Wearing & Anor & Wearing

[2018] FamCA 521

FAMILY COURT OF AUSTRALIA

WEARING AND ANOR & WEARING & ANOR [2018] FamCA 521

FAMILY LAW – CHILDREN – Interim hearing – Where the subject child is almost 12 months old – Where the paternal grandparents seek parental responsibility for the child and the child to live with them – Where the mother opposes the application – Where the child is cared for during the day by the paternal great grandmother – Where the mother was the primary carer of the child for 2 months until the paternal grandparents excluded her from their property leaving the mother with nowhere to live – Where the child has seen little of his mother over the past nine months – Where there are risks to the child in both households – Where the paternal grandparents have not fully cooperated with FACS – Concluded that the paternal grandparents decision to exclude the mother denied the child of an emotional need to have a meaningful relationship with his mother which is a limitation on the paternal grandparents judgment and capacity as proposed parents – Ordered the child shall live with the mother, in a progressive way, and on condition that specified supports have been put in place – Ordered the child shall spend time with the paternal grandparents on each weekend

Family Law Act 1975 (Cth) s 67ZA

APPLICANTS: Ms Wearing and Mr Wearing

FIRST RESPONDENT: Mr M Wearing

SECOND RESPONDENT: Ms Green

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2682 of 2017

DATE DELIVERED: 2 July 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 25 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Flintoff
SOLICITOR FOR THE APPLICANT:	Watts McCray (NSW) Pty Ltd

COUNSEL FOR THE FIRST RESPONDENT: NA

SOLICITOR FOR THE FIRST 

RESPONDENT:

NA

COUNSEL FOR THE SECOND RESPONDENT

SOLICITOR FOR THE SECOND RESPONDENT Dean Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Handebo

It is ordered, pending further order, that

1. All prior orders in relation to Z, D.O.B. … 2017 (“the child”) are discharged.

1. That the child shall live with the mother commencing Monday 30 July 2018 on condition that the following supports have been put in place:

   2.1That the mother has obtained accommodation within the D Region area whether arranged by the Salvation Army, the Department of Family and Community Services (“DFACS”) or privately

   2.2That the mother is supported by Community Services in a program such as The Young Parent Program

   2.3That the mother cooperates with DFACS and responds promptly to all reasonable requests made of her by departmental officers.

1. Commencing forthwith but in any event no later than 10:00am on Friday 6 July 2018 the child shall spend time with the mother as follows:

3.1On Monday, Wednesday and Friday of each week between 10:00am and 3:00pm at the home of the paternal grandparents NOTING that the mother may take the child out of the home, unaccompanied, for all or any part of the period.

3.2On Sunday 15 July 2018 for a period of 2 hours and failing agreement otherwise from 10:00am to 12:00pm.

1. To facilitate time provided in Order 3 the paternal grandparents and each of them shall ensure that:

4.1The paternal great grandmother (Ms B) or the paternal grandfather or any other paternal relative familiar to the child (with the exception of the paternal grandmother) are present in the home throughout the periods of time that the child spends with the mother

4.2The father is not present in the home of the paternal grandparents during the periods of time when the mother is spending time with the child.

1. From the commencement of Order 2 herein the child shall spend time with the paternal grandparents each weekend from 10:00am Saturday to 4:00pm Sunday ON CONDITION that the child is not left unsupervised with the father at any time.

1. For the purposes of changeover the paternal grandfather or his nominee agreed to by the mother shall collect the child from and return the child to the home of the mother.

2. That the paternal grandparents or either of them shall advise the mother, the ICL and DFACS of their current residential address and contact phone number and further shall advise those parties of any change of residential address and telephone number during the currency of these proceedings.

3. That the mother shall advise the paternal grandparents of her residential address in the D Region area and any change to that address and contact telephone number during the currency of these proceedings.

4. That the ICL urgently provide a copy of these Orders, and reasons, to the Manager of Client Services (Ms C) D Region Response Unit, DFACS.

10.The father, having filed a Notice of Discontinuance on 25 June 2018, is hereafter removed as a party to the proceedings.

11.Matter listed at 9:30am on 22 August 2018 for directions and consideration of a Report (Family or Chapter 15).

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 Wearing and Anor & Wearing and Anor 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 NEWCASTLE

FILE NUMBER: NCC 2682 of 2017

Ms Wearing and Mr Wearing

Applicants

And

Mr M Wearing

First Respondent

And

Ms Green
Second Respondent

REASONS FOR JUDGMENT

1. These are competing applications for interim parenting orders in respect to one child, Z, aged almost 12 months. 

2. The applicants, Ms Wearing, aged 45 and Mr Wearing, aged 52, are the paternal grandparents of the child and the child presently lives in their household.  The paternal grandmother works in administration.  Including travel time, the paternal grandmother is away from the home each weekday from 6.20am to 7pm.  The paternal grandfather is a public servant.  His shifts are variable. 

