Talent and Anor and Steiner and Ors

[2007] FamCA 1535

FAMILY COURT OF AUSTRALIA

TALENT AND ANOR & STEINER AND ORS [2007] FamCA 1535

FAMILY LAW – CHILDREN – Spend time with – Family Violence issues  

Family Law Act 1975 (Cth)

APPLICANTS: Mr & Mrs Talent

1^st RESPONDENT:

Mr Steiner

Father

2^nd RESPONDENT:

Mrs Bale

Paternal Aunt

3^rd RESPONDENT:

Mrs Egan

Maternal Grandmother

FILE NUMBER: SYC 2299 of 07

DATE DELIVERED: 26 July 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 26 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Serisier

SOLICITOR FOR THE APPLICANTS: McBride Harle & Martin

1^st  RESPONDENT: In Person

SOLICITOR FOR THE 2^nd RESPONDENT: Steven Tester & Associates

SOLICITOR FOR THE 3^rd RESPONDENT: McKenzie Cox

Orders

1. That until further order the children B born … June 2002 and L born … December 2006 spend time with the applicants Mrs Talent and Mr Talent at such times as Mrs Bale and the applicants may agree and in default of agreement:

   a.for up to 4 hours a day for up to three consecutive days not more than twice a month in Northern New South Wales.

   b.once there have been 10 days of visits, for up to 8 hours a day for up to 3 consecutive days not more than twice a month in Northern New South Wales.

   c.for up to 4 hours during any visit of the children to Sydney whether the purpose of the visit is to attend upon the father or otherwise.

2. That until further order the children spend time with Mrs Egan and/or Ms K Morrison at such times as Mrs Bale and Mrs Egan may agree and in default of agreement:

   a.during any period when the children are spending time with the applicants.

   b.and in any event for at least 4 hours a fortnight in Northern New South Wales.

3. That unless the parties agree to the contrary the children otherwise live with Mrs Bale until further of the Court.

4. That unless the parties otherwise agree the handover for time spent in Northern New South Wales is to be outside the … Police Station.

5. That unless the parties otherwise agree the handover for time spent in Sydney is to be outside the … Police Station.

6. In relation to all times spent between the applicants or the maternal grandmother and the children each occasion is to commence at a time agreed between Mrs Bale and the applicants or the maternal grandmother as the case may be, and in default of agreement at a time nominated by the applicants or the maternal grandmother as the case may be at least fourteen days before the date involved, in writing.

7. That Mrs Bale facilitate the applicants speaking to B on the telephone as they may agree and in default of agreement, once a week at 4pm on Saturday and at 4pm on Christmas Day.

8. That Mrs Bale facilitate the maternal grandmother speaking to B on the telephone as they may agree and in default of agreement once a week at 4pm on a Sunday and at 3pm on Christmas Day.

9. And the court noted that the telephone number of Mrs Bale is ….

10. Each of the parties is restrained from discussing with the child B the circumstances of his mother’s death or the circumstances of his father’s incarceration.

11. By consent and subject to his consent, Mr D is appointed as the single expert in these proceedings AND as soon as practicable the Independent Children's Lawyer prepare a letter of instructions to that expert and provide that letter to each of the parties AND provided that there is no objection or the terms of the letters are otherwise agreed within a period of fourteen days thereafter, provide that letter to the single expert and in any event and in relation to the matter generally leave is granted to the parties to restore the proceedings to the list on giving seven days notice to each other party, to the Independent Children's Lawyer and to the Court.

12. Unless the Court otherwise orders the parties bear the costs of the single expert’s report and any costs associated with the attendance of the single expert equally subject to the right of the parties to approach the Legal Aid Commission of NSW for remission of the fee.

13. The venue of these proceedings is changed to this Court at Lismore and if at all practicable the hearing be conducted at Lismore.

14. The Court noted that two of the parties and most of the witnesses are located in the Northern New South Wales area.

15. The proceedings are listed before a Registrar at 11:00 am on 21 August 2007 AND leave is granted to any of the parties to attend by telephone on that date provided that at least seven days prior to the return date they provide advice in writing to the Co-ordinating Registrar in the Brisbane Registry of the telephone contact number for their appearance on that date.

