Department of Family and Community Services and Dibbs and Ors

[2015] FamCA 336

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & DIBBS & ORS [2015] FamCA 336

FAMILY LAW – CHILDREN – Proceedings brought by the Secretary, Department of Family and Community Services – Child welfare provisions – Best interests – Parental responsibility – Unacceptable risk of physical or psychological harm from neglect – Right to enjoy aboriginal culture

Family Law Act 1975 (Cth)

APPLICANT: Secretary, Department of Family and Community Services

FIRST RESPONDENT: Ms Dibbs

SECOND RESPONDENT: Mr Dibbs

THIRD RESPONDENT: Ms Bancks

FOURTH RESPONDENT: Ms Cooch

INDEPENDENT CHILDREN’S LAWYER: Phillip Wilkins

FILE NUMBER: PAC 1157 of 2011

DATE DELIVERED: 28 April 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 28 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Giacomo

SOLICITOR FOR THE APPLICANT: Nicholas Martin, New South Wales Crown Solicitor

SOLICITOR FOR THE FIRST RESPONDENT: Ms Khalil (amicus)

SOLICITOR FOR THE SECOND RESPONDENT: Not represented

SOLICITOR FOR THE THIRD RESPONDENT: Ms Rysiok of Aboriginal Legal Service (NSW/ACT) Limited

SOLICITOR FOR THE FOURTH RESPONDENT: Mr Taylor of Rafton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wilkins of Phillip A Wilkins & Associates

Orders

1. By consent, all previous parenting orders in relation to B born … 2006, C born … 2007 and D (known as D) born … 2000 (“B, C and D”) are discharged.

2. By consent, until further order the Secretary, Department of Family & Community Services has parental responsibility for B, C and D.

3. By consent and until further order, B, C and D live as directed by the Secretary, Department of Family & Community Services.

4. By consent, orders 1 to 3, so far as they relate to B and C are effective immediately and orders 1 to 3 in relation to D are to commence upon the expiry of the current Emergency Care and Protection Order.

5. All previous parenting orders in respect of E born … 2009 (“E”) are discharged.

6. Until further order, the Secretary, Department of Family and Community Services has parental responsibility for E.

7. Until further order, E live as directed by the Secretary, Department of Family and Community Services.

8. The Independent Children’s Lawyer has liberty to relist the matter on short notice in relation to any matter the Independent Children’s Lawyer thinks appropriate.

9. The matter is adjourned to 1 June 2015 at 9.30am for further callover.

10. Any Amended Application or Response should be filed and served by Monday, 25 May 2015.

11. By consent, the Fourth Respondent (“Ms Cooch”), undergo a urinalysis test within 24 hours of being notified by the Independent Children’s Lawyer of the requirement that she undertake such testing.

    (a)The Independent Children’s Lawyer request that the Ms Cooch undertake such tests upon 24 hours’ notice on no more than one (1) occasion per month.

    (b)Such testing is to be at Ms Cooch’s expense in its entirety.

    (c)The test results are to be made available to the Independent Children’s Lawyer immediately after the test has been concluded and the results are known.

    (d)In the event such testing reveals the presence of any illicit substance then the matter may be relisted upon forty-eight (48) hours’ notice and until the matter has come before the Court, any time with E may be suspended.

    (e)In the event Ms Cooch does not undertake the test within the time specified then the matter may be relisted upon forty-eight (48) hours’ notice by the Independent Children’s Lawyer and Ms Cooch will be required to provide compelling reasons why she did not take the test and why time with E should not be suspended.

Notation

1. The Secretary intends to facilitate Ms Cooch spending time with E acknowledging that Ms Cooch has been E’s primary carer throughout her life.