3. The child is apparently cared for during the day by Ms B, the paternal great‑grandmother.  Initially, another paternal family member, Ms E, a young woman with three children of her own, may have cared for the child.  At times, there may have been others.  There was no affidavit from the paternal great-grandmother or any other family member involved in the child's care. 

4. The paternal grandmother identified herself and both parents as Aboriginal in her initiating application.  The mother identifies as Aboriginal, and so the child has that connection from both sides of his family. 

5. The second respondent, Ms Green, aged almost 19, is the mother of the child.  The mother lived with the father and the paternal grandparents in their home from late 2015 until September 2017.  She was then excluded from the property.  Until that date, for the first nine weeks of his life, the mother had been the primary carer for the child.

6. The first respondent is Mr M Wearing, aged 19, the father of the child.  He has ceased to participate in the legal proceedings.  A notice of discontinuance was filed on 25 June 2018.  That is the day this interim hearing took place.  The father continues to live with his parents, although at the beginning of this hearing, counsel for the paternal grandparents advised the Court that her clients were willing to exclude the father from their home if the child continues to live with them.

Evidence

1. The documents relied on in respect of the application were as follows: 

The [Applicant] paternal grandparents, Mr Wearing and Ms Wearing

(a)Amended Initiating Application filed 14/06/2018;

(b)Affidavit of the paternal grandmother filed 13/02/2018:

(c)Affidavit of the paternal grandfather filed 14/06/2018;

(d)Undertakings by each of the paternal grandparents and by the paternal great-grandmother filed on 10 May 2018, 7 May 2018 and 10 May 2018 respectively. The undertakings relate to not allowing the child to be in the unsupervised time of the father;

The [First Respondent] father, Mr M Wearing

(e)No documents filed;

The [Second Respondent] mother, Ms Green

(f)Response to Initiating Application filed 23/05/2018;

(g)Affidavit of the mother filed 23/05/2018;

(h)Affidavit of the maternal grandfather, Mr F Green filed 22 June 2018.

1. I have also had reference to the following documents.   

   (a)Affidavit of the paternal grandfather filed 13/02/2018; and

   (b)A large number of subpoena documents produced in response to subpoena (which became exhibits).

2. There were eight exhibits, one of which, exhibit 7, was a large tender bundle with the consent of all parties.

3. There is a great deal at stake in this case.  The subject child is 11 months old.  He has seen very little of his mother over the past nine months.  There have, however, been supervised visits since February 2018, not entirely consistently. 

4. An examination of all pieces of evidence has been required.  There is risk associated for the child with whatever interim decision is made by the Court at this critical stage of the development of this child. 

History of Relevant Events

1. The parents met as young teenagers in 2013, aged 14 and 15, and formed a connection on 27 April 2015.  They began a permanent relationship aged 16 and 17.  They lived between the homes of the father's parents in the D Region and the mother's father in Sydney.  Mostly, they lived with the paternal family. 

2. The father revealed to the mother that he had been smoking marijuana for four years.  He considered he had concealed that fact from his parents.  On the evidence of the mother, the two young people then smoked marijuana together and regularly in the paternal grandparents' home. Neither was attending school or working. 

3. The mother alleges that the father became privately abusive towards her:

   He would hit me, punch me and choke me.[1]

   There is a report to DoCS of such conduct in August 2017.[2]

   [1] Mother’s Affidavit, para 16

   [2] Exhibit 7

4. The mother witnessed a violent attack with an implement by the father on his own father.  This occurred in the context of a dispute between the father and his own mother when she would not lend him money.  The paternal grandfather had stitches to his scalp as a result of this assault.[3]

   [3] Mother’s Affidavit, para 8

5. The paternal grandparents subsequently took out an apprehended violence order.  There may also have been an apprehended violence order for the protection of the father from the paternal grandfather.  The paternal grandparents moved the father and mother into a caravan at the front of the house. 

6. In September 2016, the mother started a TAFE course.  She had, at that stage, met somebody other than the father.  She left the home of the paternal grandparents for a period, but returned.  In January 2017, the mother discovered she was pregnant.  She stopped smoking marijuana at that time.

