Hogan & Halvorsen [2007] FMCAfam 1131

ORDERS

These proceedings are transferred to the Family Court of Australia at Parramatta and the proceedings are adjourned to a date to be fixed by that Registry.

Pursuant to Section 68L of the Act a Independent Children’s Lawyer be appointed for the child M born in September 2003.

The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.

The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.

Each party make available to the Legal Aid Commission of NSW forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

The Mother and Father facilitate the attendance upon the Independent Children’s Lawyer of the child at times and dates requested by that Lawyer.

Liberty be granted to the Independent Children’s Lawyer to re-list these proceedings on giving 7 days notice to the other parties and the Court.

Order 5.3 of the Orders made 12 August 2005 is to recommence this Saturday 9 June 2007.

All parties have leave to inspect documents produced under subpoena.

Pursuant to S65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

THE COURT NOTES:

The Father’s Application for costs of today.

THE COURT FURTHER ORDERS THAT:

The mother pay the father’s costs of today, assessed by FM Henderson in the sum of $1,875.00 within six (6) months of today’s date.

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

REASONS FOR JUDGMENT

The application before me is the mother’s application seeking to have the father’s time with the child supervised. Presently the father’s time with the child is not supervised. The child is M born in September 2003.

There are existing orders in place for M to live with his mother and spend time with his father, which orders were made on 12 August 2005. The orders provided for a graduated regime of increasing time with the father. Overnight time was to commence on 30 March 2007. Prior to that date the child was spending day time with his father.

This matter has a pretty sorry history. The father has brought the matter back to Court on many occasions in order for his time with his son to resume.

Interim orders were made by consent on 31 March 2005. The matter had been down for hearing and ultimately resolved on the day by consent orders made by Donald FM.

The mother withdrew her consent to the orders asserting says the father was not caring for the child; he had nappy rash and the like.

The father brought the matter back to Court and on 29 November 2005 and FM Donald reinstated the orders forthwith. Despite his Honour’s orders the father did not have contact with the child from December 2005 until February 2006.

The mother brought an application returnable in February 2006 to vary the orders because of what she said was neglect of the child in the father’s care. FM Donald dismissed the mother’s application.

On the very weekend prior to the father’s time with his child extending to overnight time the mother raised allegations of serious injury to the child whilst in the father’s care. The mother alleges the father caused bruising to the child’s penis. The allegation is denied by the father.

The mother suspends contact and reports the matter to the Department of Community Services, the Police and the Joint Investigation Response Team.

The evidence I have considered is the Departmental file, the Joint Investigation file the parent’s affidavits, a book entitled “M’s Visit Book” and affidavits of the child’s paternal aunt and grandfather.

There is no doubt M suffered an injury on or around the 23^rd, 24^th or 25^th of March 2007. I do not know the cause of the injury and nor does anyone else.

The most contemporaneous note of the injury is in the mother’s own handwriting in M’s Communication Book. The entry is dated 23 March 2007 the day before his visit to his father. It is as follows:

M fell off a bike and grazed both knees and his chin. His knee is okay, still sore to touch. M seems quiet and not his normal active self. He keeps saying his tummy hurts. Please keep an eye on him. Keep an eye out. Nothing else seems wrong. No dairy and he might not want to eat a lot, thank you.

The father writes in the book at end of the visit with his son on 24 March:

M drank okay. Had a sandwich but became listless. Had a small sleep. Woke with tummy pains, would not drink or eat. Did a number 2 at about 2.15, with straining. Suggest he may be a bit bound up, but doctor will know more. Spent last two hours of visit lying down.

The father said he suggested to the mother the child be taken to the doctor. The mother told him she had a prearranged appointment the very afternoon the child was returned.

Both M’s aunt and his grandfather were with the father and the child for the entirety of the time except for about 10 minutes. They both say the child suffered no injury whilst with his father. I accept their evidence without hesitation on this issue.

There is no doubt M’s penis and groin area became very bruised some time after he was returned to his mother. The bruising came out either that night or the next day.

The mother asks me to accept this injury occurred at the father’s home.

