Harty & Anor and Chilton & Anor - [2018] FamCA 366

FAMILY COURT OF AUSTRALIA

HARTY AND ANOR & CHILTON AND ANOR

[2018] FamCA 366

FAMILY LAW – CHILDREN – Request for Intervention – Where the maternal aunt and maternal grandmother have jointly applied for orders in respect of three children – Where the father is not participating in proceedings at this stage – Where there are concerns held about the parenting capacity of both parents – Where there are allegations of family violence, substance abuse, homelessness, mental health difficulties and neglect – Where the oldest child has attempted to harm herself – Where there may be concerns about the welfare of the children in the Applicants’ households – Where the Department of Family and Community Services is requested to intervene.

Family Law Act 1975 (Cth) ss 69ZW, 91B

Tallant & Kelsey (No. 3) [2016] FamCA 933

APPLICANTS:

Ms Harty & Ms A Chilton

FIRST RESPONDENT:

Ms B Chilton

SECOND RESPONDENT:

Mr Dyson

INDEPENDENT CHILDREN’S LAWYER:

Ms Ryan

FILE NUMBER:

PAC

1747

2018

DATE DELIVERED:

24 May 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

2 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Watts McCray

SOLICITOR FOR THE FIRST RESPONDENT:

Ms Pilkington as Duty Solicitor

THE SECOND RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta Family Law

Orders

As it appears to the court the children in this Application may be “under the care (however described) of a person under a child welfare law” pursuant s69ZK of the Family Law Act, the written consent of a child welfare officer of the NSW Department of Family and Community Services is sought in relation to the continuation of these proceedings.
For reasons to be given in a judgment to be published from chambers, the Department of Family and Community Services is invited to intervene in these proceedings.
Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.
In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention as soon as practicable.
Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary 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.
Each of the parents are to attend and the those responsible for the children shall make the children available to Child Dispute Services at 9.00am on 24 May 2018 for the purposes of the Child Responsive Program and are to do all things required of them in relation to the appointment for participation in the program.
Both Respondents are to file and serve a Response setting out the orders they wish the court to make by 22 May 2018.

THE COURT NOTES

(A)The mother is assisted today on a duty basis but all steps are being taken for an Application for Legal Aid to be made as soon as practicable.

THE COURT ORDERS

The Applicants’ Interim Application and any competing Interim Application that may be made by the Respondents are listed for hearing at 10am on 1 June 2018 for two hours.
The allocated Family Consultant is requested to have the Memorandum for court available by 30 May 2018.
The legal representatives are to file and outline of case by 31 May 2018.
The Independent Children’s Lawyer has liberty to make contact with the schools directly to obtain any additional relevant information as to the current wellbeing of the children that may not have been contained in the documents produced on subpoena.
Within 48 hours, the mother is to provide to the Independent Children’s Lawyer the full name and date of birth of her partner Mr B.
The mother is to subject herself to a supervised chain of custody urinalysis test within 48hours of these orders and shall provide those results to the Independent Children’s Lawyer immediately as they become available.
The mother is to bear the cost of such urinalysis.
The mother is also to comply with any further requests made by the Independent Children’s Lawyer in relation to random supervised chain of custody urinalysis.
Details in relation to communication with the mother for the purposes of urinalysis are to be provided to the Independent Children’s Lawyer forthwith by the mother.

THE COURT NOTES

(B)The mother consents in principle to further drug testing by way of hair follicle testing and such orders will be considered at the Interim Hearing.

THE COURT ORDERS

Between now and the Interim Hearing the mother is restrained from cutting or colouring or otherwise treating her hair.
If the Independent Children’s Lawyer wishes to relist the matter on 24hrs notice for the courts consideration of any immediate and significant welfare issues, such arrangements may be made directly with my Associate.
The Respondent mother is to file and serve a Notice of Risk by 22 May 2018.
Until 4pm on 1 June 2018 unless earlier varied or revoked the children C born … 2007 and D born … 2009 are to live with the Applicant maternal grandmother.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harty and Anor & Chilton and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1747 of 2018

Ms Harty & Ms A Chilton

Applicants

And

Ms B Chilton

First Respondent

And

Mr Dyson
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These Reasons relate to a request made on 2 May 2018 by this Court for the Secretary of the Department of Family and Community Services (“the Department”) to intervene in proceedings before this Court.
It is requested that the Department treat the information provided in this judgment as new information which has come to light in recent months.

