Wilson & Jeans

Case [2023] FedCFamC1F 668

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wilson & Jeans [2023] FedCFamC1F 668

File number(s): MLC 8543 of 2014
Judgment of: MCNAB J
Date of judgment: 15 August 2023
Catchwords: FAMILY LAW – PARENTING – Where the father has not spent time with the child for about seven years – Where there were previous final orders made in 2015 – Where the mother has made allegations of family violence and child abuse – Where those claims are not substantial – Question of whether the father spending time with the child is in the best interests of the child – Where the child has special needs and developmental issues – Judgment made for limited supervised time moving to limited unsupervised time.
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Bielen & Kozma [2022] FedCFamC1A 221

Fitzwater & Fitzwater [2019] FamCAFC 251

Germain & Germain [2017] FCCA 1980

Isles & Nelissen [2022]

Wilson & Jeans [2015] FamCA 688

Division: Division 1 First Instance
Number of paragraphs: 137
Date of hearing: 8 – 11 May 2023
Place: Melbourne
Counsel for the Applicant: Ms Abelraheem
Solicitor for the Applicant: McLachlan Thorpe Partners
Counsel for the Respondent Ms Teicher
Solicitor for the Respondent Pentana Stanton Lawyers
Counsel for the Independent Children’s Lawyer Ms Villella
Solicitor for the Independent Children’s Lawyer Legal Aid NSW

ORDERS

MLC 8543 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS JEANS

Applicant
AND:

MR WILSON

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

15 AUGUST 2023

THE COURT ORDERS THAT:

1.All previous orders be discharged.

2.The mother have sole parental responsibility for the child B, including but not limited to:

(a)Providing all authorities necessary to cause and/or permit B to travel to and from the Commonwealth of Australia;

(b)Providing all authorities necessary to cause and/or permit the issue of or the renewal of any passport

3.B will live with the mother.

4.The father provide the mother with Ms K’s contact details, including a current telephone number, and the mother shall be at liberty to contact Ms K to do all things necessary for B to meet his half-brother E, and spend time with E.

5.The mother be restrained by injunction from denigrating or making critical or negative comments about the father, in the presence or hearing of B.

6.The mother shall use her best efforts to prohibit any third person from denigrating or making critical or negative comments about the father, in the presence or hearing of B, and should any third party make such comments the mother is to remove B from the presence of that person immediately.

7.The mother be restrained by injunction from allowing B to call her father ‘Dad’ or allowing B to use any term that is a synonym for ‘Father’ or ‘Dad’ when speaking to or talking about his maternal grandfather, and should B do so the mother shall forthwith correct B.

8.The mother shall…

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AGLC
Wilson & Jeans [2023] FedCFamC1F 668
Case
[2023] FedCFamC1F 668
Decision Date

CaseChat Overview and Summary

The case of Wilson & Jeans involved a dispute between the parents of B, a child with special needs who had not spent time with his father since October 2016. The father sought to increase his time with B, while the mother argued that B was at risk of harm if he spent time with his father. The case was heard in the Family Court of Australia. The legal issues before the court were whether the father had perpetrated family violence against B and the mother, whether B's fear of his father was genuine, whether B was at an unacceptable risk in the father's care, and whether the mother should retain sole parental responsibility. The court found that the father had not perpetrated family violence against B or the mother, but that B's fear of his father was genuine and that he was at an unacceptable risk in the father's care. The court also found that the mother should retain sole parental responsibility. The court based its findings on the evidence presented, including the evidence of B's psychologist and the mother's concerns about B's injuries after spending time with his father. The court found that the mother's concerns were reasonable and that B's fear of his father was genuine, based on his disclosures to his psychologist and his behavior after spending time with his father. The court also found that B was at an unacceptable risk in the father's care, based on the evidence of his injuries and the mother's concerns. The court noted that the risk of harm must be considered even if it is improbable, and that a comparatively small risk of serious harm can justify action in child-related proceedings. The court also found that the mother should retain sole parental responsibility, based on the best interests of the child. The court noted that careful consideration is required before reaching a conclusion of no time and no communication, and that the termination of a child's relationship with one of their parents is a course of last resort. The court ordered that B should not spend time with his father and that the mother should retain sole parental responsibility.

