George and Chisholm

[2018] FCCA 1021

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEORGE & CHISHOLM [2018] FCCA 1021

Catchwords:
FAMILY LAW – Parenting – ex parte orders – unacceptable risk – difficulty in assessing risk by FACS redaction of notifiers.

Legislation:

Family Law Act 1975, ss.60CC(2A), 65C

Children & Young Persons (Care & Protection) Act 1998 (NSW)

Cases cited:

M & M (1988) FLC 91-979

Applicant: MS GEORGE

Respondent: MR CHISHOLM

File Number: DUC 320 of 2017

Judgment of: Judge Dunkley

Hearing date: 7 March 2018

Date of Last Submission: 7 March 2018

Delivered at: Dubbo

Delivered on: 30 April 2018

REPRESENTATION

Counsel for the Applicant: Ms J. Webb

Solicitors for the Applicant: DLH Solicitors

There being no appearance for the Respondent

ORDERS

1. Pending further order, [X] born (omitted) 2014 shall live with the applicant maternal grandmother Ms George.

THE COURT FURTHER ORDERS

1. Pursuant to Section 67Q of the Family Law Act 1975, a Recovery Order issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to find and recover the child [X] born (omitted) 2014 and return her to the care of the applicant MS GEORGE.

2. This case is listed for further directions at 11.30am on 31 July 2018 in Dubbo.

3. The maternal grandmother is to notify the chambers of Judge Dunkley within 72 hours of the recovery order being executed so as to obtain the earliest possible relisting of this case.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DUBBO

DUC 320 of 2017

MS GEORGE

Applicant

And

MR CHISHOLM

Respondent

REASONS FOR JUDGMENT

Background

1. Ms George is the maternal grandmother of [X] aged 3½ nearly 4 who was born on (omitted) 2014.

2. [X]’s mother died on (omitted) 2016.

3. [X]’s mother had a history of drug abuse which likely contributed to the cause of her death.

4. At the time of her mother’s death, [X] was living with both her parents who were not separated.  They were living as a family unit.

5. After the death of [X]’s mother, [X] remained living with her father Mr Chisholm, who was living with his father in (omitted) in (omitted) Sydney.

6. Ms George spent time with [X] until about August 2017 and had telephone contact with her until about December 2017.  Ms George’s time with [X] was arranged through mediation and those periods were not as a result of court orders.  She mostly spent time with [X] in Sydney.  She had at least one period of nearly a week’s duration with [X] in her home at (omitted) in mid-2017.

7. The maternal grandmother believes the father and [X] are living near (omitted) a suburb of Brisbane.  This belief is based on a telephone call she says she had with the father in late August 2017.

Litigation History

1. On 1 September 2017 Ms George filed an Initiating Application in the Local Court at Mudgee.

2. At the same time she filed an affidavit she swore on 1 September 2017.

3. Mr Chisholm has never been personally served with those documents.  He was likely unaware of the court proceedings in the Local Court.

4. In any event the case proceeded ex parte in the Local Court.

5. On 7 September 2017 the Local Court Magistrate made a Commonwealth location order directed to the Secretary of Department of Human Services.

6. The Local Court Magistrate also transferred the case to the Federal Circuit Court sitting on circuit in Dubbo.

7. On 19 October 2017 on the first return date in the Federal Circuit Court an order for substituted service was made and the requirement for personal service on Mr George was dispensed with.

8. The substituted service order required that service be effected on the paternal grandfather Mr E in lieu of the father.

9. The case was adjourned to 7 March 2018 to enable time for substituted service to occur.

10. On 20 December 2017 an affidavit sworn by Mr P was efiled.  That affidavit confirms Mr E was personally served as required by the substituted service order.  He was served at an address at (omitted) in Queensland.

11. On 7 March 2018 the case was listed again in the Federal Circuit Court at Dubbo.

12. Mr Chisholm did not appear, he was not represented and he had filed no documents.

13. It is likely Mr Chisholm had knowledge of the case.

14. As a consequence, a hearing occurred in his absence and undefended and on the papers on 7 March 2018.  By this date some documents had been produced in answer to subpoena that the maternal grandmother had sought on 20 December 2017 to issue.

