HUSTON & WHITEHEAD

[2019] FCCA 1443

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUSTON & WHITEHEAD [2019] FCCA 1443

Catchwords:
FAMILY LAW – Best interests of the child – right to a meaningful relationship with surviving parent – where surviving parent lives in a remote community – where the child has serious ongoing health issues – availability of health care facilities – independent children’s lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 68L(2)

Applicant: MR HUSTON

Respondent: MS WHITEHEAD

File Number: DNC 182 of 2019

Judgment of: Judge Young

Hearing date: 8 May 2019

Date of Last Submission: 8 May 2019

Delivered at: Darwin

Delivered on: 8 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Gray

Solicitors for the Applicant: Grays Legal NT

Counsel for the Respondent: Ms Papp

Solicitors for the Respondent: North Australian Aboriginal Family Legal Service

ORDERS UNTIL FURTHER ORDER

1. The father shall spend time and communicate with the children [X] (DOB … 2007), [Y] (DOB … 2008) and [Z] (DOB … 2014)  as follows:

   (a)From 2pm Saturday 25 May 2019 to 5pm Sunday 26 May 2019 with changeover at Town A Police Station.

   (b)By telephone (Father to ring children on their mobile telephone and phone numbers to be provided) not before 6pm Western Australian time on Mondays and Fridays.

2. The maternal aunt and father are restrained from using or taking illicit drugs or alcohol when the children are spending time with/living with them or 24 hours beforehand.

3. Both the maternal aunt and father shall undertake a Urine drug screen test by 5pm Friday 10 May 2019 (using chain of custody protocol) and provide the test results to the other party on receipt of the same.

4. The father shall ensure that the designated driver of the motor vehicle in which he collects/returns the children for contact, shall present his/her driver’s license to the maternal aunt.

5. The father and the maternal aunt shall not speak badly of the other party around or in the hearing of the children.

6. The father shall not remove the children [X] (DOB … 2007), [Y] (DOB … 2008) and [Z] (DOB … 2014 from the maternal aunt’s care

7. The maternal aunt shall not change the children’s current residence.

8. When the children are in Darwin on 5 June 2019 for the child inclusive conference the maternal aunt shall facilitate the father spending time with them before/after the child inclusive conference.

9. The maternal aunt shall keep the father informed by text as to any medical issues with any of the children, including contact details of any treating medical Practitioners or Institution.

10. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children [Z] born … 2014, [X] born … 2007 and [Y] born … 2008 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 childrens’ interests.

11. 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.

12. 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.

13. 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.

14. That pursuant to s.11F of the Family Law Act 1975, the parties and the children [Z] born … 2014, [X] born … 2007 or … 2010 and [Y] born … 2008 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia,  Darwin on 5 June 2019 at 9.00am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance NOTING that the father has leave to attend by telephone and the respondent and children will attend in Darwin.

15. 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.

16. That the solicitor for the respondent have leave to file more than five subpoenas.

17. That the matter be adjourned to 12 June 2019 at 9.30am for further consideration.

NOTATION:

A.     The Maternal Aunt has request that the Father shall not take the children to Town B during the time in order 1.

B.     These arrangements will be reviewed after the Child Inclusive Conference report and/at the 12 June 2019 Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 182 of 2019

MR HUSTON

Applicant

And

MS WHITEHEAD

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 a recovery application brought by the father, Mr Huston. Even though he was the biological father of only one of the children he, along with the children’s deceased mother, brought up the two older boys for a considerable number of years. 

3. The application is about three children:  [X], who is 11, [Y], who is 10, and [Z] who is five.  [Z] is the only biological child of the applicant but, as I say, there appears to be clear evidence that he has played a parenting role with the older two boys for many years, since they were three or four. I accept that there is evidence that he is very possibly in a position of being a social father if not psychological father to each of the children.  However, that is not a basis on which I am going to decide this interim hearing.

4. The background to this matter is convoluted.  The parties are Aboriginal people.  The father is an Aboriginal man from Town B in the northwest of the Northern Territory and the respondent, the maternal aunt, is from the same or a similar region but she lives in Town C, just over the border in Western Australia.