Background

Parenting proceedings before this court which were commenced in April 2018 by Ms Harty (“the maternal grandmother”) and Ms A Chilton (“the maternal aunt”) relate to the three children of Ms B Chilton (“the mother”) and Mr Dyson (“the father”). The children are E born in 2004 who is currently 14, C born in 2007 who is currently 10 and D born in 2009 who is currently nine.
The parents commenced a relationship in 2003. It is unclear when the parents separated on a final basis but it appears to have occurred sometime in 2017.
It appears the mother and father had a volatile and violent relationship, separating on numerous occasions for brief periods of time before reconciling. The children remained in the care of the mother during these periods of separation but were often homeless or stayed in a refuge or with friends and family.
In September 2016 the maternal grandmother was contacted by the Department and C and D came to stay with her. At this time the father was admitted to the psychiatric unit of a hospital and concerns were raised about both parent’s substance abuse and the mother’s lack of appropriate accommodation. Subsequently E also came to stay with the maternal grandmother and her two siblings. A Care Plan was developed by the Department for the mother to attend rehabilitation and counselling and find appropriate accommodation and for the maternal grandmother to care for the children.
All three children commenced counselling through various services in early 2017.
The maternal grandmother facilitated C and D spending time with the father on a semi-regular basis. C and D have spent ad hoc time with the mother since September 2016. The maternal grandmother has had difficulty contacting the mother to arrange time and communication between the mother and the children.
In October 2017 E “self-placed” with the mother who was living in F Town at the time. C and D remained living with the maternal grandmother in the western suburbs of Sydney.
When E moved to live with the mother in F Town, the mother did not have permanent accommodation and was living between a friend’s apartment and her then partner’s apartment. The maternal aunt who also lives in the F Town area deposes to E telling her she felt uncomfortable at the mother’s partner’s apartment as she was not afforded any privacy and had to sleep in the same room as the mother when the mother was staying with her friend. E would often eat meals, shower and stay overnight at the maternal aunt’s home for these reasons.
C and D spent two weeks with the mother and E in F Town over the 2017/2018 school holidays. During this time the mother and the children stayed with the mother’s new partner, Mr B, (“the mother’s current partner”) and his 13 year old son.
In February 2018 the mother sought to spend time with C and D. The maternal grandmother made the children available to spend time with the mother in the western Sydney area at the mother’s friend’s home. The mother contacted the maternal grandmother at 8 p.m. on the day the children were spending time with her and indicated the children would be staying overnight with her at her friend’s place. The maternal grandmother contacted the mother the next morning and was informed by the mother that she was running late and the children would be late for school. The maternal grandmother drove to the mother’s friend’s place and picked up C and D. The maternal grandmother also gave the mother, who she observed to be “dirty and grotty” a lift to the train station. When the maternal grandmother dropped the mother off at the station the mother became verbally abusive and started punching the car while the children were still inside.
The maternal grandmother has had no contact with the mother since this date and the mother has only spoken to C and D on one other occasion via telephone.
In February 2018 the mother asked the maternal aunt to look after E for week long periods on two occasions. During the second of these occasions E informed the maternal aunt that the mother had asked E to lend the mother’s current partner $50 (the money she had received as a Christmas gift). The maternal aunt contacted the mother and gave the requested money to the son of the mother’s current partner, so that E would not need to lend this sum herself.
E remained living with the maternal aunt from late February 2018. In March 2018 the mother recommenced spending time with E. At the time, the mother was staying at a halfway house and her current partner was staying at the same accommodation. The maternal aunt deposes to E informing her that she had to sleep in the same room as the mother’s partner’s son at the halfway house as the mother and her current partner wanted to share a room.
On 3 April 2018 the maternal grandmother’s solicitors sent a letter to the mother and the father inquiring as to whether they would consent to orders providing for the maternal grandmother and maternal aunt having sole parental responsibility for the children.
The maternal grandmother was contacted by the father a few days later who as seeking to arrange time with the children. She has had no contact from this father since April 2018 and the children have not spent time with the father since October 2017.
The maternal grandmother deposes to receiving a text message from the mother which read “In your fucking dreams, game on!” The maternal aunt deposes to the mother contacting her and informing her that the mother was picking E up and they were “going away” around this time.
On 8 April 2018 the maternal aunt received a call from one of her daughters who informed her that she had received a text from E’s phone saying “I’m sorry, I got to do what I got to do” with a photo of a number of tablets on a piece of paper. The maternal aunt contacted police who indicated that they would require an exact address in order to conduct a welfare check. E contacted the maternal aunt shortly thereafter in tears and indicated that she had taken 14 ibuprofen. The maternal aunt and her partner contacted police and an ambulance and drove to the house in which E was staying with her mother. The maternal aunt observed that E was crying and both the mother and the mother’s partner were yelling before E and the mother left in an ambulance. The maternal aunt was concerned about causing further stress to the mother and E so did not attend the hospital but was informed by the maternal grandfather that E was receiving treatment.
The maternal grandmother deposes to attempting to contact the Departmental caseworker (previously involved with the family in 2016) following E’s hospital admission. She was able to speak with someone from the Department on 17 April 2018 who informed her that “the case was closed” and that the maternal grandmother should ring the hotline. The maternal grandmother called the hotline and was informed the Department would look into the situation.
The maternal aunt also contacted the Department to advise them of her concerns for E. Neither the maternal grandmother nor the maternal aunt have been contacted by the Department.
The maternal aunt has seen E on a few occasions following the incident on 8 April 2018 to assist the child in obtaining necessary items such as pads which the child did not have the money to buy and could not ask the mother for.

