Simonsen v Wolters

[2018] FCCA 2906

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMONSEN v WOLTERS [2018] FCCA 2906

Catchwords:
FAMILY LAW – Parenting – interim hearing – recovery application – where the children live with the maternal grandmother – where there are allegations of alcohol abuse and neglect – where there is unreliable evidence.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS SIMONSEN

Respondent: MS WOLTERS

File Number: DNC 382 of 2018

Judgment of: Judge Young

Hearing date: 11 September 2018

Date of Last Submission: 11 September 2018

Delivered at: Darwin

Delivered on: 11 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Srinivas

Solicitors for the Applicant: Northern Territory Legal Aid Commission

Solicitors for the Respondent: Self - Represented

ORDERS

1. That the children [X] born 2004 and [Y] born 2009 live with the respondent.

2. That the children spend time with the applicant from after school each Friday until 11.00am each Sunday.

3. That pursuant to s.11F of the Family Law Act 1975, the parties and the children [X] born 2004 and [Y] born 2009 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 26 October 2018 at 11.00am, with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance.

4. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

5. That the matter be adjourned to 5 November 2018 at 11.00am for further consideration.

THE COURT NOTES:

That after the release of the 11F memorandum the parties attend a Legal Aid Conference if one can be arranged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 382 of 2018

MS SIMONSEN

Applicant

And

MS WOLTERS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting matter concerning two children, [X] and [Y].  [X] is 14 years old and [Y] is eight years old.  They are both Aboriginal children from an Aboriginal family.  Their mother very tragically died about four years ago.  It seems that [X] has been living with the maternal grandmother, who is the applicant in these proceedings, since she was an infant, and [Y] came to live with the maternal grandmother after his mother’s death about four years ago.  So he has been living with the maternal grandmother for the last four years.  [X] has been living with her since she was a baby, some 14 years.

3. There appears to be a fair degree of fracturing in this family and, regrettably, the applicant is the maternal grandmother and the respondent is the maternal aunt, that is, the sister of the deceased mother of these children.  The maternal grandmother brought an application on 30 July, in essence, seeking recovery orders after she alleged that [C], who is 21 and who is also a child of the mother of [X] and [Y], went around to the babysitter where the maternal grandmother had left [X] and [Y] on 28 April and, in effect, she says that [C] came in and took the children without her consent or permission and [C] placed the children with the respondent, that is, Ms Wolters.

4. On 27 August, interim consent orders were made that the children should spend the week with Ms Wolters, the maternal aunt, and spend the weekend, or at least from Friday until Sunday, with the maternal grandmother.  On 5 September, that is, after that consent order was made and pursuant to orders that Ms Wolters, the respondent, filed responding material, Ms Wolters made various allegations against the maternal grandmother, that is, her own mother, the nub of which was that the maternal grandmother abused alcohol and was not, by reason of that, able to adequately care for the children, that is, she would be out drinking or gambling and generally neglecting the children.  The maternal grandmother anticipated that allegation in her affidavit filed in support of her application on 30 July and she said this by way of speculation about why the children may have been removed by [C] and placed with Ms Wolters. 

   28.   The only thing I can think of is that Ms Wolters is pretending I have an alcohol problem.  She always calls me an alcoholic.  While I do have a few beers on a Saturday, I definitely don’t drink every day.  Sometimes I will get a bit tipsy, but I’m never really drunk.  I never drink on a Sunday, as I have to make sure the children are cared for and ready for school. 

5. I asked the applicant maternal grandmother’s counsel whether she submitted that that paragraph was accurate and reliable.  To her credit, she said she did not submit that and, of course, it is regrettable that that was not corrected in a very direct and clear way at an earlier point.  I am satisfied it is not accurate or reliable and I do so on the basis of hospital notes that were attached to the applicant maternal grandmother’s affidavit filed on 10 September 2018.  It is clear from that that, on 16 September 2017, the maternal grandmother went to the emergency department and was taken via ambulance, and the notes say she had consumed seven beers when she suddenly felt unwell, had some chest pain, nausea and promptly vomited over a balcony, etcetera, etcetera.  The impression, according to the notes, was that it was alcohol-induced gastritis. 

6. There is another hospital admission on 19 March 2018 and, again, the maternal grandmother was admitted to the emergency department after developing palpitations at home in bed and I read from the notes:

   Her palpitations developed gradually and were associated with SOB –

   which I take to mean shortness of breath –

   mild chest tightness and mild dizziness.  She reported an alcohol binge on Friday night, but otherwise no inter-current illness.

