerning disclosure to the doctor to whom she was taken.  She said she could not remember how the bruise occurred.  In all these circumstances, I have come to the conclusion that it would not represent an unacceptable risk for [X] if she is returned to the care of her mother.

13. I am not concerned that the risk as delineated by the father and the factors which reach him to the conclusion that the child should be withheld from her mother support the view that it would be unacceptable for her to be returned to her mother’s care.

14. To the contrary, I am concerned that to deprive her of this very significant relationship or artificially constrain it has the potential to do [X] significant emotional harm. 

15. For all those reasons, I am going to dismiss the application in a case filed by Mr Selmy.  I will make the necessary direction that the earlier orders regulating arrangements for [X]’s care be reinstated, pending a final hearing and will make an order appointing an Independent Children’s Lawyer on her behalf

16. I am satisfied that such an appointment is warranted given the significant level of conflict between the parties and the mutual allegations of compromised parenting.

17. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 5 May 2017