Orders

Orders of the court

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Background

Background to the litigation

The ICL relied on:(1)Family Report of Ms R filed 1 October 2020.BACKGROUND The parties commenced a relationship in 2011 and separated in 2014. It was determined by the 2015 orders that they did not live together in a de facto relationship. B was born in 2013. B is currently living in New South Wales in an undisclosed location with the mother. He has not spent time with the father since October 2016, other than for an observation session during the Family Report process in May 2017, during which he did not recognise his father. B has special needs and attends a public primary school with a Special Support Unit. The mother is engaged in full-time parenting duties. B was born premature and suffered a medical episode around the time of birth. He has a mild brain injury as a result which affects his mobility, motor skills and cognitive and emotional development. B receives various therapies including with Ms Q, his psychologist. It was noted that B had regular check-ups with a paediatrician, but he still experiences difficulties with sleep and nightmares and occasional distress upon waking. The father lives in Victoria with his parents and is engaged as the full-time carer of his father. He spends time with his son from another relationship E (born 2009) five nights per fortnight in accordance with court orders, but has not spent time with B since October 2016. These proceedings have a long history. Shortly after separation, the father made an application in September 2014 for the child to spend significant time with him. Prior to this application, there were informal arrangements for B to spend some time during the day with his father. In August 2015, final orders were made for the mother to be permitted to relocate to NSW, for B to live with the mother, for her to have sole parental responsibility and for B to spend time with his father for three consecutive days each month in NSW. The mother relocated in September 2015. Both parties report there were issues facilitating the three days per month for spend time arrangements, with each blaming the other for these issues. In the course of the earlier proceedings the father made allegations that the mother had neglected the child whilst in her care. These allegations were referred to (story texts) by Cronin J’s 2015 judgment of Wilson & Jeans [2015] FamCA 688 (“Wilson & Jeans”) at [72] – [73] and [81] – [82]. In November 2016, the mother unilaterally ceased B's time with the father due to her concerns about what had occurred during the spend time arrangements. She stated that B had disclosed to her that the father was abusing him. She noted that over the previous year of spend time arrangements, she had noticed and documented injuries on B after he was returned from time with the father, which she alleged were caused by the father. The mother also noted that during this time, B was becoming more unsettled and experiencing behavioural issues. A referral was obtained for B to see a psychologist and records show that he made a number of disclosures to the psychologist, which caused a number of reports to be made to Child Protection.

