Simon and Britton & Ors

[2015] FamCA 88

FAMILY COURT OF AUSTRALIA

SIMON & BRITTON AND ORS [2015] FamCA 88

FAMILY LAW – CHILDREN – Where final orders were made in 2011 providing for the Secretary, Department of Family and Community Services to have sole parental responsibility for the child and for the child to remain living in foster care – where the applicant maternal foster grandmother now sought orders for the child to live with her or in the alternative, for the child to spend significant time with her – where the present hearing was confined to the discrete issue of whether the child should spend time and communicate with the maternal grandmother

FAMILY LAW – CHILDREN – Best interests of the child – where the child has expressed a view to have contact with her birth family – where both the child’s mother and child’s paternal family have not taken the opportunity to spend time or communicate with the child – where in the absence of those family members, the maternal grandmother has made a genuine application – where the child needs to have stability and security in her new foster care arrangement – child to exchange written correspondence with the maternal grandmother with a view to possible face-to-face contact in 12 months’ time

Family Law Act 1975 (Cth), ss 60CC

APPLICANT: Ms Simon

FIRST RESPONDENT:

SECOND RESPONDENT:

INTERVENOR:

Ms Britton

Mr Dole

Secretary, Department of Family and Community Services

FILE NUMBER: NCC    3532 of 2007

DATE DELIVERED: 20 February 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 27 January 2015

REPRESENTATION

APPLICANT: In person

FIRST RESPONDENT:                  No Appearance

SECOND RESPONDENT:

COUNSEL FOR THE INTERVENOR:

SOLICITOR FOR THE INTERVENOR:

No Appearance

Mr Anderson

Crown Solicitors Office

Orders

1. That the Maternal Foster Grandmother, Ms Simon (“the Applicant”), may send to L (“the child”) born … 2005, letters, gifts, cards and photographs from time to time.

2. That the Applicant provide to the Department of Family and Community Services’ case worker for the child, her contact details, including an address suitable for receipt of correspondence from the child.

3. That the Secretary, Department of Family and Community Services (“the Secretary”) permit the child to receive correspondence from the Applicant and if the child wishes to do so, to assist her to respond with sending letters, cards and photographs.  NOTING that the Secretary may withhold from the child, for any period up to age 18 years, any item which is assessed to be unsuitable and not in the child’s best interests to receive.

4. After a period of twelve months from the date of these Orders, and in the event that the child expresses interest in meeting the Applicant, the Secretary shall facilitate an initial meeting, to be supervised, and at a time and place mutually convenient for the child, the carers for the child and the Applicant.

5. If there is an initial meeting, and if the child maintains interest in meetings with the Applicant, the Secretary shall facilitate meetings between the Applicant and the child for not less than four times per year at times and places mutually convenient to the child, the child’s carers and the Applicant AND TO THAT END the Secretary shall determine the length of such visits and whether or not they should be supervised.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC3532/2007

Ms Simon

Applicant

And

Ms Britton
First Respondent

AND

Mr Dole
Second Respondent

AND

Secretary, Department Of Family And Community Services

Intervenor

REASONS FOR JUDGMENT

1. This is an application by Ms Simon (“the applicant”) for parenting orders (time and communication only) in relation to one L (“the child”), now aged 10 years.

2. The child is in the care of the Secretary, Department of Family and Community Services (“the Department”).

3. The applicant and her husband fostered the mother of the child (the first respondent in this matter), Ms Britton (“the mother”), from the age of 8 to 15 years (1996 to February 2004).  The mother was then removed from their care.  The mother is now 26 years.

4. The child was born in 2005.  She was cared for by the applicant and her husband on an irregular basis from her birth until mid-2008, when she was about 3 and a half years old.

5. The child was then removed into, and has remained, in care.  She has been in her current foster placement for 12 months.  There were two previous placements.

6. The applicant regards the mother as a daughter and that relationship continues, although it has been fractured for 10 years and strained to breaking point over the past 12 months.

7. The applicant regards the child as her granddaughter.  There is no current relationship between the child and the applicant.  She has not seen or had communication with the applicant for at least five years and may not remember at all her “nanny and pop” as she called them.

The Applications

1. On 13 February 2013 the applicant filed an Initiating Application seeking parenting orders in the alternative:

   (a)Sole parental responsibility and residence; or

   (b)Alternate weekends and holidays and specific issues around health and education.

2. During the course of 2013, subpoena were issued on behalf of the applicant to the Department and to the organisation which supports the foster carers.  There was a preliminary hearing in December 2013 as to whether there was a proper basis to inquire again into the appropriate parenting arrangements for the child.

3. It should be noted that final orders confirming parental responsibility for the child to the Secretary (then known as the Director General) had been made on 30 June 2011 after a contested hearing in this Court.