16. Leave is granted to the parties to inspect documents produced on subpoena by the NSW Police, Department of Corrective Services and the Children’s Court …

17. Leave to the parties to have photocopy access to documents produced on subpoena.

18. The parties are restrained from permitting any photocopies made pursuant to that leave to leave their possession.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2299 of 2007

MRS TALENT & MR TALENT

Applicants

And

MR STEINER

1^st Respondent

And

MRS BALE

2^nd Respondent

And

MRS EGAN 

3^rd Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children B born in June 2002 and L, born in December 2006. They are just over five and eight months of age, respectively.  Their parents are Ms Morrison and Mr Steiner.  The mother died in February this year. The father is 40 years of age. He is on remand and I understand that he has yet to be committed in relation to a charge of murder.

2. The moving parties to the proceedings are the maternal aunt, Mrs Talent, she is 33, so is her husband Mr Talent, and they live in Sydney.  I think she is about nine weeks pregnant or something of that order and she has made an application for B and L to live with her in Sydney.  The respondents to that application are the father, Mrs Egan and Mrs Bale.  Mrs Egan is the applicant's mother, the maternal grandmother of the children. She is 58 years of age.  She lives in Northern New South Wales, I think her husband might be Mr Egan and she supports her daughter's application.

3. Mrs Bale is 43 years of age; she is married to Mr Bale.  She is the father's sister, she lives in Northern New South Wales and she has four adult children.  She is by trade a health and beauty therapist.  The other relevant people are Mr M Steiner and his wife Mrs R Steiner, they are the paternal grandparents and they live in Northern New South Wales.  I understand the paternal grandmother has been affected by a stroke. Mr Morrison is the maternal grandfather, he lives in Sydney and I think he has also remarried.

4. The mother had another child with Mr M, C. C is eight years and eight months of age and by reason of intervention by the Department of Community Services when he was eight months of age, C lives with Mrs Egan, the maternal grandmother, in Northern New South Wales. I was told today that the father has another child, E. I do not know how old she is and I do not know whether he has other children. 

5. The proceedings arise because of the mother's death. What happened after that was that the children came to be with Mrs Bale, their paternal aunt in Northern New South Wales and that arrangement was, at least approved, by the Department of Community Services. That approval came with some support in the terms of Departmental visits and investigations over time. As I understand it, the solicitor for Mrs Bale told the Department of Community Services about the proceedings and invited them to take some part in the proceedings and/or to provide some support to the paternal aunt's case. They have sought to do that by a simple letter.  They are not here today and that is something of a shame.

6. It is a case where I do not know whether they were formally invited to take part in the proceedings but it is a case where that would have been sensible because for one reason or another the Department has been significantly involved in the lives of the children and as I said, also in the life of C.  There has been a great deal of evidence produced and I do not know, with respect, that all of it is of terribly much help.

7. My task is to make an order in the best interests of the children for the period until we can have a proper hearing about the matter. A proper hearing means a hearing where an independent expert speaks to everybody involved, and applies their skills and qualifications as a psychiatrist or a psychologist to an expert's report.  That report is provided to the parties and the report can be tested in a hearing. The hearing allows the various assertions of the parties to be tested and if necessary the trial judge can make a decision as to who is telling the truth.  That is not possible at a hearing like this before me.

8. Nevertheless, my obligations are the same as those of the trial judge in a final hearing and they are to make orders in the best interests of a child. The legislation was changed a year ago.  The changes do not help terribly much in the circumstances of this case because they call for a sequence of reasoning. In the legislation everything hangs primarily on decision making responsibility.  If parents are to share decision making then the Court is to consider making an order that children spend equal time with the parents. 

9. Well the sad fact and the tragedy in this case is that B and L have no parents with whom they can live for the time being. The legislation does not provide any guidance as to how much time children should spend with people who are not their biological parents. So we then come to the indicia for working out what is in the best interests of a child and they are the only matters that I am to take into account. The primary considerations are the benefit of a child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.

10. It is just not possible for these children to have a meaningful relationship with both parents, except that one issue that I will come to. It is relevant, however, and it is the basis on which the applicant's case is built, that the court consider the need to protect children from physical or psychological harm.  The additional considerations are that I am to consider:

    Any views expressed by the children and factors such as the children's maturity and level of understanding the Court thinks are relevant to the weight that should be given to the children's views.

11. That is not relevant in this case.  I doubt that there is any issue as to B’s wishes. He would prefer to stay where he is, but he is not of an age where his view would be relevant one way or another. This is a case about risks and you would not ask a five year old to make that assessment, so that is not relevant:

    The nature of the relationship of the child relevantly with other persons, including grandparents and other relatives of the child.

12. The common ground evidence is that the relationship of the children is strongest with the father's family.  It does not matter for today's purpose why that has come about.  A great deal of evidence seeks to address that issue and whose fault that is. We know it is not the children's fault and the focus is on them today:

    The willingness of the parents to facilitate something.

