Gabriel and Anor and Samora and Ors

[2020] FCCA 2418

FEDERAL CIRCUIT COURT OF AUSTRALIA

GABRIEL & ANOR & SAMORA & ORS [2020] FCCA 2418

Catchwords:
FAMILY LAW – Parenting – whether there is an unacceptable risk of harm to the child – urgent application concerning a five year old who is living with the daughter of the child’s regular caregiver – where the child’s parents and regular caregiver are currently in prison – where the daughter of the child’s regular caregiver and other parties have history of illicit drug use – where the child currently remains in the house in which she has lived for almost all of her life – where current Territory Families involvement.

Legislation:

Family Law Act 1975 (Cth)

First Applicant: MS GABRIEL

Second Applicant: MS DILLARD

First Respondent: MR SAMORA

Second Respondent: MS KEATON

Third Respondent: MS TAFT

File Number: DNC 410 of 2020

Judgment of: Judge Young

Hearing date: 11 August 2020

Date of Last Submission: 11 August 2020

Delivered at: Darwin

Delivered on: 11 August 2020

REPRESENTATION

Counsel for the First and Second Applicants: Ms Franz

Solicitors for the First and Second Applicants: Darwin Family Law

The First Respondent: In person

The Second Respondent: In person

Counsel for the Third Respondent: Ms Noble

Solicitors for the Third Respondent: Withnalls Lawyers

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the child X born in 2015 live with the third respondent Ms Taft.

2. That an injunction be granted and the third respondent be restrained from consuming illicit drugs or exposing the child to drug paraphernalia or drug use whilst the child is in her care.

3. That pursuant to section 69ZW of the Family Law Act 1975 Territory Families provide the Court with the following documents or information:

   (a)copies of any notifications regarding abuse allegations arising or relating to the child X born in 2015;

   (b)any assessments or investigations into such abuse allegations;

   (c)the outcome or findings of any such assessments and investigations; and

   (d)copies of any reports received by Territory Families in the course of investigating any such notifications.

4. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon Territory Families without the Courts leave

5. That all respondents file and serve a Response, affidavit in support and notice of risk by close of business on 25 August 2020.

6. That pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for Territory Families be invited to intervene in these proceedings and to arrange for the representative to attend the Court by telephone on the next occasion being 28 August 2020 at 11:30am by emailing [email protected] for dial in instructions.

7. That the matter be adjourned to 28 August 2020 at 11:30am for further interim hearing..

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 410 of 2020

MS GABRIEL

First Applicant

MS DILLARD

Second Applicant

And

MR SAMORA

First Respondent

MS KEATON

Second Respondent

MS TAFT

Third 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 urgent application concerning a five year old, X, who is the child of Ms Gabriel and Mr Samora, both of whom are parties to this litigation.  Mr Samora is presently in the B Prison and the child has not spent any time with him, apart from apparently telephone calls, since she was six months old, so Mr Samora’s involvement in the child’s life is negligible.  The mother is the first applicant and apparently has also had very little to do with the child since the child was very young. 

3. There was some argument about whether the child was four or nine months old when she was placed with the second respondent, Ms Keaton.  In any event, it is clear that neither parent has played any significant role in this child’s life for a very long time.  That would appear to be because of, in the case of the mother at least, illicit drug use.  She apparently, according to the affidavit material, has a long history of methamphetamine use and is indeed presently serving a sentence of imprisonment as I understand it.

4. The mother is presently in jail, apparently on remand, though her counsel assured me that she would be pleading guilty to drug offences as, she said, is unlikely to serve a term of actual imprisonment.  Nevertheless, she is in jail.

5. The second applicant is the maternal aunt, Ms Dillard.  Ms Dillard ordinarily lives in New South Wales and apparently has had not a great deal to do with the child judging by her affidavit.  As far as I can see the child has never spent any time with her.  Ms Dillard’s involvement began relatively recently when concerns were raised about the child’s current circumstances.

6. Ms Dillard has stepped forward to say that she believes that the child is at risk of harm in her present circumstances and, hence, the urgent application today.

7. The respondents are Mr Samora, who is as I have said the first respondent, and Ms Keaton, the second respondent, who is the person with whom the child has lived since she was a few months old – in other words, almost all of her five years of life.  Ms Keaton is also in jail having been sentenced for drug offences including dealing and trafficking in methamphetamine.

8. The sentencing remarks made at the time of Ms Keaton’s imprisonment by Kelly J in the Supreme Court in mid 2020, in other words very recently, which are attached to an affidavit of Ms Gabriel, observed as follows:

   When you were supplying drugs to your customers, it was not uncommon for you to collect drugs while your grand-daughter was with you.

9. I interpolate to say that it is not in issue that the reference to the grand-daughter is in fact a reference to the subject child in these proceedings, who is not in fact Ms Keaton’s granddaughter. 