4. The Secretary opposed the application being heard.

5. The outcome of that preliminary hearing in December 2013 was a finding that there were material factors not apparent at the 2011 hearing that justified further inquiry, in particular, the problems within the child’s then foster family involving another child being fostered, and that child having made allegations of misconduct by the foster father towards her.

6. Accordingly, the application proceeded.

7. On 16 April 2014 a Chapter 15 Expert Report was commissioned by the Secretary.  That report was undertaken by a clinical psychologist (“the Single Expert”)

8. On 16 July 2014 the report was released.

9. The recommendations of the report were as follows:

   (a)That the child should remain under the parental responsibility of the Secretary;

   (b)That the child should remain in her current placement with adoption to be considered in the future;

   (c)That the child spend supervised time with the mother four times per year if the mother was compliant with departmental requests;

   (d)That the child spend time with the father twice per year so long as the father complied with departmental requests;

   (e)That the child would not benefit from having regular contact with the applicant;

   (f)That the child should continue to consult with the paediatrician regarding the need for medication (the child had previously been diagnosed with ADHD and prescribed with Ritalin);

   (g)That the mother would benefit from consultation with a psychiatrist about her diagnosis, medication and the possibility for Dialectic Behaviour Therapy (the expert having reviewed previous assessments and reports expressed the opinion that the mother currently meets the criteria for Borderline Personality Disorder[1]); and

   [1] Expert Report dated 14 July 2014, par 90

   (h)That all parties should sign undertakings that the child not be exposed to information about the current proceedings.

10. On 29 July 2014 the father was present at court; the mother was at that time in jail and attended by telephone.  On that day the applicant withdrew from the proceedings and her application was dismissed.

11. On 3 September 2014 the court received a letter from the applicant with a request for re-instatement of her application.

12. On 25 September 2014 the matter came back before the court.

13. The Secretary was opposed to the application being re-instated and submissions were heard.  The applicant was present and ultimately given leave to file an Amended Application relating to time and communication only between herself and the child.  Neither the mother nor father were present at court and Notations A, B and C were made to the Orders of 25 September 2014.

14. On 7 October 2014 the solicitor for the Secretary wrote to each of the child’s parents, providing them a copy of the Orders made and also a thoroughly professional and comprehensive presentation of the position of the matter in court.[2]

    [2] Exhibit 2

15. On 6 November 2014 again neither of the child’s parents appeared at court.  I have no doubt that each of them was aware of the proceedings on that day.  The matter was listed for hearing in relation to the issues of time and communication between the applicant and the child.

16. On 7 January 2015 the applicant filed an affidavit which set out the orders sought, on the modified basis.

17. On 27 January 2015 the matter came before me for hearing.  The child’s parents were not present.  The mother had filed an affidavit which was not read in the proceedings.  The applicant and the single expert were each cross-examined.  I reserved my decision.

The Evidence

1. List of documents for the applicant:

   (a)Initiating Application filed 13 February 2013, amended by orders sought in the Annexure titled “Part E” to the affidavit of the applicant filed 7 January 2015.

   (b)List of affidavits for the applicant:

Date sworn:	Date filed:
The applicant	12 February 2013	13 February 2013
The applicant’s husband	5 March 2013	6 March 2013
The applicant’s son	1 October 2014	10 October 2014
Ms O (a friend of the applicant)	27 September 2014	10 October 2014
Ms Y (the foster daughter of Ms O)	7 October 2014	10 October 2014
Ms X (a friend of the applicant)	29 September 2014	10 October 2014
Ms Z (a friend of the applicant)	30 September 2014	10 October 2014
A Statutory Declaration of Ms U (a friend of the applicant)	2 October 2014	Not filed

1. List of documents for the Department:

   (a)Amended Response to Initiating Application filed 10 June 2014;

   (b)Two affidavits sworn by the child’s caseworker, one filed in November 2013 and one filed in December 2013.

2. The parties relied upon the reports of:

   (a)       Dr I dated 22 October 2008 and 26 July 2010;

   (b)       Associate Professor Dr Q dated 26 May 2009;

   (c)       Ms V, the Single Expert, dated 14 July 2014.

Primary considerations: best interests of the child

1. In this matter, the Secretary has parental responsibility for the child and that will continue.  The applicant seeks parenting orders, in particular orders for time and communication with the child. 

2. When the court is asked to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.  The court must consider the matters set out in subsections

   
   

   2 and 3 of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).

3. The primary considerations are these:

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)The need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

4. These primary considerations are of significance here.  The child does not have a meaningful relationship with either of her parents, although it is apparent that she is interested to have contact with them.[3]  The foster care organisation has encouraged both of the child’s parents, but in particular the mother, to make contact with the child.  The mother wrote the child a letter on 8 September 2014.  The child responded immediately but there has been no further correspondence since.

