Trevor and Denton and Anor (No 2)

[2017] FamCA 473

FAMILY COURT OF AUSTRALIA

TREVOR & DENTON AND ANOR (NO 2) [2017] FamCA 473

FAMILY LAW – CHILDREN – Request for the Department of Family and Community Services to intervene – Where there has been a previous request for the Department to intervene – Where the Department declined to intervene previously on the basis that the family law proceedings would effectively address the safety and well-being needs of the children – Where the children have self-placed with the father – Where the paternal grandparents have now withdrawn from proceedings – Where there are serious risks to the children in the care of the father – Where there may be no adequate carer for the children.

Family Law Act 1975 (Cth) s 91B

Denton & Denton and Anor [2017] FamCA 396
Trevor & Denton and Anor [2017] FamCA 261

APPLICANT:

Ms Trevor

RESPONDENT: Mr Denton

INTERVENOR: Mr A Denton

INDEPENDENT CHILDREN’S LAWYER: Ms Elve

FILE NUMBER: PAC 244 of 2017

DATE DELIVERED: 5 July 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 June 2017

REPRESENTATION

THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT: Lovemore Lawyers

SOLICITOR FOR THE INTERVENOR: Gonzalez & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Auslawyers

Orders

1. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trevor & Denton and Anor (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 244 of 2017

Ms Trevor

Applicant

And

Mr Denton

Respondent

And

Mr A Denton
Intervenor

REASONS FOR JUDGMENT

introduction

1. On 14 June 2017 I requested that the Secretary of the New South Wales Department of Family and Community Services (“the Department”) intervene in parenting proceedings relating to two children, 13 year old B and his 12-year-old brother, C (“the children”) and indicated that I would publish reasons for that request having been made. These are those reasons.

2. In summary I am of the view that there are significant risks of harm posed to the children in the care of the only adult who is now seeking parenting orders with respect to the children. In the event that the court makes a finding as appears likely, that the father poses an unacceptable risk of harm to the children there will be no available person to take parental responsibility for the children or to care for them appropriately.

Background

1. The background in relation to the children’s current circumstances is set out in my reasons for judgement delivered on 27 April 2017 (“the April judgment”).[1] Extracts from that judgement are contained within these reasons as well as additional information in relation to the current circumstances of the children.

   [1]Trevor & Denton and Anor [2017] FamCA 261.

2. The children’s father is Mr Denton (“the father”), aged 42. The children’s mother Ms D (“the mother”) passed away in 2012. The children also have a 15-year-old sister who has lived with Mr A and Ms G Denton (“the paternal grandparents”) since the mother’s death. Following their mother’s death the boys remained living with their father. Both the paternal grandparents and father live in the F Town region of New South Wales.

3. During the Christmas school holidays in December 2016/January 2017 the children spent time with their 22-year-old maternal half-sister, Ms Trevor (“the sister”) in Sydney. When the children were due to return to the care of their father the sister commenced these proceedings seeking orders that the children live with her as she alleged that the children were refusing to return to the care of their father.

4. On 6 February 2017 orders were made on an interim basis that the children live with the sister and spend defined time with their father who was at that stage seeking the children’s return to his care. The following day the sister placed the children into the care of the father who was staying in Sydney for the purposes of a meeting with a family consultant and in relation to the proceedings. The father at that time indicated that the sister told him she was no longer seeking that the children live with or spend time with her.

5. A few days later, on 10 February 2015 the father, the children and paternal grandparents attended Child Responsive Program assessment interviews with a family consultant at Child Dispute Services at this court. The sister did not attend.

The family consultant’s Memorandum

1. When interviewed by the family consultant the children, the paternal grandfather and the father himself raised a number of matters of concern related to the father’s household and the adequacy of his care of the children. The family consultant was of the view that the children may be at risk of harm in the father’s care (and in the care of the sister but those concerns are no longer of relevance) and made a risk of harm report to the Department.

2. The father told the family consultant that he was then homeless and was residing in a motel with his pregnant partner, who has been diagnosed with terminal brain cancer. Both the father and his partner are unemployed.