The Proceedings

On 23 April 2018 the maternal grandmother and the maternal aunt filed an Initiating Application seeking orders that they equally share parental responsibility for the children and that E live with the maternal aunt and C and D live with the maternal grandmother. The maternal grandmother and maternal aunt also sought orders that D and C spend time with the mother at a contact centre once a fortnight and E spend time with the mother at a different contact centre once a fortnight and that the father spend time with D and C each third weekend (Saturday to Sunday) and he spend time with E at times as agreed between the parties. They also sought orders that the parents submit to urinalysis and hair follicle testing.
On 23 April 2018 orders were made granting short and substituted service of documents on the mother and the father and the matter was listed for judicial case management on 2 May 2018. Orders were also made on that date appointing an Independent Children’s Lawyer (“ICL”) and for the Department of Family and Community Services (“the Department”) to provide documents to the Court concerning any notifications made or investigations undertaken of suspected abuse of the children pursuant to section 69ZW of the Family Law Act 1975 (Cth) (“the Act”).
When the matter was before me on 2 May 2018 there was no appearance by or on behalf of the father and he had not filed any documents. The mother appeared in court and was represented by a duty solicitor. She had not filed any documents in the proceedings and it was noted that she had taken steps to apply for a grant of legal aid. The maternal grandmother and maternal aunt were both represented by the same solicitor.
On 2 May 2018 I made orders that the parties and children attend on a Family Consultant for the purposes of participating in the Child Responsive Program and directions were made for the matter to be prepared for interim hearing on 1 June 2018. Pending that interim hearing I made an order for C and D to remain living with the maternal grandmother. I also made orders for the mother to submit to urinalysis and hair follicle testing and orders requesting the Department intervene in the proceedings and indicated that I would publish my reasons at a later date. These are those Reasons.

Issues of Risk

Family Violence

Both the maternal grandmother and the maternal aunt depose to the mother and father being physically and verbally abusive towards one another in the presence and hearing of the children. The maternal grandmother deposes to witnessing physical altercations and verbal arguments between the two and the police being called following incidents between the parents on numerous occasions.
The maternal aunt claims the mother is verbally abusive and threatening towards the children and has heard her swear at the children, tell them that she hates them and that she doesn’t love them. The maternal aunt also deposes to on occasion hearing the mother tell the children “fuck this shit I’m going to [drive] into a tree and kill us all”.
The maternal aunt also deposes to E informing her that the mother had pulled her hair and kicked her on one occasion in 2017. She further deposes to the mother screaming at E on multiple occasions.
The maternal aunt says that the mother admitted to her that the mother’s current partner has choked her and concerns are held that the mother’s current partner is violent towards her, to which E may be exposed.

