Clover and Bartlett and Ors

[2018] FamCA 1053

FAMILY COURT OF AUSTRALIA

CLOVER & BARTLETT AND ORS [2018] FamCA 1053

FAMILY LAW – CHILDREN – INTERIM – contested residence – where the child has suffered serious injuries in the mother’s care – where the mother is facing criminal charges of assault occasioning bodily harm and cruelty to a child – where the child was placed in the care of the father – where the child and father now reside in Northern Territory – where the mother seeks a recovery order and the child live with her in Queensland – where the maternal grandfather seeks the child return to live with him in Queensland – where the Department is a party to the proceedings – where the Department seek no further involvement in the proceedings – where the Court finds there is a risk to the child being in the unsupervised care of the mother – orders made for the child to remaining living with the father in the Northern Territory – where the Court would consider physical supervised day time between the mother and child in the Northern Territory.

Family Law Act 1975 (Cth) s.60CC

Goode & Goode (2006) FLC 93-286
Banks & Banks (2015) FLC 93-637
Sampson & Hartnett (No 10) (2007) 38 Fam LR 315
Adamson & Adamson (2014) FLC 93-622

APPLICANT: Mr Clover

FIRST RESPONDENT: Ms Bartlett

SECOND RESPONDENT: Department of Child Safety, Youth and Women

THIRD RESPONDENT: Mr Bartlett

FILE NUMBER: BRC 2779 of 2018

DATE DELIVERED: 22 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 22 November 2018

REPRESENTATION

NO APPEARANCE BY THE APPLICANT

SOLICITOR FOR THE FIRST RESPONDENT: Neilson Stanton & Parkinson

COUNSEL FOR THE SECOND RESPONDENT: Mr R. Danen

THE THIRD RESPONDENT APPEARED IN PERSON

INDEPENDENT CHILDREN’S LAWYER:

Mr N Grainger

Legal Aid Queensland

Orders

1. That the mother’s application for a Recovery Order be dismissed.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child, X born … 2016 (“the child”) live with the Applicant father.

2. That the father be permitted to live with the child in Northern Territory.

3. That the child spend time and communicate with mother by Facetime or other electronic means, including by telephone in accordance with Order 9 of the Orders dated 2 July 2018.

4. That by no later than 4.00pm on 7 December 2018, the mother provide to the Independent Children’s Lawyer and the father, through the Independent Children’s Lawyer, a minute of order in which she identifies what time she could spend with the child physically in the Northern Territory.

5. That the Independent Children’s Lawyer make every reasonable endeavour to engage the father in discussion as to the orders for supervised time between the child and the mother, and its capacity to be facilitated in Darwin.

6. That the mother or her solicitor on the Court record shall keep the Independent Children’s Lawyer informed of the progress of the mother’s legal proceedings.

7. That the Department of Child Safety Youth and Women be discharged as a party to these proceedings.

8. That these proceedings be adjourned for Case Management Hearing at 9.30am on 19 December 2018 in the Family Court of Australia at Brisbane.

9. That the father be granted leave to appear by telephone on 19 December 2018.

10. That the Independent Children’s Lawyer be at liberty to apply to have the proceedings re-listed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Clover & Bartlett and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 2779 of 2018

Mr Clover

Applicant

And

Ms Bartlett

First Respondent

And

Department of Child Safety, Youth and Women

Second Respondent

And

Mr Bartlett

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. These proceedings have taken a tragic and unfortunate twist as a result of allegations, which are yet to be proved in the criminal court, that the mother of a child, X born in 2016, assaulted the child occasioning grievous bodily harm.  The mother’s partner at the time of the alleged offences in the period before August 2017, Mr B, has also been charged, it seems, with similar offences, namely, cruelty to a child under the age of 16 and five separate counts of assault occasioning grievous bodily harm.

2. The mother, who is 24 years of age, prior to the removal of the child from her care in August 2017, had clearly been the primary carer of the child.  The evidence, which is not seriously in dispute, appears to be that the father, for whatever reason, had little time with the child.

