DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & WEARING AND ORS

[2018] FamCA 794

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & WEARING AND ORS [2018] FamCA 794

FAMILY LAW – CHILDREN – With whom a child lives – Orders - Where the child is ordered to live with the mother – Where the proceedings commenced by way of consent orders filed by the paternal grandparents – Where there has been  significant involvement with, and intervention by the Department of Family and Community Services – Where there is a staged approach to the child living with the mother –  where all parties present risk factors for the subject child – Where there is a need to balance the various risk factors – Where there is a need to promote and foster the relationship between the mother and child – Where the mother needs to demonstrate that she is taking steps to address her drug dependence – Where the mother has a new partner whose behaviour represents a possible risk of harm – Where the father is no longer a party to the proceedings – Where the paternal grandparents have had care of the child – Where the paternal grandparents demonstrate an unwillingness to fully co-operate with the Department of Family and Community Services – Where the paternal grandparents are unable to demonstrate they have acted protectively of the child in relation to the father – Where the best interests of the child is the primary consideration when determining where the child lives – Where there is domestic violence present between all parties in the proceedings.

Family Law Act 1975 (Cth)

APPLICANT: Secretary, Department of Family and Community Services

FIRST AND SECOND RESPONDENTS: Mr Wearing and Ms Wearing

THIRD RESPONDENT: Ms Green

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW – M Town Family Law

FILE NUMBER: NCC 2682 of 2017

DATE DELIVERED: 27 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF:	Cleary J
HEARING DATE:	27 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mahony

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

COUNSEL FOR THE FIRST AND SECOND RESPONDENTS: Mr Johnston

SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS: Cominos Family Lawyers

COUNSEL FOR THE THIRD RESPONDENT: Not Applicable

SOLICITOR FOR THE THIRD RESPONDENT: Dean Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW – M Town Family Law

Orders

1. That all prior parenting orders in relation to the child Z, born … 2017, are discharged.

PENDING FURTHER ORDER

1. That the child shall live with the mother commencing 22 October 2018, provided that all drug screens completed by the mother in accordance with these orders between the date of these orders and 21 October 2018 return a result that is either negative for all illicit substances, or demonstrates a reduction in the level of THC and is negative for all other illicit substances NOTING the mother has nominated the date of return of testing.

2. That pending the child living with the mother in accordance with Order 2 herein, and in the event that the child does not transition to the mother’s care due to her non-compliance with the precondition provided for in Order 2 herein, the child shall live with the paternal grandparents.

3. That pending the child living with the mother pursuant to Order 2 herein, and subject to Order 5 herein, the mother shall spend time with the child as follows:

   a.Each Monday, Wednesday and Friday, from 11.00 am until 5.00 pm;

   b.Commencing 10 October 2018, each week from 11.00 am Monday until 2.00 pm Wednesday.

4. That in the event that the mother returns a drug screen result that shows an increase in the levels of THC or is positive for any other illicit substance, the mother’s time with the child pursuant to Order 4 herein shall be suspended and time shall be spent as directed by the Secretary, Department of Family and Community Services (“the Secretary”).

5. That pending the child living with the mother pursuant to Order 2 herein, the mother shall do all acts and things necessary to attend upon, and to ensure that the child also attends upon S each Monday and Wednesday between 12.00 pm and 2.00 pm unless the service is not available due to service closure, or until the mother is otherwise discharged from the service.

6. That the Secretary, through his delegate, shall, within seven (7) days of the date of these orders, do all acts and things necessary to facilitate a referral for the mother to an Intensive Family Preservation Service, residential or non-residential, and upon the mother’s acceptance into such service, Order 6 herein shall be suspended.

7. That upon the mother being accepted into an Intensive Family Preservation Service, the mother shall do all acts and things necessary to comply with any rules and reasonable requests of her caseworker from such service.

8. That upon the child living with the mother, the child shall spend time with the paternal grandparents each weekend from 10.00 am Saturday until 4.00 pm Sunday.

9. That to facilitate these orders, and unless otherwise agreed, changeover shall be effected between the mother or her nominee and the paternal grandfather or his nominee (not the paternal grandmother or the father) at M Town Railway Station, NOTING THAT from time to time the Secretary’s delegate may assist with changeover as a nominee.

