Dyball & Bland

[2014] FamCA 33

FAMILY COURT OF AUSTRALIA

DYBALL & BLAND AND ANOR [2014] FamCA 33

FAMILY LAW – INTERVENTION – request for Director-General of the NSW Department of Family and Community Services to intervene – reasons behind order pursuant to Section 91B of the Family Law Act 1975 (Cth)

APPLICANT: Ms Dyball

FIRST RESPONDENT: Ms Bland

SECOND RESPONDENT: Mr Tumlin

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: PAC 6008 of 2011

DATE DELIVERED: 30 January 2014 in Chambers

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 January 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Lamrocks Solicitors

SOLICITOR FOR THE FIRST 

RESPONDENT:

Rafton Family Lawyers

SECOND RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Watts McCray Lawyers

Orders made on 20 January 2014

1. The matter be adjourned to 7 February 2014 at 9.30am for mention.

2. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Director-General of the NSW Department of Family and Community Services is requested to intervene on an urgent basis in these proceedings and a short judgment will be delivered as to the reasons for this request.

3. In the event that the Director-General intervenes, he/she is to file and serve a Notice of Intervention (by no later than 3 February 2014).

4. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Director-General of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

5. A Family Consultant of this Registry prepare a Family Report for the Court’s assistance in this matter addressing the following issues:

   a.The views of the child and any factors underlying those views;

b.The nature of the relationship of the child with each of the parents, the child’s siblings, the maternal grandmother and the Applicant;

c.The willingness and ability of each parent to facilitate and encourage a continuing relationship between the child and his parents;

d.The likely effect of past changes in the child’s circumstances including coming into the care of the Applicant, and of any future changes in circumstances;

e.The capacity of each of the parents and the Applicant to provide for the child’s needs, including emotional and intellectual needs;

f.The attitude towards the child and the responsibilities of parenthood demonstrated by each parent;

g.Any family violence involving the child or members of the child’s family;

h.Such other matters as seem relevant to the Family Consultant.

Notation

1. Although a family report has been ordered, it is not the Court’s preferred option as the Family Consultant is of the view that the matter requires an expert and the family report is ordered only as a fall-back position.

2. An undertaking has been provided by the Independent Children’s Lawyer to inform the maternal grandmother of the meaning of intervening and the way in which the Court becomes informed of parties’ positions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dyball & Bland and Anor 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 6008 of 2011

Ms Dyball

Applicant

And

Ms Bland

First Respondent

And

Mr Tumlin

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern N (“the child”) who is 15 years old.  In May 2011 when the child was 12 years of age, following an incident with his mother who had sole care of him, the child ran away and went to the home of his maternal grandmother who took him to the police station.  Following enquiries and in circumstances which are in dispute, the child left the police station in the care of Ms Dyball (“the Applicant”) with whom he has been living since that date.  It appears that the Applicant who had been the child’s school teacher and had become involved in the child’s life out of school hours had some previous knowledge that the child would run away and wanted to live with her.

2. The Applicant brought proceedings in December 2011 and seeks equal shared parental responsibility between herself and the child’s father for the child and orders that the child live with her and spend time with his father each weekend and with the mother in accordance with the child’s wishes.

3. On 20 January 2014 in the course of making directions about the hearing of the matter, I invited the Director-General of the Department of Family and Community Services to intervene in the proceedings and indicated that I would give reasons for that decision.  These are those Reasons.

Background

1. The child’s parents, Mr Tumlin (“the father”) and Ms Bland (“the mother”) commenced a relationship in around 1997.  The child was born in September 1998 and is the only child of the relationship.  The parents separated in 1999 and following their separation the child lived with his mother and spent limited time with his father.  The mother has two other younger children who live with her.

2. The Applicant, who is 46 years of age and has five children of her own aged between 15 and 24 years, was the child’s teacher at E School in 2009 and 2010.  The Applicant is a teacher and the child was in a class for students with a mild intellectual disability, and has also been diagnosed with ADHD, oppositional defiant disorder and exhibited behavioural difficulties.  There appears to also be no dispute that notifications have been made to the Department of Community Services as it then was, on a number of occasions.

3. There is significant dispute about the circumstances of the child prior to May 2011 with the Applicant alleging that the mother was highly critical of the child when she was involved as a classroom assistant and that the mother provided inadequate food throughout the 2010 school year.  The Applicant also alleges that the child was very underweight, was required to do an excessive amount of household chores and assist the mother in the care of his younger siblings and that the mother physically and verbally abused him.  The mother denies these allegations.

4. When the child commenced Year 7 at the beginning of 2011 the Applicant began tutoring him, at first at school and then out of school hours at the child’s home, without the knowledge or consent of the Department of Education.

5. The mother says that the child has had a history of disturbing behaviour including making unfounded allegations against her and disregarded her attempts to control his behaviour which caused the younger siblings to become distressed and scared.

6. Throughout the beginning of 2011, it appears that the child was spending more and more time at the Applicant’s home including overnight time and the Applicant says he indicated to her that he wanted to run away from his mother.  The Applicant says that she told the child if he was going to run away not to come to her but to go to his (maternal) grandmother’s house.

7. On Sunday, 29 May 2011 the child ran away from his home and went to his grandmother’s house and his grandmother took him to the police.  The Applicant asserts that as the mother opposed the child living with his grandmother, the father was not in a position to care for the child and the mother was happy for the child to be released to her, the child came into her care.  The mother disputes these circumstances, and says that the Applicant manipulated the situation and effectively removed the child from her care without her consent.

8. Following the incident an application was made for an Apprehended Domestic Violence order protecting the child from his mother for a period of 12 months.  This was made final on 19 July 2011.

