Tanner & Anor and Tanner & Anor

[2014] FamCA 792

FAMILY COURT OF AUSTRALIA

TANNER AND ANOR & TANNER AND ANOR [2014] FamCA 792

FAMILY LAW – CHILDREN – Undefended hearing – Application made by the maternal grandparents – Where the first and second respondents, the mother and father, have not filed any material

FAMILY LAW – CHILDREN – Best interests – Parental responsibility – Where there is a final Apprehended Violence Order against the mother and father protecting the maternal grandparents and the child – Where there are sexual abuse allegations made against an associate of the mother – Where it appears that neither the mother nor the father are willing to or capable of fulfilling the role of the child’s parent at the present time – Child to live with the applicant maternal grandparents – The maternal grandparents to have sole parental responsibility for the child – If the maternal grandparents determine that the child would benefit from spending time with either or both of her parents in the future, they are at liberty to make those arrangements

Family Law Act 1975 (Cth) ss 62B, 65DA

APPLICANTS: Mr Tanner and Ms P Tanner

FIRST RESPONDENT: Ms C Tanner

SECOND RESPONDENT: Mr Magee

INDEPENDENT CHILDREN’S LAWYER: Coast Law

FILE NUMBER: NCC 1104 of 2014

DATE DELIVERED: 19 September 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Stevenson J

HEARING DATE: 19 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANTS: N/A

SOLICITOR FOR THE APPLICANTS: Legal Aid NSW

COUNSEL FOR THE 1^ST RESPONDENT: N/A

SOLICITOR FOR THE 1^ST RESPONDENT: N/A

COUNSEL FOR THE 2^ND RESPONDENT: N/A

SOLICITOR FOR THE 2^ND RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coast Law

Orders

1. The applicant maternal grandparents shall have sole parental responsibility for the child G, born … 2009 (“the child”).

2. The child shall live with the applicant maternal grandparents.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

2. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tanner and Anor & Tanner and Anor 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 1104 of 2014

Mr Tanner and Ms P Tanner

Applicants

And

Ms C Tanner

First Respondent

And

Mr Magee

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Proceedings

1. These proceedings concern parenting orders in relation to a child G (“the child”) who was born in 2009 and is presently aged five years. The applicants, Mr Tanner and Ms P Tanner, are the child’s maternal grandparents. The first respondent is the child’s mother, Ms C Tanner, and the second respondent is her father, Mr Magee.

2. The maternal grandparents commenced these proceedings by way of an Initiating Application filed on 8 May 2014, by which they sought the following orders:

   (1)That the child [G] born … 2009 (“the child”) live the applicant maternal grandparents, [Mr Tanner] and [Ms P Tanner] (“the maternal grandparents”).

   (2)That the maternal grandparents have the sole parental responsibility for the child.

   (3)That the child live with the maternal grandparents.

   (4)That respondent 1, [Ms C Tanner] (“the mother”) and respondent 2, [Mr Magee] (“the father”) spend time with the child under the maternal grandparents supervision as such times as agreed between the maternal grandparents and the mother and the father.

   (5)That the mother and the father be prohibited from removing the child from the maternal grandparents care.

   (6)That the mother and the father not be under the influence of any prohibited drugs in the presence of the child and during any period of time spent with the child.

3. On 8 May 2014 the maternal grandfather filed a Notice of Child Abuse, Family Violence or Risk of Family Violence. This Notice set out allegations of sexual abuse of the child by an associate of the mother named Mr B and complaints that the mother exposed the child to family violence.

4. Service of the application of the maternal grandparents was effected upon the mother personally on 28 May 2014 and she signed an Acknowledgement of Service on that day. On 10 June 2014 Mr Tanner filed an Application in a Case, whereby he sought orders for substituted service upon the father by way of delivery of the documents to his mother and stepfather, Ms D and Mr D.

5. On 11 June 2014 an order was made which permitted service upon the father by way of delivery of the documents to Mr and Ms D at E Street, Suburb F. Such service was effected by post on 13 June 2014. Neither the mother nor the father have filed any documents in the proceedings. The father appeared today but the mother has attended no Court event.

6. Initially the father indicated that he wished to seek orders to the effect that the child spend time with him on one occasion per month and for half of all school holidays. Having conferred with the duty solicitor, however, he informed the Court that he did not wish to seek any orders.

Background

1. The maternal grandfather and maternal grandmother are aged 76 and 74 respectively. They married in 1965 and are the parents of three children, including the child’s mother. The mother was born in 1969 and is currently aged 44 years.

2. The father is believed by the maternal grandfather to have been born in November 1960 and would thus be 53 years of age. His name appears on the child’s birth certificate as her father. The maternal grandfather deposed that he is unaware of the father’s current whereabouts and last had contact with him approximately two years ago. On that occasion, he threatened the maternal grandfather with physical violence when he collected the child from an apartment at Town H at the request of the manager of the complex.