Accommodation

The maternal grandmother deposes to numerous occasions over the course of the mother’s relationship with the father when the mother would ask her to collect the mother and the children due to the father’s abusive behaviour. The maternal grandmother, who was caring for her parents and another of her grandchildren during this period, would collect the mother and children and arrange appropriate accommodation for them. She also deposes to the mother and the children during periods of separation from the father being homeless, staying at a refuge, sleeping in a car or staying at a friend’s house. Once the mother received emergency housing, the maternal grandmother says the father would move into that housing with the mother and children.
The children frequently spent periods of time, often one to four nights a week, living with the maternal grandmother prior to September 2016 when they moved into her full time care.
The mother has not had a permanent residence since early 2016 and lives with friends, partners or in halfway houses. It appears that she is presently living with her current partner and his son, about whom the maternal aunt has raised concerns particularly about the lack of privacy afforded to E and the lack of attention paid to her needs by the mother and her current partner.
The mother’s inability to provide stable housing for herself and the children is of significant concern, particularly in circumstances where she remains the legal guardian for E and appears to be incapable of or unwilling to meet the child’s basic needs.

Mental Health

The maternal grandmother and maternal aunt raise concerns about the mental health of the mother and the father, who have both been admitted to psychiatric units at hospital in the past. There is very limited information available as to the present mental health of either parent.
Of greater concern is E’s mental health. The maternal aunt deposes to having conversations with E in which E has commented that the only matter over which she has control is her food intake and that the maternal aunt has observed E to have lost a great deal of weight.
The incident on 8 April 2018, which has been presented as a possible suicide attempt by the child, is also of great concern. Even if the child had no intention of harming herself, which is doubtful, her extreme actions in taking 14 ibuprofen suggest that she has mental health difficulties which are not being addressed. The maternal grandmother deposes to the child engaging with Headspace when she lived with the maternal grandmother in 2016 and 2017. It appears that this engagement has not continued after the child relocated to F Town with the mother.

Substance Abuse

The maternal grandmother deposes to becoming aware that the mother and father were regular methamphetamine (“ice”) users in 2016. She says that the mother had “lost a significant amount of weight, was more aggressive, snappy, bitter, [did] not take care of herself and her personal hygiene and [was] very irrational.” The maternal grandmother says the mother admitted to her that she and the father were using ice.

The maternal aunt deposes to the mother being hospitalised in April 2016 following an “ice episode” and being contacted by the Department about the mother’s care of the children at this time. She also deposes to being informed by another daughter who lives with the maternal grandmother that needles were found in the children’s bags in September 2016 when the children moved to live with the maternal grandmother.
In 2017 the mother received a $20,000 inheritance following the death of her grandmother. The maternal aunt deposes to meeting with the mother shortly after she received the inheritance and says the mother looked skinny and gaunt, as she did when she was using drugs. The maternal aunt also deposes to the mother telling her that she was “broke” and being concerned that the mother had spent her inheritance on drugs.
The maternal grandmother believes the father is no longer using illicit drugs. On the basis of the mother’s appearance and behaviour the maternal grandmother believes the mother is still using drugs.

Current circumstances of the children

C and D currently live in a five bedroom home with the maternal grandmother and the maternal aunt’s two older children who are 22 and 17. Both boys attend a local public school and the maternal grandmother deposes to having a good relationship with the principal and teachers and to the boys progressing well. The boys are also engaged in counselling and various extra-curricular activities including weekend sport.
The maternal grandmother deposes to being informed by the school and the boys that their attendance at school was poor when they lived with the mother and father as the parents were often unable to be woken by the children so the children did not attend school or arrived late.
E’s current circumstances are unclear but she appears to be living with the mother and the mother’s current partner and his son. As outlined earlier in these Reasons there are concerns held about the child being exposed to or the victim of domestic violence in her present situation and there are significant concerns held about the mother’s capacity to meet even the child’s basic needs for shelter, food, medical treatment and education.
The maternal grandmother deposes to E having been diagnosed with scoliosis, a curvature of the spine, but the mother not having attended to treatment for the child and the maternal aunt being unable to do so because she does not have access to the child’s or the mother’s Medicare card. There are also concerns that he mother has not addressed any of the child’s other medical needs such as her need for glasses.
In these circumstances the Department is invited to intervene in the proceedings.

