Drew and Carter

[2013] FamCA 1046

FAMILY COURT OF AUSTRALIA

DREW & CARTER [2013] FamCA 1046

FAMILY LAW – CHILDREN – Application by father for a recovery order – Order made – Interim Orders - Orders that children live with paternal grandmother – Order that father spend time with children – Order that mother spend supervised time with children – Injunctive Orders – Orders restraining mother and father from removing children from care of paternal grandmother

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Drew

RESPONDENT:	Ms Carter
INDEPENDENT CHILDREN’S LAWYER:	Ms J Higgins

FILE NUMBER: LNC 43 of 2011

DATE DELIVERED: 10 December 2013

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 10 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Briffa

SOLICITOR FOR THE APPLICANT: Legal Aid Commission

COUNSEL FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDRENS’ LAWYER:

Ms Higgins

SOLICITOR FOR THE INDEPENDENT CHILDRENS’ LAWYER: Ms Higgins Bishops

Orders

UNTIL FURTHER ORDER

1. All previous parenting orders with regard to B born … 2008 and C born … 2009 (“the children”) are suspended.

2. Ms E Drew (“the paternal grandmother”) exercise parental responsibility for the children either jointly with herself and the father, Mr Drew (“the father”) or with herself and the mother, Ms Carter (“the mother”).

3. The children shall live with the paternal grandmother.

4. The father shall spend time with the children twice per week for periods of no more than two (2) hours or such longer periods as are recommended by Dr D after discussions with the paternal grandmother.

5. The children shall spend supervised time with the mother as is otherwise ordered by this court or a court exercising jurisdiction under the Family Law Act or agreed in writing between the paternal grandmother, the mother, the father and the Independent Children’s Lawyer.

6. The time the father spends with the children will be wholly supervised and the children shall not be left either jointly or individually at any time in the unsupervised care of the father.

7. The paternal grandmother is to immediately notify the parents of any medical emergency, illness or injury suffered by any of the children warranting treatment by a third party and shall authorise any treating health professional to communicate with the mother about the condition and treatment of the children.

8. The paternal grandmother shall authorise and request that the Principal of any school attended by the children to provide to the parents, at each respective parent’s expense, copies of all school reports and school photograph order forms relating to the children as well as information concerning the children’s general progress at school.

9. Both the mother and the father be permitted to attend school events for the children allowing parental attendance.

10. The mother and the father are restrained from removing, hindering and obstructing the children’s current residential arrangements.

11. Within seven days of the children coming into her care, the paternal grandmother is to contact Ms E to arrange immediate and ongoing therapeutic counselling for both children.

12. There be liberty for the Independent Children’s Lawyer and the paternal grandmother to release to Ms E the following documents:-

    (a)Order of Family Court of Australia dated 14 November 2013;

    (b)Order of Family Court of Australia dated 20 November 2013;

    (c)Report of Dr D dated 2^nd December 2013; and

    (d)this Order.

13. The father is restrained from attending to the personal needs of the children including but not limited to assisting the children using the toilet, bathing the children, applying creams to the body of the children and dressing the children.

14. The father is restrained from sharing a bed with the children.

15. The mother and the father are restrained from removing the children from the state of Tasmania without an Order from a court of competent jurisdiction. 

16. A Recovery Order issue to the Marshall of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the State and Territory Police Forces of Australia to recover the children and deliver them to the father in the presence of the paternal grandmother for that purpose which such assistance is required and if necessary by force to stop and search any vehicle, vessel or aircraft, or enter and search any premise or place at which there is any reasonable cause that the said children may be found. 

17. The Marshall and all officers of the Australian Federal Police and the Police Forces of the States and Territories be requested and authorised to give effect to these Orders. 

18. The Registry management must immediately notify the Marshall of the Australian Federal Police Family Law Team at Hobart of these Orders by telephone and must as soon as possible provide a copy of these Orders to the Marshall of the Australian Federal Police and all State and Territory Police.

19. The address provided to the Court by Centrelink be made available to the Independent Children’s Lawyer who in turn may inform Police and the Marshall of such address.

20. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

21. Leave be given to all parties to apply to have the matter re-listed before the Court on the giving of twenty four (24) hours notice to the Court and to the other parties.