3. The fact that the child suffered serious injuries does not seem to be in doubt.  The annexures to the Affidavit of Ms C, a departmental officer, tendered to the Court on 2 July 2018 but referred to in the Affidavit of Ms C filed 27 June 2018, contains a Departmental note that identified that on 30 August 2017 the Department received information from a Queensland hospital that on examination the child, who, it must be recalled, at that stage, was some 18 months of age, had the following injuries:

   ·“L cheek bruising;

   ·extensive bruising to R ear and behind ear – Haematoma.  Blood in ear canal

   ·Small old bruises to back, R arm and leg

   ·R forehead abrasion

   ·R nostril bleeding

   XRays at SCUH:

   1mm depressed mildly comminuted fracture to parietal bone of the skull

   Un-displaced L distal radius mid-shaft fracture.”

4. The Department’s officer, Ms C, spoke with Senior Registrar, Dr D, on 31 August, and the report notes (but this evidence, of course, has not yet been tested) that:

   ·The injuries to [the child] were likely to be non-accidental.

   ·This is assessed because [the child] has injuries to both ears (on either side of head).

   ·The injuries to both sides of [the child’s] head are difficult to explain in the context of [Ms Bartlett’s] explanation of the mechanism of the injury.

   ·[The child’s] skeletal survey came up with possible abnormalities which they are going to look into further via a bone scan that is likely to happen that afternoon.

   ·The bone scan will pick up more recent fractures.

   ·[Ms Bartlett] has provided three versions of the event that she states caused the injury.”

5. The Court has not, of course, had an opportunity to review the medical evidence and, even more so, has not had the chance to hear cross examination of any medical examination.  What is clear, though, as a result of these very serious injuries to this quite young child, the Department on or about 31 August 2017 removed the child from the mother and took the child into care.  Thereafter began a period of investigation and assessment by the Department in accordance with their statutory function.  I am satisfied that by 15 December 2017 and with the support of an earlier child welfare order made by the Queensland Children’s Court through, I suspect, the O Town Magistrates Court, the Department had formed the view that the best care arrangements for the immediate future were for the child to live with the father.

6. I accept that the mother and her father, Mr Bartlett, who has now intervened in these proceedings, say that up until December 2017 the child had little time with the father and, it is reasonable to infer, little relationship with him.  At the time the Department made the decision, as they were lawfully entitled to do, about where the child should live.  the child had been in foster care since late August to approximately 15 December, and during that time was having, as arranged by the Department and with the foster carers, no doubt, support and facilitation, visits between the child and both her mother and father.  The Department considered whether Mr Bartlett, the maternal grandfather, who is a man in his fifties; works full-time and does not have any adverse history that the Court is aware of, was a possible candidate for care of the child.

7. Doing the best they could on the information, no doubt, available at the time, the Department elected to make the decision that the child be placed in the care of her biological father.  There is evidence that suggests that the father, even though he had not had significant time with the child during her lifetime to that date, when approached by the Department, he living in Darwin at the time, almost immediately came to Queensland with his mother.  That was a particularly strong show of support and insight for the best interests of the child.  That occurred, it seems, even before he had been selected as being the interim carer of the child.

8. No doubt, through this whole period this young mother, who since these events have developed, not surprisingly, has ceased her relationship with Mr B against whom she has a domestic violence order and upon which breaches have already occurred.  Regrettably, she has been distressed by the lack of time she is spending with her daughter.  Her father, who is supportive of his daughter through both her criminal proceedings and these proceedings, wants to do what he can to help his granddaughter.  It is in that context that this Court got involved, commencing with an application actually brought by the father, with the support of the Aboriginal and Torres Strait Islander Service on 14 March 2018, in which he identified that not only should the child live with him but at paragraph 2 of his Initiating Application filed 14 March 2018 - “That the father and child be permitted to relocate and live together in the Northern Territory.”

9. At that time, it may not have been possible for the Court to make that order depending on the currency of the child welfare order.  Nonetheless, he did not relocate to the Northern Territory at that time, and although the mother in her Response, initially filed on 8 May 2018 with the benefit of legal representation, opposed the relocation, no order was made restricting the father from leaving Queensland and moving to the Northern Territory.  That is important, in my view, because, as the father says in his own material, having taken legal advice he was aware he was not restricted, as a matter of law, from returning to the Northern Territory where he had been living but six months earlier.

