Devers and Pellett and Anor

[2020] FCCA 2800

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVERS & PELLETT & ANOR [2020] FCCA 2800

Catchwords:
FAMILY LAW – Parenting – concerning a child who is seven years old – where pursuant to previous consent orders the child lives with the mother and spends time with the paternal grandmother – where the orders have not been closely followed – where the mother has history of illicit drug use – where no evidence the child is at risk with the paternal grandmother. 

Legislation:

Family Law Act 1975 (Cth) ss.11F, 69ZW

Applicant: MS DEVERS

First Respondent: MS PELLETT

Second Respondent: MR DEVERS

File Number: DNC 485 of 2015

Judgment of: Judge Young

Hearing date: 28 September 2020

Date of Last Submission: 28 September 2020

Delivered at: Darwin

Delivered on: 28 September 2020

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant:	Darwin Family Law
First Respondent:	In Person

Second Respondent:	No appearance
Counsel for the Independent Children’s Lawyer:	Ms Srinivas
Solicitors for the Independent Children’s Lawyer:	Northern Territory Legal Aid Commission

All parties appearing via telephone link

ORDERS

UPON NOTING:

That these orders are agreed between the applicant paternal grandmother and the Independent Children’s Lawyer but opposed by the first respondent mother.

UNTIL FURTHER ORDER:

1. That order 5 and 6 of the orders made 20 June 2018 be suspended.

2. That commencing on the first weekend following the date of these orders unless otherwise agreed X born in 2013 shall spend time with the paternal grandmother as follows:

   (a)Every second weekend from 4:30pm Friday (but from 5.00pm Thursday if the Friday is a public holiday), to 5.00pm Sunday (or to 5.00pm Monday if the Monday is a public holiday), except during the Term 2 and Term 4 Christmas school holidays.

   (b)On a week about basis during the Term 2 and Term 4 Christmas school holidays, with the grandmother for the first week, with exchange at 4:30pm Fridays and 5.00pm Sundays.

3. That unless otherwise agreed between the parties, on occasions of special significance (“special days”) X shall spend time with the parties as agreed as follows:

   (a)On Christmas Day:

   (i)On even-numbered years X shall spend from 5 pm Christmas Eve to 2 pm Boxing Day with the paternal grandmother.

   (ii)On odd years X shall spend from 2 pm Christmas Day to 5pm Boxing Day with the paternal grandmother.

   (b)On X’s birthday X shall spend the following time with the paternal grandmother:

   (i)On a school day, from 3 pm to 6 pm; and

   (ii)On a non-school day from 3 pm to 8 pm.

4. That all handovers are to be effected at B Contact Service noting that the parties have already completed intake and if B Contact Service is unavailable in front of the mother’s residence.

Counselling and communication between the parties

1. That the mother and grandmother are to engage in individual counselling aimed at improving their communication and conflict resolution skills and to give effect to this order each is to:

   (a)Contact a counsellor of their own choosing within 7 days;

   (b)Make arrangements to attend upon their counsellor at the first available opportunity;

   (c)Follow recommendations to attend counselling at a duration and frequency recommended by the counsellor; and

   (d)Advise the independent children’s lawyer in writing of the name and organization of the counsellor.

2. The parties are restrained from passing messages to each other via X including asking X if he would like to spend more time with the grandmother.

Restraints and Schooling

1. That the mother is restrained from:

   (a)Changing X’s school from C School; and

   (b)Relocating X’s residence out of the Darwin area.

2. The mother is to ensure X’s attendance at school as directed by the school.

3. That the grandmother is to contact C School and be listed as the second emergency contact in the event they are unable to contact the mother.

4. That the independent children’s lawyer is authorized to provide a copy of these orders to C School and to make enquiries at her discretion and obtain information from staff at the school as to any concerns for X’s care and welfare, and school staff are authorized to provide this information to the independent children’s lawyer.

5. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child X born in 2013 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 April 2021.

6. That the family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

7. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

8. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

9. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

10. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 16 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

IT IS FURTHER ORDERED:

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter be adjourned for further consideration to 15 December 2020 at 10:30am.

5. That the independent children’s lawyer has liberty to re-list on short notice in the event any concerns arise with respect to X’s care.