5. The mother of the children regrettably died on … 2019.  Although there is no entirely clear evidence about this, it would appear this was the result of complications flowing from kidney disease.  The background is hotly contested between the parties but in broad outline it appears to me to be largely that the applicant father and the mother who is deceased began their relationship about six or seven years ago. Where they have lived for all of that period is a bit unclear.

6. The father’s affidavit and the maternal aunt’s affidavit both seem to place them living in Town B for some years.  The father’s affidavit has them, the whole family, moving to Town C in 2017.  On the other hand, there is some suggestion in the maternal aunt’s affidavit that the two older boys may have begun school in Town C in 2015.

7. I am unclear precisely when this family began living in Town C but it was sometime between 2015 and 2017.  It appears that the two older boys were enrolled in school when they moved there and have attended a primary school in Town C for most of their primary schooling.

8. The various severe health problems of the children’s mother has been a significant factor in the way things have played out with this family.  She was, according to the affidavit material, diagnosed with diabetes at some point and then later with kidney disease.  It appears that soon after her diagnosis with kidney disease, which appears from the affidavit material to have occurred in 2018, the father accompanied the mother to the Royal Darwin Hospital and, as I read the material, they then left Town C.  It is unclear how long they left Town C for in 2018 but it was some period.  It seems that the children initially went with the parents at least to Town B and the father says that he put the boys into the primary school at Town B.  That is contested by the maternal aunt who says that she believes that the children were not enrolled in the primary school and/or did not attend.

9. Another factor that is in the mix is that it appears [Z], the youngest five year old child, has been the subject of neglect.  It appears to be an agreed position that when she was approximately one year old she was removed by the child welfare authorities in Western Australia from the care of the parents and placed in care for two years.  Apparently the reason for that, or one of the reasons for that, was that [Z] was born with an undeveloped swallowing reflex and found it difficult to eat with the consequence that she was malnourished in the care of the parents and that was the reason why she was taken into care and remained in care for two years.  She was returned to the parents in 2017.

10. The standard of care she received with her parents is also an issue after her return by the child welfare authorities.  The father in his affidavit says that she, along with the other two children, was in good health.  He says that in fact all children are in good health.  He does acknowledge in his affidavit that he and his wife struggled with [Z]’s health problems and particularly they struggled to maintain a healthy weight for her.

11. He says that he found it difficult:

    We struggled to get her weight up to what the doctors and nurses said we needed.  It was hard because I was very busy a lot of the time.  I was taking my partner to hospital appointments and she was very sick.  I struggled.

12. It is easily understood that a father in those circumstances would struggle with his wife apparently being very ill and an infant child also with a serious health issue.  I infer that that is the background to the development of [Z]’s condition of malnourishment which I infer was probably the precipitating event for her being taken into care in 2015.

13. The father certainly implies that [Z] is now healthy beyond the historic problems with her feeding.  The maternal aunt denies that and asserts that [Z] in fact has continuing serious health problems. She annexes to her affidavit a letter from “Support Service”. It is a little bit unclear what Support Service is but its letterhead says that they provide social and emotional wellbeing, suicide prevention, a sobering up shelter and youth support services in Town C.

14. The letter is a little more specific and says, “Ms Whitehead”, that is a reference to the maternal aunt, “has been part of our” – and I quote:

    One Family At A Time program here at Support Service Aboriginal Corporation since taking on the care of the above three children who are Ms Whitehead’s niece and nephews. 

    It is clear that that would have been in about December 2018, I interpolate.

15. To return to the letter:

    In this time, the three children have been going to school and there has been a significant improvement to their overall health.  [Z] was in nappies and still being fed a bottle up until Ms Whitehead started caring for the children.  [Z] also had a very severe eating disorder and was very underweight and undernourished.  She is now eating well and her health is improving.

16. I am satisfied that that remark, even though the factual basis for that summary is not in evidence, and the letter is deficient in that way and the letter indicates from independent evidence that at the time [Z] and her brothers began living with the maternal aunt in December 2018, [Z]’s health was far from a matter of no concern.  It is said that at that time she had an eating disorder and was very underweight.

