MDM & BM & SLM & Ors - [2005] FMCAfam 658

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MDM & BM & SLM & ORS

[2005] FMCAfam 658

FAMILY LAW – Residence – allegations of drug abuse and physical abuse of children – risk of harm – mother fails to file material or appear at hearing – DOCS intervention in proceedings – DOCS and children’s representative support orders in favour of paternal grandmother – orders made.

Family Law Act 1975

First Applicant:

MDM

Second Applicant:

First Respondent:

SLM

Intervenor:

DEPARTMENT OF COMMUNITY SERVICES

Child Representative:

Legal aid commission of nsw

File Number:

PAM385 of 2005

Judgment of:

Ryan FM

Hearing date:

25 November 2005

Delivered at:

Parramatta

Delivered on:

25 November 2005

REPRESENTATION

Solicitor Advocate for the First Applicant:

Ms. Wyman

Solicitors for the First Applicant:

Suzanne Wyman & Associates

Second Applicant:

In person

Respondent:

No appearance

Solicitor Advocate for the Intervenor:

Mr Anderson

Solicitors for the Intervenor:

Crown Solicitor

Solicitor Advocate for the Child’s Representative:

Ms J. Magee

Solicitors for the Child’s Representative:

Legal Aid Commission of NSW

ORDERS

The orders made 20 December 2002 in the Local Court at Penrith are set aside.
The paternal grandmother BM have sole parental responsibility for the child Jackson (not his real name) born in 1999 and Mitchell (not his real name) born in 2000 including sole parent responsibility for:
(a)The long term care, welfare and development of the children; and
(b)The day to day care, welfare and development of the children.
The children reside with the paternal grandmother.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All outstanding applications are otherwise dismissed.

THE COURT NOTES:

A.The paternal grandmother agrees to facilitate contact between the children and their natural mother and their sibling.
B.Contact is conditional upon the natural mother presenting at contact in a non-abusive and appropriate manner in her interaction with the children and that JA does not attend contact.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Parramatta