7. On 17 March 2017, there was a psychosocial assessment of the mother, who was by then five months pregnant.[4]  The mother reported that she had a history of bipolar.  However, there is no evidence before me that she has been diagnosed with that condition.  The mother in her material referred at one point to having:

   …a bipolar relationship with the father.

   Bipolar may be a term of art for the mother.  That is a matter that requires exploration in final hearing.

   [4] Exhibit 6

8. In 2017, the subject child, Z, was born. 

9. Thereafter, conflict over parental responsibility began and has not ceased. 

10. There was a dispute almost immediately about whether or not the mother should be taking medication whilst breastfeeding a child.  There is a note in the D Region notes that the paternal grandfather was very vocal in his opinions and swore profusely on the topic of the mother not taking drugs whilst breastfeeding.  The mother had been prescribed Zoloft, and identified as possibly having postnatal depression.  The paternal grandfather is reported as saying:

    No way she would take Zoloft while breastfeeding.[5]

    [5] Exhibit 7

11. There were no reported concerns about the mother's mental health on follow up after that assessment.  On 11 August 2017, the mother contacted Community Services for help.  She was assisted to leave the home of the paternal grandparents.[6]  She and the child stayed with her sister.  The mother says that the father contacted her and threatened to kill her if she did not return.  At the same time, the mother was hopeful that they might reconcile.  There appears to have been a combination of threat and promise at this time.

    [6] Mother’s Affidavit, para 13

12. In any event, the next day, the mother returned to the home of the paternal grandparents.  On that day, there was an assault on the mother by the father while she was holding the baby.[7]  In the Department of Family and Community Services notes, there is a reference to a safety plan being prepared on 14 August 2017:

    …to get mum and bub out of home.

    An AVO was put in place for the protection of the mother from the father.[8]  There is also reference to the paternal grandparents putting some pressure on the mother to:

    …drop the AVO.

    [7] Exhibit 7

    [8] Exhibit 7

13. On the following day, 15 August, there was an argument between the mother and the father.  On 16 August, in FACS notes, there is a reference to the mother's sister having reported that the child had been weaned by the paternal grandparents, who introduced bottle feeding and forbade the mother to continue to breastfeed.[9] 

    [9] Exhibit 7

14. On 17 August 2017, the Department of Family and Community Services expressed concerned about the dynamics in the paternal household, especially that the mother had been assaulted with the baby in her arms.[10]  On that day the mother self-reported to G Health Centre.[11]  She described herself as being kept from her own family and feeling quite miserable. 

    [10] Exhibit 7

    [11] Exhibit 7

15. On 20 August 2017, the mother started taking the antidepressants, which had been prescribed for her two weeks after the birth of her child.  Her evidence is that she continues to take the antidepressant and has been medically advised to do so until the end of a two-year period.  She was willing to do so.[12] 

    [12] Mother’s Affidavit, para 20

16. On 24 August 2017, the mother came back home to the paternal grandparents' home to reconcile with the father, expressing herself as wanting two parents for the child.  At that time, she had her own mother on hold to receive her and the child back if things did not work out.[13] 

    [13] Exhibit 7

17. There is considerable confusion in the records about the status of various AVOs at this time.  There is also a reference in the notes to Ms H, the godmother of the child, to the mother having left the home with the child, but, in her view, which might be explored in a final hearing, of the mother having been:

    …lured back in.

18. On 5 September 2017, consent orders were signed by the paternal grandparents, the father and the mother and the application was filed on that day.  Clearly, this document had been prepared beforehand by the paternal grandmother, who was in a position to know and understand what was required for consent orders to be made through her work in this Court.

19. On 8 September 2017, an amended application for consent orders was signed. 

20. On 26 September 2017, the mother rang Community Services and advised the officer she spoke to that she had:

    …signed paperwork and was unsure who has parental responsibility of the child.

    A case worker there asked for someone to provide the mother with legal advice and she was apparently advised that there was a domestic violence solicitor at J Town Court House on Thursdays.[14] 

    [14] Exhibit 7

21. On 26 September 2017, the mother, the father and the paternal grandmother had a physical fight.[15]  The father left the home with the child.  The mother was charged with common assault and fined.  An application for an AVO issued and, at that point, the paternal grandmother took the mother to hospital for assessment and returned home herself.  The mother was unable to see her child thereafter.  This fight will be a matter that will require considerable exploration in a final hearing.[16] 

    [15] Exhibit 7

    [16] Exhibit 7

22. The paternal grandmother is reported to have stated:

    We have legal guardianship of the child. 