10. That the mother shall attend chain of custody drug urinalysis testing each Thursday at a venue requested not less than 48 hours in advance by the Secretary’s delegate, with such testing to be funded by the Secretary.

11. That the Secretary’s delegate shall forwarding to the Independent Children’s Lawyer and each of the parties’ solicitors a copy of the mother’s drug screen results within seven (7) days of receipt of same.

12. That the mother shall do all acts and things necessary to:

    a.Participate in the Cannabis Clinic at M Town Hospital until such time as she is discharged from the service;

    b.Permit a delegate of the Secretary to conduct random home visits to her residence;

    c.Participate in any risk assessment conducted by a delegate of the Secretary.

13. That the mother shall be and hereby is restrained by injunction from:

    a.Leaving the child in the unsupervised care of Mr N;

    b.Allowing or permitting the child to spend time with any person she reasonably suspects to be under the influence of an illicit drug.

14. That the paternal grandparents, and each of them, shall do all acts and things necessary to:

    a.Permit a delegate of the Secretary to conduct random home visits to their residence;

    b.Participate in any risk assessment conducted by a delegate of the Secretary.

15. That the paternal grandparents, and each of them, shall be and hereby are restrained by injunction from:

    a.Allowing or permitting the father to spend any unsupervised time with the child;

    b.Allowing or permitting the father to spend any time with the child, or come into contact with the child, if they reasonably suspect that the father is under the influence of an illicit drug.

16. That the Independent Children’s Lawyer and/or the Secretary shall be at liberty to relist the matter on forty-eight (48) hours notice.

17. That the paternal grandparents or either of them shall advise the mother, the Independent Children’s Lawyer and the Secretary of their current residential address and that of the child if it is different to theirs, and contact telephone number, and further, shall advise those parties of any change of residential address and telephone number for themselves or the child, during the currency of these proceedings.

18. That the mother shall advise the paternal grandparents, the Independent Children’s Lawyer and the Secretary of her residential address and any change to that address and contact telephone number during the currency of these proceedings.

IT IS FURTHER ORDERED THAT

1. Leave is granted to the Independent Children’s Lawyer to view the material produced upon subpoena by Suburb O Local Health Service (Packet 10) with a view to providing that material to Dr P or not.

2. The intervener’s oral application for adjournment is dismissed.

3. The matter has previously been listed at 9.30 am on 15 November 2018 and that date is confirmed.

THE COURT NOTES

(A)The undertaking to this Court of Mr N, born … 1996, to undergo urinalysis if requested to so by the Secretary, Department of Family and Community Services.

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 DFCS & Wearing 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 SYDNEY

FILE NUMBER: NCC 2682 of 2017

Secretary, Department Of Family And Community Services

Applicant

And

Mr Wearing and Ms Wearing

First and Second Respondents

And

Ms Green

Third Respondent

Ex TEMPORE REASONS FOR JUDGMENT

Introduction

1. On 2 July 2018 interim orders, which I will refer to as the July 2018 orders, were made in respect of the subject child, Z, now aged 14 months. His 19 year old mother is a party to proceedings. His 20 year old father has withdrawn from the proceedings. The child lives as directed with the paternal grandparents.

2. The reasons for the July 2018 orders should be read in conjunction with these and the orders I make today.

3. The July 2018 orders provided for a transition for the child into the care of the mother over a four week period, subject to the mother having various supports in place.

4. The orders, pending further order, were: 

   ·Discharge of prior orders;

   ·Child to live with the mother commencing 13 July 2018 subject to these conditions;

   -The mother obtaining accommodation in D Region;

   -That the mother was supported by a program for young parents;

   -That the mother will cooperate with the Department of Family and Community Services and respond promptly to all reasonable requests;

   ·The mother was to spend time with the child three days a week for five hours at a time;

   ·Once the child was living with the mother, the child was to start spending every weekend with the paternal grandparents.

Events following interim orders

1. On 2 August 2018 an application was filed by the secretary of the Department of Family and Community Services (“FACS”), seeking to intervene in the proceedings.