   [3] Exhibit 3. See half way down page 2 of 4: “[the child] has advised her Case manager that she would like contact with her birth family through letters or cards.” 

5. The Department proposes that the child spend time with each of her parents, communicate with them by telephone and send and receive letters, cards and gifts at times, places and on conditions, including supervision, as determined by the Secretary . However, the evidence suggests that neither of the parents has shown a high level of commitment to maintaining contact with the child.

6. The mother has failed to attend visits which have been organised in the past.

7. The father has been largely out of contact, although that may change.  On the occasion that he did attend court in person, the court was advised that he has now married and has children of that marriage.  He expressed an interest in having the child live with him and his family, but did not pursue the matter after the release of the Expert Report.  It is likely that he does have an interest in a relationship with the child and may make contact with her, however it is not certain.

8. The mother is presently in the position of having failed to comply with her bail conditions and is vulnerable to being arrested and returned to jail.  Even before she was in that situation, she was an irregular visitor of the child. 

9. The applicant gave evidence that she had spoken to the mother in strong terms, explaining to her that just as she had been hurt as a young child in care when her own mother had failed to attend for visits, so she was disappointing and hurting the subject child by her own failure to see her.  The mother is said to have responded that it was simply “too hard” for her to see the child.  Probably the mother was referring to emotional difficulty rather than practical difficulty.

10. Given the diagnoses that have been put forward by two clinical psychologists and a psychiatrist over the years, it is unlikely that the mother will find it easier to see the child unless and until she obtains some assistance in dealing with her psychological and psychiatric problems.

11. The consequence of all this is that the child is presently left with minimal input from her parents and it has to be said she does not know the father and has had most limited contact with the mother.  She has not had the benefit of having a meaningful relationship with both or either of her parents.

12. The child has needed to be protected from physical and psychological harm, which she experienced in the care of her parents as an infant.  She was also removed from the care of the applicant and the applicant’s husband, because of the risk they represented having been de-qualified as carers after allegations were made by the mother of sexual misconduct towards her by the applicant’s husband, the mother’s then foster father.

Additional considerations:

Section 60CC(3)(a) – any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views

1. The child has now turned 10 years old.  She has been in care since she was 3.  She carries a little box of possessions which reflect her family history.  She has expressed the view to her case worker that she would like contact with her birth family.  The child is apparently happy and fully engaged in appropriate activities and is doing well at school.  Her current carers, it is apparent, are caring for her very well indeed.

2. At 10 years of age, it is hardly surprising that the child is expressing an interest in knowing more about her identity and family of origin.

Section 60CC(3)(b) – the nature of the relationship of the child with each of their parents and other persons

1. This is a significant matter.  In the absence of her parents and any knowledge of her paternal family, the applicant makes this application in a way that I accept is genuine, because of her commitment to, and love of, the child, who she regards as a granddaughter.  The applicant has photographs of the child and the child’s mother and father, has jewellery that was given to the child as a baby, the child’s first lock of hair and a store of information about the child’s own history and the mother’s history.

2. The child also has a maternal uncle who is married and has two children of his own.  The maternal uncle was fostered by the applicant and her husband and was subsequently adopted by them.  He speaks in positive, even glowing terms of his experience of growing up in the applicant’s household.  The maternal uncle has ongoing love and affection for both his adoptive parents and there is regular contact between them and his own wife and children.  He is about 33 years of age and his children, although not biologically, are the social cousins of the subject child.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. I have commented on the failure of each of the parents to spend time and communicate with the child.  The mother was 16 when the child was born and the early relationship between mother and father was characterised by violence and drug and alcohol abuse.  It was the applicant who stepped in and took the child into her household.  At first whenever she was able to do so and subsequently, at least for a period of time until the child was 3 and a half years old fulltime.

2. The child has a half-brother.  He was also removed from the mother’s care and has been placed in the care of his father and paternal grandparents.  The child has the benefit of seeing her brother, which is facilitated by the Secretary and now, to a greater extent than previously, by her current carers.  The child sees her brother at least monthly and at other special times.  She will become increasingly aware that he, of whom she is apparently fond, has a much deeper connection with his biological family than she does.  The mother has not visited her son at all and has never offered an explanation for her unwillingness to see him, although it could be inferred that it is for the same reason as for the subject child, that is that she finds it too hard.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances including any separation from either of his or her parents, or any other child or other person

1. On behalf of the Secretary, it is submitted and I accept, that priority must be given to the stability of the developing and deepening relationship between the child and her foster parents, and their four young adult children.