9. Although the details of a complaint made by the mother against the Applicant to the Department of Education are not entirely clear, there has been some finding by that Department in respect of the Applicant’s conduct.

10. Since 29 May 2011, the child has resided with the Applicant and pursuant to an agreement between the Applicant and the child’s father, he spends weekend time with his father, though it is not clear how regularly this occurs.  The child has consistently refused to return to his mother.

11. In December 2011, the Applicant commenced these proceedings and the parents filed their Responses in early 2012.  The mother is opposed to the Application while the father agrees with the orders sought by the Applicant.

12. The parties participated in a Children and Parents Issues Assessment with a Family Consultant and the Court ordered an Independent Children’s Lawyer represent the child’s interests.

13. The Family Consultant carried out her interviews for the assessment in February and March 2012.

14. In the course of the assessment, the child who was 13 and a half at the time, provided detailed descriptions of his allegations of abuse at the hands of his mother including numerous allegations of physical abuse and verbal abuse and also alleged that his mother forced him to do an unreasonable number of household chores including caring for his younger siblings.  The child said that he did not want to spend any time with his mother.  The child spoke positively about living with the Applicant and said he got along well with all of the family members and had been seeing his maternal grandmother whilst living with the Applicant but did not know if she was “on my side or her (his mother’s) side”.  The child was at this time apparently on a new medication regime of Ritalin and Risperidone which had assisted his behaviour.

15. The Applicant told the Family Consultant that she knew she was breaching a Code of Conduct when she commenced tutoring the child out of school hours at his home and said that the Department of Education had found she “formed a personal rather than professional relationship” with the child and have received a “slap on the wrist” for this.

16. The Applicant described the mother as manipulative, controlling, intimidating and evil and could not see any disadvantages to the child from spending no further time with his mother.

17. The Applicant said that she and other teachers at the primary school were well aware of a long history of physical and verbal abuse by the mother towards the child and had made a number of notifications of risk of harm to the Department of Community Services (as it then was) but no action was taken though many school staff were hoping that the Department would remove the child from the care of his mother.

18. The mother told the Family Consultant that she had not agreed for the child to live permanently with the Applicant and that from June until December 2011 she did not know where the child was living.

19. The mother said that the Applicant first started tutoring the child after asking the mother if he could be a case study for a university assignment and the frequency of tutoring increased and changed from occurring at school during school hours to twice a week, to occurring in the maternal home when the mother was not home, a situation she had not consented to.

20. The mother said that prior to the child moving into the care of the Applicant he had on occasions stayed at her home and that the Applicant had also babysat her other children on two occasions.  The mother said that the Applicant had referred to the child as “her son” on Facebook and said that her relationship with the child was damaged when she would no longer protect the Applicant from allegations of misconduct as a teacher.

21. The mother denied the allegations of physical abuse of the child.

22. The father said that whilst he initially wanted the child to live with him and was initially wary about the Applicant’s involvement, he was no longer concerned and felt the current arrangement is what was best for the child.

23. The father described a personal history of a difficult and violent upbringing, had fathered his first child at 12 years old, had used Cannabis daily from 12 to 34 years, had a history of other drug use and had spent time in prison.

24. It was the Family Consultant’s opinion that it did not appear to be in dispute that the child’s relationship had broken down with his mother, he had no desire to repair it and the Applicant and the father saw no value in the child repairing it.  The Family Consultant said the child and the Applicant had made very serious allegations against the mother and the mother had raised serious concerns about the Applicant’s behaviour towards her and the child.  The Family Consultant felt that the dynamics that resulted in the Applicant becoming highly involved with the child, outside her professional role with him raise serious concerns about hers and the mother’s application of appropriate boundaries and decision-making capacities.

25. In July 2012 when the report was released, various recommendations were made including that the Department of Family and Community Services be invited to intervene in those proceedings.

26. When the matter was first before a Judge in March 2013, a significant area of concern was that the child should have an opportunity to attend counselling to obtain professional assistance with his family situation and behaviour and the parties agreed that Dr C would be an appropriate therapist.  The matter was adjourned to allow this therapy to occur, but when the matter came before me in January 2014 it was clear that the child had no interest in repairing the relationship with his mother and in the circumstances Dr C was unable to assist.

Summary

1. A child of 15 years has now been residing out of home and has had no relationship at all with his mother and his younger siblings for two and a half years.  The child came into the care of the Applicant in circumstances outside her professional role as his teacher and which raise serious concerns about the mother’s and Applicant’s appropriate boundaries and decision-making capacities.  Serious untested allegations have been made in relation to both parents’ parenting capacity.  Although the Family Consultant recommended the preparation of an expert psychiatrist report, this may take many months and the parties are not in a position to fund such a report.  The Applicant has taken on the role of defacto foster carer in circumstances which the mother says she opposed.

2. As the Department is currently not a party to the proceedings, little is known about the allegations of past conduct by the parents and, more importantly, the current circumstances of the child.  Other than documents produced on subpoena, the only information that will be provided to the Court is by the parties themselves.  The Court has no power to order a report that involves an assessment of the home itself.  The parties cannot afford to fund a psychiatric report which has been recommended by the Family Consultant.  Although the maternal grandmother has been suggested by the mother and even the child himself as an intervener, the Court is unsure of her understanding of the proceedings or any role that she may play.

3. There has been a history of notifications to the Department but no action has been taken to date.  The circumstances of serious allegations in relation to parenting capacity and placement of a child with a non-family member in breach of a professional relationship is ordinarily one in which the Department ought to play a role.  Accordingly, the Department is invited to intervene in these proceedings.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 January 2014.

Associate: 

Date:  30 January 2014