22. These proceedings be adjourned for mention before me at 10.00am on Monday

    
    

    17 February 2014 at Launceston.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Drew & Carter 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 HOBART

FILE NUMBER: LNC 43 of 2011

Mr Drew

Applicant

And

Ms Carter

Respondent

REASONS FOR JUDGMENT

1. These are proceedings relating to the parenting of B, who is aged five, and C, who is aged four.  These proceedings are between the children’s’ father, Mr Drew, and the mother, Ms Carter, and in circumstances where an independent children's lawyer has been appointed.  This matter has a long history in the courts and a deeply troubling history in the courts.  The proceedings were listed for final hearing before me in the November 2013 circuit of the Family Court in Launceston.  The mother did not properly participate in the proceedings, and I will deal with that later in the reasons, and did not attend the hearing.  It was suspected that the mother had moved from the State of Tasmania with the children and without engaging in this process. 

2. There is an application which has been filed in this Court on 9 December 2013 for a recovery order for the children.  The recovery of the children is suggested by the father to be made to the children’s paternal grandmother.  A minute of order has been forwarded to the Court, which is in part supported by the Independent Children's Lawyer and is supported by the father.  The effect of the order is that the father would have sole parental responsibility for the children, and that the children would reside with their paternal grandmother, Ms E Drew.  The father would be able to see the children on a fairly regular basis, but with some levels of supervision.  Clearly any orders that I make today can only be by way of interim orders.

3. The father argues through his counsel that the children reacted well to the father when he first saw them in March 2013 after not seeing them since August 2012, and that they are likely to respond well in these circumstances.  The Independent Children's Lawyer is concerned about a number of factors, and I share those concerns.  The first is that there are serious allegations that the children are at risk of sexual abuse in the care of the father, allegations which remain untested.  Secondly, that the children are at risk of abuse and/or neglect in the care of the mother, and those allegations remain untested.  The mother has been the primary carer of the children, (although as we will hear later, in troubling circumstances) and any changeover will be traumatic for the children.  Engaging them fully with the father, who as it may be lacks some insight, may not be in their best interests.

4. The burden in relation to this matter is added to by a number of factors.  Firstly, that the mother has removed the children from Tasmania, it seems, and the various allegations are such that Child Protection Authorities would normally be involved.  In relation to the Tasmanian aspect, this Court has on a number of occasions, as has the Independent Children's Lawyer, sought the intervention of the state Child Protection Authorities.  They have declined to do so, and I am extraordinarily critical of them for failing to protect the needs of these children.  They ought to have been engaged in these proceedings, or better still have commenced child protection proceedings some time in the past.  There seems to be a view held by the Child Protection Authorities that as the proceedings are in the Family Court, the children are protected.  In this case, I am not sure that that is the case.

5. The second, of course, is that the children are now possibly out of Tasmania and they will need to be dealt with by, or they could need to be dealt with by state protection authorities from various states, although it appears that the mother may be engaged in some peripatetic lifestyle.  As such we do not which state in which to make the complaint.  There was an order made by me in November 2013 for a location order, and the current address of the mother has been disclosed to the Court.  I intend to make an order directing that information to the Independent Children's Lawyer, but not to the father, so that she can assist the police in finding the children.

6. The material upon which the father relies is his application filed 9 November 2013, the application of case filed 9 December 2013, as varied by Exhibit ICLA now.  In his affidavit of 9 December 2013, where he says that he is a father to the children, he’s seeking sole parental responsibility.  He goes on to say that the mother instituted proceedings suspending him from orders in January 2012, and that the proceedings were set down for hearing in Launceston in November of this year but the mother failed to appear. 

7. He observes quite rightly that the Court has made a number of orders in order to provide procedural fairness to the mother and to locate her, and that she failed to comply with interim orders made on 18 July 2013 and 14 November 2013.  He says that B and C are at risk, and he says that B is no longer attending the F School which he was attending throughout 2013.  The mother’s no longer at her address, and her whereabouts, subject the information provided to which I have alluded to earlier, are unknown to him at least.  C was having therapeutic counselling, and that has stopped.  Efforts were made to contact the mother through the maternal grandmother, and that has been unsuccessful.  That is his evidence.

8. There is before the court the evidence of Ms G, who is an employee of the Department of Education and is a principal of F School.  She says that another school has received an application for the enrolment of B, and that this principal saw the mother and the two children at the Sydney domestic terminal on the 29th of November 2013.  There is the affidavit of the paternal grandmother, Ms E Drew, of 3 December 2013 who says that she’s the paternal grandmother and that she lives with her sons H and J aged 15 and 9 in a four bedroom brick home.  Her affidavit provides details about the accommodation and sets out what arrangements she would make, and some details of her relationship with the children and her willingness to care for them and ensure that they’re looked after and go to school.  She says that if required, she would supervise her son with the children, and would undertake that supervision strictly and seriously.

