Simon and Britton and Ors

[2014] FamCA 27

FAMILY COURT OF AUSTRALIA

SIMON & BRITTON AND ORS [2014] FamCA 27

FAMILY LAW – CHILDREN – Psychological grandmother’s application for fresh parenting orders – mother supports the grandmother’s application and seeks to spend time with the child – Rice v Asplund  – Director-General’s application that there is insufficient change in circumstance and no factor weighty enough to warrant further inquiry – child has been with foster carers for the past five years – child has new health and behavioural problems – child now being placed with a new foster family – allegations of inappropriate conduct made about the current foster parents and another child in their care was removed – it may be beneficial for the child to have continuity in relationships with her mother and psychological grandmother given the instability in the foster homes – finding that there are material factors that were not apparent at the final hearing that warrant further inquiry

Family Law Act 1975 (Cth)

DL & W (2012) FLC 93-496
Marsden v Winch (2009) 42 Fam LR 1

Rice v Asplund (1979) FLC 90-725
Simon and Anor & Dole and Anor [2011] FamCA 500
SPS & PLC [2008] FamCAFC 16

APPLICANT: Ms Simon

FIRST RESPONDENT: Ms Britton

SECOND RESPONDENT: Mr Dole

THIRD RESPONDENT: Director-General, Department of Family & Community Services

FILE NUMBER: NCC 3532 of 2007

DATE DELIVERED: 23 January 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 13 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sharrock

SOLICITOR FOR THE APPLICANT: NLS Law

FIRST RESPONDENT:	In person
SECOND RESPONDENT:	N/A
COUNSEL FOR THE THIRD RESPONDENT:	Mr Anderson
SOLICITOR FOR THE THIRD RESPONDENT:	Crown Solicitor’s Office

Orders

1. The proceedings are listed for mention at 9.30am on 14 February 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simon & Britton and Ors 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 NEWCASTLE

FILE NUMBER: NCC 3532 of 2007

Ms Simon

Applicant

And

Ms Britton

First Respondent

And

Mr Dole

Second Respondent

And

Director-General, Department Of Family And Community Services 

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. On 13 February 2013 an Initiating Application for parenting orders was filed by Ms Simon (54).  Ms Simon together with her husband Mr Simon were the foster parents of the first respondent (“the mother”) for approximately seven years.

2. The first respondent, Ms Britton (25) is the mother of L, (“the child”) aged almost 9 years.  Ms Simon provided care and support for the child as an infant and she regards her as a granddaughter.

3. The second respondent, Mr Dole, (“the father”) is the father of the child.  He has not been involved in the child’s life for many years; he was served with the current application but has not appeared.

4. The third respondent is the Director-General of the Department of Family and Community Services (DoCS).  The child has been in the care of the third respondent for five and a half years.  Final orders confirming parental responsibility to the Director-General were made in June 2011 by this Court, after a contested hearing.

5. There has now been a preliminary hearing as to whether there is a proper basis to enquire again into the appropriate parenting arrangements for the child.  Ms Simon seeks orders in the alternative:

   a)Either, sole parental responsibility and residence with her; or

   b)In the event the child stayed with the Director-General, regular defined time, including overnight unsupervised time.

6. The fresh application is supported by the mother. The mother’s primary application is that the child live with the Simons and that Ms Simon has sole parental responsibility for her.  The mother would like to spend time with the child by arrangement with Ms Simon.

7. The application is opposed by the Director-General.  The orders sought in the Response are that the application of Ms Simon be dismissed.  The basis for that opposition is that there is insufficient change of circumstance and no factor weighty enough to found a further enquiry after two and a half years since final orders were made.

8. The alternative position of the Director-General is that if the Court did consider that there was a relevant factor, there would be no benefit in a further hearing and the discretion of the Court should be exercised in favour of dismissing the application.

9. Appropriately, there was no challenge by the Director-General to the standing of the applicant as a person concerned for the care, welfare or development of the child.