13. That is not relevant in the case:

    The effect of any changes in the child's circumstances including separation from a parent or another person including a grandparent or other relative with whom he or she has been living.

14. That is relevant.  There are two matters to be considered here. There is no evidence to the effect that the applicants have any proposal to provide any time between the children and their father. On the other hand there is no question about that access on the other side. Secondly, there will be significant changes if the applicants succeed. The children grew up and lived in Northern New South Wales; their parents lived with them in Northern New South Wales; their paternal grandfather lives in Northern New South Wales; the paternal grandmother lives in Northern New South Wales; their maternal grandmother lives in Northern New South Wales; their brother lives in Northern New South Wales and there are other members of the father's family who live in Northern New South Wales.

15. So if they move to Sydney there are some issues about separation.  On the applicants' side it is said, without there being any detail about it, that there would be regular time between the children and their brother: one week every school holidays is proposed and other times such a long weekends.  We do not know how often that would be.  On the face of it those sorts of periods seem to be insufficient.  There is some criticism in the case of a suggestion that has come, I think probably starting with a DoCS officer that there would be monthly visits for the children and other people and yet on the proposals of the applicants I do not have any detail about anything that would be better than that.

16. As to the practical difficulty and expense of a child spending time with others, well there are difficulties and expense in this case, simply because of the distance between Sydney and Northern New South Wales.  It is trite to say that it would be easier for the people who are in Sydney to go to Northern New South Wales than it would be the other way around. 

17. The capacity of the parents is not relevant to the case.  The capacity of other people, including grandparents to provide for the needs of the children including emotional and intellectual needs. That is a relevant issue.

18. That is really the topic of the case and what is said is, in part on the basis of  recommendations made, sight unseen, by Dr P, an expert consulted by the applicants, is that that the children would be safest if they were in the care of the maternal aunt. The report builds itself up by its own boot laces to some extent, the argument being that because the paternal aunt did not take the advice in the report then she demonstrates that she is not a suitable person to be caring for the children.

19. Dr P makes the rather unsurprising diagnosis that the children are in a dreadful circumstance.  They have lost both parents for the time being and Dr P says that there should be an assessment of the children. However the applicants’ case is that his report should be accepted, notwithstanding that he has not had any opportunity to observe any of the parties or the children and has relied entirely on assertions that have been provided by the applicants or contained in affidavit evidence. 

20. The weakness of that approach of course is that I am not allowed to simply rely on the affidavit evidence.  I am not allowed to make a finding of fact about the issues that are in dispute in this case.  How on earth would Dr P, with the best will in the world, be in a position to cut through the matters of contention and there are significant matters of contention. Unfortunately, Dr P is being relied on for two purposes, once he is a forensic expert, his utility in a therapeutic sense may be lost. Once he is the applicants’ expert in the case you can understand why the paternal aunt would be a bit reluctant to take his advice.

21. If the parties need a therapeutic job done for a child then somebody is commissioned to do that and their involvement then in the case would be limited to reports about their treatment.  If somebody wants a forensic expert that gives evidence about what should happen in the future then the person needs to be somebody who is not, in the normal course, aligned to one side of the proceedings or the other.

22. With the best will in the world, Dr P’s report and recommendations cannot do the same job as a report prepared by someone who has seen the children and the relevant adults and had an opportunity to get some balance in the material.  Dr P is not the only source of advice here. There were events in the children's lives long before their mother died that were put in place by the Department of Community Services and its officers.

23. Recommendations about B spending time at preschool or day care; arrangements in relation to the children having time with their brother. It is a bit tough to criticise the paternal aunt if she maintained some of those things after the mother's death as if she had alighted upon a new way of causing the children harm.  This is not an occasion for seeking to visit responsibility.  On one view of it everybody involved can be criticised to the extent that these children have been in harms way. That is not fruitful.

24. We could ask why if the applicants or someone else was unhappy with the Department of Community Services supervision of this family when it was intact, they did nothing about it. There is a mechanism for fixing that.  Proceedings can be brought in the Children's Court to review the stewardship of the department; proceedings can be brought in this Court to review the living arrangements for children if somebody thought they were in danger. To the extent that anybody says that B and L were in harms way before February 2007, there were mechanisms available and nobody did anything. Again that course of enquiry is not fruitful today. 

25. Looking at it from a more positive point of view, what a great situation we have.  We have loving relatives who are willing to turn their lives upside down for these two children. I can only imagine the upheaval in the Talent household, cruising along Sydney’s southern suburbs and suddenly proposing to have two young children living with them all the time.