15. Documents produced in answer to subpoena by Family & Community Services (hereinafter FACS) and Department of Child Safety Queensland respectively became exhibits A and C in the hearing.  The grandmother also had marked as exhibit B a cause of death form from (omitted) Hospital.

16. FACS has an extensive file relevant to the family and the child, [X].

17. Child Safety Queensland has no documents relevant to the child, [X].

Orders Sought

1. Ms George is seeking orders that she have sole parental responsibility for [X] and that [X] live with her and that a recovery order issue.

Evidence

1. The grandmother says the mother was admitted to (omitted) Hospital Intensive Care Unit in (omitted) 2016 with an acute infection secondary to methamphetamine use.

2. Much of the grandmother’s evidence in her affidavit surrounding this event is based on hearsay which cannot be tested.

3. No NSW Ambulance nor doctor’s report nor hospital records are in evidence except for a cause of death report dated 8 May 2016 (exhibit B) which cites respiratory failure and infective endocarditis.

4. Ms George says FACS were involved with [X] from the time of her birth.

5. Exhibit A is a large FACS file.

6. That file has a start date of 20 February 2015, but contained entries which indicate FACS involvement with [X] from mid-2014.

7. [X] was born on (omitted) 2014 so she was only months old when FACS became involved.

8. Tagged within the file is a document relating to a home visit by FACS on 26 August 2014.  [X] was at that time 3 months old.

9. FACS contacted NSW Police on 20 February 2015 pursuant to a s.248 Children’s & Young Persons (Care & Protection) Act to request a record of police events involving Mr Chisholm.  That search of the police database showed a long history of traffic events and some drug events.  The first drug related event was dated 18 December 2001 and the most recent on 14 October 2010.  It also shows Mr Chisholm is also known as Mr Chisholm.

10. Tagged A11 within the FACS documents is a FACS case closure letter dated 3 June 2015.

11. The next relevant notification to FACS is a call to the Helpline on 25 April 2016 which was coincident with the mother’s admission to hospital prior to her death.

12. That call repeats allegations of parental historical drug use and was likely made by the applicant Ms George, but the caller’s details are redacted by FACS.

13. In May 2016, an organisation called (omitted) provided information to FACS pursuant to a s.16 request and provided information about Mr Chisholm’s drug use and disclosed heroin use by him during January 2016, February 2016, March 2016, April 2016.

14. On 9 June 2016 a person from (omitted) (a methadone provider service) telephoned FACS and told FACS that the organisation identified the father Mr Chisholm as a vulnerable client and therefore held concerns for [X]’s wellbeing.

15. The file contains a 3 month safety plan with [X]’s mother on 24 April 2016 relevant to her drug use.

16. FACS became aware that on 14 June 2016 Mr Chisholm’s urinalysis test with his (omitted) caseworker showed positive for heroin and ICE.

17. On 3 August 2016 FACS received a telephone call from the father’s methadone prescriber confirming the father admitted heroin use on 3 August 2016 and admitted using every day.  The caller said “the father isn’t handling [X] very well”.

18. On 5 August 2016 FACS conducted an assessment consultation during which they spoke with the father and sighted a sleeping [X].  Food was seen in the home which was described as messy and cluttered and surface clean.  Mr Chisholm admitted daily heroin use to FACS caseworkers.

19. A safety plan was created where under “Ms G” the paternal grandmother would care for [X] and Mr Chisholm will “use outside of the home environment”.

20. Within the FACS file is a speech pathology assessment dated 10 October 2016 conducted at The (omitted) Hospital at (omitted) Hospital which included:

    [X]’s understanding of language presented as significantly delayed for her age.

21. At the time of the assessment [X] was aged 2 years and 4 months and her receptive language skills were at the 12-14 month age level and her expressive language skills were at the 18 month age level.

22. On 2 March 2017 a telephone report was made to FACS by a redacted informer, given the content likely the maternal grandmother, raising concerns consistent with [X] being neglected, noting significant weight loss, untreated insect bites, bodily smells.

