Department of Community Services and Britton and Ors

[2008] FamCA 603

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES AND ANOR & BRITTON AND ORS [2008] FamCA 603

FAMILY LAW – CHILDREN - With whom a child lives - Unacceptable Risk to a Child

Family Law Act 1975 (Cth)

APPLICANT: Department of Community Services

FIRST RESPONDENT: Ms Britton

SECOND RESPONDENT: Mrs Simon

THIRD RESPONDENT: Mr Dole

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: NCC 3532 of 2007

DATE DELIVERED: 2 June 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Judicial Registrar Johnston

HEARING DATE: 2 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

SOLICITOR FOR THE RESPONDENTS:

Ms O’Rourke

Legal Aid Commission of New South Wales
Mr Hannigan
Aubrey Brown Partners

Orders

1. That orders are made in accordance with paragraphs (3) and (4) of the application in a case filed by the Director General of Department of Community Services filed 28 May 2008 as below:

   3. That the following orders made by the Local Court on 23 November 2007 be discharged:

   (a)Order 1 – “that the child […] born […] February 2005 [“the child”] live with the applicant [Mrs Simon]”; and

   (b)Order 2 – “that the child spend time with respondent mother [Ms Britton] and at such times and in such circumstances as agreed between the parties subject to [conditions (i) to (iv)].”

   4. That, pending further order:

   (a)the Minister for Community Services have sole parental responsibility for the child including responsibility for her day-to-day and long-term care, welfare and development;

   (b)the child live as directed by the Director General; and

   (c)the child spend time with and communicate with the foster mother Mrs Simon; the respondent mother, Ms Britton; and with her father Mr Dole as directed by and subject to the supervision of the Director General or his delegate.

2. That all parties have leave to re-list these proceedings before Judicial Registrar Johnston on short notice.

IT IS NOTED that publication of this judgment under the pseudonym Department of Community Services & Britton and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3532 of 2007

DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS BRITTON

Respondent

MRS SIMON

Second Respondent

MR DOLE

Third Respondent

REASONS FOR JUDGMENT

1. This is an application by the Director-General Department of Community Services for certain orders in respect of a child who was born in February 2005 and who is therefore three years of age. 

2. There were proceedings in this Court, referred from the Local Court, between the child's mother, Ms Britton, and the child's foster grandmother Mrs Simon. Mrs Simon is the former foster mother of Ms Britton. Those proceedings were instituted by the grandmother and certain orders were put in place by the Local Court on 22 November 2007 to the effect that the child reside with grandmother, Mrs Simon, and spend time with the mother subject to certain conditions.  The substantive aspect of those proceedings is ongoing in this Court.  But the Director-General of the Department of Community Services has sought leave to intervene in the proceedings and that is how the matter comes for this interim determination today. It is said on behalf of the Director-General that this child is subjected to an unacceptable risk in the household of Ms Britton and her parents and therefore should be placed in the care of the Department. 

3. The child's father is Mr Dole.  I am informed that a letter was sent to the father at what is thought to be his address.  The father has not participated in these proceedings.  The father is a person against whom very serious and long-standing allegations are levelled by the mother and also by Mrs Simon. Those allegations include that he has been a person who has perpetrated ongoing acts of serious domestic violence on the mother.  Much of that domestic violence has been in the presence of the child.  And he is a person who, at least as the Court is informed at the present time, poses a very significant risk to the child. 

4. An order was made many years ago in circumstances where, sadly, the mother’s mother had died when the mother was about 12 years of age.  In those circumstances she became a ward of the State and there were arrangements made for her care.  Mrs Simon and her husband, Mr Simon, became the child’s parents and they continue to support her.  Their relationship, that is, the relationship between the mother, on the one hand, and Mr and Mrs Simon, on the other hand, has been tempestuous.  There is sufficient material before the Court at this point to give the impression of a difficult relationship, certainly a difficult adolescence by the mother and, from time to time, exasperation, frustration and loss of patience on the part, particularly in recent times, by her foster parents.

5. Those orders which were made by the Local Court on 22 November 2007 followed a period in which the child had been in the care of the grandparents for a period of four months and extending to something like six months, although not continuously. They had been very much a part of the child's life prior to that time.  I do not propose to give a detailed account of the early history, but it was certainly characterised by quite some years in which the mother and the father continued their relationship.  That broke down and it was in those circumstances that the child came into the care of the grandparents.

6. In any event, the difficulties facing this child in terms of decisions which need to be made about her immediate care are complicated by many factors.  One of the factors which has been very prominent in these proceedings was allegations of sexual abuse which the mother made against her foster father when the mother was about 14 or 15 years of age.  Again I do not have the material at hand at this late stage of the day to refer in details to those allegations. But Ms the mother had alleged that there were four incidents in which she said that the foster father touched her breasts and I think on one or two occasions her vagina.  She said that after the third of those four incidents she complained to her foster mother.  What then transpired was that the foster mother then removed the mother from the family home, made arrangements for them to stay in a motel overnight and, according to either material which I directly read from the foster mother or the material that I have read in a considerable amount of material that is before the Court from the Department of Community Services, the foster mother said by the next morning she did not believe the mother’s allegations. 