7. There is, therefore, evidence of two alcohol-related admissions to a hospital over a period of about six months.  I do not accept, on the basis of that, that the maternal grandmother does not have an alcohol problem.  The extent of her problem I cannot assess, because, as I say, I am satisfied that the affidavit that was first filed was misleading.  The maternal grandmother filed another affidavit on 10 September, which, as I mentioned, attached that material and, again, having to deal with the notes, she said:

   The only alcohol-related admission I had was on 16 September 2017 when I had seven beers and went to hospital because I was dizzy.  The kids weren’t with me at the time and they were spending the night at Ms Wolters’s. 

   That is, they were spending the night at the respondent aunt’s, which really adverts to a relationship between the children and the respondent aunt that was not, as far as I can see, otherwise adverted to in the affidavit material.  However, even the corrected affidavit remains misleading, because, as I have said, the notes make it clear that there was a reference to a further admission on 19 March, which referred to an alcohol binge apparently the previous day or so.  Now, that may have been, as counsel for the maternal grandmother said, simply an oversight in drafting that the other occasion was not mentioned, but it was perhaps an oversight by the drafter, but it was also apparently an oversight by the person, more importantly, who affirmed the affidavit.

8. The general picture I have is that I do not consider the maternal grandmother’s evidence about alcohol consumption to be reliable.  Given that the square allegation made by the maternal aunt is that the children are neglected because of the maternal grandmother’s alcohol abuse, I have real concerns about that issue.  Counsel for the maternal grandmother says, “Well, in the case of [X], she has been with her grandmother for 14 years and there hasn’t been an allegation raised, and [Y] has been with his grandmother for four years and there has been no allegation raised.”  That may be, but, in the face of the incontrovertible and independent evidence of alcohol-related admissions, two of them in six months, I am satisfied there is likely to be an alcohol problem, although the extent of that problem is not clear to me.

9. The other significant factor is this.  On 27 August, there were, as I say, interim consent orders which provided for the children to spend time with the aunt during the week and with the maternal grandmother on the weekend.  On the weekend of 2 September – the 2^nd was a Sunday – that is, the weekend before last, the children were due to return to the maternal aunt under the consent orders.  It appears from the material that [Y] did not want to return to the maternal aunt’s.  He wanted to stay with the maternal grandmother.  However, [X], the 14-year old, wanted to return to the maternal aunt’s.  That would appear to indicate that the children have a divergence of wishes about where they live.

10. Ms Wolters also made allegations from the bar table based on things she said [X] had said that one of the reasons why [X] had not wanted to stay with the maternal grandmother was that there was little food in the house.  Whether that allegation is true, I have no idea, and it is not made in an affidavit, so I do not give it any weight, but that was the allegation and I think it is significant that [X], notwithstanding the fact that she has lived with the maternal grandmother for 14 years, does not appear to want to remain with her, other than on the weekends. 

11. As I say, I think there is some evidence that [Y] wishes to remain with the maternal grandmother, but whether he should remain there in the interim is somewhat unclear to me.  In the last week and a half approximately, the maternal grandmother has not taken him to school, she says because she is concerned that the aunt will come and retrieve him, in conformity with the existing consent orders.  The maternal grandmother is, therefore, in breach of orders, and has been in breach of orders and has kept a young child away from school. 

12. I have very real concerns about the standard of care these children have been receiving with the maternal grandmother.  I asked counsel for the maternal grandmother whether she asserted that there was any risk of harm should the children remain with the maternal aunt and she said there was a risk from overcrowding.  There is no affidavit material about that, but I might say that there is an affidavit from a Ms T, which was filed on behalf of the maternal grandmother, which says, I note, that Ms Wolters does not drink.  She makes other allegations about Ms Wolters, but she says she does not drink, which certainly suggests that there is no issue about her parenting capacity on that basis, which cannot be said for the maternal grandmother.

13. Ms Wolters said from the bar table that there is no overcrowding in her home.  The children are living with her and her husband, 15-year old [D], 10-year old [E] and six-year old [F].  She said [X] shares a room with [D] and [Y] shares a room with [E].  I have no real reason to doubt what she says about that.  So I am not satisfied that there is a risk from overcrowding and I am not satisfied that there is any risk of harm at all, in the short-term at least, while the children remain with the maternal aunt.  The issue of concern I have is that [Y] appears to have expressed a wish to remain living with the grandmother.  However, I take into account the fact that he is eight years old and I take into account the fact that his sister, [X], is living elsewhere, and I think those factors militate against giving too great a weight to [Y]’s wishes at this stage, even if expressed through a police report. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 12 October 2018