2. FACS had been involved with the subject child almost since his birth in 2017.

3. Two previous requests by this Court for FACS to intervene on 14 February 2018 and on 19 April 2018 had been declined.

4. By the application of 2 August 2018 FACS proposed that all previous orders be discharged and fresh orders made. A notation to the proposed orders was as follows:

   A.Family and Community Services are conducting casework and implementing supports with the mother with a view to the child returning to her care.

5. The affidavit was supported by a caseworker, Ms Q. Paragraphs 13 to 16 of that affidavit set out one of the extraordinary factors in this case being the reasons why the secretary did not intervene. Paragraphs 13 to 16 of the affidavit of Ms Q 2 August 2018 are as follows: 

   13.On 14 February 2018, her Honour Justice Cleary requested that the Secretary, Department of Family and Community Services (“the Secretary”) intervene in these proceedings.

   14.On 19 April 2018, Family and Community services Manager Client Services [Ms C] (“[Ms C]”) wrote to the Court and declined to intervene. This was on the basis that Family and Community services had been unable to complete an assessment of the paternal grandparents due to the parental grandparents refusing caseworkers access to the home and not meaningfully engaging with the assessment process. Without further assessment or information to the contrary, Family and Community services were unable to complete the assessment of the child’s circumstances or the day to day care arrangements or determine the level of risk for the child in the home, due to the paternal grandparents refusing caseworkers access to the home and not meaningfully engaging with the assessment process at that time.

   15.On 29 May 2018, her Honour Justice Cleary made a further request that the secretary intervene in these proceedings.

   16.On 20 June 2018, [Ms C] wrote to the Court and declined to intervene on the basis that the paternal grandparents had demonstrated some commitment to ensuring contact with the mother and had made some attempts to engage with Family and Community Services during the assessment process.

6. It continues to appear obvious that the initial refusal of the paternal grandparents to cooperate with FACS’ assessment process should have given rise either to intervention in this Court or an application in the Children’s Court given the age and known vulnerability of the child. The subsequent reluctant partial willingness of the paternal grandparents likewise.

Short History

1. These proceedings were commenced in September 2017 by the paternal grandparents seeking to have sole parental responsibility and residence with consent orders signed by the mother, who was not present at Court and who, it subsequently became clear, was uncertain as to what she had signed.

2. In that same affidavit by the caseworker, Ms Q, the departmental involvement with the child,[1] since August 2017 is outlined. There appears to be a continuous series of events:

   [1] Affidavit of Ms Q filed 2/08/2018, pars 19 to 31

   12.112 August 2017 - domestic violence in the home of the paternal grandparents;

   12.216 August 2017 - mother and child safe with a plan in the home of the maternal aunt;

   12.326 September 2017 - the mother told workers about being asked by the paternal grandparents, or perhaps told, to sign a document handing over the child’s care to them. There is no reference to any action having been taken about that.

   12.429 September 2017 - the mother was referred to a staying home/leaving violence program and referred to a legal centre for advice.

   12.5On 9 October 2017 there was a risk assessment in the home of the paternal grandparents. Neglect was assessed to be moderate; abuse was assessed to be high.

   12.6In December 2017 the caseworker was unable to contact the paternal grandparents for a home visit. One took place on 11 January 2018 and the focus at that time appeared to be the domestic violence situation between the parents. The paternal grandmother subsequently did not respond to a request for a follow-up visit on two occasions.

   12.7On 16 February 2018 there was a telephone call with the mother about services that could be provided if the child was returned to her care.

   12.8Between February and June 2018, there was limited casework as attempts to engage paternal grandparents unsuccessful and the mother was no longer in the home.

   12.9I note, however, that the child was in the home and no action was taken to remove him into care or ensure his ongoing safety. None had been taken over that five-month period. Even today, on 27 September 2018, counsel for FACS was unable, on instructions, to identify who was the primary carer of the child in the home of the paternal grandparents or at their direction.

   12.10On 3 July 2018 the mother had called FACS after the interim orders were made, described as excited but worried about a move to D Region There was a discussion about services for her, her worries about how it would work and a ceasing of the use of cannabis.

