Newport and Anor and Heath and Anor

[2011] FamCA 661

FAMILY COURT OF AUSTRALIA

NEWPORT & ANOR & HEATH & ANOR	[2011] FamCA 661
FAMILY LAW – CHILDREN – Interim Orders - order for equal shared parental responsibility made in favour of maternal grandparents, paternal grandmother and father – order that children live with the maternal grandparents – order that father spend time with the children – order that mother spend supervised time with the children – injunctive orders re use of alcohol and illegal substances – injunctive orders re physically disciplining the children – injunctive orders that children not be brought into contact with mother’s partner
Family Law Act 1975 (Cth)

1st APPLICANT:	Mr Newport
2nd APPLICANT:	Ms A Newport
1st RESPONDENT:	Mr Heath

2nd RESPONDENT:	Ms Heath
3RD RESPONDENT:	Ms B Newport
INDEPENDENT CHILDREN’S LAWYER:	Ms Lehman

FILE NUMBER: CSC 606 of 2009

DATE DELIVERED: 21 June 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 21 June 2011

REPRESENTATION

COUNSEL FOR THE 1^ST APPLICANT: In person

COUNSEL FOR THE 2^ND APPLICANT: In person

COUNSEL FOR THE 1^ST RESPONDENT: Mr Cain

SOLICITOR FOR THE 1^ST RESPONDENT: Aboriginal & Torres Strait Islander Legal Services

COUNSEL FOR THE 2^ND RESPONDENT: Mr Cain

SOLICITOR FOR THE 2^ND RESPONDENT: Aboriginal & Torres Strait Islander Legal Services

COUNSEL FOR THE 3^RD RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Lehman
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Leahmann Featherstone

Orders

UNTIL FURTHER ORDER

1. The applicant maternal grandparents Mr Newport and Ms A Newport, the first respondent father Mr F Heath and second respondent grandmother Ms G Heath have equal shared parental responsibility for the children D born … 2004 and E born … 2008 (“the children”).

2. The children live with the applicant maternal grandparents.

3. The father spend time with the children each alternate weekend at times to be agreed.

4. The third respondent mother, Ms B Newport spend supervised time with the children as follows:-

   (a)through the N Town Contact Centre at such times as can be arranged; or

   (b)with such time to be supervised by a supervisor approved by the Independent Children’s Lawyer and occur at such times and places as recommended by the Independent Children’s Lawyer.

5. The children’s time with the father be conditional upon him not being under the influence of any alcohol or illegal substances.

6. The mother’s time with the children be conditional upon her not being under the influence of any alcohol or illegal substances.

7. No party shall physically discipline the children and each party shall use their best endeavours to ensure that no other person physically disciplines the children.

8. The children should not be brought into contact with Mr C also known as … and ….

9. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS DIRECTED

10. A copy of the reasons for these orders be taken out and placed on the court file.

    IT IS CERTIFIED

11. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:  CSC 606 of 2009

Mr Newport and Ms A Newport

Applicant

And

Mr F Heath and Ms G Heath

Respondent

REASONS FOR JUDGMENT

1. There two sets of proceedings before me.  The first are those numbered CSC: 606 of 2009 and they relate to the parenting of D and E, who are aged seven and three respectively.  The parties to those proceedings are Mr Newport and Ms A Newport, as applicants, and they are those children’s maternal grandparents.  The respondents are Mr F Heath, their father, Ms B Newport, their mother, and Ms G Heath, their paternal grandmother. 

2. The orders that are sought are urgent ex parte orders that the father, maternal grandparents and paternal grandmother have parental responsibility.  They also seek orders that those children live with the maternal grandparents and spend time with the father as agreed and spend supervised time with the mother and certain other orders which are set out in the application. 

3. An Independent Children's Lawyer has been appointed and she appeared today and supported those orders.  The father appeared today, was represented and also supported those orders.  The mother is struggling to deal with this matter for a number of reasons, not the least of which is that her previous solicitor has terminated the retainer and she tells me, and I accept, that she has been refused legal aid. 

4. The mother disputes some but not all of the material contained in the affidavit of her mother filed 3 June 2011. 

5. At paragraphs 6 to 56 of the maternal grandmother’s affidavit she sets out her concerns about the children in the care of the mother and her partner, Mr C which are as follows:-

   6.In early 2011 I saw a big improvement in [Mr F Heath’s] [the father’s] behaviour’s.  The children always seemed happy to go with him and chatty when they came home from his residence.  The children however were upset when they were going back to [the mother’s] and [Mr C’s] residence and would want to stay with us.  When I said that was not possible, they would want to stay at their father’s place or even suggested “Pop’s (my father’s residence) rather than go home.