    It has to be said that the paternal grandmother would have known that she did not have legal guardianship of the child at that time, no orders having been made.  Whether or not there was a plan, or simply the paternal grandparents acting as they saw in the best interests of the safety of the child, is a matter for exploration in final hearing.  There is, in the Department of Family and Community Services notes, this quote:

    [Ms Green] has been cleared by mental health and they are arranging to provide [Ms Green] with money to travel to her father's place.

    There is no reference at that time to why the mother was able to be separated from her 10-week old baby in this way. 

23. On 27 September 2017, Community Services were advised that the paternal grandmother was having the child, the child, minded outside the house.  The paternal grandmother was saying no to contact between the mother and the child.  The paternal grandmother also referred to consent orders, which at that time had been signed, but not made.[17] 

    [17] Exhibit 7

24. On 3 October 2017, there is a police record where police refer to holding fears for the father and child and that the mother had had some kind of:

    …red mist moment –

An application for orders to be made by Consent

1. On 17 November 2017, this matter first came before this Court, before me.  The paternal grandparents and the father were present.  The mother was not present.  The Court was told by the paternal grandparents that the mother was getting a tattoo done on that day, so was not attending.  The Court was also told that the mother had assaulted the paternal grandmother and had poor mental health.  The orders were not made by consent.  An interim order was made for the child to live with the paternal grandparents.  There was no allocation of parental responsibility.  An order was made for the mother to attend on a Family Consultant in order for a report to be made to the Court about the state of her willingness to consent and her knowledge of the orders.

2. The mother attended a Child Dispute Conference with a Family Consultant on 15 December 2017. The mother revealed that she did not agree to the consent orders and wanted her child to live with her. A notification was made by the family consultant to FACS pursuant to section 67ZA of the Family Law Act1975 (Cth). The mother is reported as having presented as respectful and articulate, but she also reported that she had difficulty with literacy, largely due to her not having completed her education, as a result of a very traumatic childhood. The mother was strongly advised to engage the services of G Health Centre to seek a mental health plan and various referrals.

3. On 12 January 2018, a friend of the paternal grandmother, Ms H, with the permission of the paternal grandmother, spoke to the Department.  She said she had been present when the consent orders were signed.  She had attended, on request, to be a witness to the orders.  She said there had been two hours of discussion, during which the paternal grandmother had stated, "…I know my rights."[18]  Ms H also passed the remark that:

   [Ms Green] would be a really good mum with guidance, not criticism.

   That comment, in the event that Ms H gave evidence, may be a matter for exploration at that time.  She is, however, the child's godmother and knows both the child and the mother reasonably well or did at that time.

   [18] Exhibit 7

1. On 16 January 2018, there was an Addendum to the Child Dispute Conference Memorandum.  There was a reference to Community Services' concerns having been expressed to the family consultant, and I quote:

   [Ms K] confirmed that there are 10 people living in the home of the paternal grandparents, but the paternal grandparents continue to go to work and that the subject child, the child, is cared for by the paternal grandmother's nephew's partner, [Ms E], who has three younger children of her own.

2. Ms K agreed with the family consultant that it is not in the child's best interest to be cared for a number of caregivers, due to him needing a primary attachment figure, particularly in this critical phase.  Ms K expressed concern that the child has a "flat head", ie, which may indicate that he has been or is being left in his bed and/or laying down for long periods of time.

3. Despite holding these concerns after visiting the family home, no action in the Children's Court was taken. 

4. On 14 February 2018, orders were made by consent for some supervised times to take place for the mother with the child.  The paternal grandparents were to pay for the costs of one type of supervision, to share the costs of another.  Orders 4 and 5 are somewhat difficult to interpret. 

5. At that stage, there was no application by the mother before the Court.  I will come to that later in these reasons. 

6. On 16 February 2018, the mother was assaulted by her younger brother, punched in the face three or four times, which led to swelling and bleeding. [19]  There was an AVO issued for her protection. 

   [19] Exhibit 5

7. On 18 February 2018, the visits began to be offered by L Group.  Unfortunately, cancellation fees were charged, and that became a contentious issue for L Group and all parties.  On the first occasion, the mother advised that she was sick, although I note that was two days after the assault on her by her brother.  There was then a family death, the death of her grandfather, and at times the mother stated that she had no money to travel.  When the visits did take place, they could only be described as loving and affectionate as between the child and the mother.

8. There was some criticism of the mother taking photos, playing with her phone, but it may be that FaceTiming and photographs were for the mother to keep a record of the child and perhaps to show him off to family members who had not seen him.  That will be a matter for final trial.[20]   

   [20] Exhibit 4

9. On 19 April 2018, Department of Family and Community Services responded to the request for intervention by this Court.  The letter declining intervention contains information which is hard to reconcile and I quote:

   ….As a result, Community Services have held concerns with the spend time arrangements and the level of contact the child has had with his mother since she has left the home.  Further, there are concerns for the child's exposure to the risk issues identified regarding the father, whilst he resides in the same home.