   12.11On 4 July 2018 the mother was referred to a program called S run by the non-government organisation, T Group.

   12.12The mother wanted to participate but told a FACS worker that, contrary to the orders, the paternal grandparents were not allowing to take the child out of the house during her contact visits, nor would they allow her to take the child to S if it was not on nominated days, that is, as contained in the orders, Monday, Wednesday and Friday. I have, in the previous reasons, found that the paternal grandparents have had considerable parental authority over the mother as a member of their household.

   12.13On 9 July 2018 the mother was told that she had a place at S in J Town the next morning. The mother was living in V Town at the time and became upset about the logistics of the travel.

   12.14On 10 July 2018 the mother confirmed that the paternal grandparents would not let her have the child on Tuesday, which was the S day. She is recorded as having said “You are setting me up to fail”.

   12.15On 16 July 2018 the mother is described as having become less cooperative.

   12.16On 17 July 2018 there was a high level of cannabis detected in urine analysis.

   12.17On 20 July 2018 there is a note that the mother was to be supported in a transitional housing program. The mother was reported to have had no money, which is suggestive but not certain of drug use at that time.

   12.18However, on 23 July 2018, the mother was found to be drug affected (marijuana).

   12.19On 25 July 2018 the mother began at S.

   12.20On 28 July the mother moved into a residential unit. A caseworker discussed with the mother that FACS would prefer to see a more gradual transition for the child into her care, given her drug use.

3. The matter next came before me at Court on 22 August 2018.

4. On that day, orders were made for the appointment of a Single Expert, Dr P.

5. Also on that day orders were made by consent.

6. The July 2018 orders were varied by the suspension of Orders 2 to 6 which were the orders that provided for the change of residence of the child to the mother. A new date for commencement on 17 September 2018 was agreed on, and there were conditions: random urine analysis; random home visits; cooperation with a risk assessment; engagement with services; and participation in S on Mondays and Wednesday. There was also a restraint on allowing drug affected people near the child. Pending the transition, there were defined periods of time and the restriction on the paternal grandparents leaving the child with the child’s father.

7. The notation to the orders on that date were that the mother had advised the Court, through her solicitor, that she has ceased the use of illicit drugs. That may have been true on 22 August 2018, but the mother has since then returned to using marijuana.

8. The proceedings were stood over to a date in November, [9.30 am on 15 November 2018], a date by which the Single Expert Report would be available.

9. Sixteen days later, on 7 September 2018, a further application was made by FACS. The orders proposed a discharge of all prior orders, residence for the child with the paternal grandparents on certain conditions and time for the mother, two hours twice a week. There was a repetition of the conditions that had previously been agreed to.

10. The application was supported by an affidavit of a new caseworker, Mr W, who had taken on the role three weeks before. His evidence was that on 24 August 2018, the mother had attended J Town Community Services Centre with her new boyfriend and his younger brother. They reported a fight with people who had followed them from the train station. Staff were understandably reluctant to allow the child to go with the mother in a state described as “distressed, loud and extremely agitated”, but the mother calmed down. The visit went ahead with the mother, Mr N and his brother.

11. FACS officers requested Mr N’s details which were provided. The subsequent FACS check revealed that Mr N, a young man of 21, is a person whose two young children have been taken into care. There is no information about, at this stage, nor need there be, about the mother of those children or the circumstances of their removal. That will be a matter for final hearing if the relationship between the mother and Mr N endures.

1. At the end of the visit, the mother was requested to undertake urine analysis. She did attend then or on 27 August 2018, which was the next request date.

2. On 29 August 2018 the mother attended the S program, and the child went to her home. A home visit there revealed cannabis use, Mr N and a man described as “Y” were apparently drug affected. The request for urine analysis by the mother on the next day was undertaken.

3. The mother lost the accommodation she had had through the organisation X Group because of Mr N having stayed there with her. The mother probably knew that she was not to have people staying, nevertheless, I note that the mother is illiterate and that a notice was put under the door telling her that she had breached the conditions of her residence.

4. On 31 August 2018 a FACS worker reached out to the mother by telephoning her and encouraged her to continue to work with them.

