Gabriel and Anor and Samora and Ors (No.2)

[2020] FCCA 2601

FEDERAL CIRCUIT COURT OF AUSTRALIA

GABRIEL & ANOR & SAMORA & ORS (No.2) [2020] FCCA 2601

Catchwords:
FAMILY LAW – Parenting – concerning a child who is five years old – whether the child is at risk of harm, abuse or neglect in current living circumstances – where the applicants propose the child should live with a person whom the child may not know – further information provided in regard to the child’s current living circumstances – the material suggests that the child is not at immediate risk of abuse or neglect.

FAMILY – Parenting – applications for joinder – whether the party seeking joinder is a necessary party in the terms of Federal Circuit Court Rules r. 11.01 – where the parties do not seek orders which differ to a party already involved in the proceedings – applications dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 91B

Federal Circuit Court Rules 2001 (Cth), r.11.01

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: 28 August 2020

Date of Last Submission: 28 August 2020

Delivered at: Darwin

Delivered on: 28 August 2020

REPRESENTATION

Counsel for the First and Second Applicants: Ms Franz

Solicitors for the First and Second Applicants: Darwin Family Law

Counsel for the First Respondent: Mr Caldwell

Solicitors for the First Respondent: Alice Springs Family Law

The Second Respondent: In person

Counsel for the Third Respondent: Ms Duggan

Solicitors for the Third Respondent: Withnalls Lawyers

ORDERS

1. The application for MR GABRIEL to be joined as a party to this proceeding is dismissed.

2. The application for MS JOHNSON to be joined as a party to this proceeding is dismissed.

3. That pursuant to s.11F of the Family Law Act 1975 the parties attend reportable child dispute conference at the Federal Circuit Court of Australia Darwin on 18 November 2020 at 9.00am with a family consultant, to discuss the care, welfare and development of the child X born in 2015 in an endeavour to resolve any differences between the parties in relation thereto with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

4. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders

5. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the child X born in 2015 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

6. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

8. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

9. That the parties attend a Family Dispute Resolution Conference at Northern Territory Legal Aid Commission on a date to be advised to the parties.

10. The Minister for Territory Families is excused from attending at future court dates.

11. The matter is adjourned to 7 December 2020 at 2:15pm (NT time).

IT IS NOTED that publication of this judgment under the pseudonym Gabriel & Anor & Samora & Ors (No.2) 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.

Application for Joinder – Mr Gabriel

1. This is an application by the applicants to join the maternal grandfather Mr Gabriel. It is conceded that Mr Gabriel has no divergent interest to Ms Dillard and he supports her application. In the circumstances, I am not satisfied he is a necessary party in the terms of rule 11.01 of the Federal Circuit Court Rules, so I dismiss the application.

Application for Joinder – Ms Johnson

1. This is an application by the paternal grandmother to join the proceeding, again pursuant to rule 11.01, that is, as a necessary party. The application in a case filed by the paternal grandmother merely says that Ms Johnson be permitted to join these proceedings as the paternal grandmother, the matter be adjourned for a period of no less than two weeks and the paternal grandmother file and serve her response.

2. There is no indication in the application about what separate orders the paternal grandmother may be seeking as opposed to the father.  The affidavit in support of the paternal grandmother, and I will summarise it, says something about the history of the paternal grandmother’s involvement with this child, which appears to be negligible, and about various communications with Ms Taft, about birthdays and so on.

3. The affidavit is slightly more than one page and does not provide any history, really, of the paternal grandmother’s involvement with the child.  Most significantly it does not set out any orders that the paternal grandmother may be seeking that differ from the application of her son.  There is nothing in the application or the affidavit in support to suggest to me that the paternal grandmother is a necessary party or that the interests of the paternal grandmother diverge in any way from her son.

4. I asked Ms Bowen, who appears for the paternal grandmother today, at the outset whether or not the paternal grandmother supported her son’s position.  She told me, according to my recollection, that the paternal grandmother supported her son’s position, that is the father’s position.

5. She said that the paternal grandmother was concerned to prevent the relocation of the child to New South Wales, if there were to be an interim order that the child live with Ms Dillard, the second applicant.  I am not satisfied that any of that makes the paternal grandmother a necessary party.  I am satisfied that there is no information before me, at this stage, to suggest that she is a necessary party or that she has an interest in any way divergent to her son.

6. I am satisfied that the requirements for joinder are not satisfied on the basis of the current material before me.  A joinder application can be made at any time but it ought to be made only if there is some additional material to the material that has been put forward today, which, in my view, falls well short of what is required.  The application is refused.

Substantive Proceeding

1. This is the adjournment of an urgent application brought by Ms Dillard, who is the second applicant in this matter concerning X, who has just turned five years old in 2020.  I set out some of the history to the matter in the ex tempore reasons I gave on 11 August 2020.

2. I adjourned Ms Dillard’s urgent application to today in the expectation that I would have some further information about the child and her circumstances, particularly her circumstances where she is living with Ms Taft, who is the daughter of Ms Keaton, who has been the child’s long-term carer.

3. I was enormously assisted by a statement set out in a statutory declaration by Ms Nelson, who is an officer employed by Territory Families.  I do not consider it necessary that this sort of information be put in a statutory declaration.  I think it is perfectly sufficient if a letter under a relevant Territory Families letterhead is sent to the court.  If it is ever gets to the point of evidence then someone may have to produce an affidavit but I would have thought that a letter, and it is really only a letter in response to an invitation to Territory Families to intervene, perfectly covers that and it is easier for everybody to deal with.  While it is not a criticism and I am very grateful for the way the information has been set out, I do not think it necessarily needs to be done that way.  