2. The child’s previous placement broke down.  She was unsettled and disturbed by a visit by her former carers. It may well be that there was a good deal of tension in the former placement when an inquiry was being undertaken into the conduct of her then foster father with another foster child in the family.

3. The child’s behaviour had deteriorated.  She was being medicated for ADHD and she was struggling to cope.  That is no longer the case, however she is reported to still wet the bed at times when she is anxious and there is an obvious vulnerability there with a change of foster carers at age 9. 

4. I consider that the application of the applicant to spend time with the child every second weekend, initially during the day time and progressing to overnight time together with holidays and other special occasions, does have the potential to destabilise the child’s security in her present placement.  Given her past experience she is likely to become uncertain as to whether she was to be moved from her current placement into the household of the applicant.  That risk cannot be taken.  In the event that as is anticipated she is adopted by her foster carers, that would give her an identity and a sense of safety which would be of enormous value.  She should not be allowed to build up a hope or a fear, whichever it was, that she would be moving on to a different family.

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child

1. I will not repeat what has been said about the parents of the child, however the applicant has a proven capacity to meet the emotional and intellectual needs of a child, namely her adopted son. 

2. The applicant and her husband had also intended to adopt the mother, but chose not to in order to retain the assistance of the Department in caring for her.  The mother’s behaviour as a young adolescent was extremely challenging and difficult for the applicant and her husband to manage.

3. I consider that the applicant underestimates the impact of her problematic relationship with the mother on the child.  For the child to learn that the mother was removed from the applicant’s household for her own safety after allegations made by the mother of sexual misconduct by her foster father, and that she subsequently withdrew those allegations, then repeated them again in the proceedings before me in 2011, is likely to be disturbing to her even if she did not fully understand it.

4. The applicant has taken a stand now and told the mother that she is not welcome in her home.  Indeed her current address has not been disclosed to the mother.  The applicant is giving priority to the child in doing this, given that the mother’s mental health appears to have deteriorated and that she has been regularly using cannabis and occasionally ice, if her statements to that effect are to be accepted as having been made and believed.  There is also the fact of a conflict between the mother and the applicant over the fact that she was not believed when she made her allegations against the applicant’s husband and felt hurt and betrayed by the applicant and probably still does.

5. I made findings about those allegations in the hearing in 2011 and the risk associated with a child being in the household.  The utmost caution must be taken by this Court in exposing the child to the deep emotional conflicts in the applicant’s household over the mother.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The child is 10 years old and has been disturbed and unsettled more than once.  Her early infancy saw her exposed to violence and drug and alcohol abuse.  She was removed from the care of the applicant and her husband at 3 and a half years of age, when she no doubt was attached to one or both of them.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander

1. There is some evidence to suggest that the mother’s biological mother was Aboriginal.  The mother was removed from her care.  Her mother died when she was still a young child.  The applicant has some knowledge of those matters that she could in time share with the child.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

1. The child knows very little about her own early history.  It will be important for her growing up to understand who her parents were and what their background and history was.  It would also benefit her to be told something of her own childhood and to be given photographs and other items which have special personal significance for her.

2. The person who is in a position to do that and has a strong commitment to doing so is the applicant.  The applicant has always wanted to have the child in her care, or at least to see her.  The Department has taken the view that it would not be appropriate for there to be time or communication between the child and the applicant.  It is understandable given the turmoil and what Dr I referred to as a “toxic relationship” between the mother and her former foster parents, however an independent relationship between the child and the applicant, if carefully managed, could be a benefit to the child, especially in this period before she reaches adolescence and begins looking to people outside the family for relationships.

Conclusion

1. I accept the evidence of the Single Expert that there should be no face to face contact until two years with her carers have passed, to ensure that the child is fully settled and confident that she can remain in that placement.  However, written communication could begin.  Letters, cards, gifts and photographs could be forwarded.

2. I am confident that the applicant will not try to overwhelm the child with material, but will communicate with a view to encouraging the child to ask any questions or to express interest in information and photographs relating to her.

3. I accept the submissions of the Department that the next step should come from the child and that if she expresses a wish to meet the applicant, that should be facilitated, initially in a supervised meeting and subsequently under conditions directed by the Department.

4. I also accept the submission that the imposition of very specific orders of the court could prove to be unworkable if the child herself does not wish to maintain the connection.  However I am satisfied that to allow some limited visits over the coming 8 years, whilst ever the child is interested, forms a bridge for her into knowledge of her family and her early childhood.  For that reason I have made Orders for such contact to take place but with considerable discretion for the Secretary to enable the child’s view and wishes to be fully taken into account.

5. I make Orders 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 20 February 2015.

Associate: 

Date:   20 February 2015