   However, Community Services have been unable to complete the assessment of the child's circumstances for the day-to-day care arrangements or determine the level of risk to the child in the home, due to the paternal grandparents' refusing case workers access to the home and not meaningfully engaging with the assessment process to date.

10. The letter goes on to say:

    As such, ... the department had decided not to intervene in the proceedings at this time. 

    It is hard to understand why even at that stage no action was taken by the department in respect to the safety of the child. 

11. On 15 May 2018, the mother was granted Legal Aid.  Her current solicitor, Dean Russo, then promptly prepared a response document and an affidavit.  That was done and filed by 23 May 2018, which is, to the credit of the solicitor and the mother, given her problems with literacy.

12. A second request was made for the department to intervene.

13. On 20 June 2018, there was a letter to the Court from the department, which said, and I quote:

    Since the orders were made, the paternal grandparents have been in contact with Community Services via their solicitor and arrangements are being finalised to continue the assessment process.  Although Community Services have been unable to complete the risk assessment to date, Community Services accepts that the paternal grandparents have demonstrated some commitment to ensuring contact with the mother and have made some attempts to engage with the assessment process.

    But the letter then went on to say that the department would not be intervening at this time. 

14. By 22 June 2018, the mother had attended two out of three of the events in 1‑2‑3 Magic and Emotion Coaching and was on the waiting list for Circle of Security and Keeping Children Safe.[21] 

    [21] Exhibit 1

Analysis

1. There are risks associated with the child moving to live with his mother.  The mother is vulnerable, on her own account.  She has been exposed to domestic violence as a child growing up.  Her parents separated when she was 10.  The quality of her relationship with each of her parents fluctuates. 

2. There is a report of the mother being sexually abused by her father, although the mother later corrected this and said that report did not refer to her, but to her sister.  I cannot make any finding about that.  Clearly, it would be a matter for final hearing if the maternal grandfather is to be involved in the life of the child. 

3. The mother ceased attending school in year 10 and has not entered the workforce.  She started study at TAFE and would like to finish.  From age 16, she was, between December 2015 and September 2017, a member of the Wearing household.  Unsurprisingly, she was treated as a child in the household, the girlfriend of the Wearing's only son.  That did not change when the child was born.  The affidavit of the paternal grandfather of 13 February 2018 clearly drafted by the paternal grandmother, given the repeated references to "[Mr Wearing] and I" refers to the two grandparents as having named the baby.

4. The paternal grandparents were in a situation of supporting two very young parents and their baby.  The decision of the paternal grandparents was to take responsibility for their son, their grandson and to exclude the mother.  That fact is the counterbalance to the risks associated with the youth, immaturity and lack of support that the mother has had.  To exclude the mother was to deny the emotional need of the child to have a meaningful relationship with his mother.  It is a limitation on their judgment and capacity as proposed parents to the child, for that is effectively their application.

5. One option that was available to them was to cooperate with the Department of Family and Community Services in order to ensure the safety of the child and promote safe relationships between the child and each of his parents.  The paternal grandparents did not choose that course. 

6. The mother has come a long way.  She has managed to participate in these proceedings from the time she first became aware of them late in November 2017.  She was effectively homeless in September 2017 after her exclusion by the paternal grandparents from their home. 

7. She was also cut off from her child, then aged two months.  I am satisfied that nothing in her life experience would have prompted her to think that a solicitor would be of assistance to her or, even if it did, that she would be able to easily achieve that connection alone.  The mother had been dependent on the paternal grandparents for parental guidance, not just accommodation.  No doubt, she was a difficult young person to advise at times, especially when she was heavily using cannabis.  Once she realised the implications of having signed the papers, which the paternal grandparents had directed her to sign, she did all she could.

8. In September 2017, she contacted the department to say she had signed something and was worried about the implications.  She attended on the Family Consultant in December, arriving 40 minutes early, and spoke openly about herself and her state of knowledge.  She has been present for all Court attendances, at first unrepresented and silent; later, legally represented.  She did what was necessary with the assistance of her solicitor to obtain a grant of Legal Aid.  The fact of literacy is a hurdle to full understanding, but I do not doubt her commitment, nor having read the contact reports, her love for the child.

9. Accordingly, I have made orders for, in a progressive way, the child to live with the mother.

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 2 July 2018.

Associate: 

Date:  2 July 2018