26. There is no suggestion that this has been a big improvement for Mrs and Mr Bale's home life that suddenly two children are living with them. However, here we have got loving relations who have a considerable difficulty in dealing with each other because of historical matters, putting their hands up, spending a great deal of money, all because they want the best for these two children. That is wonderful. There are so many cases no doubt the Department sees and so many cases we see where there is nobody properly motivated to put their hand up.

27. So coming back to what should be done here, there is no doubt that what Dr P says is true, these children are vulnerable.  Two of the central pillars of their lives, the most important people to them, have been taken out of their lives, in the father's case, for the time being. On the positive side the observations by people who have some familiarity with them are encouraging. That is to say the people from the day care centre who are not experts of the eminence of Dr P, but at in terms of B, they know him and so they are in a position to see significant changes in his presentation.

28. No one has seen the matters in B that would raise the concerns identified by Dr P. No one has recommended that we need to change something immediately.  There has been a report prepared under the auspices of the Department of Community Services and a number of observations made and the Department is content with the current placement. 

29. That is not the end of the matter.  There are two things about this.  Firstly, the maternal grandmother has long felt that the Department has dropped the ball with this family and these children. She has been very critical of the Department and has continued to make reports to the Department. The Department is not perfect.  It is a huge organisation; it has put resources into this family but it may have been wrong. It may be that despite the fact that no one from either side of the family challenged the Department's decisions, it could still be that the Department was wrong. The second thing is that Department's job is a bit different to mine.  The Department is interested in immediate safety and does not have to worry about whether there would be a better option> that is the question before me, whether there is a better option, something significantly better or substantially better, for the best interests of the children.

1. As to the special characteristics of the child, well L is terribly young. Somebody said something today about, it might have been Mr Tester, something about B being more vulnerable. Perhaps I am doing him a disservice, but if that is what he thinks, in my view L is the most vulnerable child. The fact is she is not able to say anything about it does not mean that she is safe.  She is not of an age where she can act out concerns about loss of a significant bond, she is entirely vulnerable. 

2. Now as to family violence there is no suggestion that the children will be exposed to violence in the immediate future. Whether it would be preferable to make an order that is least likely to lead to the institution of further proceedings, that is not relevant in interim parenting cases.

3. Thus the critical thing, and the thing that really is the focus of the applicant's submissions is that they have a report from an expert that says that there should be a high level, excellent parenting, provided in these circumstances. It is submitted that the applicant, although she does not have her own children, is available 24 hours a day, seven days a week and it is clear from the background evidence in the case that the maternal aunt had some seven years of child care background.

4. She has not worked in that field since 2004, at a facility I think in Sydney's south and at other similar facilities. She had responsibilities including supervisory responsibilities, face to face work and coordinating responsibilities in relation to child care. She is a person with some background and experience in the care of children, including young children.

5. On the other hand there is some evidence that the paternal aunt was engaged in paid employment for two or three days a week and so she would not always be available. Thus there should be significant time between the children and the mother's family. The argument is that the paternal aunt, Mrs Bale, is not capable of fostering that time because of a history of antipathy between the families and because of the things that have happened since. There is a raft of correspondence evidencing a poor relationship. 

6. There are reports of occasions when the applicant attended in Northern New South Wales to see the children and one incident where Mrs Bale and her sister sat outside the home of, I think it was the maternal grandmother for four hours while the applicant saw the children. The complaint was that the event was cut short by Mrs Bale and then that there was a suggestion of a scuffle or a bump between Mrs Bale and the applicant as the child was brought out, L accidentally struck her head on the way out the door.

7. The submissions are built around protestations about that.  The problem with that submission is that it is not clear on the applicant's argument what strategy she would have to improve all of that; what strategy the applicant would have from Sydney to foster ready, easy, relaxed access between the children and the paternal aunt Mrs Bale, between the children and the paternal grandparents, between the children and the father.

8. Given there are problems between the families, they will be compounded by the distance between Sydney and Northern New South Wales. I can readily understand why the families might have some difficulties, they had difficulties before the mother died. There had not been much of a relationship between the children and the applicants; there had not been much of a relationship between the children and their brother, who lives with their material grandmother, long before the mother died.

9. That is a problem the parties face and they will just have to address that.  There is no doubt that Dr P is right.  In the normal course it would be in the interests of the children to have a good relationship with family members, especially when they are denied for the moment their father's close contact and they are denied altogether contact with their mother. That is not necessarily so. If the adults going forward cannot work out a way to ensure that the children are not exposed to any tension between members of the family then it may not be in their best interests to see all of the members of their extended family.

