Brush and Bartle and Anor

[2016] FCWA 96

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: BRUSH and BARTLE & ANOR [2016] FCWA 96

CORAM: THACKRAY CJ

HEARD: 26 FEBRUARY 2016

DELIVERED : Ex tempore

FILE NO/S: PTW 5419 of 2014

BETWEEN: MR BRUSH

Applicant

AND

MS BARTLE
First Respondent

AND

MS DEANNE
Second Respondent

Catchwords:

CHILDREN - WITH WHOM A CHILD LIVES - The children were living with the father in Perth, but he can no longer afford stable accommodation and seeks to relocate with the children to [Country A] - Two options presented for interim care of the children - Order for the children to live with the maternal grandmother in [City A].

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

First Respondent : Mr Dawson

Second Respondent : Self Represented Litigant

Independent Children's Lawyer : [Ms S]

Solicitors:

Applicant: Self Represented Litigant

First Respondent : Dawson Davies

Second Respondent : Self Represented Litigant

Independent Children's Lawyer : [Law Firm A]

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1These proceedings concerning the welfare of two young girls have been on foot since 18 September 2014. The children involved are [Lisa], who was born [in] 2010 and who therefore will be 6 later this year; and [Elisa], who was born [in] 2013 and who is therefore not yet 3 years of age.

2The history of the matter is somewhat complicated and it is unnecessary to trace the history for the purposes of this very short placement of the children. However, it is sufficient to say that the mother, [Ms Bartle], has had serious drug issues to the extent that she has not been a suitable person to look after the children and has been found to be such by the child welfare authority in [City A], where the family lived during the course of the relationship.

3The father, [Mr Brush], has also been only a visitor in the lives of the children at times, for example, as a result apparently of spending extended periods in Western Australia when Lisa was a child. However, he has been a constant figure in the lives of the children since Elisa was about 6 months of age because, at that point, the mother was presented with the option of the children either going to live with the father, who had been assessed as a suitable carer for the children by the relevant department, or being taken into the care of the department.

4At the time this was happening, the maternal grandmother had in her care the two half-brothers of these children, [Evan] and [David], who are now about 9 and 10 years of age. The maternal grandmother says that she wished the girls could live with her at the time, but that did not come to pass.

5In about November 2013, the girls came to Perth to live with the father, who was living with his parents. The father’s family originally came from [Country A]. The children continued to live with the father and his parents for an extended period of time. The only interruption was for a few days in September 2014, when the mother came to Perth after finishing some drug rehabilitation and then absconded with the children. The father immediately came to court, the matter was immediately listed, and an order was immediately made for the children to be returned to him. As a result, the children spent a few days in City A, apparently living with the mother and the maternal grandmother and her husband.

6Since then, the children have been in Western Australia. They have had no face-to-face contact with the maternal grandmother, but they have been used to talking to the mother and the grandmother by Skype and telephone.

7At the outset of the proceedings, the father made known that he wished to return to Country A. On 15 December 2014, a magistrate gave him permission to file an amended application within 28 days seeking leave to relocate to Country A and an affidavit. The mother was given an opportunity to respond if he did that. Orders were also made for the appointment of an Independent Children’s Lawyer and a single expert.

8The father failed to make his application for permission to go to Country A. The parents then kept their whereabouts secret from the Independent Children’s Lawyer and failed to comply with the requirement to become involved in the process of preparing the single expert report. As a result, this case has dragged over an extended period of time, with very little happening other than the Independent Children’s Lawyer trying to find out where the parents were and issuing a multitude of subpoenas.

9In the meantime, the maternal grandmother, who has always taken a keen interest in the children, sought to become involved in the proceedings and clearly had concerns in relation to the father. These concerns became pronounced when the paternal grandparents went back to Country A last year, leaving the father here without support. The father had been able to make what appeared to be adequate arrangements for the children up until then, because his parents had been providing him with financial assistance. Due to his immigration status, the father cannot receive full social security benefits here. It seems that the father has been doing his absolute best to provide for the children, but his ability to do so is severely compromised by his financial circumstances and he has not been able to maintain stable accommodation.