5. On 3 September 2018 a visit between the mother and the child was cancelled, and again on 5 September 2018, the mother having contacted to say she was organising a move into new accommodation.

6. Back in Court on 19 September 2018, the application of FACS was listed on Friday 28 September 2018 and subsequently moved to Thursday 27 September 2018 for two hours. The mother was directed to file a reply in the meantime. The relevant orders for time between mother and child were suspended.

7. The mother filed her response. She proposed that the time at which the time would come to live with her should be varied to 22 October 2018. She also requested that a chain of custody of urine analysis be done each Thursday and to be funded by FACS.

8. Given that the only allegation, which is conceded by the mother, is that the mother uses marijuana, this appears to be a realistic request, and enables the mother to attend at a regular time with some certainty, given the length of time that marijuana stays in the user’s system.

9. There was also an affidavit by the mother’s new boyfriend, Mr N.

10. Today, when the application was heard, FACS and the paternal grandparents had not filed any particular application and proposed an adjournment of the proceedings to gather more information.

11. The Independent Children’s Lawyer proposed minutes in the alternative.

12. This case has been before me for a year, with very limited progress for the child. Interim orders have been made.

13. The mother has struggled, succeeded and failed, predictably at times. Perhaps not predicted by her, but certainly by caseworkers at FACS who are well aware of the mother’s childhood which includes at least one traumatic event, and it appears to me some neglect, her drug use over at least the last five years, her illiteracy because of the disruption to her education and not through lack of intelligence, her vulnerability and the profound vulnerability of the child, her violent mistreatment at the hands of the child’s father in the home of the paternal grandparents, her own uncontained emotions at times and the circumstances of the application of the paternal grandparents to have final consent orders made about the child.

14. Once again there is a balance of risk. In her supporting affidavit, the mother conceded use of marijuana and raised the death of a relative as the cause of it. However, the mother cannot continue to do what she has done, which is to self- medicate with marijuana. It makes her an unsuitable parent, unavailable to a very young child who needs close supervision. There is some dawning recognition of that contained in the mother’s affidavit. The mother asserted that she would attend on cannabis clinic for as long as she was directed to and would follow recommendations. She said she was currently receiving medication which she felt was suitably stabilising her mood.

15. She referred to having a new boyfriend and the provision of accommodation in U Town by a relative of Mr N. She also stated her willingness to have changeovers take place at M Town Railway Station. Her new accommodation is at the far northern end of the northern suburbs of Sydney and is a train trip of about one hour.

Conclusion

1. The central issue in this matter is the relationship between the child and the mother.

2. There is certainly risk in the care of the mother. Her drug use, her association with the young man, Mr N, facing charges in October 2018 for affray, use of bad language and assault officer in execution of his duty.[2]  To his credit, Mr N made full and frank admissions on the record at the police station and apologised. Undeniably, though, his aggression is an issue.

   [2] Exhibit 1

3. The orders proposed by the Independent Children’s Lawyer, put the onus on the mother to live up to what she has asserted in her affidavit, to cease drug use and to comply with various restrictions. The mother must put her promises into action. It seems to me that the minute of order proposed by the Independent Children’s Lawyer gives the mother the opportunity to do that. It cannot be the case that because she has stumbled in this matter, that all hope his lost.

4. The safety of the child is an equal consideration. It may be that FACS is able to offer a residential parenting program to the mother. If they do and the mother chooses not to participate in it, that would be clear evidence for the Court of the mother giving her own needs [to be with Mr N] priority over the needs of the child. The child needs a clear-headed mother, free from drug use, who can give him the undivided attention he so very clearly needs to fully restore the bond with her.

5. As there was previously, there is obviously risk in the home of the paternal grandparents. There is complete uncertainty as to who actually provides the care for the child. There is uncertainty about the extent to which the father, who has not only a drug problem but an aggression problem, is brought in contact with the child or not. It is uncertain as to where the child has lived at times whilst he has been in the care of the paternal grandparents.

6. For those reasons, I have largely adopted the minute of interim order proposed by the Independent Children’s Lawyer and make orders accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 27 September 2018.

Associate:

Date:  27 September 2018