3. The child has lived in the full time care of the maternal grandparents since approximately 2010. During 2012 and 2013 the mother saw the child on an irregular basis. After an incident on 12 January 2014, however, the mother has had no contact with the child.

4. On 12 January 2014 an incident occurred which the maternal grandfather described as follows:

   On 12 January 2014 [the mother] again came into our home and smashed a table lamp, jumped on the dining room table, and while swearing at [the maternal grandmother] and I, threatened to kill us and burn the house down. [The mother] pushed [the maternal grandmother] against the garage door hurting her shoulder. It took me over 10 minutes to get [the mother] out of the house. Our neighbours called the police. I observed [the child] to be terrified and ran to the family room, hiding in the lounge.

5. A neighbour called the police, who took out an interim apprehended violence order for the protection of the maternal grandparents and the child. A final apprehended violence order was made for two years on 28 May 2014.

6. The maternal grandfather deposed to two previous incidents of violence perpetrated by the mother against himself and his wife in the presence of the child. He deposed as follows:

   In November 2013 [the mother] entered our home and, whilst yelling at [the maternal grandmother] and I, ripped the phone of the wall and smashed utensils off the bench. I requested that she leave the house, which she did. At this time [the child] was in our full time care and during this incident she ran upstairs and hid in the wardrobe as she was frightened of [the mother].

7. The second incident was described by the maternal grandfather as follows:

   In December 2013 [the mother] again entered our home and became abusive and swearing and kicked [the maternal grandmother] in the stomach. I ordered her out of the house. [The child] again witnessed this incident and appeared very frightened of [the mother].

8. On 17 July 2014 interim orders were made by the consent of the maternal grandparents and the Independent Children’s Lawyer (“the ICL”) and in the absence of the mother and the father. These orders provided that the maternal grandparents have sole parental responsibility for the child and that she live with them. The proceedings were then adjourned for final determination on 19 September 2014.

Consideration

1. A Magellan report dated 18 June 2014 set out notifications which were made to the Department of Family and Community Services in respect of the child between 10 September 2009 and 9 March 2014. These notifications alleged substance abuse by the child’s carer, exposure of the child to family violence and sexual abuse.

2. The maternal grandfather deposed that the child made a complaint of inappropriate touching by Mr B to a friend of himself and his wife on 30 January 2014. He deposed:

   When [the child] was returned home [Ms J] said to [the maternal grandmother] and I, words to the effect of “[The child] said to us that [Mr B] had pulled her panties down and hurt her bottom with his finger, and she rubbed his leg and wee wee came out.”

   Ms J said that she had contacted police and made a report.

3. The next morning, I observed the maternal grandmother say to the child words to the effect of “what happened with [Mr B]?” The child responded with the same statement that she had told Ms J quoting words to the effect of “He pulled my panties down and hurt my bottom with his finger. I rubbed his leg and wee wee came out.”

4. JIRT officers interviewed the child on 14 April 2014. The Magellan report summarised the contents of this interview and the outcome of the investigation as follows:

   During the interview [the child] disclosed to officers that [Mr B] put his hands, touched her legs and pulled her pants down and put his fingers in her “bottom” (indicating vagina area on the body chart).

   Departmental records indicate that the child was quite clear in her disclosure and displayed appropriately shy verbal and non-verbal body language during her interview when giving details, some of the child’s contextual details seem to be mixed up which officers noted to be most likely the result of confusion.

   In the secondary assessment compiled by JIRT caseworkers on 13 May 2014, it is noted that the likelihood of harm continuing would be high should the child return to stay in the unsupervised care of her mother. It was noted that the child would likely be exposed to further risk of significant harm including neglect, sexual abuse and psychological harm. Given the status of the mother’s relationship with Mr B is unknown and her ability to be protective appears to be compromised by her vulnerability relating to drug dependency, the child remains at risk in the mother’s care.

   In their Judgments and Decision report, JIRT officers note that despite the child’s somewhat confusing recollection of events, the information the child has disclosed for her young age makes it more likely than not that the child was sexually abused. Hence the allegations were substantiated.

Conclusion

1. In my view, the child is fortunate indeed that her maternal grandparents have assumed responsibility for her and are prepared to care for her on a long term basis. It appears that neither her mother nor her father are capable of fulfilling the role of the child’s parent at the present time. I have no hesitation in making orders on a final basis to the effect that the maternal grandparents have sole parental responsibility for the child and that she lives with them.

2. I propose to make no orders which provide for either the mother or the father to spend time with the child. I accept the evidence of the maternal grandfather to the effect that the child is fearful of the mother since she witnessed her inflicting violence upon the maternal grandparents in November 2013, December 2013 and January 2014. I have no evidence as to the nature of the child’s current relationship with the father. If the maternal grandparents determine that the child would benefit from spending time with either or both of her mother and father in the future they are at liberty to make those arrangements.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 19 September 2014.

Associate: 

Date:  19 September 2014