Ryan and Anor and Indina and Anor

[2009] FamCA 490

FAMILY COURT OF AUSTRALIA

RYAN AND ANOR & INDINA AND ANOR [2009] FamCA 490

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Ryan
Mrs Ryan

RESPONDENTS: Ms Indina
Mr Felvi

INTERVENER: Director-General, Department of Community Services

FILE NUMBER: NCC 885 of 2008

DATE DELIVERED: 7 April 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Loughnan JR

HEARING DATE: 7 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Braye Cragg Solicitors

RESPONDENT FATHER: In person

COUNSEL FOR THE RESPONDENT 

MOTHER:

Mr Mooney

SOLICITOR FOR THE RESPONDENT

MOTHER:

Winder Lawyers

COUNSEL FOR THE INTERVENER:

Mr R. Harper

SOLICITOR FOR THE INTERVENER: I.V. Knight, Crown Solicitor

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell and Associates

Orders

1. Leave to all parties to inspect documents produced on subpoena by:

   a.        The NSW Police Force.

   b.        Dr H

   c.        Dr S

   d.        The Proper Officer N After Hours Medical Centre

   e.        Dr I

   f.         Commissioner for Corrective Services

   g.        McDonald’s Family Restaurant

   h.        Ms T

2. Orders are made in terms of the document titled “Minute of Order Proposed by the Director General of the Department of Community Services (Intervener)” marked Exhibit A and attached hereto.

3. The proceedings in relation to a subpoena to the NSW Police are adjourned to the Subpoena List at 9:15 am on 29 April 2009.  That the solicitor at whose request the subpoena issued notify the addressee of the adjourned date as soon as practicable.

4. The Court noted that effect is going to be given to the orders made today by the children and their school related personal possessions being delivered to school by the Paternal Grandmother and Step Paternal Grandfather tomorrow morning and the children being collected at the end of school day by the mother or on her behalf.

5. The Court further noted that that the Director General of the Department of Community Services intends to cause departmental officers to conduct home visits upon the mother on a weekly basis to provide assistance and to observe family interaction.

IT IS NOTED that publication of this judgment under the pseudonym Ryan and Anor and Indina and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 885 of 2008

MR AND MRS RYAN

Applicant

And

MS INDINA
MR FELVI

Respondents

And

DIRECTOR GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES

Intervener

REASONS FOR JUDGMENT

1. I have seen this matter on several occasions and it is necessary to go back over some of the history.  Unfortunately in a case like this the history is built up from sources that are not necessarily reliable or agreed. There may be aspects of what I am about to say about the chronology of events that are controversial.  It probably does not matter in the scheme of things, but I am left with a series of affidavits that build on the evidence that has been before the Court over years, some of them are that uniquely Family Law and unhelpful creature that Young J of the NSW Supreme Court dubbed a ‘pleading affidavit’ which does not contain evidence, but seeks to put certain facts in issue.

2. The proceedings relate to M, born in April 2001 and C, born in April 2002. They are 8 and 7 years of age respectively. Their mother Ms Indina is about 29 years of age. Their father Mr Felvi is about 32 years of age.  The other parties to the proceedings are the father's mother who is about 54 and her husband of 23 years, Mr Ryan.  All of the parties have been present today.  Mr Ryan supports his wife's application, seeks no different orders.  He raised with me earlier today the problem of the children being collected from school today. I suggested the parties have a discussion about that and he is not here now. I assume that he is collecting the children.  Mr Ryan is not legally represented and neither is the father. Otherwise the parties have representation.

3. The Department of Community Services has intervened in the proceedings and the children are represented.

4. The mother has two children from an earlier relationship, B and D, who are about 14 and 11 years of age respectively.  The parents cohabited over a number of years and there were many separations.

5. M, as I said, was born in April 2001.  A bit over a month later the father applied to the Federal Magistrates Court for an order that she live with him and that the mother have only supervised time with the child.  He referred in his evidence to a lack of capacity in the mother or inconsistency in her parenting and threats that had been made by members of her family against him.