10. I am not allowed to make decisions about the disputes that the parties have as to what happened in the past.  The best that can be said is that there seems to be a general agreement that there was some impairment to the parenting provided by the mother and the father. The father gave some detail about a loving relationship and the efforts that he and the mother made in relation to the children but the general evidence would support a conclusion that there were nevertheless, considerable problems. The parents each had addictions to drugs and for much of the time leading up to the events of earlier this year they were at least on methadone programs, being treated for that addiction.

11. There are allegations about a violent relationship and it is the fact that DoCS was involved with the family. It also the fact that the father's family was significantly involved with this family and with the children and it is the fact that DoCS thought that was helpful. The children have probably seen more of life than one would normally want and that has become worse since. They are vulnerable children.

12. On the other proposal, it is said that there is a mother figure fully available all the time. She says that the children are familiar with her home, there is a familiarity for B with the child care arrangement available in Northern New South Wales, there is a familiarity built around that with the paternal grandfather being the person who has taken B to day care and back. Further it is argued that there will be the potential for contact with C and the maternal grandmother who live in the area.

13. There is reference to the advantages of stability in previous case law about interim parenting cases and it is obvious that stability is good. If the children were to go to live in Sydney then that would cause a dramatic change. They do not have, either of them, this is not being critical of anybody, they do not have a close relationship with the applicants.  They would be away from the other things that are familiar to them.

14. Just as there is a risk identified by the applicants in not making the orders they seek, there is a risk in granting them and in aid of the paternal aunt's position, as I say, with all of the caveats about the Department of Community Services, we know that the current arrangement has the Department's support and that support has included some practical assistance. 

15. The matters that I particularly take into account include the nature of the relationship of the child with the paternal aunt and members of the father's family and the likely effect of changes in the children's circumstances. As to the capacity of the paternal aunt, there is a criticism of her in the applicant's case. I cannot make a finding that there is anything wrong. It is apparent that the children experienced compromised parenting at time in the household before February 2007. However, there is no objective evidence of any compromised parenting since then.

16. In addition there is a risk in making a change at this stage in that it could be undone in a couple of months time. If I make this decision thinking that it would be a good idea for these children to move to the Sydney area and a judge, having heard an expert's report based on direct observation of the parties and the children, decides that that is not a good idea, there is the spectre of the children having another change.

17. So for those reasons I propose to leave the children in the care of the paternal aunt Mrs Bale, however, there has to be a proper, I agree with Ms Morton, there has to be a detailed arrangement for the time the children are going to spend with the maternal grandmother, with C and with the applicants. 

18. In relation to time to be spent between the applicants and the children and the maternal grandmother and the children it seems to me that the ideal arrangement is one that the parties make.  It is not the task of these orders to develop all aspects of the relationship that might be developed in the future.  My job is a conservative one, to make sure that there is an opportunity for relationships to be maintained. It is a matter of considerable contention as to when overnight time should commence for young children.

19. Here we have a case about two children of significantly different ages and there are real issues about that.  Now families make these decisions and have children sleep over at somebody place or in a tent or whatever on no evidence, but for the Court to embark on it when there is a dispute about it is a matter of some moment. Therefore I do not propose to make orders for overnight occasions.  Hopefully the matter can be prepared and ready for trial and dealt with before that is an important issue, unless of course, the parties agree.

20. So the orders that I am going to make, and I have left the opportunity for the parties to do something entirely different if they want, are these.

21. There is an application for change of venue.  I have not taken submissions about the matter although I think on a previous occasion there was some discussion about it.  I think the logic is that the expert would be conveniently located somewhere near the children and that has been agreed.  The relevant witnesses are largely from Northern New South Wales and also they include the officers of the New South Wales Department of Community Services, they are in Northern New South Wales and the child care centre is in Northern New South Wales, or thereabouts.

22. It seems to me that the matter is sensibly dealt with out of Lismore, which is the closest Court facility.  I have made some enquiries and there is a call-over available.  Hearings can be conducted in Lismore. There is no regular circuit but it can be done on an ad hoc basis. I intend that any hearing be in Lismore. There is a concern expressed on behalf of the applicants that the exigencies of listing arrangements might mean that the matter is moved to Brisbane and that means that everybody is going to be inconvenienced. They argue that it would be better in the circumstances to hold the matter in Sydney.

23. My intention is that the matter be heard in Lismore; I accept that I cannot bind a trial judge on that issue.  

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate

Date: 26 July 2007