9. There is an affidavit of Ms K, she is an employee of the Independent Children's Lawyer, and some discussions she has had with the mother in relation to the proceedings.  It appears from those discussions that the mother is well aware of these proceedings, but has avoided involvement with them.  There is also an updated report of Dr D, who prepared an earlier report to which I will allude to in a moment, where she interviewed the paternal grandmother and considered how she would cope with the care of the children if an order was made.  Dr D notes that prior to the children being removed from her (the paternal grandmother’s) life, there was a close relationship between the children and the paternal grandmother.  Dr D is satisfied that the paternal grandmother has the capacity to look after the children, and has an appropriate attitude in relation to the risks of the father, although she does not believe that he is a risk to the children, but is prepared to be protective of them.  The question of the father’s sexualised behaviour as a much younger person, was also raised with her.  I have had regard to that evidence.

10. This matter was dealt with in the Magellan list, and a report was prepared by the Department of Health and Human Services showing the involvement of that Department with this family over many years.  The mother was often unable to be contacted by the assessors, and it was the view of the department that the mother did not treat the assessment as appropriate.  The report observes in relation to the risk analysis at page 9 the disclosures the children have reportedly made are very concerning if allegations are proven, and it goes on to talk about the impact and nature of the abuse.  Both the children are vulnerable.  There is concern about the mother set out in the report.  I don’t intend to go through it in detail.

11. Dr D prepared an initial report in May 2013.  She interviewed the mother, the children with the mother, the father, and made a phone call to Dr L.  She went through a great deal of material.  Of the father, she initially observed that she was not presented with any information to suggest the father was currently suffering from any significant psychological or emotional concern, although she did note on pages 13 and 14 some indication of insensitivity by the father which is troubling.

12. Dr D was concerned about the mother’s mental health as a consequence of the proceedings and observed that the mother was frequently tearful and it was recommended that she have some sort of intervention to assist her in coping with that.  Dr D confirmed that the children have a close bond with the mother and that she was, at least up till now, their primary carer.  As to the father, and I am conscious that this remains the case as evidence, it’s not tested.  She observed:-[1]

    It is simply not possible to determine with absolute certainty whether the children have or have not been sexually abused by the father.  Although both children have verbally disclosed incidents of sexual abuse, it’s difficult to determine whether these disclosures are as a result of actual events that occurred or whether they have been influenced or coached to provide these responses.  I was provided with information and evidence to support both possibilities.  Factors such as actual disclosure and [the father’s] history of being both a victim and perpetrator of sexual abuse are both indicators that could be considered supportive of the likelihood that the abuse occurred.  It is also concerning that [the father] claimed that he was “eight, or nine, or ten” when the previous incidents of abuse occurred, when, in fact, he was thirteen years old. …  His age at the time of the abuse suggests that the incident occurred was not of an innocent act of “playing”, but more characteristic of a victim/perpetrator relationship.  I certainly formed the view that [the father] made every attempt to downplay and minimise the previous incidents of sexual abuse which he was clearly the perpetrator. 

    However, the fact that the children displayed no anxiety or concern and were in fact happy and comfortable in [the father’s] presence supports the notion of abuse is unlikely to have occurred.  I also gained the impression that the accounts that the children gave me were somewhat practiced and artificial.  I am also concerned that [the mother] has not arranged for counselling of either of her children, despite her expressed belief that the children have been sexually abused by the father.  One would expect that arranging counselling for the children would be a priority for [the mother].

    [1] At page 18 of May 2013 Report.

13. I have noted the remainder of the comments made in Dr D’s report in relation to both the mother and the father in coming to this conclusion.  The Independent Children’s Lawyer prepared for the hearing a bundle of documents which are summarised in the Magellan Report, and that Report shows a somewhat chaotic lifestyle in relation to the children.  There is also evidence of Ms E, an occupational therapist, in relation to bringing C to the appointment at the Launceston Therapy Clinic.

14. Ms E observed that that child presented with developmental issues and would benefit from a more formalised developmental assessment.  But she has not seen the mother for some time.  She received some information from a person who asserted to be the mother’s landlord, of which I can give little or no weight.  But such was the concern of Ms E that she made reports to the Child Protection Authorities.

15. There is an affidavit by Ms M which is concerning that in relation to B’s attendance at school up to the 9 September 2013 there were 23 days absent.  As at 9 September 2013 there had been 72 school days, which meant that the child was absent from school about a third of the time.  There is indication that the child gets to school late, but that the child had adequate food and was properly dressed.  There is also some evidence in that report about a complaint by B of the father’s behaviour to him.  There is evidence of the mother not attending with Relationships Australia.