10. When the Department became aware that the father had moved, and it seems at least open on an interim basis to identify that the father did not seek their approval before he left, the Department did not have any immediate concerns.  On 14 June 2018 they, in fact, appeared before a Magistrate in respect of the child welfare aspects of the matter and sought a change to the type of order which, effectively, did not provide any restrictions on the father but sought a directive that the mother’s time with the child always be supervised.  The mother, again becoming aware of the father’s movement to the Northern Territory, with which, of course, I accept she does not agree, brought an Application in a Case on 19 June 2018.

11. Her Application, which is before me today as well as the father’s initial Application, which has not otherwise been dealt with, sought a recovery order and at paragraph 4 sought an order that “Should the father choose not to return to the state of Queensland with the child that the child live with the mother until further orders are made.”

12. It seems, at least at that stage, the mother’s view was that she was an appropriate candidate for residence.  It is not clear to me when the mother and/or her family might have understood the concerns that the Department had echoed about the potential risk the mother posed to the child because it was on 19 July 2018 that the maternal grandfather, Mr Bartlett, sought orders that the child live with him.  I accept that there had been an earlier interlocutory application for him to be joined as a party which had been approved by Senior Registrar Spink.  That being the history that has occurred to date, much of which is not in dispute, the Court is today being asked to consider whether it is in the best interests of the child, which is the paramount consideration but not the only consideration, to:

    a)continue to live on an interim basis with the father in the Northern Territory; or

    b)be required to return to Queensland to live with the maternal grandfather.

13. Mr Nelson, who is the legal representative for the mother today, acknowledges that the recent upgrading of charges against the mother, which occurred on or about 28 September 2018, make it not feasible at this stage for the mother to be a candidate for residence as she sought to be when she filed her Response.  Mr Bartlett, who represents himself today, fits the description of a caring and loving grandfather and parent.  He is, of course, troubled by the injuries to his granddaughter and represents the maternal family who he says are missing their time with the child and want to be part of her life.

14. His application for the child to live with him is, in all respects, a temporary order being sought, his hope being that the mother’s acquittal of the serious criminal charges against her will open the way for the child to return to her care as the primary carer.  Depending on what decision the Court makes as to where the child shall live, issues arise as to the time the child should spend with those persons with whom she does not live.  The competing proposals are clear from the exchange today.  A further difficulty in this case is that the father has not appeared.  It is apparent from the order of Senior Registrar Spink on the last occasion the matter was before the Court on 18 October, when the father again did not appear, that there was a likelihood the father would not appear today.

15. In those circumstances, when the interim parenting application was adjourned for hearing before me today the senior registrar ordered “That if the Father does not appear on the adjourned date the interim applications will be heard in the absence of the Father.”

16. The Senior Registrar also directed that the Department of Child Safety, Youth and Women file and serve prior to the adjourned date “…their proposal for an interim parenting arrangement for the child that in the opinion of the Director-General is in the best interest of the child.”  That has been done.  The Department has indicated that once today’s proceedings have been completed, they will seek to be removed as a party as they are not seeking any orders in respect of this matter, and with the child currently out of the jurisdiction there is no utility in them continuing to be a party in the proceedings.  I agree with their position.  I have explained to the parties that on an interim basis, which is a truncated hearing where serious issues in dispute are rarely able to be tested adequately and where findings in respect to such issues can only be cautiously made if at all, that after the Court decides what are, within the well-known authorities of Goode & Goode (2006) FLC 93-286, shaped further by the Full Court decision in Banks & Banks (2015) FLC 93-637 after the Court has decided what are the competing proposals, which I have identified, and has considered the agreed facts the Court should look at the disputed facts within the matrix of the relevant Section 60CC(2), primary considerations, and s.60CC(3) additional considerations, as far as relevant.

17. With that guidance from the Full Court, I make the findings which follow.

18. I accept that the child has been in the primary care of the mother before the events that removed the child from her care on 31 August 2017.  The seriousness of the charges and the fact that they are unresolved means at this stage, on an interim basis, I am satisfied that there is a potential risk to the child if the child is in the primary or unsupervised care of the mother.

