Bannerman and Gable

[2018] FCCA 2617

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANNERMAN & GABLE [2018] FCCA 2617

Catchwords:
FAMILY LAW – Parenting – interim hearing – recovery application – allegations of neglect – not satisfied that the children are at risk of neglect or harm – recovery order made.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MR BANNERMAN

Respondent: MS GABLE

File Number: DNC 35 of 2016

Judgment of: Judge Young

Hearing date: 28 August 2018

Date of Last Submission: 28 August 2018

Delivered at: Darwin

Delivered on: 28 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Bowen

Solicitors for the Applicant:	Bowen Lawyers, Barristers & Solicitors
Solicitors for the Respondent:	Self-Represented

ORDERS

1. That the mother is to return the children [X] born 2012 and [Y] born 2013 to the father as soon as practicable.

2. That the children [X] born 2012 and [Y] born 2013 (“the children”) spend time with the respondent mother as follows:

   (a)every third weekend commencing 7 September 2018 from after school Friday until 5.00pm the following Sunday;

   (b)during September/October 2018 school holidays from 5 pm last Friday of term 3 until 5.00pm the following Friday.

3. That the father is to collect the children from the mother’s residence forthwith.

4. That the father shall provide to the mother a letter within 28 days addressing [Y]’s dental issues.

5. That pursuant to s.11F of the Family Law Act 1975 the parties attend reportable child dispute conference at the Federal Circuit Court of Australia Darwin on 15 October 2018 at 9:00am with a family consultant, to discuss the care, welfare and development of the children [Y] born 2013 and [X] born 2012 in an endeavour to resolve any differences between the parties in relation thereto AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

6. The matter be adjourned to 29 October 2018 at 11:00am for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DC 35 of 2016

MR BANNERMAN

Applicant

And

MS GABLE

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning two children, [X] who is six years old, and [Y] who is four years old, going on five.  This matter came on before me as a recovery application filed on 3 August and the father alleged in his application that the mother, in breach of orders made in February 2017, had retained the children. 

3. Orders were made on 2 February 2017 that the children live with the father and spend time with the mother as agreed.  The mother did not appear in court on that day, so the orders were made in her absence, and the mother has not at any point sought to have those orders set aside.  The mother generally failed to participate and, at times, failed to appear in those proceedings.

4. She has said to me that at the time the reason for that was that she was pregnant, but whether that is true or not, I do not know.  I note that she was legally represented at one point and her lawyers withdrew from appearing for her in November 2016, and she did not participate in proceedings thereafter.  I understand there are allegations about the mother’s lifestyle and so on at the time which, if true, may be some explanation.

5. Those orders, as I said, provided for the children to spend time with the mother as agreed.  The father lives in Town A.  The mother has recently been living in Darwin, though, as I understand it, she is originally from Town A as well.  The mother and the father agreed that the children should spend time with the mother in July and the mother thereafter retained the children.

6. She said that the reason why she retained the children is that they were showing signs of physical neglect.  She said that they both had head lice and had sores on their scalp and her mother, who gave oral evidence at that time, said the children wore dirty clothes and smelled of urine when she had seem them on a number of occasions prior to the mother retaining the children.  She, the maternal grandmother, said that she had not raised her concerns with the child welfare authorities for fear that the children would be taken away.

7. I am unable to make any assessment of those claims, though when the maternal grandmother gave evidence her claims appeared plausible. I directed on the 9 August, when the matter came on, that the mother was to obtain a medical report about the children.  She has done that and the medical reports from Health Service in respect of both children confirmed that they were examined on 14 August and had presented on 13 July with infected wounds or sores on their scalps and they were given antibiotics and head lice treatment. 

8. As at 14 August, the head lice had cleaned up and the infected wounds had healed.  That was the identical report for each child. I am satisfied that when the mother retained the children, the children had infected head wounds, presumably from scratching as a result of head lice. I think that is a pretty poor reflection on the father or whoever has been caring for the children if that has been allowed to develop.

9. I note there is a letter attached to the father’s affidavit filed today from his wife, as I understand it, Ms B, who says that she had noticed before the children went to Darwin to see their mother that [X] had a sore on her scalp and broken skin which they had been treating with antiseptic creams and Dettol and to quote, “It was coming good.”  Whether or not it was coming good, it was infected, it seems, in both cases, and needed antibiotic treatment, so it really raises some concern about the standard of care that these children were receiving.

10. The mother also obtained a report from a health service based in Town A, which relates to a “school screening report,” as it is described, which I assume is a screening of the children at school, and in the case of [Y], the four year old, it was noted that she was otherwise normal but needed follow up for dental treatment and also required as at 16 April treatment for head lice. 