Matters to consider regarding intervention

When considering this request the Secretary’s attention is brought to paragraphs [264] and [270] – [276] in Tallant & Kelsey (No. 3)[1] which are in my view equally applicable in this case. These paragraphs are extracted as follows:
[1] [2016] FamCA 933.
As noted earlier in these Reasons the Department of Family and Community Services have been invited twice to intervene in these proceedings under section 91B of the Act. That section is set out as follows:
91B Intervention by child welfare officer
(1)In any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare.
(2)Where the court has, under subsection (1), requested an officer to intervene in proceedings:
(a)the officer may intervene in those proceedings; and
(b)where the officer so intervenes, the officer shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
…
Against this background it was noted in the November 2016 judgment that when the proceedings resumed on 5 December 2016 the court may be asked to make a finding that there is an unacceptable risk of harm to the children in both of the parent’s households and in these circumstances the Department was invited to intervene in the proceedings.
The Department declined the court’s invitation to intervene and gave the following reasons:
·The information reported is not such as would warrant the prioritisation of these children over other children who have already been assessed as at risk of significant harm.
·The reported information does not raise any new risk of significant harm concerns for the children which has not already been reported to the Department. The last risk of significant harm report for the children was received by the Department in 2014, and as such there is no capacity to allocate this matter compared against other priority work requiring casework intervention.
In my view the manner in which the Department appears to have considered this invitation to intervene in proceedings gives rise to some issues of concern.
Although I have been unable to identify any authority in relation to appropriate matters to which the Department may have consideration in deciding whether to intervene, the reasons given by the Department in this case are difficult to understand in light of the reasons for the invitation. In circumstances where both parents may be found to pose a risk of significant harm to the children, a judicial officer in the Family Court or any other person associated with the Family Court is of course unable to investigate alternate options for care of the children beyond the parties or provide any intervention itself.
I am concerned that the judgment delivered on 4 November 2016 setting out the reasons for the invitation to intervene may not have been given appropriate consideration by a relevant officer in the Department, and that appropriate weight may not have been given to the view of a judge of a superior court with expertise relating to matters concerning the welfare of children.
I am also concerned that the response from the Department includes that the “reported information” raised no “new risk of significant harm concerns”. According to the Department’s response no risk of significant harm concerns in relation to these children had been raised since 2014. In writing this the author of the response appears to miss the point that the judgment itself included new risk of significant harm matters. That this judgment was not considered to raise new risk of significant harm concerns raises serious questions about whether it was actually read by someone of appropriate authority in the Department and the process generally within the Department for consideration of invitations to intervene made by this court under section 91B.
It does not follow that intervention in the proceedings by the Department should only occur where the circumstances are such that the Secretary of the Department may seek an order that parental responsibility for the children be allocated to the Minister. There are many other ways in which the Department could become involved, in particular in investigating alternate options for the care of the children other than those proposed by the parties and in providing other forms of intervention.
As can be seen from the orders of 2 May 2018 the Department’s intervention is requested in this matter in circumstances where there are serious concerns held for the wellbeing of one of the children and the possibility that both parents could be found to pose unacceptable risks of harm to the children.
It is also possible that circumstances in the households of the Applicants may also give rise to risks of harm. It is of concern that both the maternal grandmother and the maternal aunt depose to an extensive history of concerning behaviour on the part of the mother and father towards the children, particularly E, but have not acted to take on the care E until she attempted to harm herself earlier this year.
In these circumstances it is requested that the Department intervene so that alternate options for care of the children beyond the parties and other forms of intervention available uniquely to the Department may be considered.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 May 2018.

Legal Associate:

Date: 24 May 2018