The evidence

1. The applicant relied on the following documents:

   c)Initiating Application filed 13 February 2013;

   d)Affidavit of Ms Simon sworn 12 February 2013, filed 13 February 2013;

   e)Affidavit of Mr Simon sworn 5 March 2013, filed 6 March 2013;

   f)Bundle of documents which became Exhibit 1; and

   g)Identified documents from material produced on subpoena by the Director-General.

2. The first respondent relied on the following documents:

   a)Response to Initiating Application filed 24 April 2013;

   b)Affidavit of the mother sworn 14 April 2013, filed 24 April 2013.

3. The third respondent relied upon the following documents:

   a)Response to Initiating Application filed 2 May 2013;

   b)Affidavit of Ms S sworn 22 April 2013 filed same date, Caseworker for the Director-General;

   c)Affidavit of Mr B sworn 28 November 2013, filed 29 November 2013;

   d)Affidavit of Mr B sworn 24 December 2013, filed 24 December 2013; and

   e)Summary of argument, outline of case.

4. Generally:

   a)Orders;

   b)Reasons for Judgment dated 30 June 2011; and

   c)Case law:

   i)Rice & Asplund;

   ii)SPS & PLC;

   iii)DL & W; and

   iv)Marsden & Winch.

5. The matter proceeded by way of oral submissions.

Analysis

1. In coming to a decision about a possible further hearing, I must be satisfied that there is some changed circumstance, some new factor, or a material factor which was not disclosed at the previous hearing, which would justify the serious step of further litigation.[1]

   [1] Rice & Asplund (1979) FLC 90-725

2. I am also required, whilst deciding the matter on its own facts,  to consider these factors:[2]

   a)The past circumstances including the reasons for the earlier decision and the evidence upon which it was based;

   b)Whether there is a likelihood of orders being varied in a significant way as a result of rehearing; and

   c)A weighing of likely new orders being made against the potential detriment to the child of the litigation which would give rise to those possible orders.

   [2] Marsden & Winch (2009) 42 Fam LR 1

History and background of 2011 litigation

1. The mother and Ms Simon (and Mr Simon) were competing applicants for parenting orders for the child.

2. There had been an emotionally erratic relationship between them for about seven years.

3. The mother was removed from her foster placement with the Simons on 5 February 2004.  This was a direct result of allegations (substantiated after a Risk of Harm Assessment) that Mr Simon had sexually assaulted her.  Mr Simon was charged.  The Simons were deregistered as foster carers.

4. Soon after her removal the mother met the father and conceived a child; L.  The mother retracted her allegations about Mr Simon, so the charges did not proceed to trial.  The child was born in February 2005.

5. The child lived with one or both of her parents for her first two years of life with assistance from the Simons.  That assistance was financial and ever increasingly by physical care for the child in their home.

6. The relationship between the parents ended.

7. In 2007 Ms Simon successfully applied for an order from a Local Court for parental responsibility for th child.  The proceedings were transferred to the Family Court.

8. In 2008 Ms Simon applied for a Commonwealth Benefit in relation to the care of the child.  The fact that the Simons had been deregistered as foster carers came to light as a result of that financial application.

9. The Director-General intervened in the Family Court proceedings.  In mid-2008, the child then aged three, was removed into foster care.

10. On 15 December 2009, Ms Simon and her husband filed an Initiating Application for parenting orders for the child, seeking sole responsibility, residence and defined time with the mother.  The mother made a competing application for residence.  The father did not participate in the proceedings.  The Director-General intervened and sought sole parental responsibility for the child until age 18.

11. Those applications were heard by me in March 2011.[3] Orders and Reasons for Judgment were delivered on 30 June 2011.  The orders were for parental responsibility to the Director-General until age 18 for the child.  There was provision for regular time and communication between the child and her mother.  The Simons were restrained from approaching and/or making contact with the child at any place or by any means without the prior written consent of the Director-General.