   7.On occasions when I dropped [E] home crying, [Mr C] would say he must be tired, he can go to bed.  Even after telling him, he only woke up a couple of hours before.  ([E] was crying because he didn’t want to go home!!).

   8.Up until early 2011 [Mr C] had made money stripping copper.  He subsequently stopped this and acquired a still, telling me he was going to sell alcohol he made to the ‘park people”.  Some time after this I found [D’s] school bag filled with bottles of alcohol.

   9.In early 2011, [the mother] and [Mr C] were living in [H Street].  They were subsequently evicted and moved in April, 2011 however prior to moving I had concerns about numerous people I saw at the residence

   (a)  While living in [H Street] people would come and go from the residence on a regular basis.

   (b) In the last couple of months of them being at [H Street], a couple and a child moved in.  The male always looked sick, talked very slowly and would drop off to sleep frequently.

   (c)  It was around this time that [the mother] lost her licence for drink driving and so she relied on this man to drive her around.  I expressed my concerns about this to her as I did not believe he was alert enough to be driving.

   (d)  On other occasions I saw [Mr C] driving even though he didn’t have a licence.  When I saw him driving he would often be carrying a container with beers in it.

   (e)  There was also another man who moved into [H Street].  [Mr C] told me he was an ex speed dealer who had recently been released from prison.

   10.In early 2011 [the mother] told me she had decreased the amount of methadone she was getting from her [L Town] doctor but was purchasing additional methadone to “keep her going”.  She said that she had decreased the levels with the [L Town] doctor to “look good” for Court.

   11.[The mother] became increasingly “stressed out” with all the people at her house.  The house was always a mess and the toilet has no door on it.

   12.The day after [the mother] got caught for drink driving, she came to the house to pick up the boys.  I noticed her eyes were very swollen, and she looked like she had been crying a lot.

   13. She told me she had only lost her licence for a month, because she had a low alcohol reading.  She mentioned that she was able to delay the police for a long time before they took her back to the station.  She told me she refused to let the police take the baby in a car without a child restraint so her alcohol limit had a chance to go down.

   14. [Mr C] and [the mother] moved into new accommodation in mid April.  In the past, my husband and I had always helped with [the mother’s] moves, sometimes spending days helping clean the house before they moved out.  On this occasion, we told them we would not he helping, as they seemed to have plenty of friends living there to help.  [The mother] became very upset with us as she had to spend a lot of money getting a moving van and cleaning the house on their own.

   15.After [the mother] moved I did help out by buying a second hand washing machine for her and a bed base.  My husband and I also helped them take a load of rubbish to the dump, and moved the remainder of their belongings from [H Street].  On the day we were at the new house, 3 people turned up, who l believe were all drug users.  There were 2 males and a female.  The female talked about entering rehabilitation and her conversation was generally quite bizarre.

   16My daughter eventually took her into the bedroom (I believe to give her valium or some other drug) and she then left.

   17.After [the mother] moved in to her new residence, she told me she did “time out” with the boys by putting them in the closet.  [Mr C] also told me that [D’s] behaviour was getting so bad that he was always threatening that he would have to go and live with his father ([Mr F Heath]).  [Mr C] later told me that threat didn’t work so he stopped doing it.

   18.I became aware that [Mr C’s] discipline techniques were completely inappropriate.  Earlier in [sic] relationship his method of discipline was called a “swirly”.  This involved holding [D’s] head down in the toilet while flushing it.  I never actually saw this happen but both [Mr C] and [the mother] talked about it regularly, and [D] was scared when it was discussed.

   19.I notice the house often smelt of marijuana.  The children also made comments about not going into mum’s room – I believe because drugs were kept in there.  The children talk about the “pot” and “done” [sic] as if it’s a normal part of life.

   20. When I have previously turned up to collect the children [Mr C] has said “Keep the children outside [Ms A Newport] – I don’t want them to see this”.  At the time [Mr C] was injecting Morphine.  He has previously taken marijuana in front of me as well.