11. So there have been some concerns about the standard of care of these two children.  As against that, the father sought to file in court today a more extensive affidavit containing some further information.  The most relevant information in my view is this.  There is a report from the School 1 Preschool where [X] is a student and the principal – well, I am not sure if Ms R is the principal, but Ms R on behalf of the School 1 – has written a letter undated but it appears to be from last week, based on the email cover, and she says this:

    [X] wore a clean school uniform and shoes to school and wore her school uniform while at school.  She always had a spare change of clothes in a schoolbag along with a sunhat.  She wore a jumper on the cooler days.  [X] came to school with enough food for recess and lunch.  The food provided was nutritious and usually fruit, muesli bar, biscuits, sandwiches and juice.  She ate all of her food and demonstrated a good level of knowledge about the importance of healthy eating. 

12. And there are various other remarks about her progress at school and the teacher, evidently the class teacher, said:

    While in my class I did not have any concerns about [X]’s level of hygiene. 

13. That contrasts quite dramatically with the allegations made by the maternal grandmother and the mother about the neglect of the children.  In relation to [Y], the School 1 Preschool said on 21 August 2018, and noted a number of things: that she has been absent at various periods from preschool this year and her development had been affected by absences.  That is regrettable.  I cannot reach a conclusion about the reason for the absences but it does not reflect well on the care of the child, in my view.  However, it goes on to say this,

    [Y] [that is short for [Y]] was always appropriately dressed, clean and well groomed with the required items to participate in the service, that is, daily play, lunch and spare clothes.  She had good health and was eager to learn with a happy disposition.

14. The care plan, which is somewhat older, from February 2018, said generally the child appeared to be making good progress apart from the absences which were highlighted in the report.  In addition, there is a letter from a Mr S from the Church.  Apparently the father and his wife, Ms B, have some connection, and the church operates an outreach service for kids – a Friday night kids’ club for children five to 12. Mr S says that he has had contact with the father and his partner over a couple of years and he says that on many Friday nights, the service picks up two to three children, including [X].  No mention of [Y] who is probably a bit young.

15. There are other children present as well.  And Mr S says:

    I have personally picked up these children at this residence on multiple occasions.  After discussing things with other volunteers that have picked up at this residence, we have never had any concerns for the safety and wellbeing of the children.  Unlike many other parents or caregivers who are difficult to contact or find when dropping off children, one or the other have always been present and completely coherent.  There has not been one instance where visitors at their residence have made us concerned for the children.  Usually one or the other parent will meet us before we get to the door.  The children are always clean, fed and seem genuinely happy to return home.  From our experience, I would not hesitate to say that we would like to see more homes as responsible as this one.

16. And in addition there is a letter from a Mr V who is the father’s employer.  The father is employed.  He is a (occupation omitted) and has been working since March 2017.  His employer says that the father is always on time and eager to further his future for the benefit of his daughters and family.  Mr V says that:

    I have visited his premises and spoken to his daughters on many occasions.  The premises and family have always been kept in the highest order which is a reflection of Mr Bannerman’s work ethic and continued efforts to further his career and family situation for the future.

17. I consider that those independent reports or references are inconsistent with the mother’s complaints and, I think, are reassuring.  I have no doubt that the children had infected head wounds as a result of scratching from inadequately treated head lice infestation.  That is regrettable.  They should have been taken to the doctor.  The dental issue, well, it was identified and something will need to be done about that too. 

18. Given all of that background, I am not satisfied that these children are at risk of neglect or physical harm in their father’s care and I am satisfied that the orders that are in place should largely be adhered to.  And I am going to make an order that the children are to be returned to their father today.

19. The father’s counsel has rightly pointed out, in my view, that the existing orders which simply provide for the children to spend time with their mother as agreed between the parents, are inadequate in all of the circumstances of the case, and that there should be some formal orders for the children to spend time with their mother.  I agree, and in relation to time issues, I am satisfied, having regard to the principle in Rice & Asplund, that some other orders are required and are likely to be made at some point. 

20. The father suggests as an interim measure that there ought to be orders that the children spend time with the mother every third weekend, that is, from Friday after school to Monday before school, and during school holidays.  And the first holiday is the September school holiday, and he suggests from the Friday after school till the next Friday, that is, half the holidays, and for Christmas this year from 5 pm on 21 December to 5 pm on 4 January, that is, over Christmas. 

21. The mother says that she is now going to move down to Town A from Darwin and if that is the case, then it may be appropriate to look at that arrangement further. She will get the chance to consider that, but for the time being, I propose to make orders sought by the father.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 14 September 2018