PAM385 of 2005

MDM

First Applicant

Second Applicant

And

SLM

Respondent

Department of community services

Intervenor

legal aid commission of nsw

Child Representative

REASONS FOR JUDGMENT

On 28 January 2005 MDM (“the father”) and BM (“the paternal grandmother”) filed an application for parenting orders relating to the father’s children, Jackson and Mitchell. Simply put, they sought to discharge earlier parenting orders and an order for joint residence.
Three days earlier SLM (“the mother”) spontaneously delivered the children to Detective Fowler at St Marys Police Station. Detective Fowler handed the boys over to their father. Later that day the children were interviewed by officers from the Juvenile Investigation Response Team. After this interview the father and paternal grandmother took the children to Nepean Hospital where the boy’s injuries were documented and treated. Mitchell was kept in overnight. Attached to the father’s affidavit filed 28 January 2005 are photographs of both boys taken 25 January 2005. In relation to Mitchell the photographs show internal and external bruising to his left ear and a series of bruising to his lower back and buttocks. The bruising appears recent and is extensive. In relation to this bruising, Mitchell explained that the mother’s partner JA “picked me up and threw me to the floor”. On Jackson one can clearly see five large welts across his right upper leg and buttock. He has marks on his face and also on his left buttocks, the cause of the later being difficult to determine. These injuries are extensive and inconsistent with accidental injuries. They are strongly suggestive of serious non-accidental injuries deliberately inflicted by an adult.
That same evening, Detective Fowler made an urgent application for an interim apprehended violence order. He explained the reasons for applying for the order against JA as, “About 9 am today the PP (children) were seated in the lounge room. The defendant approached the first PP (Mitchell) and spoke to him in relation to an incident on the younger child at the residence. The first PP did not answer and the defendant picked him up and walked a number of steps and threw him face first into the floor. The defendant then smacked the second PP (Jackson) over the back of the head. The PP’s and their mother then attended upon a social worker and police were called. The first PP suffered swelling and bruising to his face. The defendant will be charged. The applicant has fears for the safety of the PP’s. DOCS have a history of domestic violence between the parties which has never been referred to police. The applicant has fears for the safety of the PP.” Unsurprisingly, an interim apprehended violence order issued in the usual form, including a specific order restraining the defendant from approaching the children.
After the mother handed the children over to police, she resumed her relationship with JA. JA has been charged with assaulting Mitchell and the mother charged with offences arising from the same incident.
The children have resided with their father and paternal grandmother ever since.
On 11 February 2005 Ms Heaton appeared on the mother’s behalf. At the mother’s request the proceedings were adjourned until 11 March 2005.
On 11 March 2005 Ms Heaton appeared on the mother’s behalf and again sought an adjournment, as did the applicants. The court made the following orders:
i)I grant the application by the applicants to adjourn this matter.
ii)The matter be listed for further mention before me at 10.30 am on 2 May 2005.
iii)I DIRECT that the applicant paternal grandmother and applicant father file and serve an amended application within fourteen days.
iv)I DIRECT that the respondent file and serve a response within twenty one days of service of the amended applications.
v)Pursuant to s.68L of the Family Law Act 1975 that the children JACKSON born in 1999 and MITCHELL in born 2000 be separately represented and I request that the Legal Aid Commission of New South Wales provide that representation.
vi)Each party make available to the Legal Aid Commission of New South Wales within 48 hours copies of all applications and affidavits filed by the party together with all existing orders and copies of any relevant reports.
At the parties request the matter was administratively adjourned until 20 June 2005. During the interregnum, on 7 June 2005, the applicants filed an amended application and a Notice of Risk of Child Abuse. By their amended application the applicants sought the following orders:
a)The orders made 20 December 2002 in the Local Court at Penrith be set aside.
b)That the children of the marriage namely, JACKSON (DOB 1999), and MITCHELL (DOB 2000) (“the children”) reside with the paternal grandmother.
c)That the paternal grandmother have the parental responsibility for the day to day care, welfare and development of the children.
d)That the mother be denied contact with the children.
e)Such further Orders as this Honourable Court thinks fit.
On 20 June 2005, although the mother’s solicitor appeared, the mother failed to attend court. That day the court made the following orders:
a)The children JACKSON born in 1999 and MITCHELL born in 2000 reside with the applicant paternal grandmother, namely BM.
b)The respondent mother, namely SLM, be restrained from removing or causing to remove the said children from the care of the said paternal grandmother, the father and/or their nominees.
In addition, procedural orders were made.
On 13 July 2005 the court continued the orders made 24 June 2005. The applicant’s continued to agree to the mother’s requests for an adjournment so that she could file material and deal with her criminal proceedings.
On 24 October 2005 the Department of Community Services intervened in the proceedings. That day, the mother was granted one more adjournment with further directions made for trial preparation. The court made orders to the following effect:
a)The orders made 20 December 2002 in the Local Court at Penrith are set aside.
b)The paternal grandmother BM have sole parental responsibility for the child JACKSON born in 1999 and MITCHELL born in 2000 including sole parent responsibility for:
c)The long term care, welfare and development of the children; and
d)The day to day care, welfare and development of the children.
e)The children reside with the paternal grandmother.
f)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
g)All outstanding applications are otherwise dismissed.
h)The court notes:
i)The paternal grandmother agrees to facilitate contact between the children and their natural mother and their sibling.
j)Contact is conditional upon the natural mother presenting at contact in a non-abusive and appropriate manner in her interaction with the children and that JA does not attend contact.
On 25 November 2005 the applicants, children’s representative and Department of Community Services appeared. That morning the court received a telephone call from a person claiming to be the mother advising that she was ill and would not attend the hearing. By this stage, the proceedings had been underway for ten months and other than a Notice of Address for Service, the mother had not filed any other documents. Although she made it plain that she did not agree that the children should reside with the applicants, the mother did not formally respond to their application or relevantly provide evidence which countered that given by the applicants.
I am satisfied the mother was aware of the trial listing and her responsibility to file documents and participate in the proceedings if she opposed the orders sought by the applicants. After each court hearing the court forwarded sealed copies of orders made, in the early appearances, to the mother’s solicitors, and, after she dispensed with their services to her current address. With respect to the mother, the court made exhaustive attempts to try and include her in the proceedings. For her own reasons, the mother has chosen against participation when it really mattered. I contemplated adjourning the proceedings so that the mother could have yet another opportunity to present her side of the story. However, I decided against doing so primarily for two reasons. Firstly, I am not satisfied that adjourning the proceedings would place the court in a better position on the next occasion viz a viz the mother’s participation. The likely scenario is that the mother would again fail to appear and almost certainly would not respond to the application or evidence filed in the proceedings. Secondly, the children and the applicants need an end to the proceedings and the uncertainty inherent in an outstanding parenting application. Thus, the hearing proceeding on an undefended basis.
At the final hearing the court received the following evidence (all of which had been served on the mother):
·Affidavit of BM filed 7 June 2005;
·Affidavit of MDM filed 7 June 2005;
·
Affidavit of GB (the maternal grandmother) filed