NOTATION:

D.To give effect to order 9 of the orders made 20 June 2018, the parties are to engage in respectful written communication with one that is business like and focused on X.

E.The Principal of C School has been afforded procedural fairness with respect to order 8 of these orders.

IT IS NOTED that publication of this judgment under the pseudonym Devers & Pellett & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 485 of 2015

MS DEVERS

Applicant

And

MS PELLETT

First Respondent

And

MR DEVERS

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim parenting matter concerning a child, X, who has just turned seven.  He was born in 2013.  On 20 June 2018, final orders were made that the child would live with his mother and spend time with the paternal grandmother.  The time spending was to be two fixed nights a month, and then three nights by agreement.  The orders were by consent of the parties.  The common position is that the orders have not been closely followed, and indeed have largely broken down.

3. I should also mention something about the second respondent, Mr Devers, who is the father of the child.  Mr Devers is apparently in custody in Queensland and he has not participated in the proceedings. 

4. The background to the matter is this.  It appears clear from the Territory Family’s material that is before me that the mother and father have a long history of illicit drug use and associated criminality.  The mother has also spent some period in jail, probably when the child was only about two, as far as I can see, for stealing and assault charges.

5. Her behaviour at that time was indicative of the chaotic lifestyle of a person using illicit drugs.  Methamphetamine would appear to be the drug of use.  Since then, it appears that the relationship of the mother and father has broken down, and the mother has been living largely in Darwin since then.  The material before me is somewhat ambivalent about whether or not the mother has continued to use illicit drugs, particularly methamphetamine.  There are indications through the Territory Family material that Territory Families were concerned, or have been concerned about the mother using drugs, particularly methamphetamine.

6. She attended D House, which is a drug rehabilitation service, as late as last year.  The Territory Families material also in September 2019 refers to a safety plan having been entered into by the mother and Territory Families.  The note is: 

   TF and B Contact Centre NT…

   Which is, I interpolate, probably a reference to B Contact Centre, I think:

   … are worried that Ms Pellett has had trouble managing her mental health for a long time, and at times she uses ice.  When this happens, it is harder for Ms Pellett to make sure X has good sleep and food, feels happy, loved and safe at home, and goes to school every day.  TF and B Contact Centre NT are worried that if Ms Pellett continues to use ice and does not get the help she needs to be able to manage her mental health, she will not be able to provide X with a safe, stable environment where he is well cared for and feels loved so that X will grow up strong and healthy.

7. The elements of the safety plan were that the mother was not to use ice or other illegal substances.  She was to address her mental health, which was said to include a diagnosis of borderline personality disorder.  She was to continue to engage with treatment and counselling. 

8. The paternal grandmother says that the child has lived with her for very considerable parts of his life.  She says that from 2014 until the consent orders in June 2018, the child lived with her, that is, the paternal grandmother.

9. She said that after the consent orders were made in June, the child continued to spend time with her, well in excess of the time provided for in the consent orders, and she asserts at least that the child spent something like 14 nights a month with her from June 2018 until May 2019.  She said that in April 2019 the mother decided the child should revert to spending the bulk of the time with her, the mother.  It is also apparent that in June 2019, there was, it appears, another safety plan whereby the child would reside with the paternal grandmother and spend time with the mother.  Whether that was given effect is unclear to me, but that was certainly said to be the agreement.

10. In December 2019, there was another agreement involving the mother, Territory Families and the paternal grandmother, where the child was to live with the paternal grandmother from 3 December 2019 until 6 January 2020, and the mother was to address her mental health and substance abuse issues.  The evidence for that is contained in the paternal grandmother’s affidavit at page 14 of the annexures, where a Territory Families’ worker emailed the paternal grandmother to confirm that a:

    …family-led decision was agreed upon between Ms Pellett and Ms Devers, and supported by TF:

    X will be cared for by [the paternal grandmother] from the afternoon of Tuesday 3 December 2019, until at least Monday 6 January, or longer by agreement.  

    And the child would spend time with the mother by agreement.

