English v Eklund 2021 FamCA 89

The case of English v Eklund [2021] FamCA 89 deals with interim parenting.

Between 2017 and September 2019, the father had inconsistent time with a child including overnight and unsupervised time.

In September 2019, orders were made for him to spend limited time with the child in a public place on specified dates. These orders were to be in place until the Federal Circuit Court could provide a date for an interim hearing, but the proceedings were transferred to the Family Court and by the time of a hearing in October 2020, with a judgment released on 26 February 2021, the father had last spent time with the child in February 2020.

The father was seeking supervised time of four hours per fortnight and shared parental responsibility.

The parties agreed to appoint an expert to prepare a family report.  There was a need for an arrangement for time until a more informed interim hearing could take place.  His Honour said this at paragraph 8:

“The question for me to determine is whether the child should spend any time with the father pending a further interim hearing that is to take place following the release of the expert’s report and whether an interim order for parental responsibility should made, and if so the terms of that order.”

The mother has held concerns about the child’s ill-health.

In December 2017, a family dispute resolution conference produced an agreement that included an agreement that the mother was to pack all meals for the child to consume while she was in the father’s care and that the father was not to feed the child any other food without the mother’s approval, that he would follow a vegetarian diet or a diet prescribed by the child’s dietician, and he would not force or encourage the child to eat meat.

The mother deposes to the child complaining about abdominal pain.

In August 2018, the father further undertook to maintain a food diary outlining all the foods the child consumed while in his care and to provide a copy of that diary to the mother at the conclusion of every period of time.

The mother’s case remained that the child continued to experience behavioural and health difficulties “which she connects to the child’s time with the father”.

Throughout the period of time that the matter has been before the court, the mother has continued to express concern about medical neglect and sexual abuse.

At paragraph 75, the court commences a discussion under the heading of assessment of risk.

At paragraph 78, the court says:

“In Deiter & Deiter [2011] FamCAFC 82, the Court was particularly concerned with the situation where the contested facts related to an assessment of risk. The Full Court said at [61]:

“˜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’.”

In this case, the court said:

“The nature of the risk said to be posed by the father is difficult to understand.”

At paragraph 87, the court said:

“The mother’s case rests upon an acceptance that the child’s physical symptoms are as dire as she contends and come about as a direct result of the father’s care as opposed to the child exhibiting symptoms for some other reason (such as a manifestation of the child’s anxiety from exposure to an acrimonious dispute between her parents).”

At paragraph 95, the court said:

“I do not consider it likely on the available evidence that a court will find that the father has harmed the child in either of these ways, (medical neglect, sexual abuse) or that there is an unacceptable risk of arising from either or both of these matters in the future in his care.”

There was no affidavit filed by the mother that included information from the child’s psychologist. The judge determined to approach the mother’s evidence “as to these matters with significant caution”.

At paragraph 145, the court said:

“I do not make a finding that the father does pose an unacceptable risk of harm to the child on the basis that he may neglect or abuse her or expose her to family violence and consider that it is unlikely that a court will make such a finding.”

At paragraph 146, the court said:

“…I am satisfied that any risk he may be found to pose may be properly mitigated by orders that the child’s time with him be supervised.”

The court made a suite of orders that included significant restraints on the mother’s capacity to raise an allegation of sexual abuse. There was also a restraint upon allowing the child to receive treatment from the paediatrician.

I think this judgment is interesting because the analysis of the mother’s evidence is clear and notes the lack of clarity in her articulation of her concerns and manages risk in the hands of both parents by restraint, with the father to have supervised time and the mother to be restrained in her conduct also.