10The father arranged for the children to be placed temporarily with a female [relative] who is living in [Regional Town B], and who has very generously agreed to take these two young girls into her home. The text message just read to the court by the grandmother in City A, who is taking part by telephone, indicates that the relative is prepared to continue to look after the children at least until the end of this school term, which I think finishes on about 8 April 2016.

11When the maternal grandmother found out that the children were living with the father’s relative, she made an immediate application to the court for the children to live with her in City A. It might have been thought that rather than placing the children with the father’s relative in what could clearly only be a relatively short-term arrangement, the children might have been sent back to the grandmother in City A, who had stable arrangements. However, the father does not have a good opinion of the maternal grandmother because of allegations that have been made about sexual impropriety by him, which he has strongly refuted and which, as I understand the position, have not been found to be substantiated by the relevant department.

12The father wants to live in Regional Town B so he will be near the children, and he told me today that he might be three weeks away from achieving that. The reality is that the court cannot place any confidence in this assertion, given the somewhat unfortunate and itinerant lifestyle that the father has followed since the departure of his parents to Country A.

13Although the court has no information before it to indicate that the relative in Regional Town B is providing anything other than adequate care for the children, the fact remains that she is not a close relative of the children. She is not proposed as a long-term carer of the children, and these two little girls have already had a sufficiently disturbed upbringing for it to be, in my opinion, highly undesirable for them to form the sort of close connection with the father’s relative that I think is likely to occur if they were to remain there.

14As at Monday of this week, it appeared that the only viable option was for the children to live with the maternal grandmother in City A. The evidence available indicates that she has stable arrangements for the children, has been caring for Evan and David over an extended period of time, and would be able to provide a secure base for the children. The difficulty with her as a carer of the children is that she has not recently had any physical contact with them, but fortunately she has communicated with the children by telephone and Skype, and they are therefore aware of her as a presence in their lives.

15Similarly, the amount of time that the children have had with their mother has been severely disrupted, but she has been a presence of sorts in their lives. Although her presence must be a matter of concern given her drug-taking and alleged mental health issues, she is at least a person known to the children.

16The father, having heard what I said on Monday, and no doubt seeing the writing on the wall, subsequently made a proper application for the children to return to live in Country A. He has done a good job in a short period in putting together some evidence to support that application. Regrettably though, he has not served the other parties or the Independent Children’s Lawyer with the documents. It is therefore necessary that they receive the documents, and have an opportunity to consider them and to respond. Also, the documents are not in a form that the court can rely upon because the most important people involved in his proposal, namely the paternal grandparents, have not sworn affidavits supporting the proposal and setting out the arrangements that they might be able to make for the children in Country A. Indeed, the letter attached to the affidavit from the paternal grandmother is not even signed, so clearly those matters have to be attended to.

17Complicating matters further is the fact that the single expert, [Dr N], has yet to provide her report. That is no criticism of her, because the parents failed to cooperate and the father did not see her until about December 2015. Apparently the report is imminent, and in the meantime, she has provided a letter to the court dated 24 February 2016 in which she makes a “preliminary comment”, having had the opportunity to assess the parents and the maternal grandmother. She said:

My preliminary view on a change of residence (which will be reflected in the report) is that if the children were to live with the maternal grandmother then they would be provided with a stable, safe and developmentally appropriate home environment that would be of benefit to their multidimensional needs. There is the advantage that they would be able to re-establish a relationship with their siblings and with the mother. My only concern would be that the mother only have supervised access with the children while she continues to receive psychological treatment for her mental health difficulties. I would think that the maternal grandparents would be well-positioned to provide this supervision. It is my opinion that the maternal grandmother would facilitate contact between the children and both the mother and the father.

From the information available, if the children were to remain living with the father then the children are unlikely to be provided with stable and developmentally appropriate living conditions, as evidenced by the father’s transience in the past. There are indications that the father has at times not chosen safe housing for the children.

