Denton & Denton

[2017] FamCA 396

FAMILY COURT OF AUSTRALIA

DENTON & DENTON & ANOR [2017] FamCA 396

FAMILY LAW – CHILDREN – RECOVERY ORDER – Consideration of children’s best interests – Where appropriate for recovery order to issue – Where father’s time with children suspended pending further order

Family Law Act 1975 (Cth) ss 60CC(3)(a), 67Q

APPLICANT: Mr A Denton

FIRST RESPONDENT: Mr Denton

SECOND RESPONDENT: Ms Trevor

INDEPENDENT CHILDREN’S LAWYER: Ms Elve

FILE NUMBER: PAC 244 of 2017

DATE DELIVERED: 15 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Gonzalez of Gonzalez & Co

SOLICITOR FOR THE FIRST RESPONDENT: Ms Keabilwe of Lovemore Lawyers

SOLICITOR FOR THE SECOND RESPONDENT: Legal Aid NSW Blacktown Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cairns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Elve of Auslawyers

Orders, Pending further Order

1. Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Polices Forces of all the States and Territories of Australia requiring them to find and recover the children B born … 2003 and C born … 2005 and to return or deliver the said children to the Applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

2. Pending further order, the Applicant paternal grandparents are restrained from permitting or allowing the said children to come into the presence of or spend time with the father pending further order.

3. The father is restrained from approaching or entering upon premises being the children’s present school or their present residence pending further order.

4. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

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 Denton & Denton and Anor 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 PARRAMATTA

FILE NUMBER: PAC 244  of 2017

Mr A Denton

Applicant

And

Mr Denton

First Respondent

And

Ms Trevor

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application that has been listed before the Court with some urgency in circumstances relating to the children, B and C.  B, as at interim reasons for judgment being delivered by Hannam J on 27 April 2017, was 13 years of age and C 12 years of age. 

2. The background in relation to the children’s current circumstances are more fully set out in the reasons for judgment of Hannam J delivered on 27 April 2017 as follows:

   1.This matter concerns 13 year old [B] and 12 year old [C], the children of the respondent father [Mr Denton] (‘the father’) aged 42, and [Ms D] (‘the mother’) who passed away in 2012.

   2.The applicant maternal half-sister, [Ms Trevor] (‘the sister’) aged 22, withdrew from these proceedings on 14 February 2017.

   3.The paternal grandfather, [Mr A Denton] (‘the grandfather’) was given leave to intervene in these proceedings on 14 February 2017.  

   4.Orders were made by consent on 14 February 2017 for the children to live with the paternal grandparents and spend time with the father supervised by the paternal grandparents.

   5.I indicated at the interim hearing that I would deliver a short judgment in relation to the interim orders. This is that judgment.    

   Background

   6.The proceedings were commenced in the Family Court by way of Initiating Application filed by the sister on 20 January 2017.

   7.In her affidavit filed 20 January 2017 the sister alleged that the two subject children of the proceedings were refusing to return to the care of their father on the basis that the father had physically assaulted them and was using and selling drugs at the home.

   8.On that same date as the Initiating Application and affidavit were filed the Registrar granted the sister’s application to have the matter heard on short notice and to dispense with personal service of the father. The matter was listed on 2 February 2017 in the Registrar’s Call Over for the Judicial Duty List and an Independent Children’s Lawyer (‘ICL’) was appointed.

   9.On 2 February 2017 the matter was listed for interim hearing in the Judicial Duty List on 6 February 2017. It was noted that the children were in the care of the sister. The father, who had only just received a grant of legal aid, sought their urgent return.

   10.On 6 February 2017 orders were made for the parties to attend a Children and Parents Issues Assessment. Further orders were made by consent for the children to live with the sister and spend defined time with the father until interim hearing on 14 February 2017.

   11.On this date it was noted by the Court that the father was alleging that the children may be exposed to family violence in the sister’s household.

   12.The Department of Family and Community Services (‘Community Services’) were requested to intervene in the proceedings.

   Child Responsive Program Memorandum

   13.On 10 February 2017 the father, [B], [C], the paternal grandparents and the boy’s 15 year old sister [E] (who has resided with the paternal grandparents since the death of the children’s mother in 2012) attended the Child Responsive Program Assessment Interviews with a Family Consultant. The sister did not attend.   

   14.In the subsequently produced Memorandum dated 13 February 2017 the Family Consultant came to the view that there are concerns the children may be at risk of harm in the care of either the sister or the father.

   15.The Family Consultant made a risk of harm report to Community Services regarding the children.

   16.The father indicated to the Family Consultant that he is currently homeless and is temporarily residing at a motel with his pregnant partner, who has been diagnosed with terminal brain cancer. Neither the father nor his partner are currently employed.

   17.The father also indicated that the sister had voluntarily placed [C] and [B] into his care on 7 February 2017 and had told him that she was no longer seeking that the children live with or spend time with her. 

   18.When interviewed [B] stated that he wants to live with his father and that his sister had bribed him into staying with her because she doesn’t like the father.

   19.[B] admitted that his father uses cannabis on a regular basis.

   20.[B] spoke positively about his father, his father’s partner and his paternal grandparents but claimed that his sister and her partner were verbally and physically abusive towards him.

   21.[C] also indicated that he wanted to live with his father and that his sister and her partner had verbally and physically abused him and [B]. He also conceded that the father “takes weed”. Neither he nor [B] perceived their father’s drug use as an issue.

   22.Regarding the return of the children to their father’s care a few days earlier [B] told the Family Consultant that following an argument in which the brothers indicated they did not want to live with their sister anymore the sister and her partner took them to a friend of their father’s home.

   23.Both children described their sister and her partner taking a baseball bat and knuckledusters with them to the exchange with the intent of using them to harm the father. The children have slightly different versions of events regarding what happened at the exchange but both agree that their sister and her partner attacked their father and the police were called. 

   24.[E] told the Family Consultant that she is happy living with her paternal grandparents and that she sees her father on a regular basis. [E] stated that her father uses drugs but claimed it does not affect his parenting capacity.

   25.The father admitted he uses cannabis on a daily basis and will smoke two to four joints per day. He told the Family Consultant that this does not affect his parenting capacity and that it does not bother the children.

   26.The father further conceded that he had used methadone in the three weeks prior to the interview due to the stress caused by the children being retained by the sister and this is why he had not completed the drug tests required by the court.

   27.The father indicated that he is able to manage the children’s routine and their schooling and can adequately care for [C] and [B].

   28.The paternal grandparents reported that [B] has been diagnosed with ADHD and dyslexia and is in a special class at school. They reported that his behaviour can be “full on” and can influence [C]. They have noticed some aggression lately. 

   29.The paternal grandparents also indicated to the Family Consultant that the father is capable of caring for the children but that he “gives in to the boys a lot”.

   30.Following the conclusion of the interviews the children left with the paternal grandparents.

   Interim Hearing 

   31.On 14 February 2017 the matter came before the Court for interim hearing.

   32.The sister did not attend and in the course of that hearing the solicitor for the sister was granted leave to withdraw from proceedings.

   33.At this stage Community Services had not responded to the request for intervention sent on 6 February 2017. 

   34.The paternal grandfather, with whom the children had been living since the Child Responsive Program interviews, made an oral application to intervene in the proceedings.

   35.The paternal grandfather was given leave to intervene in the proceedings and orders were made by consent of the ICL, the father and the paternal grandparents in the following terms:

   (1)That the children [B] born … 2003 and [C] born … 2005 (“the children”) shall live with the Intervenor Paternal Grandparents.

   (2)That the children shall spend time with the Respondent Father at times as arranged with the Paternal Grandparents and that the time be supervised by the Paternal Grandparents and that the Respondent Father shall be restrained from:

   a)Attending the paternal grandparent’s home unless with the paternal grandparents’ written consent or in the case of a medical emergency directly relating to the children;

   b)Consuming alcohol whilst the children are spending time with him;

   c)Using or being under the influence of any illicit substance whilst the children are spending time with him;

   d)Allowing or causing the children to be in the presence of illicit substances or drug paraphernalia;

   e)Engaging in the procurement or distribution of illicit substances in the children’s presence;

   f)Physically disciplining, hitting or striking the children, or allowing any third party to do so;

   g)Engaging in sexual activity in the presence or hearing of the children;

   h)Denigrating the children or members of the children’s families to or in the presence or hearing of the children.

   (3)That the paternal grandparents shall advise the Respondent as soon as practicable in the event the children suffer a medical illness, accident or emergency whilst in their care including but not limited to the particulars of any relevant diagnosis, treatment and prognosis and the name and contact details for any health care professional or service that may assess or treat the children.

   (4)That the children shall attend [F] School.

   (5)That the Respondent shall submit to chain of custody supervised urinalysis drug testing in accordance with the Australian/New Zealand Standard 4308:2008 procedure for the collection, detection and quantitation of drugs of abuse in urine, at the parties’ own costs, as follows:

   a)Such testing to be requested by the Independent Children’s Lawyer on up to three occasions each month with each test to be at least 5 days apart, within 12 hours of written notice provided either by text message or email to the Respondent’s or his lawyer’s, nominated contact phone number or email address.

   b)The father shall cause the testing results to forthwith be forwarded to the Independent Children’s Lawyer and the other party’s legal representative (or the other party should they be unrepresented at that time).

   c)In the event of the production of a drug screening report that indicates further testing may be required or a possible dilution of testing, then the parties shall undertake such further chain of custody supervised urinalysis testing forthwith and within 12 hours and cause the results of such further testing to be forwarded to the Independent Children’s Lawyer and the other party’s legal representative (or the other party should they be unrepresented at that time).

   36.The Court noted the following:

   A.The Child Responsive Program Memorandum indicates that significant issues with respect to the father’s care of the children are drug and alcohol use, the children’s exposure to family violence and the risks associated with neglect and the father’s current accommodation issues.  The father is strongly encouraged to engage with a family support service that may assist him with the care of his children noting that he proposes that they will be returned to his care after a period of time in the paternal grandparents care.  The father is also encouraged in strong terms to participate in a drug and alcohol rehabilitation program including a long term and/or residential rehabilitation program.  Both the Independent Children’s Lawyer and the father himself and through his legal representative will make enquiries in relation to a suitable family support service and a suitable drug and alcohol program.

   B.The Department of Family and Community Services were invited to intervene in the proceedings on 6 February 2017.  No response has been forthcoming from the Department though it is noted in a Departmental document dated 14 January 2017 that allegations at that stage made against the father “present imminent risk of serious neglect should the father reinstate his care of the children”.  While I am not of the view that the father currently represents an imminent risk to the children under the orders proposed, there are serious risks associated with the father’s current circumstances including his precarious accommodation.  The Department of Housing NSW is requested to urgently assist the father in relation to allocating suitable accommodation to him noting that he intends seeking that the children are returned to his care.

   …

   Matters of concern in the father’s household

   39.The father has indicated to the Family Consultant that he intends to seek that the children are returned to his full time care following a period of time spent living with the grandparents as per the orders made on 14 February 2017. 

   40.The father’s housing situation is the first matter of concern. He is currently living in a motel with his terminally ill, pregnant partner and he has indicated that Housing NSW will be able to find him suitable accommodation in the [F Town] area if the children are returned to his care.

   41.Living in a motel room would not be a stable or practical arrangement as it is unlikely that a room with sufficient beds for two adults and two teenagers would be available on an indefinite basis.

   42.It is also likely to be an expensive and therefore financially unsustainable arrangement, as neither the father is not currently employed nor is there any indication of how he plans to meet the cost of staying in a motel for the foreseeable future.

   43.It is clearly not in the best interests of the children for orders to be made for them to live with their father before he has obtained suitable accommodation through Housing NSW or otherwise. 

   44.The father’s drug use is the second matter of concern. He has admitted to using cannabis multiple times a day and to doing so in the presence of the children. He has also admitted to taking methadone in the recent past following the children not being returned to his care.

   45.While the father, the children and the paternal grandparents have all indicated that the father’s drug use does not impact his ability to care for the children, the fact that the paternal grandparents stated to the Family Consultant that the father is easier to deal with when he has smoked cannabis indicates that he is affected by his drug taking in some way.

   46.It is of great concern that the father becoming stressed caused him to seek out and take methadone, particularly because he has a history of substance abuse. With his partner being terminally ill and pregnant it is likely that the stress in the father’s life will increase rather than decrease in the short term especially if he resumes full time care of the children, one of whom has been diagnosed with ADHD and dyslexia and whose behaviour has been described as “full on”.  

   47.While I am not of the view that the father poses an unacceptable risk of harm to the children if they are to spend time with him, I am of the view that the father’s present housing situation and substance use pose unacceptable risks were the children to reside full time in the father’s care.

   48.Until these concerns have been adequately addressed by the father it will not be in the children’s best interests to live with him.  

3. The present applicant before the Court is the paternal grandfather in whose care – and also in the care of the paternal grandmother – the children were placed by orders made on 14 February 2017. 

4. Circumstances are that subsequent to the children coming into the care of the paternal grandparents, the children have recently been retained by the father who has failed to return them to the care of the paternal grandparents.

5. The orders were made on 14 February 2017 by consent and, yet the matter is again only a short period later with the father’s conduct causing further proceedings before this Court, it would appear, unnecessarily. 

6. On 7 April 2017, the children were at their last day of school for term 1.  They were due to catch the bus home as they usually did in the afternoon with their siblings.  The children were not on the bus as previously the father had attended at the children’s school and removed the children without the knowledge or consent of the paternal grandparents. 

7. The grandparents have had difficulty contacting the father, as has the father’s solicitor today who tells the Court that, notwithstanding endeavours to obtain instructions in relation to the current application, the father has not been able to provide those instructions.

8. The application before the Court is an application seeking the issue of a recovery order pursuant to s 67Q of the Act. It is trite to say that the guiding principle in relation to the issue of a recovery order is the best interests of the subject children. It is clear from the reasons for judgment delivered by Hannam J on 27 April 2017 that there are grave concerns in relation to these children should they remain in the care of the father.

1. The law in relation to interim parenting is well-settled and the Court must move cautiously in relation to significant concerns as to the children’s protection or wellbeing. 

2. That factor, in terms of the protection of the children from abuse comprised in s 60CC(2)(b) of the Act that is to be given primacy, is a determining factor in this matter alone, although a brief consideration of the other relevant considerations reveal an overwhelming conclusion that these children need to be restored to the care of the paternal grandparents.

3. In all of the circumstances, the Court is satisfied that an order should be made pursuant to s 67Q of the Act.

4. In the circumstances of the father’s breach of consent orders, it is appropriate that pending any application by him his time with the children stop and he be restrained from attending their school.

5. Orders will be made accordingly.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 May 2017.

Associate: 

Date:  8 June 2017