Evidence

Evidence Before The Court

Issues in dispute:(1)Whether the father perpetrated family violence against B;(2)Whether the father perpetrated family violence against the mother;(3)Whether B's fear of his father is genuine such that spending time with the father would cause psychological harm;(4)Whether B is at an unacceptable risk in the father's care and if so, can the risk be ameliorated; and(5)Whether the mother should retain sole parental responsibility.EVIDENCEThe Mother’s Evidence The mother relied upon the filed application and affidavit evidence noted in [8] above. The mother's case focused on the mother's concern that B is at risk in the father's care based on his disclosures following spend time arrangements in late 2015 - 2016. She believes B was exposed to trauma and his psychologist has diagnosed him with Complex PTSD, which he is still engaged in therapy to manage. The evidence of his psychologist is that he is doing extremely well, and if no time is ordered, he is ready to cease therapy. She gave evidence that B frequently returned from time with his father with injuries, such as bruising, welts and she claims at one point he had what she believed to be a dislocated hip, although under cross-examination she accepted, when presented with medical evidence, that B's hip had nothing to do with any injury or physical trauma. The mother believed that these injuries were not accidental, and she is concerned about B's safety in the father's care. She annexes a number of photos of injuries to B to her trial affidavit at MJ-3, MJ-8, MJ-19, MJ-20, which include a number of red marks, scrapes and bruises. The mother conceded that at the time, she did not seek medical assistance for any injuries (other than the hip discussed below) and did not raise her concerns with the father. The alleged abuse was subsequently reported after a number of professional services became involved following B's disclosures. A significant portion of the father's cross-examination of the mother was directed to the allegation that the mother was incorrectly telling professionals that the father had caused B's hip injury where there was medical evidence showing this to be false. Notes were tendered from the V Hospital, where the mother took B in mid-2015, and she reported that following B's spend time with the father, B was unsettled, would not walk, would not allow himself to be touched, and started walking with a limp and an out turned leg. He was x-rayed and examined and the mother was informed that the pain was most likely caused by an "irritable hip" with no signs of injury. The hospital notes indicate that the mother became increasingly upset and wanted the doctor for "proof so that he doesn't have to see his father again." She is reported to have become more upset and state "this is why babies come in dead". Under cross-examination, the mother gave evidence that she had received earlier medical advice that there may have been a fracture which was causing B's distress. Later advice said this was not the case and there was no sign of an injury. The mother at trial accepted that the cause of B's discomfort was an irritable hip, and not due to any injury.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In addition, amendments to the Act effected by subs 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the court is required to give greater weight to the need to protect the children from physical or psychological harm, from being subjected, or exposed, to abuse, neglect or family violence. [15]Primary Considerations[15]Germain & Germain [2017] FCCA 1980.Section 60CC(2)(a) A central issue from the mother’s perspective is whether the child would benefit from having any relationship with the father. It was the strong view of the mother and members of her family who gave evidence that the child would be better off with the father removed from his life. Whilst I do not think that it is possible for the father to now insert himself into the child’s life and spend significant and meaningful time with the child, I do find that the child would benefit from knowing who his father is and being in a position to spend time with his step‑brother.Unacceptable Risk The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent. In Isles & Nelissen [2022] the Full Court adopted Justice Austin's dissenting judgement in Fitzwater & Fitzwater [2019] FamCAFC 251, which emphasised that risk assessment is a predictive exercise that involves evaluating the potential seriousness of harm in the context of the probability of its occurrence. The court stated that the higher the chance of harm, the greater the risk, and risks of harm must be considered even if they are improbable eventualities. The court also noted that a comparatively small risk of serious harm can justify action in child-related proceedings, while the virtual certainty of slight harm might not. The Full Court highlighted the need for trial judges to assess not only the potential harm but also the probability of such harm occurring. The court may conclude that an unacceptable risk exists based on an accumulation of factors, even if each individual factor is not proven on the balance of probabilities. Finally, the level of confidence in a prediction of future risk will be based on the factual findings underlying the prediction. In relation to the consideration of unacceptable risk, the Full Court in Bielen & Kozma [2022] FedCFamC1A 221 at [51-54] held:51. In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained at [214] (citing A v A [1998] FamCA 25; (1998) FLC 92-800), that where a case is conducted on the basis of it being contended that there is an unacceptable risk of harm to a child in the care of one parent, “[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk” (Emphasis added).52. After referring to and applying that decision, the Full Court in Keane & Keane [2021] FamCAFC 1; (2021) 62 Fam LR 190 at [84] stated: In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.(Emphasis added)53. In Summerby & Cadogen [2011] FamCAFC 205 at [95], the Full Court also noted the potential adverse impact upon a child of permanent separation from their parent and, in the context of that case, agreed with and applied the analysis of the trial judge in those proceedings to conclude that “the termination of a child’s relationship with one of her parents is a course of last resort.”54. Given the potential consequences for a child of such a separation, careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication. This is made clear in Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) where the Full Court said at [28]: The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.FINDINGS ON RISK