16. I have had regard to the efforts made to engage the mother in these proceedings.  I have read the father’s affidavit filed for these proceedings on 23 September 2013 and 7 January 2012, and an affidavit of his former partner, Ms N, in relation to his interaction with his daughter, O.  There is also the earlier affidavit of the paternal grandmother of 23 September 2013.  I have had regard in this matter to the lengthy chronology provided by the Independent Children’s Lawyer in pages 2, 3, 4 and 5 of the Independent Children’s Lawyers outline of case, which history is generally supported by the affidavits to which I have alluded. 

17. This is a case where the children may be at significant risk as to emotional or physical harm or neglect in the unsupervised care of the mother.  This is a case where the children could be at unacceptable risk of sexual abuse in the unsupervised care of the father and if the mother’s allegations, and I have had regard to those untested allegations contained in her affidavit of 29 November 2012, the children could be at grave risk.  As I said earlier, I endeavoured to engage the State Child Protection Authorities, but without success. 

18. That is the material I need to work with.  I am left with very limited tools at my disposal.  I can do nothing and leave the children in the care of the mother but having regard to the history of this matter that would not be in the children’s best interests, as it seems on the material before me.  Certainly in the circumstances I cannot place the children in the unsupervised care of the father.  I had hoped that the State Child Protection Authority would have been involved and perhaps they could have put the children with someone, including the paternal grandmother, but properly monitor the children. 

1. I had contemplated whether I ought to transfer these proceedings for determination in the Supreme Court of Tasmania, it having both the child protection powers under the legislature and the common low and having power to exercise private law as under the Family Law Act 1975 (Cth) under the cross-vesting legislation. However, the children may not be in Tasmania and that would render at least part of that transfer nugatory. The children have a close relationship with both of their parents it seems, but the closer relationship is with the mother. The children need to be protected from physical, psychological harm or from being subjected or exposed to abuse, neglect or family violence.

2. The only way that can be done in the present circumstances is if the children are left with the paternal grandmother.  The maternal grandmother was invited to participate in these proceedings but has not at this stage decided to do so.

3. The children are at an age where their views and maturity is such that, first of all, I do not know what their views are, although I can assume that they would prefer to stay with their mother, given the material from Dr D, but I can give those no weight. 

4. The nature of the relationship between the child and each of the parents and, of course, the paternal grandmother.  The mother is the primary carer of the children and they are primarily attached to her.  The children have a relationship with the father, although there are some difficulties with that given the circumstances that exist at the present time and those issues raised by Dr D in her report.  The children had an adequate relationship with the paternal grandmother.  It is not entirely clear what the children’s relationship is with the maternal grandmother.  The mother has not taken any steps to engage the concerns of the Child Protection Authorities, nor this Court, and she has in many ways endeavoured to frustrate the determination which this Court must make to give voice to the needs of these children and the best interests of these children.

5. The father has determined to spend time and communicate with the children, but has been frustrated in doing do, albeit if he is an acceptable risk he may not see the children.  There is not significant evidence as to the ability of the parents to maintain the children, although it is clear the mother has been doing so for the last 12 months. 

6. As to the likely effect of the change in the children’s circumstances, I have had significant regard to that.  It will be a trauma for these children to be removed from their mother, of that I have no doubt, but it is weighing that against leaving the children at risk in the care of the mother and leaving perhaps the peripatetic and chaotic lifestyle in circumstances where there are real issues as to the mother’s capacity to parent must be given greater weight.

7. The capacity of each of the parents is in issue.  There appears to be some evidence that the paternal grandmother has capacity to care for the children.  There is practical difficulty and expense in the children spending time with each of the parents, as the mother has left the state of Tasmania and is not making the children available to spend time with the father, whether supervised or otherwise. 

8. The mother’s attitude to the children and responsibilities of parenthood, are clearly in issue given the history that I have referred to earlier. 

9. There are serious allegations of family violence which are set out in the affidavits and I have had regard to those and of the matters set out in the history provided by Ms Higgins, the Independent Children’s Lawyer. 

10. Whatever order I make, the matter will need to be brought back to Court.  I intend to make the orders substantially as sought by the Independent Children’s Lawyer.  I do not intend to give the father the time that he wants, having regard to the material contained in the reports of Dr D, in particular her email to Ms Higgins of 9 December 2013 which is Exhibit ICLB.  I intend to direct that the address of the children be provided to the Independent Children’s Lawyer who is in turn to inform the Marshall of the Court and the relevant police authorities.  The father seeks orders for sole parental responsibility.  Given the orders I propose to make, I do not intend to do so.  What I intend to do is make an order that parental responsibility will be exercised by the paternal grandmother in concert with either the father or mother, but not necessarily both.  This will be a pending order because she will have pursuant to these orders the care of the children.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 10 December 2013.

Associate:     

Date:              10 December 2013