6. It was asserted before me that the parents reconciled then about eight weeks after the child was born.  They apparently separated again soon after that because in June 2001 consent orders were made providing for a shared arrangement with the changeover supervised by Relationships Australia.  There was presumably a further reconciliation because it is asserted that the parents were living together again when C was born in the next April.

7. The father says that the mother had told him that when Mr Z, the father of her other children, B and D, was released from gaol she proposed that he would come back to her household and be the father figure. That resulted in a separation.  I think the parents separated for the final time in June 2002.

8. At about that time, the parents and one of the mother's sisters were charged in relation to a conspiracy to supply heroin.  The mother subsequently pleaded guilty to a lesser charge in the District Court and ultimately did not receive a custodial sentence.  The father was charged with a number of offences. In August 2002, orders were made in proceedings commenced by the paternal grandmother for a shared care arrangement between her on the one hand and the parents on the other. The parents were restrained from bringing the children into contact with the mother's sister.

9. The father suffers from an inherited condition, a type of cardiomyopathy. He had has had treatment for that. He lost his brother to that condition in 2001.  The maternal grandmother has a significant history of convictions and imprisonment in relation to offences of deception.

10. The proceedings in this Court were commenced in March 2003.  There had been an accidental burning of M by a cigarette and there were concerns in relation to that. The concerns raised were more an issue of neglect than an issue of deliberate harm.

11. When the matter came before me in April 2003, I noted that it was possible that none of the applicants for care of the children would be available to have the day to day care of the children and on that basis I requested that the Director-General intervene in the proceedings.

12. In a substantial Department of Community Services' file that I had access to at that time, there was a report prepared by a Ms E, a clinical psychologist from John Hunter Hospital dated November 2002. It was quite a strong report and it reported on observations of the parties and the children and referred to concerns that have been experienced in supervision of handover occasions under the orders of 2002.

13. The reporter said then that the oldest child was around age appropriate in terms of gross motor skills, personal and social skills, speech, language, eye/hand coordination, general performance but that the shared care arrangement was causing instability for the child and although it might be fair to the parties, was probably disruptive and damaging to the children. That was of particular concern in respect of these children who as Ms E observed, have not had ideal parenting from the outset.

14. Ms E admonished the Court system, I think probably both Courts were involved in these proceedings, to consider the children's developmental needs more appropriately and to make arrangements more stable and predictable with the children having shorter periods away from their primary attachment figure, the mother.

15. Ms E reported on a level of disengagement she observed between the paternal grandmother and the children.  This is a theme that haunts the evidence about the paternal grandmother through the proceedings and is repeated in a report in evidence before me today.  

16. Ms E reported no appropriate touching, no comforting, no real separation anxiety when the paternal grandmother left the children, little reunion reaction when she came back and that was a matter that she was concerned about.  She was concerned in relation to the child's reaction to the father and that the child presented as self-sufficient and somewhat avoidant and played without reference back to her parents or paternal grandmother. She was anxious when her parents left the room, sought out her mother not her father for comfort and presented as emotionally flat but did smile on occasions.

17. Still referring to the matter as it presented in April 2003, I noted that there had been an incident over the preceding Christmas. There was a home invasion at the house the parents were living in. In order to avoid that home and in breach of the orders that were still in place then the parents bought the children to the accommodation occupied by the mother's sister. Ultimately the parents arranged for the children to come to the paternal grandmother.

18. Each of the parents had said that the other parent was an entirely inappropriate parent.  The father saying the mother was unstable, that her family and friends were drug dealers, that she was unable to cope and she threatened the father and his family.  The mother said similar things about the father, that he was involved in drugs, she recited his history of criminal charges in relation to drugs and other activities.  She said she had not received any assistance from the father in relation to the care of the children and that his regular intake of illegal drugs was the major cause of their separation. The father conceded that he was then taking illegal drugs.

19. In giving reasons in 2003 for orders that placed the children with the paternal grandmother, albeit not for long, I said this:

    "This is a terrible story, the children have had more experience of life than most people would have over a long lifetime.  [Ms E] observed that the older child might be a bit more reserved and quiet because she has seen so much and heard so much.  Orders that have been made in the past have been substantially orders by agreement, but it is one thing for parents to agree to something and it is another for the representative of the state to make a decision on a defended basis. 

    It is not for me to say well the children have been exposed to appalling circumstances and they are still alive so let's risk it and keep it going.  It is not for me to say that they have been brought up in a household where drug use and connection with violence associated with that has been accepted, so that is the household that is appropriate for these children. 

    As I say I think we are right on the edge of the line between the civil and care systems for these children, perhaps on the other side of the line in this case and it seems to me that my primary obligation is to keep the children safe and I do not see any way of guarding their physical safety.  They cannot be medically safe, they cannot be emotionally safe if they are not physically safe and I do not think there is any way of achieving that short of supervised contact.

    If there is some other way of doing that, I would be happy to hear about it.  I am happy to have the matter restored on short notice if there is some other option, but the only option I am given is supervision through a Relationships Australia Centre and I do not think that is ideal, but that is the only option."

20. And then I made orders requesting the Department to intervene, that the existing orders of the Federal Magistrates Court of 16 September 2002 be varied to have the children reside with the paternal grandmother and that the children have supervised time, three times a week at Relationships Australia.

21. Ms Blundell for the children says that from April 2003 when I made those orders till about October 2004, the children lived with the paternal grandmother.  From October 2004 till April 2008, the applicant paternal grandmother was in gaol.  Some orders were made in November 2004 and from November 2004 until 12 December 2008, the children lived with their mother.  From November 2004 until April 2005, they spent every weekend with Mr Ryan from 5 pm Friday to 5 pm Saturday and some school holidays.  At about that time in 2004/5, the mother received a suspended sentence. The father spent about three months in gaol in 2005.

22. Some orders were made on 18 April 2005 by consent whereby the children were to live with the mother and have contact with the father each weekend, with the alternate weekends spent by them, the father and children, at the residence of Mr Ryan.  Then there was two weeks at Christmas and otherwise as agreed with the father during school holidays.  Those orders made provision for the expectation that the father might die.  At some point since he has been fitted with a defibrillator and, happily, he enjoys a more secure prognosis now. There is some medical evidence in support of that.  But it shows the state of mind of the parties at that time.

23. From April 2005 to January 2006, the children continued to spend time with Mr Ryan on the weekend, but the orders started to break down with the father refusing to spend time at Mr Ryan’s home.  I think there was then a break down of that relationship.  In February 2006, the children were spending three weekends out of four with Mr Ryan and in June 2006, the orders were varied again.

24. The father says that there were concerns raised with DOCS in 2007 in relation to the children spending time with Mr Ryan and allegations were made.  It was asserted that M was wetting herself at school and there were concerns in relation to the sleeping arrangements and other aspects of care in that household.

25. On 7 May 2008, the paternal grandmother sent a very angry letter to the father's brother R in relation to a notification made in relation to the care of the children by Mr Ryan.  In September 2008, the mother separated from Mr K who had been her partner in circumstances where an AVO was granted. It was asserted that, among other things, Mr K had spat on her.  On 14 November 2008, the Department received a letter from the paternal grandmother expressing concerns about the care of the children in the hands of the parents and on 12 December 2008, I made some orders putting the children with the paternal grandmother and there was then an investigation by the Department in relation to the concerns that led to those orders.

26. As the matter stands today, the competing proposals are:

    ·    by the paternal grandmother and the step paternal grandfather, Mr Ryan, that the children continue to reside predominantly with the paternal grandmother again. 

    ·    The orders sought by the Director-General, by the mother, by the father and on behalf of the children are orders that have the children reverting to the residence of the mother, subject to some conditions, with the mother to have sole parental responsibility in relation to the children for the time being.

27. The Department proposes to take up a very direct role in relation to the children's care:

    ·    organising and arranging their medical appointments, counselling appointments;

    ·    seeking out information that would normally come to a parent in relation to the children;

    ·    carrying out supervision in a number of ways, whether with the consent of the parents or not, requiring the mother to accept and facilitate the supervision of the Department by permitting random visits to her residence, ensuring that entry is available, allowing the Director-General or her delegate to meet with the children. In that regard, learned counsel for the Director-General confirmed that officers of the Department plan to call on the mother on a weekly basis;

    ·    requiring the mother to accept all reasonable directions of the Director-General in relation to the care of the children and in particular directions in relation to her attending parenting courses and drug testing;

    ·    requiring the mother to organise and cause the children to attend medical appointments and counselling appointments if requested to do so by the Director-General;

    ·    requiring the mother to facilitate any additional educational assistance or recreational activities if requested to do so by the Director-General and otherwise accepting reasonable referrals made by the Director-General for the children.

28. The proposal on behalf of all parties except the paternal grandmother and Mr Ryan is that the children live with the mother, that the father spend time with the children a minimum of one day a fortnight, 9 am to 4 pm on a Saturday or a Sunday and at such other daytime occasions as are agreed between the parents and then there are arrangements for how that is to be effected. Overnight time is to be subject to the approval of the Director-General. It is proposed that the children spend time with the paternal grandmother and step paternal grandfather each alternate weekend 9 am Saturday to 4 pm Sunday.  For that purpose the Director-General's delegate is going to arrange for the children to be transported between the mother's residence and the paternal grandmother's residence. Injunctions are sought in relation to changing the school, changing residence, leaving the children unsupervised in the care of somebody else, causing the children to attend for a medical examination other than for reason of illness, similarly a psychologist, psychiatrist, counsellor or like professional.

29. There is a restraint sought to be imposed on the parents and the paternal grandmother and Mr Ryan in relation to alcohol and drugs while having the care of the children; denigrating the other adults or members of their households in the presence of the children and permitting anyone else to do so; discussing the proceedings or an allegation made in the proceedings with the children; questioning the appropriateness of the behaviour of the children during their time in the other household. A liberty to apply is sought and an expert’s  report is sought from Dr R. I think perhaps the latter application has the agreement of all of the parties.

30. The legislation says I am to make orders in the best interests of a child and that is done in a tree of logic that starts with decision making and it is not relevant to go to that step today. It is not proposed that decision making will be shared between parents and so the steps that lead to the Court considering substantial and significant time and equal time do not apply. And to be fair, these are still civil proceedings and no party seeks such orders.

31. The matters I am to take into account are set out in s 60CC of the Act.  The primary considerations are the benefit of a child having a meaningful relationship with both parents and secondly the need to protect a child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.  There is nothing in the legislation to say that the primary considerations in some way trump or override the additional considerations that I will come to in a moment.  I raised this issue in the course of submissions and no one was terribly interested in taking it up, whether there is some primacy given in the legislation to the relationship between parents and a child. There is a growing awareness in our community that grandparents and other relatives play an important and sometimes critical role in respect of children. Certainly in this case, the paternal grandmother and Mr Ryan have played an important and critical role with these two girls and notwithstanding what one would think from the submissions that have been made today, it is common ground that that critical and important role will continue unsupervised and unchecked.

1. There is no update of the report by Ms E from 2002. Thus there are no recent observations of the children with the parents or the grandparents.  I do not know the extent to which there is a meaningful relationship between the children and both parents. They would be heard to say that they have a loving relationship with the children and really I do not think that is in issue here.  Sadly the issue in this case is about capacity.

2. As to the need to protect the children from physical or psychological harm, being subject to or exposed to abuse, neglect or family violence, that is what the case is significantly about. The history of the lives of these children is frightening. I have referred to home invasions.  It must be the case that in the mother's household, the older child was exposed to the incidents of her parents' drug activities and the drug activities of other people.  I think there is probably a concession made in the mother's case that there were drug issues in relation to her most recent partner.

3. There is reference in the material to M spelling out ‘pot’, at one point the father and his brother told somebody else that they had heard one of the children refer to white powder. There is no doubt that there has been violence of one sort or another, verbal violence and physical violence. Whether it always occurred in the presence of the children, they have heard about it afterwards. It is clear from Ms E’s original report and it is clear from the parties' evidence more recently that these children have continued to be exposed, at least, to a level of conflict which is inimical to their best interests.

4. There were allegations in relation to neglect.  There is reference to the children having hair lice, I think it is an accepted fact even in the best households children suffer from these things and it is like nappy rash and not necessarily an indication of neglect.  There have been occasions when the children have not attended school appropriately.  There have been occasions, although it does not sound as bad as it might first appear, when the Department was told the children did not always arrive at school with an appropriate lunch or play lunch.

5. As to the additional considerations, any views expressed by the children, it seems to be reasonably common ground that the children would like to spend much of their time with their mother.  There is said to be some resistance from them to spending time with their grandmother and grandfather but all parties proposed that the children have unsupervised overnight time in the care of the paternal grandmother. The expressed views of the children will not override an agreed position. For the time being these things are left up to the parties, left up to the Court and will not be determined by 7 and 8 year old children.

6. Certainly if Ms E was right and those concerns persist today, it may be that these children are not quite with their cohort in terms of maturity in any event. 

7. As to the nature of the relationship of the child with each of the parents and significant others, including grandparents or other relatives.  I have said what I have said about that, I cannot take that much further.

8. The willingness and ability of the parents to facilitate a close and continuing relationship with the other parent.  For the time being the mother and father agree about the living arrangements for the children which has the children spending time with each of them.

9. The likely effect of changes in the children's circumstances. On of the tragedies about this case is that the children have been moved from pillar to post for various reasons.  The orders that I made in 2003 did not last long and then their grandmother was denied to them for some years while she was in gaol.

10. The practical difficulty and the expense of a child spending time with and communicating.  The parties live a fair distance apart, I gather.  Certainly from the paternal grandmother's point of view she would have preferred that they attend a school other than their current school because it was hard for her to manage. That problem is not as critical if the children live substantially with the mother.

11. The capacity of the parents and others to provide for the needs of the children, including emotional and intellectual needs.  There is some background evidence to suggest that the children are not doing all that well.  In relation to the older child, she is a bully at school.  The younger child sounds like heading the same way, so there are some issues there.

12. The officer of the Department who has carriage of this matter spoke to the school principal at P Public School, Ms L.  Yesterday M hit a child, there is a lot of silent bullying going on.  Things like walking past other children and saying "Disease, disease".  She assaulted another child in the playground and the headmistress said "I tried to contact the mother, she didn't answer" and the child said "She has a sleep in the afternoon". Their attendance has been better. 

13. There is a number of occasions in the documents where there is a report from an adult about inappropriate things being raised by the children.  There is a reference at one point for example to the Departmental officers coming to the home and the children getting straight onto the issue "You must be from DOCS", so it is pretty clear that these children have too much knowledge and understanding of the conflict and why would they not if it has persisted for so long.

14. There are real issues here in relation to capacity.  The terms of the orders and the Department’s proposals to supervise and support the mother's care of the children are extraordinary. Mr Guyder, on behalf of the paternal grandmother made some reference to it. It goes without saying that that level of support would not be provided if the Department did not have some residual concerns for the children in the mother's care. I have not seen the like of the proposed arrangements and it is a wonderful thing that the Department is prepared to make this commitment. Through the responsible officers, the Department is to be commended for the commitment made on behalf of two precious and vulnerable children.

15. The maturity, sex, lifestyle, background of the children and of the parents and any special characteristics.  I suppose the critical thing is that these children have been brought amidst turmoil and they are still young.

16. The attitude to the children and the responsibilities of parenthood demonstrated by the parents.  These are open issues.

17. Family violence, I have made reference to that.

18. There is some material in relation to the maternal grandmother. As I said before, there is a theme running through the documents from Ms E’s report which Ms Maher on behalf of the Departmental officer describes this way:

    "The Department is of the view there is a risk of ongoing emotional and psychological harm to the children due to their subjection to ongoing Family Law disputes and the continued instability of their care.  In addition, the Department is of the view that the children would be at further risk of emotional and psychological harm if placed in the care of the paternal grandmother on a long term basis.  This is due to concerns regarding the paternal grandmother's own parenting history and lack of warmth and nurturance and the possibility that she could reoffend and face further periods of imprisonment."

19. There is reference to the fact that she recently told a therapist that she suffers from Parkinson's Disease and there other evidence denying that fact. There is, as I said, that reference in Ms E’s report. 

20. I accept what is said on behalf of the paternal grandmother.  There has not been an assessment in relation to this since Ms E made the observations at a time when there was really only one child to make observations about and that was many years ago. To summarise the issue without being cruel, the concern is that there is less attachment, no close emotional relationship offered in the paternal grandmother's household but on the other hand the children are exposed to a smaller risk of immediate danger there. On the other hand there is a warmer and closer bond in the mother's household, but the risk of physical danger is higher. And I do not think that is an unfair way of describing what the documents and what the evidence asserts.  Whether that is true or not, is largely an issue for another day. Somebody is going to have to look at that. People parent in different ways and one person's coldness is another person's warmth. I cannot make findings about that now.

21. The task here is to keep the children safe until there can be a proper investigation of those sorts of issues and some determination of them.  In the meantime we need to keep the relationships going between these children and the people that love them.  As I said before, to hear the submissions that were made across the Bar table today you would think that it was a case of all or nothing and that the children were going to be either living entirely with the paternal grandmother or never seeing the paternal grandmother and step paternal grandfather at all.  And no one is suggesting that.

22. I accept absolutely that there remain the risks that have been raised by the parents against each other over many years, risks that continue to worry the paternal grandmother.  I accept there are the risks that Ms E identified and by the orders that are proposed, I would be committing the children to yet another change in living arrangements. However, it seems to me that but for one issue, the proposals have the best chance of meeting the needs of these young children in the interim.

23. One of the concerns that remains is the impact on the children of the dreadful relationship between the parties. The Department seeks to cover that in part by effecting the handovers. No doubt the parties have been told before and I may have even told them in 2003 to understand and to be careful about the damage done in  poisoning the mind of a child in relation to someone the child loves.

24. These are young children and their biggest problem should be what they wear or what they eat. They should not have to worry about do what they can and cannot say in grandma's household, in mum's household and in dad's household. They should not be afraid of being punished for saying something perceived to be critical of Mr Ryan. The children should be able to get on with being young children. We expect the adults in their lives is to put their own fears and vulnerabilities and worries aside and play a role which would have these children knowing that everybody in their life loves them. The children should not hear anything critical of the people in their lives.

25. The younger children are the harder it is for them to manage adults. One could say that children are born with only one skill and that is manipulating adults, but we are told it damages their development to be brought up in the circumstances that confronted these children. It damages them to have to pick sides, to keep their heads down in circumstances of violence, to learn to stay silent and to keep on the right side of everybody.

26. So it is within the power of the parties notwithstanding the best efforts of the Department to frustrate the spirit of these orders. The parties here are smart people and they understand that the Court does not usually have many options as far as where children should live. The fact that the Department is here means that there is another option for these children. It is not something that is currently proposed or suggested but the children could be placed in the care of the Department.

27. The period from now to a final hearing will be heavily scrutinised. Dr R will investigate, speak to you and speak to the children and will give a report. 

28. Whatever happens between now and the final hearing will be observed and reported. If something inappropriate happens one of the parties will set it out in an affidavit, Dr R will hear about it, if from nobody else, perhaps from the school or from the children. Unfortunately your lives are a bit in a fish bowl at this time and you need to redouble your efforts to make life better for these young girls.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of  Judicial Registrar Loughnan

Associate: 

Date:  5 June 2009