    [3] Hearing dates; 14, 15, 16 & 17 March 2011

12. Relevant events were taking place before, during and after that hearing of which the Court was unaware.

Events between February and December 2011 – Internal enquiry by the Department into the child’s foster carers “Mr W and Ms C”

1. In 2011 there was an internal inquiry into the conduct of the child’s foster carers.  There had been concerning incidents in their home.  The Director-General as intervener in the 2011 hearing, did not reveal that inquiry to this Court or to the single expert appointed to prepare a report Dr L, Clinical Psychologist.  There was simply no reference to it at all.

2. Other children had been fostered by the foster carers before and during the time the child was in their care.  Those children were identified in relevant documents as “H”, “J” and “K”.  “H” was apparently placed with the foster parents on 4 August 1998[4] as a young infant.

   [4] Assessment Record tab “A1”

3. In February 2011 “H” made complaints to DoCS namely:

   That [Mr W] had been staring at her breasts over the last three weeks and has begun playing a tickling game where he has occasionally touched her breasts.

   She also reported experiencing a lot of anger from her foster mother.

4. On 13 February 2011, five days after the interviews conducted with “H” a new placement was arranged for her.  “H” was removed from the foster parents.

5. On 18 March 2011 “H” was seen by her caseworker.  “H” then disclosed that when in the care of the foster parents, Mr W would smack her on the arm whenever she was in trouble and it would “hurt her a lot.”  She rated her fear of her foster father as 8.5 out of 10.  She said it had been ongoing and persisted most of the time she was with the family.  More recently, “H” said she “ran and locked herself in her bedroom to avoid being smacked.”  As a result, a unit of DoCS “allegations against employee unit” was asked to investigate the foster carers.

6. In June 2011, there was an interview with an older girl “J” who had previously lived with the foster carers.[5]  She stated that when she had lived with Mr W and Ms C between the ages of three or four until 10 years she said that: “Mr [W] had been touching her breasts as part of a tickling game.”  “J” said this used to happen every week and she said the tickling and touching started “when she started getting boobs.”  “J”  also talked about  a time when she had been in her bedroom trying on clothes with Ms C and Mr W came in the room,  “J” hid behind Ms C and Mr W was telling her to stop being so silly and to come out.  “J” was only wearing underwear at the time.

   [5] List of documents relied upon by the applicant, page 551

7. In her  affidavit in support of these proceedings, caseworker Ms S referred to the inquiry into the foster carers as follows:[6]

   Following an allegation made against [Mr W] from another child who had been in his and [Ms C’s] care, an investigation was conducted by the Reportable Conduct Unit.  The investigation was closed and it was recorded that there was no reportable conduct.  A recommendation was made that [Mr W] and [Ms C] participate in a carer review.

   [6] Affidavit of Ms S filed 22/04/2013, par 20

8. Ms S went on to say, that the assessment of Mr W and Ms C was completed in March 2012.  The outcome being that the child’s placement with Mr W and Ms C was considered to be appropriate.

9. On 6 September 2012, Organisation F took over the casework responsibility for the child and her foster carers Mr W and Ms C.  The Department requested that Organisation F conduct a case review concerning the child’s placement with Mr W and Ms C.

10. On 19 April 2013, that review was provided.  The case review, which is annexure B to the affidavit of Ms S, does not refer to the earlier removal of an older child from the foster carer’s home.

11. It was noted that the mother had not spent any time with the child since June 2011 when the orders were made and that the Department was intending to liaise with the mother and Organisation F concerning the mother spending time with the child.

Short History of 2013 Application

1. Ms Simon had made requests to see the child which were declined.  Ms Simon maintained contact with the Department.  She became concerned about the stability of the child’s long term foster placement.

2. Ms Simon brought her application in February 2013.

3. On 2 May 2013, leave was granted to Ms Simon to issue a subpoena to the Director-General for production of documents.

4. On 19 July 2013, leave was granted to the Director-General to provide to Ms Simon, copies of material relating to Organisation F, responsible for the child’s out of home care.