   21.On April 25, 2011 I received a call from [the mother’s] friend [Ms M] to say that [the mother] had been assaulted by [Mr C].  I attended [Ms M’s] place after calling the police.  The police arrived whilst we were there and [the mother] gave a statement to [sic] police.  At the time, [the mother] seemed petrified of [Mr C].  She mentioned that he had an assortment of weapons in the house and that he had hit her on several occasions.

   22.The children were with [Mr C] at the time and I suggested that I go and get them.  [The mother] became hysterical telling me it wasn’t safe.  She clung to me and it was obvious she was very concerned about my safety.

   23.While we were at [Ms M’s] house talking to the police, another friend brought the 2 boys to the house.  [D] subsequently mentioned he had seen [Mr] C hurt his Mum, but that [E] was not in the room at the time.

   24.My husband and I subsequently took [the mother] and the 2 boys to the 24 hour medical centre.  A doctor ordered a CAT scan for [the mother] and prescribed her Tremoral.  [The mother] subsequently asked for this to be changed as she said she thought Tremoral had previously caused her to have a seizure.  Instead she was given Panedine Forte.  [The mother] has previously had two seizures, both occurred while she was driving.  Following the first one, she would not see emergency staff on being taken to the [N Town Hospital] by Ambulance.  She thought the second seizure was the result of the Tremoral.  (I believed she attended the [O Medical Centre at P Town] following the seizure).

   25.While we were at the 24 hour medical centre, my daughter’s friend [Ms M] rang to say that she had the baby [J].  Apparently [Mr C] had left the baby at a friend’s house.  When we finished at the medical centre we picked up [J], then took [the mother] and the 3 boys home with us.

   26.The following day. April 26, 2011, I returned with [the mother] to the [N Town] Hospital emergency department so she could have her CAT scan.  It showed she had a broken nose along with severe bruising around her eyes and nose.  On the way home from the hospital we called into her house.  We found a note from [Mr C] to say “gone up the hill, you can keep the dud”.  Dud is apparently a name [Mr C] has used for the baby at times.

   27.[The mother] stayed with us the following day, April 27, 2011, to recuperate.  She was sleeping a lot and seemed very tired.  I suggested she see a doctor about her constant tiredness.  She was also constantly breastfeeding [J] and I became very concerned that any drugs she had in her body including the valium and methadone she was taking) would be passed onto [J] who also seemed to be sleeping constantly.

   28.During the period [the mother] was with us, it became very obvious that [the mother’s] behaviour was not appropriate to the children.  She regularly swore around them.  When she woke up once, she put “The Matrix” on TV and let the kids watch.  I said that’s not appropriate for kids.  She said ‘This is my favourite movie, I’m their Mum, I’ll decide what’s right and wrong’.

   29.On talking about this later she made a statement that I thought was quite bizarre to the effect that watching movies like the Matrix, and her swearing etc., would stop the children doing drugs themselves.

   30.April 28, 2011 was [the mother’s] day to go to her [L Town] doctor.  I offered to drive her as I didn’t think it would be safe for her to drive alone.  On the way to [L Town] [the mother] slept the whole way.  When she came out of the doctor’s surgery she was smiling and seemed very happy.  She told me the doctor had given her 100 valium and commented “I thought I would have to pay full price for them – it’s much easier to get them here than in [N Town]”.  Apparently, she had got the Valium for the pensioner’s price.

   31.I asked [the mother] whether she thought it was wise to get that many at one time, given she abuses them at times.  She said “I don’t’ even need them any more – I sell them to make a bit of extra money.”  When I probed her about how much, she told me she gets $1 a pill.  She said that she had “regular people” who brought them.  I had previously heard [Mr C] talking about selling valium and methadone although I had never heard [the mother] give specific details.

   32.On April 29, 2011 [the mother’s] friend rang me to let me know that they were concerned about [mother’s] driving.  [Ms Q], one of these friends, said she had been in the car with [the mother] and was concerned that [the mother] could have killed some-one and commented “the car should be taken off her”.  When I asked what I could do, [Ms Q] suggested that I ring Crime Stoppers.  [Ms Q] subsequently gave me her phone and I rang the police.  During the course of the conversation I handed the phone to [Ms Q] and she also spoke to the police.