7. What subsequently transpired, as one would expect in a case such as that, was that the police became involved and obviously the Department of Community Services.  They put in place what has become known to me, and no doubt others in the field, of the usual investigation mode, which is to have the joint investigation team comprising officers of the Department and the Police, undertaking investigations.  While there is some detailed material in respect of those matters available, suffice it to say that during the course of those investigations it was decided that charges would be laid against the foster father.  I understand that ultimately charges were laid and it was everybody's expectation that he would face a criminal court.  In fact I think things moved to the point where there was a court a date appointed.  But prior to the matter coming on for trial and in about early September 2004 the mother withdrew her allegations about the behaviour of the foster father. 

8. The circumstances of the mother withdrawing her allegations have been the subject of considerable submission even at this early stage of the proceedings.  The mother said that she made up the allegations as part of a strategy to no longer have to live with the foster parents.  She said that there had been a lot of difficulty and a lot of upset in the household.  She said that at that time she was in a relationship with the father and that the foster parents did not like Mr Dole.  She had become pregnant.  She said that she was still upset over the death of her mother and that she felt pain and that she wanted her foster parents to feel real pain. 

9. That is regarded with suspicion on behalf of the Department.  The Department says the Court would be cautious indeed about accepting that as the true explanation of what occurred, given the detailed matters which have fallen from the mother initially and also throughout the investigation.

10. This is a very difficult matter for the Court to deal with and particularly at this stage in terms of trying to make some finding about the likelihood of whether this did occur or did not occur.  During the course of the very strong submission by learned solicitor for the mother it was said that, on the basis of what is available if this Court was called upon to make a finding ultimately about whether there was sexual abuse to the mother, that it would find itself in the position where it was unable to make a positive finding.  I would accept that submission, at least at this stage of the proceedings.

11. The corollary is that I am not in a position to be able to dismiss that allegation, certainly not having been able to observe either the mother or either of the foster parents in respect of this matter, or to be in a position to test the evidence of anybody else that might be able to shed some light on this.  There was a conversation with at least one other person, the person whom the mother was speaking to as referred to in her affidavit.  It may be that that person ultimately files an affidavit.  So it seems to me that the Court should exercise considerable caution in respect of that matter. 

12. The matter which seems to have precipitated these proceedings was a telephone call in February 2008 from the foster mother to the Department of Community Services informing its officers that the foster mother proposed to hand over the care of the child to her mother because she was sick and tired of the mother's intimidation and harassment of her and the foster father. The care of the child was costing her lots of money and she was not receiving any government assistance.  That then was followed by a process of interviews by Departmental officers of the foster mother.  At the interview a couple of days later the foster mother said that she had concerns that the father only be permitted supervised contact.  Everything that has emerged before me would indicate that there would be real concern about other than supervised contact between the child and the father.  But significantly, at that interview on 4 February, the foster mother also said that she was prepared or thought it was in the child's interest for the mother to have visits, provided that the mother was “stable”. 

13. On 7 February 2008 there was a further interview with departmental officers.  The foster mother said that the mother had moved back to her home.  The foster mother said that she was the person who continued to have the responsibility for the child's care.  One of the matters which disturbs me about the case is the fact that in March this year the police had been called out to the home of the foster mother and the mother and the child and the foster father in circumstances where there was obviously a serious argument being conducted between the mother and the foster mother. 

14. Another matter of real concern is that during a recent interview of the mother by the Department it became clear that the mother, notwithstanding all the complaints that she made about the father, her concerns about the child being with the father and her not being prepared to bring the child into contact with the father, actually went to Sydney and stayed with him for a week over Easter.  That is a matter which I would have thought would cause concern and it is certainly a matter about which the Department is concerned. 

15. The Department says that this is evidence that the mother really does not have any insight into the risk of exposing the child to the father.  In turn, the mother has said that her assessment of the father when she spent a week with him in Sydney over Easter was that he has really done what she described as a complete 180 degree turnaround through counselling and mediation.  So we have the spectre of this person against whom very serious complaints in terms of his violent behaviour had been made suddenly turning around through a process of imprisonment, counselling and mediation.  It seems to me against the background of the evidence of very serious behaviour by the father one would have to take a fairly thorough approach to challenging that before one would be confident that in fact that was the case. 

16. The other complaint which the Department makes against the mother is that in very recent times, again during the course of the interview process in the last few weeks, the mother left the child with her new boyfriend, Mr A.  He is a person about whom neither the Department or this Court has any knowledge, other than that the mother says that she has been in a relationship with him for some little time. 