5. The matter was given a date for a preliminary consideration of whether further parenting proceedings should proceed.

6. On 19 September 2013, the matter was adjourned due to the unexplained absence of the mother.  Ms Simon had anticipated the return of the mother from Western Australia for the Court hearing.

7. On 13 December 2013, the matter proceeded with all parties, other than the father, present and making submissions.

8. By that date, the new caseworker for the child, Mr B had filed his first affidavit.  In that affidavit material was included about significant health and behavioural problems that the child was said to be displaying.  The child had been taken to a Consultant Paediatrician who had diagnosed with her Conduct Disorder and symptoms of Attention Deficit Hyperactivity Disorder.  He had prescribed the child with the medication Ritalin.  The child experienced weight loss as a side effect of the drug.  The child was also diagnosed with Nocturnal Enuresis and was referred to a Paediatric Endocrinologist at M Hospital.  There was a reference to Organisation F providing clinical support for the child and her carers.[7]  There had been no previous reference to the child having significant health and behavioural disorders.

   [7] Affidavit of Mr B filed 29/11/2013, par 26

9. Of great significance is the statement that on 9 October 2013, Ms C advised Organisation F:

   That due to [the child’s] behaviour and her (presumably [Ms C’s]) changing extended family dynamics, she felt she was no longer able to provide long term care for [the child].

10. Ms C requested Organisation F commence carer matching to locate the child a new long term placement.

11. Mr B filed a further affidavit on the 24 December 2013 setting out details of the proposed new carers who are available long term to take on the child’s care.

Likelihood of new Orders

1. There were significant findings made in 2011 in relation to:

   a)Sexual abuse  of the mother by Mr Simon; and

   b)The then bitter relationship between the mother and Ms Simon largely resulting from the public denial by Ms Simon of misconduct by her husband towards the child.

2. It is difficult to see what evidence could lead to the child returning to live with the Simons in those circumstances.

3. However, the events of February and March 2011, including an older child being removed from the foster carers, and the inquiry into the suitability of the foster carers was not before the Court in 2011.  It is a significant matter which would have been material.

4. Counsel for the Director-General acknowledged appropriately that the information should have been made available to the Court and made an apology, “It should not have happened”.

5. Given the significance that was given to the stability and happiness of the placement for the child with Ms C and Mr W, it is a factor that could have made a difference to whether or not ongoing time between the child and the Simons was a destabilising factor or otherwise.

6. Now, given that there is to be a change of long term placement for the child, it is more likely that some orders for contact between the child and Ms Simon could be made.  Ms Simon is the repository of the child’s family history which is at greater risk of being lost to her.

7. Dr L referred to the child as “happy there and settled” which was referred to in the judgment.[8]  The opinion of Dr L, the Court appointed expert, was:

   That [the child] had experienced a sense of loss and disappointment from being repeatedly removed from attachments she had formed and that what was important was not to upset [the child] in her present stable relationships (with [Mr W] and [Ms C]).

   [8]Simon and Anor & Dole and Anor [2011] FamCA 500, par 1

8. I now know that the foster placement was probably not as secure and stable as had been represented.  Certainly, an older foster sibling had been removed in unhappy circumstances.  Even if complaints about the carers were entirely unfounded there must have been an impact from the consequences of the complaints being made and investigated with “H” then being removed from the household.

9. The need for the child to have some connection with her past has arisen in these unusual circumstances.

The detriment to the child of litigation giving rise to possible fresh orders

1. Fortunately the child is sheltered from the ligation.  The detriment is not such as to outweigh the possible benefit of orders being made which could provide her with knowledge of her past and the possibility of future connection as a young adult with both her mother and Ms Simon.  The continuity may be vital given a further broken attachment for her.

1. I therefore consider that despite final orders having been made only two and a half years ago, it is in the best interest of the child for there to be a further enquiry into appropriate parenting orders.  The matter will be listed for directions including the possibility of a further expert report being commissioned.  Orders are made accordingly.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 January 2014.

Associate: 

Date:  23 January 2014