17. It appears to me that there is a very significant concern about whether [Z] has continued to be neglected and a very serious concern about [Z]’s health.  The father’s proposal simply is that the children return to Town B to live with him.  Town B is a remote Aboriginal community, as I have mentioned.  The resources to care for [Z] in that community are unclear to me.  I know that in Town C she is part of a program at Support Services that is monitoring her health.  I know from another annexure to the maternal aunt’s affidavit that on 17 May the maternal aunt has made arrangements to have [Z] undergo a five year developmental and medical review on 7 May at the Hospital in Perth where, I understand, [Z] will be flying down there, presumably with the maternal aunt.  That assessment, further, will include an assessment of the child’s cognitive abilities.

18. The evidence seems to suggest that (a) there are serious health concerns about [Z] and (b) those concerns are being addressed whilst she is in the maternal aunt’s care.  I am not satisfied on the material that there is evidence that the father is in a position to adequately address [Z]’s health concerns, particularly if he is based in Town B as he proposes.

19. In my view, that fact alone engages section 60CC(2)(b) of the Family Law Act.  That is, that the matter to which I am to give the greatest weight in assessing the best interests of the child is the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.  The issue that I am concerned about is neglect.

20. It may be that my concerns about [Z] are misplaced or that the father is able to adequately address them. However, on this interim hearing which has been listed before me urgently, I feel I need to take a conservative approach.  There are various other allegations that have been made that I do not believe I can resolve on the interim hearing, namely, that the father is an abuser of alcohol and marijuana, that he disparages and denigrates the children on the one hand and, on the other hand, allegations against the maternal aunt that she has been violent to other family members and so on.

21. The material suggests that the children, certainly the two older children, have been attending school regularly at Town C since the beginning of the year. There appears to be clear evidence that the maternal aunt has enrolled the children to school and they have continued at school and have missed very few days.  That is encouraging.

22. Ms Papp for the father says that I also have to take in assessing the questions in section 60CC(2)(b) the risk of psychological harm from the children being separated from their father. I do take into account that factor but the children have lived in Town C for a reasonable period and they appear to be familiar with the maternal aunt. The maternal aunt says that she used to babysit them frequently. I know that they are going to a school, in the case of the two older boys, which it appears they have been attending since at least 2017 with some interruption last year.

23. So there are aspects of stability in their present arrangements which I think should not be lightly disturbed.  The father has decided to relocate to Town B because of, among other reasons, conflict with the maternal family.  It is clear from reading the maternal aunt’s affidavit that, at this stage at least, the maternal family hold the father responsible for contributing to the mother’s death.

24. As I have said, the deceased mother was in hospital in Perth either late last year or the beginning of this year, being treated for her kidney disease. The maternal aunt alleges that the father and the mother checked themselves out of the hospital in Perth or, rather, that the father checked the mother out in the hospital in Perth without appropriate discharge arrangements being made and travelled by car from Perth to Town C over about a week in circumstances where there were no arrangements made for the mother to have kidney dialysis over that journey.

25. It is alleged by the maternal aunt that that was indicative of the most serious recklessness, not only of the deceased mother, unfortunately, but of the father as well and it is clear enough that the maternal family now hold the father very significantly responsible for the mother’s death.  They are not issues that I can resolve today and I do not make any finding about them because there is no material before me on which I can make a finding, even if I considered it appropriate.

26. The hostility of the maternal aunt to the father is an issue of concern to me.  I am satisfied that the affidavit is redolent of it.  An example of it is the maternal aunt has no proposal for the two older boys to spend any time with the father or have any relationship with him in circumstances where it would appear on the affidavit material that the relationship of the older boys with the father has been longer lasting by far and very significant, certainly in comparison with the relationship of the boys with the maternal aunt.  That to me raises a question mark about the maternal aunt’s insight into this situation because it seems to me obvious that these boys, if they have been brought up by the father according to him, must be missing him a great deal.

27. Be that as it may, I think I need to have some further material before I make any more decisions about this case, including the material from the child welfare authorities in Western Australia.  An order was made some days ago pursuant to section 69ZW for the material from Child Welfare in Western Australia to be made available but it has not yet been made available.

28. I do not propose to make a recovery order. I have had regard to the matters in section 60CC of the Family Law Act but I consider, as I have mentioned, that the matters in section 60CC(2)(b), at this stage at least, need to be addressed.

29. I also make an order for appointment of an independent children's lawyer.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 28 May 2019