4. The document from Ms Nelson sets out in some detail the background to this matter.  It makes it clear that Territory Families are aware of X’s position, particularly having regard to the fact that her long-time carer, Ms Keaton, has been convicted of trafficking in methamphetamines and sentenced to a period of imprisonment and that the child was placed with Ms Keaton’s daughter, Ms Taft, who also has a criminal history relating to methamphetamine.

5. Territory Families have also investigated, as I indicated on 11 August, the allegations relating to what were suspected to be inflicted cigarette burns on the child’s arm.  Territory Families were satisfied that there was no evidence to indicate that those burns were inflicted.  In other words, there is nothing to suggest they were anything other than accidental.

6. More to the point, the material for Territory Families indicates that, as at the date of the statement which was on Tuesday 25 August, the child welfare officers who were responsible for investigating various allegations about X’s care were of the view that there are:

   ...no significant care and protection concerns for the child while residing with Ms Taft.  The home of Ms Taft was assessed and it was noted to be family friendly, and the carer appeared to have good support from an NGO.  She was also noted to have a very warm bond with X.  Ms Taft has also been closely monitored by Corrections –

   That is because, and I interpolate, she is on a supervisory order at the moment, following her release from prison –  

   …and plans have been put in place to address the drug relapses.

   Again, a reference to the positive urine test for methamphetamine that I referred to on 11 August.  I think in the affidavit Ms Taft points out that one of those was positive for morphine, which is equally concerning.

7. The report goes on:

   X has attended childcare for some time and they report no concerns about her welfare and safety.  The childcare noted that she is a child who likes consistency in her routines.

8. Ms Taft has filed an affidavit more recently which annexes the child’s attendance records at pre-school and a letter from the preschool, which indicate that attendance is regular, the child is clean, appropriately dressed when she attends and has a packed lunch.

9. Those matters are highly important in cases such as this, where there is a question arising about whether the child is at risk of harm or, in the terms of the language of the Family Law Act, abuse or neglect. At this stage, there is no clear evidence that the child is at any immediate risk of abuse or neglect, notwithstanding that there is evidence which, in one interpretation, indicates that Ms Taft is drug-dependant. There is no evidence that she is at any immediate risk of harm, abuse, or neglect.

10. On the contrary, the material suggests that the child is appropriately cared for, at least on a physical basis, and also has a warm emotional bond with Ms Taft.  That is all encouraging, which is not to say of course, that there are not very grave concerns from the other matters that I have referred to, particularly the illicit drug use and possible dependency.

11. The proposal being put forward by the maternal family, which was essentially that there be an immediate order that the child live with Ms Dillard, is not a position that can be sustained.  There is no evidence of a significant relationship, apart from the family one or the biological one, between Ms Dillard and the child.  I would infer from the material that the child probably does not know Ms Dillard and, in the circumstances, it seems to me that it cannot be contemplated, unless there is an immediate risk of abuse or neglect to this child, to place her with an adult person with whom she has no relationship and barely knows or does not know.

12. The other issue that was raised by Ms Franz was an application, an oral application, as far as I can see, that the child spend time with Mr Gabriel, who is the mother’s father.  Very little is known about Mr Gabriel, apart from the fact that he has a criminal record, having spent time in prison for trafficking in methamphetamine.  There is a text message attached to Ms Taft’s most recent affidavit, which annexes a text message exchange between Mr Gabriel and Ms Taft, which is cause for concern.  One interpretation of that exchange is that Mr Gabriel demanded that the child be delivered to him immediately or he would inform the police about something unspecified relating to Ms Taft.

13. Whether that actually constitutes a demand with menaces, which would be a criminal offence, I am not sure.  I am not qualified to make any finding about that and I do not.  However, on one reading of that, the demand that the child be delivered immediately to parties with whom the child’s relationship is not well established, or perhaps unknown, is a demand that pays scant heed to the best interests of the child.  I was disturbed by that message and, in my view, it raises real question marks about Mr Gabriel’s investment in the best interests of this child.

14. Ms Franz also raised an application that the child at least spend time with Ms Dillard.  For reasons I have already given, I am not prepared to make such an order.  I am not prepared to make any order that the child spend time with Ms Dillard at this stage, or for that matter, Mr Gabriel.

15. Whether or not the child should spend time with her mother while the mother is in prison is a different matter.  Ms Keaton, who has been the carer of the child until she, Ms Keaton, went to jail for trafficking in methamphetamine, was of the view that it was appropriate that the child spend some time with the mother but probably not more than once a month, as it involves a visit to the prison.  Ms Keaton was concerned about the impact on the child of spending time with the mother too often at the prison.  It seems to me there is some substance in that and I will be very unlikely to make an order that the child spend frequent time with the mother at the prison.

16. However, I do consider that once a month may be an appropriate order if someone can be found to take the child to the prison.  I am not going to make an order about that, I will simply indicate to the parties that I think that needs to be seriously considered.  I am going to give the parties the opportunity to discuss those issues with a family consultant in a child dispute conference, pursuant to 11F.

17. I am also going to make an order that they attend a dispute resolution conference at a time that can be accommodated by the Legal Aid Commission.

18. I do not think I will make an order for the preparation of a family report at this stage.  I think I will wait until the dust settles a little bit.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 15 September 2020