7 June 2005;
·Affidavit of KJB (the maternal grandfather) filed 7 June 2005;
·Affidavit of SB (the mother’s brother) filed 7 June 2005.
The evidence contained in these affidavits is unchallenged. Largely the deponents corroborate the evidence given by each other. The court received an amount of material from police, schools and Nepean Hospital which confirms much of the deponent’s oral testimony. At the hearing, the father, Director General of DOCS and Children’s Representative supported the application by the paternal grandmother for residence and parental responsibility. With the consent of the Director General, the applicant paternal grandmother and applicant father and children’s representative the court made the following orders:
a)The orders made 20 December 2002 in the Local Court at Penrith are set aside.
b)The paternal grandmother BM have sole parental responsibility for the child JACKSON born in 1999 and MITCHELL born in 2000 including sole parent responsibility for:
c)The long term care, welfare and development of the children; and
d)The day to day care, welfare and development of the children.
e)The children reside with the paternal grandmother.
f)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
g)All outstanding applications are otherwise dismissed.
h)The court notes:
i)The paternal grandmother agrees to facilitate contact between the children and their natural mother and their sibling.
j)Contact is conditional upon the natural mother presenting at contact in a non-abusive and appropriate manner in her interaction with the children and that JA does not attend contact.
As the mother did not appear in so far as the orders concerned the mother they were made on an undefended basis.

Relevant Law

Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.

Determining the children’s best interests

The father was born in 1976. He is employed, and he works full time. The father resides with his parents and brother in their home at Doonside.
The applicant grandmother is 52 years old and her husband, JM is 51 years old. JM is employed full time as a prison officer and is in good health. The applicant grandmother works as a food services manager with a local hospital. She works Monday to Friday from 6.00 am until 2.30 pm. The home at Doonside is a four bedroom brick home with a separate granny flat. The children share a bedroom. The father has his own room and his 30-year-old brother J, who is also a prison officer, resides in the granny flat. The paternal grandparents have their own bedroom and the fourth bedroom is used as a playroom for the children.
Jackson attends the local primary school where he is in year 1. He regularly attends the school counsellor and receives one on one coaching with his teacher. Last year, whilst in his mother’s care, Jackson was absent from school eight days during term 1, twelve days during term 3 and 20 in term 4. Jackson lived with the paternal grandmother in term 2 during which time he attended school every day. His school reports show that when he returned to his mother Jackson regressed. In the paternal grandmother’s care, Jackson’s progress is slowly improving.
Mitchell was born with spina bifida. He is incontinent and has to be catheterised three times daily. He is unable to empty his bladder himself. Between them, the paternal grandmother and father catheterise Mitchell. He attends day care and appears to have settled in well in the paternal grandmother’s home. Mitchell’s treating doctor is Dr Carolyn West at the Children’s Hospital Westmead. Mitchell’s health difficulties require careful diet management and regular hospital appointments. Whilst residing with his mother, Mitchell’s health was poorly managed, with scant regard paid to his diet and important hospital appointments were sometimes not met.
Both children have told their father, paternal and maternal grandparents they wish to live with their paternal grandparents. The boys have expressed fear of returning to their mother particularly because they are concerned that JA will abuse them. Although the children are young, their wishes are strongly influenced by the abuse each child endured whilst living with their mother. Returning the children to the mother against their wishes, because they are so afraid, is likely to be highly traumatic for them. Similarly, contact with her which exposes the children to the risk of contact with JA is also likely to be frightening.
Prior to the mother relinquishing the children to police, her parents did everything within their power to assist their daughter care for the children. They corroborate the father’s evidence that the mother used heroin prior to and since separation. The maternal grandmother in particular visited daily and observed drug paraphernalia, including empty satchels, Glucoden, tourniquet and syringes in the mother’s room. Her house was usually filthy and she allowed other drug users to live there. On 16 April 2004, whilst visiting the mother, Jackson sat on a used syringe which he handed to his grandfather. The maternal grandfather took Jackson to the local hospital where blood tests were taken with further blood tests undertaken three months later. The grandfather notified the Department of Community Services, however they took no action. In the following months the maternal grandparents continued to notify the Department of Community Services about their observations of the mother’s drug use, bruises to the children and their apparent neglect. They are deeply distressed that their legitimate concerns for the children fell on deaf ears.
Since the children have commenced residing with their father and paternal grandparents, the maternal grandparents have continued to play an important role in their grandsons’ lives. By agreement with the maternal grandparents and the father, the children each alternate fortnight the children stay with their maternal grandparents from Friday after school until Sunday evening. The maternal grandparents care for Mitchell mid-week by arrangement. The paternal grandparents and father agree that the children have a good relationship with their maternal grandparents and uncle which relationship the paternal grandparents are keen to ensure continues. The children’s relationship with their maternal grandparents appears far more secure if the children live with the applicants than with their mother.

The total effect of the evidence persuades me that if the children reside with their mother or have unsupervised contact to her there is a real risk that:
·They will be exposed to serious drug abuse and a drug milieu.
·Risk of needle stick injuries.
·The children’s educational needs will not be met through regular attendance at school.
·Mitchell’s specific health needs addressed in an erratic manner.
·Grave risk of physical and emotional abuse.
None of these risks is present if the children reside with the applicants. In both the short and long term I am strongly satisfied that the children’s best interests will be served if orders are made as proposed by the applicants.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 6 December 2005