11. I am satisfied there is evidence that for much of last year the mother was struggling with mental health and substance abuse difficulties that were raising concerns at Territory Families about whether this child was subject to a risk of harm or neglect.  There is extensive Territory Families history in the matter, with apparently 14 notifications over the past five years.  The bulk of them were not substantiated but an allegation in April 2015 which I concede is historical but of some significance, relates to the exposure of the child to domestic violence and substance abuse by his parents.

12. The parents were, in the view of Territory Families, responsible for exposing X to, as I say, family violence and illicit drug use.  A further substantiation and the only other substantiation of abuse was from February 2019, and I quote:

    This report advises child X (5 yrs) reported in his school counselling session that he went on a holiday with grandmother, and whilst on holidays, he stated “my uncle put a balloon in my bum”.

    …

    Ms Pellett came to school to ask for support at the beginning of this year, as she feared for her life and was scared that X might be taken by his father. 

    …

    The child has been attending counselling with new and old suspicious injuries to his legs which are scabs that look like cigarette burns which look like they are at different stages of healing.

13. The comment was that emotional harm was substantiated as against the mother. I was not taken to any material in the section 69ZW material from Territory Families which dealt with allegations of new and old injuries to the child’s legs, the alleged cigarette burns.

14. I have asked counsel for the paternal grandmother whether he is aware of any material in the Territory Families’ file which relates to allegations of the child being burnt with a cigarette, and he is not aware of any.  I asked Ms Srinivas and she is not aware of any, and I asked Ms Pellett.  She is not aware of any reference in that material, so I do not know what that is referring to. 

15. More recently, there was an allegation that was screened out, made in November 2019, of neglect, where there is information received from the mother alleging that her then on and off boyfriend, Mr F, touched X “on the doodle and bum”.  As I say, that allegation was screened out. 

16. There is a very concerning history to this matter.  When the matter came on pursuant to a further initiating application filed by the paternal grandmother on 6 July 2020, the mother appeared with counsel on that day, who apparently appeared as a duty lawyer, and there were allegations made that the child was exhibiting sexualised behaviours at his school.  In particular, there was a complaint or a report perhaps from the principal at G School that the child had grabbed her between the legs, and that was apparently but one instance of the child’s aggressive and dysregulated behaviours.

17. It appears that that school decided they could not manage the child, or rather, his hours of attending school were restricted.  It is clear from the Territory Families’ material that initially that behaviour was treated as sexualised behaviour by the Sexual Assault Referral Clinic (“SARC”).  The child was subsequently examined by a paediatrician who expressed the view, according to the Territory Families’ material, that the child was exhibiting troubled behaviour because of his past exposure to trauma.  The trauma was not identified but, as should be evident from the history that I have related, there appears to be abundant evidence that the child has been exposed to very serious trauma over his short life.

18. The mother was not represented today, and her submissions were perhaps of limited value.  She told me essentially that she did not think the child should resume spending time with the grandmother more than once in every three weeks until, as she, the mother, put it, his behaviour settled.  I am not satisfied there is any reason for the child’s troubled behaviour arising out of his time with the paternal grandmother.  The Territory Families’ material include an assessment of whether the child was at risk in the paternal grandmother’s home and expressed the view that he was not.  In short, there is not a jot of evidence to suggest that the child is at risk with the paternal grandmother. 

19. The child was interviewed by a family consultant for the purposes of a section 11F report on 10 September 2020, and expressed a wish to remain living with his mother but to spend more time with the paternal grandmother. Although I am satisfied that the orders proposed by the paternal grandmother and the Independent Children’s Lawyer are appropriate, I consider that there is evidence of instability in this child’s life, very serious instability, much of it flowing from the instability in the mother’s own life, an example being her departure for Queensland on 31 December 2019, in breach of the agreement with Territory Families and the paternal grandmother, and going to Queensland until 28 February 2020, meaning that the child was out of school in the Northern Territory for at least a month approximately.

20. The mother told me that she enrolled him in school in Queensland for one month, which would indicate that on her version, the child has attended five schools in the past 18 months or so.  So there is a real problem in instability in this child’s life which is highly undesirable.  I propose to make the orders as sought, until further order, in the minute provided by the Independent Children’s Lawyer and agreed by the paternal grandmother.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 13 October 2020