19. As I say, the criminal court will very carefully, no doubt, look at all the evidence available.  The mother intends to defend those charges and has retained legal representation to do so.  She hopes that the criminal charges will be dealt with by the District Court in O Town towards the middle to second half of 2019.  I hope, for the mother and the child’s sake, that that expedient justice can be delivered to her so that these serious matters can no longer hang over the head of this 24 year old mother or these proceedings.  Although the father has had little time with the child before December 2017 the evidence before the Court at this stage does not raise issues that cause me significant concern about this capacity now to meet the child’s needs.

20. The mother, of course, had a domestic violence order against the father, that order having been made in 2016, which expired in 2018.  There is no evidence that the order was the subject of any breach applications.  The mother says that the father has a habitual use problem with cannabis, something to which she acknowledges she has also been a user of.  I take that into account.  It has been difficult, on the evidence at the moment, to determine entirely what is happening in the Northern Territory.  Certainly Ms C, the departmental officer, consistent with the order of Senior Registrar Spink, gives reasons why she believes it is in the best interests of the child that the child remain in the care of the father in the Northern Territory and in that appraisal does not raise any concerns about the father’s current care.

21. It seems that while she was in the position to assess aspects of that care before the father moved in June 2018 she has, to some degree, relied upon the home visit conducted in or about July 2018 by Territory Families.  Their report is attached to the affidavit of Ms C filed 20 November 2018.  I acknowledge that report is now some four months old.  Nonetheless, there is nothing in that report that raises concerns, and, in fact, what the report did indicate is that the father is supported by a number of people in his extended family who live in proximity to him in what seems to be some form of family plot at Humpty Doo some 45 minutes south of Darwin.

22. To the extent that there are criticisms of the father in the family report by Ms F arising from interviews which took place before the report writer on or about 4 September 2018 resulting in the report dated 5 October 2018, those opinions have to be seen within the context of some limitations, in my view.  Firstly, Ms F did not have the opportunity to personally meet the father or to see the child with the father or, for that matter, with the mother.  It seems apparent that Ms F drew an adverse inference against the father for not attending.

23. The father gave an explanation, namely, that a flight with Tiger Airways had been cancelled at short notice.  I am not aware whether that is the case or not.  It also seems that Ms F took the view that the father was not appropriately facilitating telephone time between the child and the mother.  I am not able, on the current evidence before me which included a second Affidavit by Mr Bartlett in which he deals with some of those telephone time problems, that I can make that finding at this stage.  I accept that there are likely to be problems arising in telephone communications between a remote location in the Northern Territory and O Town but that it seems, on the evidence, that most of the three weekly telephone calls have been taking place.

24. I accept that this telephone time is nothing like sufficient time for the child and the mother to maintain their relationship, but, bearing in mind the distances, that is what has been achieved to date.  Section 60CC(2)(b) must be given greater weight than what the Parliament regards is the other additional consideration prescribed at s.60CC(2)(a), namely the benefit to the child of having a meaningful relationship with each of its parents.  I am satisfied that it is of benefit to the child to have a meaningful relationship with the mother as she had up until at least 31 August, but it must be safe, and that risk factor presents itself very boldly in this case at this stage.

1. In looking at the competing proposals for residence now before the Court, namely, the father, although not here, and Mr Bartlett, as I explained to Mr Bartlett as best I could today, there are advantages and disadvantages of the child being required to return to Queensland.  I make these further observations:

2. Whilst the Court has the power to order a parent coercively to return to a place it is a power that is not utilised often and clearly offends the Constitution which allows citizens an absolute right of movement. As the Full Court identified at Sampson & Hartnett (No 10) (2007) 38 Fam LR 315 and Adamson & Adamson (2014) FLC 93-622 it is a power which should be sparingly used.

3. In circumstances where the mother is not, on an interim basis, a candidate for care, based both on the evidence of the report writer, the Department and my own assessment, then, what I am being required or asked to do by the mother and her father, Mr Bartlett, is to disrupt the child’s living arrangements in the Northern Territory, which has been in place since June 2018; require the child to live with Mr Bartlett, which would be, in a sense, a coercive order almost compelling the father to come back to South East Queensland and the purpose of doing so would be to have the benefit for the child of more regular time with both the mother, although supervised, and the extended maternal family.  The father gives no indication of any desire to return to Queensland.  He had a choice to stay here.