2. Each of the parties must be in a position on 1 June 2015 at the callover to have determined the final orders sought and the witnesses upon whom they intend to rely so that an accurate period of time for hearing can be determined and the matter to be fixed for hearing without further delay.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1157  of 2011

Secretary, Department of Family and Community Services

Applicant

And

Ms Dibbs

First Respondent

And

Mr Dibbs

Second Respondent

And

Ms Bancks

Third Respondent

And

Ms Cooch

Fourth Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application made by the Secretary of the Department of Family and Community Services for orders to be made in relation to a five year old child, E.  E is the sibling of three other children of the parents in respect of whom orders have been made, placing each of the children under the parental responsibility of the Minister for Family and Community Services.

2. The position for E has been somewhat different than for her siblings as whilst the siblings have been cared for by a range of family members at various times throughout their life, E was effectively placed in an informal care arrangement with an unrelated person, Ms Cooch, when she was an infant.  There is no dispute that Ms Cooch for all intents and purposes has been the consistent parent for E.

3. Ms Cooch in these family law proceedings is seeking final orders allocating parental responsibility for E to her and that E live with her and a range of other associated orders.

4. E has also been living with Ms Cooch under an interim order made by the Federal Circuit Court while these proceedings have been on foot.  In that regard, the application by the Department to have E taken into the care of the Minister is an application which will dramatically alter E’s circumstances.  It is clearly one which the Secretary does not lightly make.

5. These proceedings are proceedings in which the Secretary has been involved for some time having been invited to intervene following the preparation of a Family Report which was released in September of last year.

6. It suffices to say that that Family Report paints a picture sadly of a very dysfunctional family constellation where there are significant child protection and safety concerns and the recommendation of the Family Consultant was that the Department be invited to intervene.  Since intervening, events have changed somewhat and some immediate concerns about the safety and care of each of the children have prompted the Secretary to seek the orders that have been sought, that is, placing the children under the parental responsibility of the Minister.  As I indicated in relation to the other children, all of the relevant parties, except for the father who has not participated in these proceedings in recent times despite being served with the various applications, have consented to those orders.

7. So far as E is concerned, it is Ms Cooch’s position that as E has an established relationship with her and as she has been caring for her adequately and appropriately throughout her life E should remain with her.  This position is supported by E’s mother.

8. The Department on the other hand brings the application primarily because of the primary consideration set out in the Act that E needs to be protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and at this stage the significant issue the Department is concerned with is physical or psychological harm from neglect.

9. The Independent Children’s Lawyer agrees with the position of the Department and submits that there is an unacceptable risk of harm to E if she is to remain in the care of Ms Cooch and the paternal grandmother made no further submissions but agreed with the position of the Department.

10. So far as the best interests considerations are concerned, I make the following findings bearing in mind that the best interests of the child is the paramount consideration in this application.

11. Unfortunately for E the primary consideration of having the benefit of a meaningful relationship with both of her parents has not been met whilst in Ms Cooch’s care because the parents have effectively relinquished her into Ms Cooch’s care.

12. While it does not appear that E will have a meaningful relationship with her parents even in the Department’s care having regard to the meaning of the word “meaningful”, it appears to be the case that she is more likely to have some form of relationship with her parents as the Department will ensure that that contact occurs, whereas there is no such assurance if E is to remain with Ms Cooch, essentially as I say because the mother has relinquished that care.

13. The most significant issue is the need to protect E from harm as indicated and as I say the significant issue in this case is the issue of neglect.

14. There is no dispute that Ms Cooch has a significant cannabis problem though it has only been only belately admitted by her that she uses cannabis at all, let alone the extent of it, which on her affidavit is daily usage, which she says she intends to address.  Although Ms Cooch says that she intends to address it, the fact that in her affidavit she refers to the time and circumstances in which she uses it, indicates that she may consider that as long as she does not overtly use cannabis in the presence of E, that it is not a particular problem.  She may not appreciate the significance in terms of limited capacity for a person who has a major substance abuse problem in the care of a child especially a young child.

15. In the addition to the issue of cannabis use, there have been a number of notifications made to the Department which have resulted in home visits in which the home was found to be unhygienic and unsafe.  It is of concern that even on Ms Cooch’s own affidavit she simply clears the house up after visits from the Department and then it appears on the Department’s evidence which is not contradicted that a short time later when another visit is made the home is back in the same unsafe and unhygienic state.