23. On 3 March 2017 FACS telephone [X]’s unnamed childcare provider who reported no concerns and that she was attending 3 days a week and is presenting as clean and well fed and that her speech is improving and that no bruising or marks have been seen.

24. A home visit occurred and [X] was seen by a FACS caseworker.  [X] was in the care of the paternal grandfather and [X] was described by the caseworker as “well and happy”.

25. A further case assessment conference took place on 16 March 2017 and included:

    Things appear to be going well for Mr Chisholm and [X] at present.  [X]’s regular attendance at childcare, the state of the home, Mr Chisholm’s knowledge of her health appointments and Mr Chisholm’s presentation indicate that he has reduced his drug use and he has improved his care of [X].  Furthermore, should Mr Chisholm continue to use heroin his father is able to provide care for [X].

26. On 4 August 2017 FACS wrote to Mr Chisholm (Mr Chisholm) advising that they would be closing [X]’s case file from the date of the letter.

27. The letter was as a result of case plan review with the reasons for closure listed:

    The last case plan was done in 2016 and it appears to have reduced the risk.  [X] attends childcare regularly … and Mr Chisholm has reduced his drug use.

28. The most recent information produced pursuant to the Commonwealth location order is that their records in February 2018 listed an address for Mr Chisholm in NSW being the address recorded in the Initiating Application but with a bank account into which his payments were deposited at a bank in a suburb in Brisbane, nearby to where substituted service of the Initiating Application was affected on the paternal grandfather.

29. In October 2017 the residents at the same home where substituted service was effected told the process server who notes “the Respondent [Mr Chisholm] no longer resided at this address and would not supply a forward address or contact details”.

Determination

1. The paramount consideration is always the best interest of the child.

2. In determining risk of harm cases whether or not the risk arises from sexual abuse, physical abuse or neglect the resolution of the assessment of that risk is subservient or ancillary to the determination of what is in the best interests of the child.  A court will not grant a live with order or a time with order if it will expose a child to an unacceptable risk of harm.[1]

   [1] M & M (1988) FLC 91-979 is applied

3. As a consequence of the material in the FACS file I am satisfied [X] was a child at risk of harm prior to her mother’s death and afterwards.  She remained a child at risk of harm when in the father’s care post the death of the mother.

4. She had in October 2016 a significant speech delay indicative of neglectful parenting.

5. The safety plans requiring [X] to be cared for by others when the father used heroin were not safety plans at all but rather an abject failure by FACS to protect the child from harm and in my thinking represent a failure of their statutory obligations.  FACS did not monitor compliance with their safety plan.  They were told by the father’s methadone provider that the provider held significant concerns for [X]’s wellbeing.  FACS did nothing further other than convene case conferences and make a few telephone calls.

6. Throughout this period the father was sporadically involved in a methadone clinic who were reporting significant concerns to FACS about the father’s continued daily heroin use and the best FACS could come up with was a safety plan described above.

7. FACS also knew of the maternal grandmother’s concerns and whereabouts but seemed not to have paid any heed to her concerns nor assessed her as an alternate carer for a child who in 2016 and 2017 had all “the hallmarks” of a child suffering significant neglect and being at risk of harm.

8. FACS conducted no meaningful follow up about [X]’s speech delay.

9. In late 2017 FACS closed their case file, their decision to do so was entirely expedient and was not based upon any recent “face to face” assessment of [X].

10. They seemed to draw “comfort” in their decision making from there being only one recent report, [X]’s attendance at daycare and the father’s reduced drug use.

11. They had no objective current evidence arising from their own “face to face” case management on which to base any of these conclusions.  Indeed all the evidence showed was his drug use continued.  They were reliant on a phone call to daycare provided.  No records were sourced.  No assessment was ordered re [X]’s development or speech.

12. This inferential evidence was inadequate attention was being given to [X]’s medical needs.  Nothing had been done to put in place speech pathology.