4. He was not obliged by law to stay here.  At the time of these events of December 2017 he was living in the Northern Territory.  He has returned to where he has been living.  In my view, it would, on an interim basis, be contrary to the child’s best interests to disrupt the care arrangements which are currently in place and which, on the available evidence, appears to be progressing well.  By saying that I do not suggest that this child would not be missing her mother.  I do not suggest this child would not be missing her loving grandfather and other extended family, however, her day-to-day needs are, it seems on the evidence, being met by the father in a stable environment with support.  This support the father did not have in Queensland for the nearly six months when he was here moving from home, amongst relations, amongst friends or otherwise in paid accommodation.

5. In my view, this child needs stability.  The child at this stage has that stability.  In those circumstances and bearing in mind that there are practical difficulties with the mother and/or extended family exercising time to see the child in Darwin, and further bearing in mind that the child is too young to really express a wish and having already made observations about the strength of the mother’s relationship with the child probably being stronger than that of the father, although it is hard to assess, I am comfortably satisfied that the application for recovery order would be contrary to the child’s best interests and must be dismissed.

6. In my view, it is in the best interests of the child on an interim basis that the child live with the father in the Northern Territory, and I propose to so order.  It is not a matter where I believe I need to make any orders in respect of parental responsibility on an interim basis, and I choose not to do so.  Of course, if the father was visiting Queensland, if that was a possibility, I would expect that the maternal family should have some time with the child, and the mother could have some supervised time with the child.  It is not possible today to explore whether that is a likelihood for this father, and I cannot force him to come here.

7. Sensibly, Mr Nelson took instructions from his client, who works in the hospitality industry in O Town.  She desperately is missing her daughter, and even though she is speaking to her three times a week, apparently in some form, where possible, that is not the same as physical contact.  In my view, the only physical contact arrangement that could work is that the mother would have to go to the Northern Territory and spend some time there where repeated visits of a physical nature could be possible.  On the current state of the evidence, my view would be that such supervision would need to be undertaken by an independent person.

8. Again, I cannot lose sight of the fact that the mother stands charged with some very, very serious offences, including assaulting this child.  I do not know about the mother’s capacity of going to the Northern Territory; for how long she could stay, all those sorts of things.  I am prepared to consider orders for supervised time in the Northern Territory, if there is an opportunity before Christmas, for the mother to identify her availability with or without her father or other members of the maternal family to go Darwin and spend some time there.  If, for example, the mother is able to spend a week in the Northern Territory I could see myself, subject to any further submissions, having at least, over seven days, visits for six of those days.

9. Visits would have to be during the day.  I would not be prepared to contemplate overnight time, however the capacity to achieve this, maybe even with the support of Territory Families - I am not suggesting they can do it – or with some commercial organisation through a local contact centre, are all things I do not know are available.  I would expect the Independent Children’s Lawyer to contemplate that and get some information by the next occasion.  So the orders I propose to make today are that on an interim basis pending further order:

   a)the child, X live with the father;

   b)the father be permitted to live with the child in the Northern Territory; and

   c)the child spend time and communicate with the mother by FaceTime or other electronic means, including telephone in accordance with the order made by the Court previously.

10. I will direct that the Independent Children’s Lawyer make every reasonable endeavour to engage the father in a discussion as to the orders for supervised time and its capacity to be facilitated in Darwin.  I encourage the Independent Children’s Lawyer to invite the father to seek legal advice either from Legal Aid Northern Territory or the Aboriginal and Torres Strait Islander Legal Service.  I direct that the father appear by telephone on the next occasion.  I discharge the Department of Child Safety, Youth and Women as a party to these proceedings.

11. I am going to direct that the mother provide to the Independent Children’s Lawyer and to the father, through the Independent Children’s Lawyer, a minute of order in which she identifies what time she could spend with the child physically in the Northern Territory.

12. I also order that the mother or her lawyers on the record shall keep the Independent Children’s Lawyer informed of the progress of the mother’s criminal proceedings.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 22 November 2018.

Associate:

Date:  12 December 2018