18She then goes on to mention the difficulties that the father has had because of his citizenship status and unemployment, and his problems with housing and as a single parent. She went on to say:

It is unclear if this situation would change in the future. I understand from the father that it is his wish that the children relocate with him to [Country A] to be closer to his family. Although the father clearly loves his children and wants the best for them, it is not entirely clear that such a move would be in the best interests of the children. The father appears recently to have moved the children to the north of the state without the prior knowledge of the Court or the other parties. It is not clear why the father would do this without advising, at the very least, the ICL. This is a concern.

Overall, it is my preliminary view (and this will be reflected in the report) that from the information available, it would appear that the best interests of the children would be served by a change in living arrangements to the maternal grandmother.

19This report suffers from the fact that the father’s proposals in relation to the Country A option were not properly articulated, because no application had been made to the court and no evidence had been provided about how the relocation would be in the interests of the children. Now that the father has provided that information, and now that I have given him the opportunity to support it with proper evidence from his parents, it is imperative, in my view, that the single expert have the opportunity to assess the father’s proposals about the Country A option.

20For example, it is not even apparent to me whether the single expert would have been aware of the extent to which the paternal grandparents have played a part in the lives of the children. In fact, their involvement in the lives of the children might be seen as more significant than the involvement of the maternal grandparents, but those are all matters on which I am yet to receive full submissions and about which I have not formed a concluded view.

21I am now in a position where there are only two options currently available for the children. The first is for them to remain living in Regional Town B with the relative, with the possibility that the father might go there in three weeks’ time, in circumstances where the relative seems to be putting forward proposals about the children only remaining with her until the end of the term. The other option is the City A option.

22It is apparent from what I have said that whilst I am troubled by the City A option, I have more concern in relation to the Regional Town B option, because it is not a long-term placement and because of the undesirability of these children forming another close attachment which is very unlikely to be continued on a permanent basis.

23Whilst the grandmother in City A has not been a daily presence or even a regular presence in the lives of the children, all of the evidence indicates a strong interest by her, matched by the strong interest of the paternal grandparents, in ensuring the safety and wellbeing of these children, who have not been well served by the attempts that their parents have made to look after them. The maternal grandmother is one of only two viable long-term placements for the children, and as the Country A option is not yet properly available to the court because of the lack of adequate evidence, it is my decision that until the court can make its decision on an interim basis, the children should go to City A.

24On that basis, I intend to make orders in terms of the minute of orders proposed by the Independent Children’s Lawyer. I do not propose to amend the minute, but I note the advice of the mother’s solicitor that the grandfather in City A is, in fact, the step-grandfather. I also note that the mother’s solicitor has given advice to the mother and spoken with the maternal grandmother about the meaning of the supervised time with the mother. This means that the children are not to be left alone with the mother. She is not permitted to take the children out on her own, and she is not permitted to be in the home with them on her own. She needs to be under the supervision of the maternal grandmother or the step-grandfather at all times that she is visiting.

25The maternal grandmother’s affidavit puts forward a number of proposals about the way in which the children are to be transported from Regional Town B to City A. I am not asked to make a ruling as to which of those is appropriate. The relative in Regional Town B seems to have been conducting herself appropriately and it seems it will be possible for them to come to an agreement about the most appropriate way for the children to be returned. However, if there is any dispute in relation to the matter, it is my view that the maternal grandmother should determine, in consultation with the Independent Children’s Lawyer, which option would be best.

26In terms of the future conduct of the matter, I will make an order that the father file and serve an affidavit of his mother, father and sister within seven days, and promptly serve those affidavits on the two respondents and the Independent Children’s Lawyer. There will be an order that the mother and the maternal grandmother have 14 days thereafter in which to file any evidence in response. There will be a request to the Legal Aid Commission to make funds available to the Independent Children’s Lawyer to fund the extension of the appointment of Dr N in order for her to report on the arrangements proposed by the father and the paternal grandparents for the children to reside in Country A. Although this is not part of the order, I also request that the Independent Children’s Lawyer make sure that Dr N is aware of the amount of time that the children have spent living with the paternal grandparents in Perth. Otherwise, I propose to adjourn the matter, subject to it being a convenient date, for hearing before me [in] March 2016.

I certify that the preceding [26] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate