Schuler and Leonard and Ors

[2019] FCCA 1992

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHULER & LEONARD & ORS [2019] FCCA 1992

Catchwords:
FAMILY LAW – Parenting – interim hearing – where there are serious concerns regarding the safety of the child – where the Minister for the Department for Child Protection was invited to intervene in the proceedings – urgent recovery order made.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MS SCHULER

First Respondent: MR LEONARD

Second Respondent: MS BISSET

Third Respondent: MR BLACK

File Number: ADC 2445 of 2019

Judgment of: Judge Kari

Hearing date: 12 July 2019

Date of Last Submission: 12 July 2019

Delivered at: Adelaide

Delivered on: 12 July 2019

REPRESENTATION

Counsel for the Applicant: Mr Brittain

Solicitors for the Applicant: Peter Picotti Lawyer

Solicitor for the First Respondent: Ms Detchon as Duty Lawyer

No appearance for the Second or Third Respondents

ORDERS

1. Pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)To find and recover the child of the First and Second Respondents [X] born … 2014; and

   (b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found,

   (c)and to deliver the child to the Applicant Paternal Grandmother MS SCHULER or her nominated agent at such a place as the Applicant Paternal Grandmother and the person effecting such recovery agree to be appropriate.

2. That pursuant to s.68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed as a matter of urgency to represent the interests of the child [X] born … 2014 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr B of the Legal Services Commission of South Australia within seven (7) days of today’s date.

3. The parties forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last twelve (12) months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the child may have seen or attended in the last twelve (12) months and provide to the Independent Children’s Lawyer authorities for the release of information concerning themselves and the child from such person or agency.

4. The Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

5. That the Father file and serve a Response, Affidavit and Notice of Risk during the period of the adjournment.

6. That the proceedings be listed for interim hearing at 3:30pm on 12 August 2019 (2 hours allowed).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2445 of 2019

MS SCHULER

Applicant

And

MR LEONARD

First Respondent

MS BISSET

Second Respondent

MR BLACK

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me today in relation to the child, [X], born on … 2014. [X]’s parents are Mr Leonard and Ms Bisset. Both of the parents are parties to these proceedings. However, the proceedings were commenced by the paternal grandmother, Ms Schuler.

2. The paternal grandmother commenced proceedings by way of an urgent initiating application filed on 19 June 2019. That application first came before me on 25 June 2019. On that occasion, the only persons who appeared at that hearing was the applicant and her legal representatives, in circumstances where at that stage the paternal grandmother’s solicitors had been unable to effect service on either of the parents. At that hearing, I was sufficiently concerned by matters raised in the affidavit of the paternal grandmother that I made orders inviting the Minister to intervene in the proceedings, and I adjourned the proceedings to today, being 12 July 2019.

3. The cause for my concern arose in the following circumstances. Firstly, it should be noted that the child [X] was about to turn five and subsequently turned five after the first hearing in this matter. In any event, matters which raised my concern arose as a result of the information set out by the paternal grandmother in her affidavit filed on 17 June 2019 which I summarise in the following terms.

4. Firstly, she described a difficult relationship and tumultuous relationship between the parents involving, she alleges, physical abuse of each other and frequent use of illicit substances by both parents, including but not limited to methamphetamines. Among the allegations in relation to family violence and physical abuse between the parents, the paternal grandmother asserts that she has witnessed at least the after effects of various violent altercations between the parents, including an occasion when the father attended her home after an argument and presented with a deep cut to his head where he had alleged the mother had hit him with a frypan, and another occasion where he presented with a black eye.

5. The paternal grandmother sets out that it was only in late 2018 in the days before Christmas that she became aware as to the extent of the parents’ methamphetamine use and addiction, and her concerns significantly came to the fore at that juncture. The paternal grandmother also asserts that as and from approximately that time, she began to have the regular and frequent care of [X] in circumstances where, by agreement, at least with the father, but presumably also by the mother, she was having [X] in her care (three days with the father) four days with her each week. 

6. The paternal grandmother asserts that during the time that [X] had been living with her, she did not have any contact with the mother with the view to her spending any time with [X].

7. The paternal grandmother brought the application because she had not seen or heard from [X] from approximately 3 April 2019. The paternal grandmother deposes that on … 2019, the mother was arrested, and it is my understanding that she remains in custody. I say “my understanding” because, at this juncture, service has not been able to be effected upon her; and, indeed, there is an affidavit of attempted service sworn by the paternal grandmother’s solicitor and filed on 5 July 2019 confirming, firstly, that the mother remains incarcerated at Prison C, and, secondly, that the officers or staff at Prison C have refused to accept service on behalf of the mother. The question of service on the mother is a matter for another day and, indeed, I have raised with the paternal grandmother’s solicitor today whether or not there is to be an application for service on the mother to be effected by way of post at Prison C, and that may well be the course and the path that they take.

8. Having said that, what is of more pressing concern is that when the mother was arrested, the child [X] was in her care and was thereafter, to the best of the paternal grandmother’s understanding, placed in the care of his half-sibling, [D], who resides with his father, the mother’s former partner, a Mr Black. How that arrangement came to be is, quite frankly, a mystery to me in circumstances where a five year old child appears to have been placed in the care of a 16 year old half-sibling.

9. What is of greater mystery to me, having now invited the Minister to intervene, and having been provided with detailed correspondence from the Department of Child Protection dated 11 July 2019, is how that arrangement has come to pass in circumstances where there appears to be a vast number of records held by the Department in relation to not only Mr Black, but also the child [D], but, in addition, records in relation to both the mother and the father of [X].

10. Having read the material that has been produced by the Department of Child Protection on 11 July 2019, my concerns for [D]’s safety and wellbeing on every level have been significantly heightened. I am conscious that by that correspondence the Department had sought a six-week adjournment of the matter so that they could complete their investigations and make a decision about how they wished to proceed generally in the matter, and whether or not they were to take care and protection proceedings in another court.

11. The Department is represented or the Minister is represented today by Mr E. And while the matter was called on earlier today, I indicated that I would be standing the matter down for him to take further instructions because of the level of my concerns having read the material produced by the Department, and my request as to whether a much quicker and truncated timeframe for investigation could be completed. The other reason that I stood the matter down earlier today is that the father now having very recently been served with the proceedings was present and is present at court today, and I gave him the opportunity to attend upon the duty lawyer and obtain some preliminary advice in the matter. Both of those things - firstly, Mr E taking further instructions and, secondly, the father obtaining advice from the duty lawyer - have occurred, and the matter has been recalled this morning.

12. On the matter being recalled, submissions were made and an oral application was made by the paternal grandmother’s counsel, firstly, that by the consent of the father there be, firstly, a recovery order noting as I do that, in any event, that order was sought in paragraph 5 of the paternal grandmother’s interim orders sought in her application filed on 19 June, but that, in addition, there be an order that during the period of the adjournment the child live with the paternal grandmother, and that there be time-spending arrangements between the father and the child as facilitated by paternal aunts of the father who are present with the paternal grandmother in court today.

13. As I say, the father, through the duty lawyer, today has indicated that he supports orders being made in those terms. And while I sympathise with the father with respect to some time-spending arrangements, I must say, and I have pointed out to the duty lawyer today on his behalf, that I do not consider that I am in a position to make those orders today in the absence of material firstly from the father, but secondly from the paternal grandmother and those she proposes to facilitate the time-spending arrangements. Be that as it may, lest it not be lost on the paternal grandmother, my concern at this juncture is that [X] is in a safe environment and that he is protected from all forms of harm, be that physical, psychological from being exposed to abuse, neglect or family violence or any number of circumstances that may well befall him. 

14. Having said that, the other issue about which the matter was stood down was for Mr E to take instructions. He has now advised the court that having taken further instructions, the Department, with a push, now only seeks an adjournment of four weeks so that they can conclude their investigations and have a report provided within the timeframe of four weeks. As I explained to Mr E, I am and I remain very, very concerned about the lack of response from the Department and the apparent lack of resourcing applied to this matter and to the notifications made to the department in relation to the child [X].

15. I refer specifically to matters raised in the correspondence and report received from the Department, but, in particular, the following very recent events which are events that have been reported to the Department since the child [X] was placed in the care of his half-sibling [D] and Mr Black, namely, that on … 2019, which is some three days after the mother was arrested, what is described as a seventh notifier made a report to the Department indicating that the child [D], the 16 year old child with whom [X] has been placed, went to find his mother as he had not seen the child [X] in two weeks. [D] is reported to have found his mother and she was black and blue. As a result, the police were called to the home. Mr Leonard, who is the father of [X], reportedly remained down the road whilst police were there and held hopes that [X] would be given to him. However, during this time, [D] and his father, Mr Black, took [X] with them.

16. Mr Leonard reportedly went to the police, and the paternal family also sought police assistance. However, the police were unable to help.  The notifier held concerns for [X] being in Mr Black’s care as he is allegedly known to have been imprisoned for four to five years, was affiliated with biker gangs, and was currently selling drugs. It was reported that the paternal grandmother had been in contact with a lawyer to pursue family law proceedings. There is a notation to that entry which reads as follows:

    Departmental records indicate that the paternal grandmother attended the Suburb F office on … 2019, and a paternal aunt contacted the Department on … 2019 to inquire what more they could do to ensure the safety of [X]. The paternal family were advised that they could request a welfare check be conducted by SAPOL, report child protection concerns to the Child Abuse Report Line, and/or seek assistance of a lawyer regarding family law proceedings.

    The latter, I must say, is the avenue that the paternal grandmother clearly has chosen, being litigation in this court.

17. The report also records the following, which is of significant concern: 

    The information above was assessed as a 10-day response.  However, was closed without investigation due to full caseloads of social work staff.  No professional assessment of the case was made other than to weigh the relative case risk against other incoming child protection work.

    The follow-up by the Department on … May records that contact was made by a social worker with Prison C where the mother was incarcerated, and was able to ascertain that [X] was with his 16 year old brother [D] and his father, Mr Black, and stepmother, Ms G, in Suburb H.

18. There is a further entry in June of 2019 where a notifier reported concerns for [X] in the care of Mr Black, and the report indicates that it had been alleged that Mr Black has ties to motorcycle gangs and possibly leaves the care of the child to his 16 year old sibling. There were also concerns that [X]’s parents are unable to care for [X] due to the parents’ ongoing domestic violence and substance use resulting in a transient and chaotic environment for the child. That notification was assessed as follows, and is recorded to have been assessed as follows: 

    The information above was assessed as a 10-day response and is currently sitting in the open intake, “scheduled for closure without action”.

19. As I say, in late May of this year, June of this year, there are two notifications requiring a 10-day response, and yet on both occasions it appears that the Department determined not to investigate and to effectively close the file. How that has come to pass is truly staggering. And it is staggering when I look further at the report that has been provided by the Department where there are multiple, multiple records in relation to notifications involving both the father and the mother of [X], and those notifications include serious, serious episodes and allegations of episodes of domestic violence as and between them in which there have been injuries, certainly to the mother on various occasions.

20. The Departmental records also set out very, very serious reports and notifications in relation to the child [D], whom I’m conscious is not a subject of these proceedings, but their relevance to these proceedings is significant in this sense. The reports and the allegations in relation to [D] date back to 2004 when he must have been a very young child, and there are multiple and a multitude of reports in relation to alleged incidences of domestic violence, and very serious domestic violence, that has occurred in which the mother is alleged to have been a victim of violence at the hands of Mr Black. In 2004, the allegations include that Mr Black punched the mother in the nose, that the child [D] witnessed the incident. The mother is alleged to have had bruising and swelling to her nose. On that occasion, the file again was closed with no action.

21. There are - and I’m picking through and identifying various of the alleged incidences.  One includes an incident where the mother is alleged to have chased Mr Black up the street, and that Mr Black had threatened to beat up Ms Bisset.  This is an incident on … 2006. There is another allegation that in February 2006, Mr Black leant over and punched Ms Bisset in the eye causing her to sustain a black eye as a result of the assault. That incident was reported to the police. There is another incident in September 2016 where Mr Black alleged that the mother had stabbed him in the stomach. However, there were no signs of this. And that the mother had alleged Mr Black had pulled her hair, that the three year old child at that juncture - presumably [D] - was present during the incident, that the parents reportedly became abusive to officers, would not allow them on the property and were uncooperative and out of control. The information on that occasion was assessed as a tier 2 intake; however, “was closed, no action due to a full caseload of social work staff”.

22. There is another notification from November 2016, that the mother had a drug-induced psychotic fit in the home causing property damage, resulting in the child [D] being injured by flying glass. It was alleged that the mother did not take [D] to the hospital until Mr Black arrived home. The child required surgery. It was alleged that at the hospital the mother had another psychotic episode and was admitted to hospital and stayed in a psychiatric ward for four days. The matter was assessed as a tier 2 intake and was referred to another agency. I could go on repeatedly summarising the number of notifications that have been made to the Department in relation to this family in one way or the other, including not only the child [D] but, in more recent times since his birth, the child [X].

23. As I say, how it has come to be that the Department have not investigated this family more fully, much sooner, and other than at my request, which it now appears they are doing so, is truly surprising to say the least.

24. It’s in that context and, in more recent times, it appears that [X] has been placed with [D] and Mr Black. Of concerns in relation to that household, I note the report sets out the following - in July of 2018, when it is alleged that the mother, it appears, had the care of both the child [D] and the child [X], it is alleged as follows:

    That the child [D] and his friend, [M], were both drug affected at the mother’s home when the child [D] tattooed a number of tattoos on his friend [M], including [details omitted].  This reportedly occurred at 3 am when the mother was asleep.  [M] was later said to be extremely upset about the tattoos he received whilst under the influence of methamphetamines.  It was alleged that the mother was known for dealing ice, and there were some concerns that the mother may have supplied drugs to the teenagers.  Whilst disclosing this information to the notifier, the informant was very guarded due to being assaulted for snitching, and the information did not meet the threshold for child protection intervention. 

25. In addition, across this year in relation to the child [D], there are the following reports. Firstly:

    That on … 2019, it was alleged that [D] disclosed that he had been mucking around with his father, Mr Black, and the play-fighting got too serious when Mr Black got angry, lost his control and smacked [D] in the mouth with his fist. [D] received a split lip as a result of the punch and needed to get stitches at hospital. 

    [D] also disclosed that during a previous incident in February 2019, Mr Black chased [D] out of the house and down the street with a bat.  [D] was too scared to return home at that time and contacted his mother to come and get him. This information was assessed as a tier 2 intake. However, was closed, no action, due to full caseloads of social work staff. 

    In April of this year, it was reported that SAPOL attended the family home - this is [D]’s family home - due to a domestic dispute involving screaming and yelling.  Mr Black had allegedly threatened a man with a baseball bat.  A child was heard crying inside the house.  This information did not meet the threshold for child protection intervention and was assessed as “notifier concern”.

1. As I say, how this family appears to have slipped through the cracks is truly mind boggling. And the concerns I have is that the child [X] has been placed in a household in which, without making any findings about whether or not the allegations are made out, there must unquestionably be very, very serious concerns about his safety. 

2. I am asked today, as I say, on the application of the paternal grandmother to make an urgent recovery order, and I am persuaded that I should be making that order today. I am concerned, as I must be, to make orders that are in the child [X]’s best interests, and that when doing so I am to turn my mind to those factors set out in section 60CC of the Family Law Act 1975 (Cth); in particular, the primary considerations being the benefit of the child of having a meaningful relationship with both of his parents, but, secondly, and most importantly in this case, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

3. While I can’t make findings about any of those matters at this stage, the material to which I have referred to in summary only in these reasons, quite frankly, raises the most serious concerns that I could possibly have with respect to the safety of a child. And it is for those reasons that I am persuaded to make the order that has been asked to be made today.

4. I will make an order in the usual terms in that regard and it will be sealed as urgently as I possibly can and provide it to the AFP today, if that’s humanly possible.

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

Date: 19 July 2019