13. The child has now left New South Wales likely for Queensland.

14. There is now evidence the paternal grandfather, who was always considered by FACS for reasons that are never stated as a safety factor for [X] when the father was using drugs, does not currently live with the father.  The report to the process server in October 2017 perhaps indicates the father and [X] have left his home, although the paternal grandfather may know the father and [X]’s whereabouts.

15. The maternal grandmother seeks ex parte orders to change the residence of a very young child with whom she has a very limited relationship.  She last spent any significant time with [X] in mid‑2017.

16. I am satisfied from mid-2016 to mid-2017 there is no question that [X] was a child at unacceptable risk of harm when living with her family and later when living with the father in paternal family home.

17. FACS since mid-2017 has determined with no objective basis that [X] is not a child at significant risk.

18. I do not share that view.  All available material in their file points to a totally opposite conclusion.  That is that [X] remained a neglected child at risk of serious harm when FACS closed their file.

19. [X] has since been moved interstate by a drug using father.

20. It is likely any protective oversight, and I am not sure there was any, provided by the paternal grandfather is now non-existent.

21. I cannot determine whether [X] has since mid to late 2017 been engaged with necessary speech pathology and child care because the father has evaded personal service and not engaged in these proceedings.

22. On balancing the above, the risk of harm for [X] remains so high as to warrant the making ex parte of the orders sought by the maternal grandmother.

23. Were the likely risk of harm to [X] not as unacceptable as it is these orders which deny the father full procedural fairness and will result in removal of a child from a long standing relationship with her father would not be made.

24. If the father engages with these proceedings after the recovery order has been executed and can show abstinence from heroin, adequate parenting of [X], his involvement of [X] in ongoing preschool education or engagement in early intervention programs and attendance on speech pathology by [X], the live with order to be made pending further order could be reversed.

25. Some damage to [X] emotionally and psychologically will likely have occurred.

26. However on balance this harm is less than the unacceptable risk of harm that is current.

27. Because of s.60CC(2A) the protection of [X] is to be given greater weight than the maintenance of her relationship with her father.

28. The maternal grandmother has standing to apply for the orders she seeks because of s.65C.

29. To ensure a timely review and so as to minimise as much as possible any trauma for [X] in being removed from her father’s care, the maternal grandmother is to relist this case within 72 hours of the recovery order being executed and [X] being delivered to her care.

30. The orders to be made apart from the recovery order will all be made pending further order.

Conclusion

1. I am satisfied FACS have not acted adequately so as to protect this vulnerable child.  At the very least they should have used their powers to mandate speech pathology for [X] and attendance by [X] at a registered early learning centre or early intervention centre for [X].

2. They should also have mandated drug rehabilitation and weekly drug testing of the father, and coupled this with compulsory engagement by him with a “Brighter Futures” type programme so as to increase his parenting skills and weekly monitor he and [X].

3. Absent the above their involvement with [X] has been a waste of time and not been protective for her.

4. The NSW legislation which does not allow notifier identification to be easily and quickly provided to the Federal Circuit Court makes the work of the Federal Circuit Court in undertaking risk assessment unacceptably difficult and is at odds with the protection of children.  It places constraints upon possible lines of enquiry.

5. That junior staff in the State department can have immediate access to notifier identity and Federal Circuit Court judges cannot obtain such information immediately is a nonsense and does nothing to help the Federal Circuit Court to protect children.

6. I will again ask the Court’s Registrar to again raise this with FACS in the forlorn hope something can be achieved, although I recognise legislative change is probably necessary.

7. I suspect FACS will cite policy considerations in supporting the current legislation.  No policy consideration can be more important than “do no harm to a child” or “do all things to protect a child”.

8. Likely the relevant FACS officers in this case have been overwhelmed by other priorities.  That is “cold comfort” for [X].

9. Perhaps the current review into Family Law can make recommendations that overcome the disconnect between State welfare authorities and Federal courts.

10. The maternal grandmother when she could not get responses from FACS has not acted quickly, seemingly hampered by her inability to obtain legal aid.

11. Her delay for this reason is not fatal to her application.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Date:  30 April 2018