10. It goes on:

    There were times when customers would go to your house when your grand-daughter was present.  There were other times when you would take measures to conduct your transactions at a time and place to avoid exposing your grand-daughter to the drug dealing. 

11. There are other similar remarks making it clear that Ms Keaton’s parenting capacity is limited, having exposed a young child to trafficking in methamphetamine.

12. The fact is, nevertheless, that Ms Keaton has cared for the child.  Ms Keaton said in oral submissions that she was drug free until relatively recently but following a personal tragedy resumed the consumption of illicit drugs and, it would appear, trafficking in methamphetamine. 

13. Ms Keaton says that she is likely to be released from jail in six weeks and proposes to resume care of the child.  However, when she was sentenced to imprisonment Ms Keaton engaged the assistance of her daughter, Ms Taft, who is the third respondent. 

14. The child has been living with Ms Taft at Ms Keaton’s home in Suburb C, as I understood it, since January of this year.  Ms Taft’s position is also far from ideal.  Ms Taft was previously sentenced to a period of imprisonment for, at least, use of methamphetamine.  I am not aware of the details of the charges but she is a long term methamphetamine user.  That is not in contention, though her counsel would not concede, on her instructions, that Ms Taft was dependent upon methamphetamine. 

15. In my view that might be seriously doubted considering that on 15 January 2020, 2 March 2020, 21 May 2020, and 23 July 2020, Ms Taft returned positive tests for methamphetamine after urine tests conducted while she was under supervision of the Department of Corrections.  In respect of one of the breaches her period of supervision has been extended.

16. The fact remains that Ms Keaton and Ms Taft appear to be far from ideal persons to care for a young child and their record of what I take to be dependence upon illicit drugs raises real question marks about their suitability or indeed capacity as parents.  However, at present the child is being cared for by a person who is the daughter of Ms Keaton, who, it appears has cared for the child almost all of her life and I assume Ms Taft is well known to the child.

17. It appears that the child remains in the house or the home in which she has lived for almost all of her life.  There appears to be evidence, and I do not give it great weight at this stage, but there is some evidence in the form of a letter from D Health Service about Ms Taft which indicates that Ms Taft at least told the psychologist, Ms E, that she was very focused on the child’s social and emotional wellbeing and, according to the psychologist at least, she understood that the child was attending school and was being properly cared for, at least on a psychical level. 

18. The other factor that is in the mix is this.  Territory Families are currently conducting an investigation into whether or not the child’s present care arrangements place her at risk of harm.  Ms Franz has tendered an email exchange, which I will mark as exhibit A1, which includes an email dated Friday 7 August directed to Ms Franz which says as follows:

    My name is Ms F and I am Ms G’s team leader.  The H Child Protection does not complete section 69ZW reports.  We are completing a child protection investigation into whether the children –

19. And I do not know what the reference to “children” in the plural is.  The only child mentioned in the subject heading is the subject child, X.  I think that the reference to “children” in the plural is an error:

    …are safe with current carer...

20. I take that to be a reference to Ms Taft:  

    This report will not be ready by next Tuesday.  If you wish to access the child protection records then you will need to formally request this through our information release team. 

21. It is clear that Territory Families are involved to some degree and are investigating the child’s circumstances.  It would appear, from Ms Dillard’s affidavit at paragraph 28, wherein she spoke to Territory Families and to the investigator Ms G, that Territory Families were well aware of the allegations being made about the inappropriate nature of Ms Taft’s care for the child.

22. The other issue that is raised in Ms Dillard’s affidavit is an allegation that the child was exhibiting injuries indicative of cigarette burns.  That is also the subject of the Territory Families letter, unfortunately undated but tendered by Ms Noble, which says as follows, and I quote without quoting all of the letter:

    Territory Families received a child protection notification on 14 March 2020 in relation to X.  This notification alleged that the child had been observed to have three cigarette burns on her arm.  In consideration of the information/evidence gathered, it has been assessed that the incident was likely to be the result of an accident.  There is no information at this time to suggest that the child has significant harm or at risk of harm under the care of Ms Taft.  Therefore, it is recommended that the case be closed and finalised as “no abuse or neglect found.”

23. That allegation in particular has been investigated.  I am not satisfied that there is an unacceptable risk of harm to this child should she remain in Ms Taft’s care for the time being and I do not propose to make the orders sought by the applicants today.  Another reason for doing that is that they were served very recently at the end of last week and I am satisfied that Ms Noble, who appears for Ms Taft, has not had adequate time to prepare her responses. 

24. I also think it would be appropriate to make a section 69ZW order and find out what the Territory Families investigations have produced, if anything, at this stage. Given the seriousness of the matter, I also propose to request an intervention so that I can hear directly from someone appearing for Territory Families the next time I deal with this matter.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 28 August 2020