   33.I was to pick up [D] from school on the afternoon of April 29, 2011 but when I turned up to the school however I saw that [the mother] was also there.  Her eyes were very black and she looked like she was under the influence of drugs.  I told her it wasn’t appropriate for her to be at the school looking the way she did.  She told me that she had been given double her dose of methadone.  She was acting very strangely; picking at my teeth, talking in a loud voice and telling me [D] was going to the Guidance Officer.

   34.I felt quite overwhelmed by the situation and decided to leave but I felt sick all the way home thinking I should ring the police.  I did not believe the children would be safe in the car with [the mother].

   35.By May 2011, [the mother] was back living in her residence but I found it very difficult to get in touch with her.  Often she was not at home and wouldn’t answer her mobile.  I was due to take [E] back to her on 17 May 2011, but she was not at home nor could I reach her on her mobile.

   36.I instead dropped [E] out to my father’s residence as I was due to look after my mum who I visit on regular days.  I texted [the mother] to let her know what was going on and said I would drop [E] off around lunch time.

   37.I was finally able to speak to [the mother] when I went around to her place again at lunch time to drop [E] off.

   38.I had rung [Mr C’s] phone couple of times earlier in the day to try and get a message to [the mother].  [Mr C] texted me “I see the children on day at my place, one day at her place and I am no answering service.  Get [the mother] to fix her own phone” [original emphasis].

   39.I rang the Department of Child Safety on Wednesday 18 May 2011 outlining my increasing concerns about the welfare of the children.

   40.I also made an appointment to attend a counselling session with [the mother].  On the day of counselling I went to [the mother’s house as arranged to pick her up.  [Mr C] was there with the 3 children.  He told me he had dropped [the mother] at the Mall in town close to ATODS.  He does not have a licence and should not have been driving.  [D] should have been at school but he was home from school, supposedly sick although he looked fine to me.

   41.I went to the appointment but [the mother] didn’t turn up so I spoke to the counsellor on my own.

   42.I had the children again on Sunday the 22 May 2011 and was due to pick them up Sunday lunch time.  However, when I attended the house no-one was home.  I couldn’t get hold of [the mother] so I tried [Mr C’s] phone.

   43.When I spoke to him he told me [the mother] and the children were with him at [R Street] and I could pick the children up from there.  I went to [R Street] to collect the children, [the mother] sent the children out to the car, [D] telling me, she wasn’t speaking to me.  She had disappeared very quickly inside with [J].

   44.Both [D] and [E] were really hungry and said they had only had biscuits for breakfast.  I texted to say I would come back the following morning to pick up [D’s] clothes for school.

   45.When I attended the next morning, however, there was no-one there and I couldn’t get in touch with [the mother].  I spoke to the landlord next door to see if I could get into the house and he agreed to let me in so I could get [D’s] school clothes.  On Tuesday, [the mother] was not home when I was due to drop [E] back. 

   46.As I could not reach [the mother], my husband [Mr Newport] looked after [E] so I could care for my mother.  That afternoon by 3pm I still had not heard from [the mother] so [Mr Newport] attended the school to pick up [D]. 

   47.I am informed by [Mr Newport] and verily believe that when [Mr Newport] asked [the mother] why we hadn’t been able to get hold of her, she said that her car had broken down one day and the other day she was getting her methadone.

   48.On Wednesday the 25 May 2011 I sent [the mother] a message to tell her that I had decided to apply to the Court to have the children live with me.  I also had an appointment with a lawyer to get advice that day and the paternal grandmother, [Ms G Heath], looked after [E] while I was at the appointment.

   49.On getting this message my daughter was quite abusive, so my husband and I arranged a meeting with [the mother] at the police station to talk about matters.  We all turned up at the police station but [the mother] refused to talk to us.  We both spoke separately to the police officer.

   50.The boys stayed with us on the week-ends again as usual.  Whilst with us, [D] commented “mum is always sick”.

   51.Other things that concern me regarding the children are outlined below:-

   (a)  Recently [D] told me he had watched Kill Bill the movie.  I told [the mother] that this wasn’t a suitable movie for [D] to be watching because it has an ‘R’ rating.  [The mother] couldn’t see that that was a problem.

   (b)  When [D] was approximately 4 years of age [the mother] bought him a Playstation.  Through this time, she bought him quite a lot of games one of them Mortal Kombat, and other games with Mature classifications.  I told her that such games weren’t suitable for [D] particularly when he was already a child who was quite violent, hitting and lashing out.  Eventually, after much persuasion, I managed to convince [the mother] to take the ‘mature’ games away from [D] and just leave him with age appropriate ones.

   52.After [J] was born [D] had a television fall on him that had been placed on a chest of units in the boy’s room.  A few days later I noticed a television had been put back there.  I queried [the mother] why she would put a television back there when there had already been an accident but she couldn’t see it as a problem.

   53.Following [the mother] being assaulted by [Mr C] she has been minimising the assault.  She has mentioned to me that she should get in touch with the police to tell them there was more to it and said she is going to try and stop the police taking out a DVO.  The boys have told me that [Mr C] hit their mum because she was going to drink drive.

   54.[The mother] has told me that before the actual attack when he head butted and bit her, he bit her in the back of the head whilst at the park.

   55.I have previously heard [Mr C] talk about unsuitable subjects around the children.  I once heard him tell [D] about how to make explosives on the stove.  I immediately told him it wasn’t appropriate to be talking about that sort of stuff with a 5 year old.  I see a lot of behaviour in [D] that I believe is him copying [Mr C].  For Example:

   (a)  [D] collected sticks at our place and told me ‘you need these to protect yourself from people’;

   (b)  he has put a stick in his mouth pretending to smoke ‘pot’;

   (c)  One time actually silly and saying he was drunk, and saying that he would drink when he grew up, and that he could do anything he liked.

   56Through the time I have know [Mr C] there have been many things that have concerned me.  For example:

   (a)  In the past, he has told me that “my parents have disowned me”.  He once said he [sic] beat up his brother and his family were fearful of him.  At the time I thought he was “all talk” but now I believe he is a violent person.

   (b)  [Mr C] became really angry with me after I threw out and old teddy bear that had been lying around when I cleaned the house.  After he abused me I jokingly said “what are you going to do – slit my throat?”.  He replied “I’ll do a lot worse than that”.

   (c)  A nurse at ATODS told me that [Mr C] had been prohibited from attending ATODS due to his behaviour.  The nurse told me he had a narcissistic personality disorder.

   (d)  I have previously heard [Mr C] talk about “getting” a police officer he was unhappy with.  When I said “You’re full of it” he promptly told me the address where the police officer lived.  He also said on another occasion regarding another police office, I know where she lives and where her children go to school.  I was very concerned at this and contacted the police.

1. It seems agreed that the mother and the father have not undertaken random drug tests as requested by the Independent Children's Lawyer and there are other issues which are of concern.  I note the material set out in the affidavit of Ms A Newport which is to say the least, troubling.

2. A second set of proceedings CSC: 323 of 2011 have since been commenced which are apparently also before me today, although there is no documentation available to me.  That material relates to the care of the youngest child of the mother J who was born in 2010 and is aged about 15 or 16 months.  His father is Mr C.  The maternal grandparents assert that he continues to live with the mother.  The mother asserts that he does not but she is not here today. 

3. The mother says that she has a close relationship with J, and I have no doubt that he is her primary attachment.  There is an assertion that the mother was served, although she says she was only served a few days ago.  I intend, in relation to these proceedings to adjourn them and place them before a Federal Magistrate at 1.30 pm next week, which is 1 July 2011, with leave to the mother to file any material upon which she relies.

4. These are difficult proceedings and in terms of the two elder children in the first set of proceedings, having regard to all of the material contained in the affidavit of the maternal grandmother I am concerned about their wellbeing.  I intend to, in all of the circumstances, proceed with that application.  I intend to bring the matter back before me on 3 October 2011 to enable the mother to deal with some of the issues raised, have drug tests and possibly at that stage enable the matter to be further considered once things have settled down.  I also intend to make the orders sought by the maternal grandparents.

5. In terms of proceedings relating to J, I am concerned that the mother has not had an opportunity to file any material in reply and that the father has not had an opportunity to either.  I intend to do a number of things in relation to that matter, the first of which is to adjourn the proceedings before the Federal Magistrate, as I said to enable the mother to file and the father to file an affidavit in response to the proceedings. 

6. Having regard to the course that I have adopted and bearing in mind the significant issues of risks raised by the maternal grandmother I intend to place J into the maternal grandparents’ care until at least Friday of next week.  This will serve two purposes.  The first is that, the child will be safe and, secondly, to enable the mother and the child’s father to adduce evidence, if they choose, in relation to that aspect. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 21 June 2011.

Associate:     

Date:              21 June 2011