3. When interviewed B told the family consultant that his father uses cannabis on a regular basis but spoke positively about the father and his partner and the paternal grandparents. C also indicated that he wanted to live with his father though he conceded that the father “takes weed”. Neither child perceived their father’s drug use as an issue. The children’s 15 year old sister who was also interviewed (though she is not the subject of this parenting application) told the family consultant that she was happy living with the paternal grandparents and that she sees her father on a regular basis. She also said that her father uses drugs but claimed it does not affect his parenting capacity.

4. The father also admitted to the family consultant that he began using cannabis at the age of 13 and currently uses cannabis on a daily basis. He claimed that it does not affect his parenting capacity and does not bother the children. The father also conceded that he had used methadone in the three weeks prior to the interview.

The grandparents’ care of the children

1. On 14 February 2017 the paternal grandfather was given leave to intervene in the proceedings and immediately made application for orders that the children live with him and his wife. On the same day the sister withdrew from the proceedings. Orders were made with the consent of the father, the paternal grandfather and the Independent Children’s Lawyer (“ICL”) that the children live with the paternal grandparents and spend time with their father as arranged with the paternal grandparents under their supervision. Restraints were imposed upon the father including upon him attending at the paternal grandparents’ home without their consent, consuming alcohol or using illicit substances while the children are spending time with him and physically disciplining the children. The father was also required to submit to urinalysis as requested by the ICL.

2. In the April judgment I expressed the view that the father did not pose an unacceptable risk of harm to the children if they spend time with him but having regard to the father’s housing situation and substance misuse he would pose an unacceptable risk to the children were they to return to his full time care.

3. On 15 February 2017 the Department declined to intervene in the proceedings on the basis that the immediate safety and well-being needs of the children were being met and will be effectively addressed by the Family Court proceedings.

The children place themselves in the care of their father

1. On 7 April, the final day of the school term prior to the school holidays, the boys were picked up from school by their father without the knowledge or consent of the paternal grandparents. The father then retained the children in his care. Subsequently the paternal grandfather filed an Application in a Case on 11 May 2017 seeking the urgent return of the children to his care.

2. On 15 May 2017 a judge of this Court issued a Recovery Order directing police to recover the children and deliver them to the paternal grandparents. Orders were also made that day restraining the paternal grandparents from allowing the children to come into the presence of or spend time with the father pending further order and restraining the father from approaching or entering upon the children’s school or home pending further order.[2]

   [2]Denton & Denton and Anor [2017] FamCA 396.

3. The Recovery Order was executed and the children were returned to their paternal grandparents.

4. On 6 June 2017 the children again absconded from the care of the paternal grandparents and went to live with their father. Although it is not clear it appears that C subsequently returned to the paternal grandparents though B remains in his father’s care.

The second request for the Department to intervene

1. On 14 June 2017 when the proceedings were next listed before the court the father did not attend and his lawyer withdrew from the proceedings having been unable to successfully contact the father. The paternal grandfather’s solicitor confirmed that B had still not returned to his client’s care. The ICL informed the court that she had advised a legal officer of the Department about B’s current circumstances and that the Department had once again been asked to intervene.

2. The ICL filed an affidavit on 16 June 2017 setting out other matters of concern. First, the father is required to submit to chain of custody supervised urinalysis testing as requested by the ICL and the ICL has made three such requests. The father has not complied with any of those requests. The father has also not engaged in a domestic violence program, drug and alcohol rehabilitation or a family support service to address matters of risk arising in his household.

3. On 15 June 2017 the ICL was informed by the paternal grandparents’ solicitor that C had left the grandparents’ care and was also living with his father. The solicitor raised many concerns held by the paternal grandparents which are described as causing “enormous distress” to them. In these circumstances they have decided to withdraw from the proceedings before this court.

4. The children are currently living with their father and there is no other available adult willing to care for them. The Department previously assessed, in in January 2017 the allegations made against the father as “present[ing] immediate risk of serious neglect should the father reinstate his care of the children”. I also previously expressed the view in my April judgment that there were serious risks associated with the father’s current circumstances if he were to be the full-time carer of the children.

5. It has previously been the view of the Department that the Family Court proceedings will effectively address the concerns about the children’s well-being and safety. However, in the current circumstances there may be no adequate carer who can effectively safeguard the children’s well-being given the withdrawal from the proceedings of the paternal grandparents and the children’s self-placing with the father. Accordingly, it is requested that the Department reconsider the invitation to intervene in the proceedings.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on XX July 2017.

Legal Associate: 

Date:  5 July 2017