It is clear to me on the material filed that the only injury the child suffered occurred at the mother’s home and whilst he was in her care. The injury occurred either on the day she wrote of the event in Matthews visit book the 23^rd of March the day before he went to his father or sometime after his return to her care.

I am certain no injury was sustained by the child whilst in the care of his father.

This is an interim hearing and it is most unusual for a Judicial Officer to make findings of fact as to credit in an interim hearing. This, however, is one of those exceptional matters. The reason it is exceptional is that in the mother’s statements to the Department of Community Services officers and the police she failed to give them the full facts.

The mother sought to minimise to the Police and the Department the significance of trauma her son sustained on 23 March 2007 and which she had recorded in her own handwriting in Matthews visit book.

In her statement to the Police and the Department said he had some grazes to his knees and a small mark on his chin. There was no mention to DOCS or the police of the child suffering from tummy pains, no mention of him being listless and not his usual self and no mention of him falling off a bike, an event which may have accounted for the bruising injury which came out some days later.

The mother’s failure to mention these important observations and facts concerning his injury seriously hampered the ability of the professionals to determine what may have been the cause of the injury.

As the mother failed to notify the investigating officers of the actual events that occurred at her home no one will ever know how the child was injured. However it is as clear as can be, and even in the absence of evidence being tested that the injury to M occurred whilst the child was in his mother’s care and not in his father’s care.

In those circumstances there is no unacceptable risk of harm to this child whilst in the father’s care. The mother’s behaviour and her chosen course of conduct today which is reflected in the past gives the Court cause for concern regarding her parenting ability and should concern the mother.

This little boy is entitled to a relationship with his father and his father’s family. He will enjoy the benefits of that relationship. The mother’s failure to be honest with the authorities when her child was injured has brought about this very sad state of affairs.

The mother would have us believe that this child was in a very bad way when he returned from the father such that she had to take him to the authorities the next day. Yet on the very afternoon he is returned to her she takes him shopping. That is what she says in her affidavit.

The father on the other hand was so concerned for his son’s listlessness and ill health; he rang the mother and asked if he should to take the child to the doctor because he knew the child was not himself. This evidence is consistent with the mother own affidavit.

The mother said to him “No, I have a doctor’s appointment this afternoon and will take him myself”. Yet the mother goes shopping with a child the father says was not well.

The mother has been caught lying quite clearly on her own evidence.

M is at no risk of harm in his father’s care. His time with his father will re-commence immediately and this weekend being 8, 9 and 10 June 2007. M will spend thereafter each alternate weekend from 10 am Saturday to 10 am Sunday up 30 September 2007 in accordance with the orders of August 2005. M’s time with his father will increase on a graduated basis thereafter in accordance with the orders.

I will transfer the matter to the Family Court and appoint an Independent Children’s Lawyer. I am most concerned for this child in his mother’s care, taking him shopping when he was clearly unwell, her poor attitude to the father as a parent, her behaviour and inability to be truthful with the Department of Community Services and the Police.

I would have disqualified myself from further hearing this matter because of the view I have formed of the mother’s untruthfulness. The mother should take heed from what has occurred. The father will be involved in his child’s life and he is a competent and capable parent.

An application has been made for the father’s costs of today. Section s.117AB of the Family Law Act 1975 (Cth) provides that if I am satisfied that a party has knowingly made a false statement I must order some part of the other party’s costs to be paid. I am today satisfied the mother has made a knowingly false statement, that is that the injury to this child occurred whilst in the father’s care. That is the only place it did not occur. The mother is the one who knows where the injury occurred. The mother failed to tell the authorities what happened and what she had reported in Matthews visit book. I cannot accept what she says before me.

In those circumstances the father has been put to considerable expense in bringing this matter to Court to ensure that he and his son maintain and resume their important and significant relationship. I take note of the fact that this is not the first occasion the mother has unilaterally suspended time with M and his father. Each attempt by the mother to suspend time have been dismissed by FM Donald.

In those circumstances the mother will pay the father’s costs of today which costs are assessed in accordance with the scale at $1875. Such costs to be paid within six months of today’s date.

I make orders in accordance with those as set out at the commencement of this judgment.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate: Maryrose Portelli

Date: 8 January 2008