16. I am not comforted by the photographs attached to Ms Cooch’s affidavit, which as I indicate merely show some ceilings and parts of the premises, though there are some photographs of some various grocery items as well.

17. There is also some concern in relation to a lack of supervision for E.  Whilst the Family Consultant was not concerned that her observations about supervision and an understanding of E’s needs were so great that at that time (in September 2014) it necessitated the removal of E from Ms Cooch’s care, it was noted that Ms Cooch’s suggestion that E catch a bus to and from school within a month of commencing kindergarten raised concerns regarding her understanding of E’s needs.  The Family Consultant said that E did not present of being of an age or developmental stage where it would be recommended that she be responsible for catching a bus to and from school without a supervisor and yet that is the arrangement that prevailed and currently prevails.

18. As far as the additional considerations are concerned, although E may have expressed a view to remain with Ms Cooch, which is understandable given the relationship she has with her, she is too young for me to attach any weight to those views especially given that this application is made on the basis of the need to protect the child from harm and she is too young to understand that issue.

19. As far as the nature of the relationship E has with others is concerned, it is the case that the Family Consultant said that E appeared to have an established relationship with Ms Cooch and she has been E’s primary carer since infancy.  E is described as having a “familiar” relationship with her paternal grandmother and there is no further information concerning other relationships in the family group.

20. Many of the considerations in the Family Law Act are directed to a comparison of various factors relating to the children’s parents which are not relevant in these proceedings as this is not a competing application between the parents. E’s parents have not been involved in participating in making decisions about E or fulfilling their obligations to maintain her and the issue of the likely effect in change of circumstances involving separation from either of the parents does not arise in this matter.

21. The likely effect in the change in E’s circumstances including separation from Ms Cooch is, however, a significant issue in this matter and she will be likely to feel some stress from that separation, though it is noted that E’s behaviour upon separation from Ms Cooch in the view of the Family Consultant was not consistent with Ms Cooch’s account that E did not want to separate from her.

22. There will be no practical difficulty and expense associated with E spending time with or communicating with a parent as the Department has indicated that in the event that the parents are not able to make arrangements to see E through the family member with whom she will be placed then the Department will assist in relation to those arrangements.

23. The issue of the capacity of E’s parents does not arise in this matter but the issue of the capacity of Ms Cooch does arise.  Capacity is related to what appears to be her lack of understanding between the significance of extensive cannabis use and care for a child as well as some concerns of understanding E’s needs associated with her age raised in the Family Report.  It is also observed by the Family Consultant that the observed dynamics between Ms Cooch and her own daughter during a telephone call raised concerns regarding Ms Cooch’s ability to set and enforce appropriate rules and boundaries, and the Family Consultant was of the view that if the dynamics observed were indicative of Ms Cooch’s global parenting capacity it is recommended that she enrol and complete a parenting course.

24. As I understand it, E’s parents are both aboriginal.  In terms of her right to enjoy her culture including the right to enjoy the culture with other people who share it, given that the proposed placement by the Department will be with a family member who is also aboriginal, (whereas Ms Cooch is not as I understand it aboriginal), there will be some advantage to E in terms of that consideration.

25. The issue of the attitude and responsibilities of parenthood by both parents does not arise except to say that in my view the parents have both demonstrated a lack of any responsibility associated with their parenthood and a poor attitude to E by effectively placing her informally in the care of another person.

26. The issue of family violence does not, particularly, arise in this matter except to the extent of some of the dynamics in Ms Cooch’s home associated with the older child, F.

27. Taking all of those matters into consideration and attaching particular weight to the issue of the need to protect E from harm, I am of the view that there is an unacceptable risk of harm to her in Ms Cooch’s care, particularly, associated with the issue of neglect and for that reason I make the orders as sought by the Secretary of the Department.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 April 2015.

Associate:

Date: 11 May 2015