17. What is proposed by the mother is that she continues to live with the foster parents in an endeavour, she says, to try and put some substance under herself in terms of being able to eventually obtain a home for herself and the child.  It is said that the various risk factors as identified by the Department of Community Services, including allegations made by the mother of child sexual abuse by the foster father, have never been ventilated.  The allegations about the domestic violence, include not only the domestic violence alleged to be perpetrated by the father against the mother and a long history of violence in the presence of the child, but also serious upset and some level of domestic violence in the household comprising the foster parents and the mother.  It is said that the mother has in her background the use of ice amphetamine and marijuana, that there have been some alcohol problems and what is broadly described by the department as an unstable situation presented by the foster parents and the child's mother for the child. 

18. In order to address those matters, without any admissions, the learned solicitor for the mother has placed before the Court a minute of orders which it is submitted would provide the Court with some confidence that if the child was left in the household of the mother and the foster parents there would be various safeguards.  These would be that the mother would be prepared on a without admissions basis to have an order made, the effect of which would be to restrain her from leaving the child in the sole care or sole supervision of the foster father.  The mother and the child would continue to live with the foster parents.  The mother would be restrained from bringing the child into contact with the father, that the mother would enrol, attend and complete a domestic violence course at times and dates as directed by the service.  That on a without admissions basis the mother would be restrained from consuming any illegal drug or drinking alcohol to excess.  And on a without admissions basis the mother would attend on a urinalysis screen with a secure chain of custody within 24 hours of being requested by the Department of Community Services and provide the results to the legal representative of the applicant grandmother, the Director-General of the Department of Community Services and the Independent Children's Lawyer. 

19. I am not going to slavishly refer to provisions of Part VII of the Act, other than to note that this is very much a case in which it is the mother's capacity, or to put it in the Department's terms, the mother's lack of capacity, the history of family violence, the serious allegations that were made against the foster father, which are really the matters under s 60CC(3), which have propelled their application.  On the other hand there is a very strong submission in support of the Court not acting at this point to take the very serious action which it is said would be involved for the child.  It is submitted that the Court not take that action at least until a separate legal representative has been appointed for the child and the mother and the foster parents and any other witnesses in the mother's case have had sufficient time to prepare and file and serve affidavits. 

20. In that regard, I made orders on the earlier occasion, which was 23 April 2008, to the effect that the Director-General of the Department of Community Services file any application for leave to intervene in the proceedings, together with their affidavits, not later than 23 May 2008.  I made another order, the effect of which was to require the mother to file and serve a response and affidavits not later than 28 May.  So that would have given five days for the mother to respond to the Department's application and particularly any evidence.  Unfortunately, that did not occur. In fact the Department's material was only served on the mother on 28 May, which has not left sufficient time for the mother to be able to prepare affidavits.  And I make similar observations in respect of supporting material, which it is pretty clear would have been filed by the foster parents.

21. But by way of explanation the Department has pointed out that they had some difficulty making interview appointments with the mother, that they telephoned her at times would have enabled them to prepare the material that they needed to prepare to support their application in time to meet the deadline and then leave sufficient time for the mother to file her material.  Unfortunately, through much difficulties, that deadline as set out in my direction has not been able to be met. 

22. So the question then arises is, would things be different if the mother and the foster parents had recent material before the Court. That is possible, however in my view, things have reached the point where the Court should act.  It is a very serious matter to remove a child from a person or persons with whom the child has almost certainly most closely bonded.  And that would be the case in this case.  The child has lived for most of her life with her mother, subject to periods when she has lived only with the foster parents.  As I have said, she has spent a very considerable amount of time and lived a very considerable amount of time with the foster parents. 

23. So that in the absence of other significant matters would really underline the importance of leaving the child in the care of the mother and the foster parents. To remove the child from her mother and the foster parents against that background and in circumstances where the child at this point would be regarded as being most closely bonded with them may have the very serious consequence for the child, probably most likely have the very serious consequence for the child, of causing her a great deal of distress and causing her psychological and emotional distress.  So that is something which one would think an order to remove her into the care of the Department would almost certainly involve. 

24. On the other hand, is it in the child’s interests to leave her in the circumstances of the household with all the deficiencies, if I can describe them as such, and in circumstances where as recently as February the foster mother was ringing the Department, as recently as March the Police were involved and as recently as Easter the child was being exposed to the father Mr Dole? In my view, to leave this child with her mother and the foster parents would be an unacceptable risk.  I have given considerable thought to weighing those respective risks.  The risk to the child's psychological and emotional welfare on the one hand of removal, the risks in that regard if she is left where she is, possible physical risks to her, as well as the real likelihood, in my view, of continuing to be exposed to domestic violence in the household of the foster parents and the mother.

1. In those circumstances, in my view, the application by the Department is to be accepted. 

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Judicial Registrar Johnston

Associate: 

Date: