Winton and Dawson

[2013] FamCA 1065

FAMILY COURT OF AUSTRALIA

WINTON & DAWSON [2013] FamCA 1065

FAMILY LAW – CHILDREN – Interim parenting – Application for paternal grandmother’s time with the child to be suspended pending further order – Whether it is in the child’s best interests to continue spending time with his paternal grandmother pending the final hearing – Allegations of harm to the child in the maternal grandmother’s care – Whether the allegations are substantiated on independent evidence – Application to suspend time granted

Family Law Act 1975 (Cth) ss 60CA, 60CC(3)

Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

APPLICANT: Ms Winton

RESPONDENT: Ms Dawson

INDEPENDENT CHILDREN’S LAWYER: Ms Wulf

FILE NUMBER: PAC 6079 of 2007

DATE DELIVERED: 20 December 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 20 December 2013

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Adams & Partners Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Benetatos White Solicitors

Orders

1. The previous order providing for the child to spend time with the Applicant paternal grandmother, Ms Winton, is suspended pending final resolution of the matter.

2. Leave is granted to the parties to approach the List Clerk for the allocation of trial dates when appropriate.

3. Ms Winton is to file and serve one consolidated affidavit by her in proper form by no later than 21 days before the commencement of the trial.

4. Neither party may rely on any documents filed other than in compliance with these orders without leave of the Court and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

5. The parties or either of them have liberty to re-list the proceedings for mention before a Registrar in the event of issues arising in relation to preparation for trial.

6. Where a party wishes to cross examine the Family Report writer at the final hearing, the Independent Children’s Lawyer shall provide written confirmation to the Family Report writer within 14 days from the date of allocation of trial dates and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable the Family Report will be admitted into evidence without cross examination subject only to evidentiary objection.

7. The Independent Children’s Lawyer in consultation with the Respondent is to cause a completed joint chronology to be forwarded to the Court for filing not less than 7 days prior to the commencement of the trial.

8. Each party file and serve an outline of case document not less than 7 days prior to the commencement of the trial setting out:

   (a)a precise Minute of Orders sought;

   (b)a list of documents to be read in their case;

   (c)a brief summary of argument touching upon the matters set out s 60CC of the Act with reference to the relevant evidence relied on;

   (d)a list of authorities to be relied upon.

9. The proceedings be listed for a readiness check before a Registrar on a date to be fixed.

10. In the event of any applicable setting down and/or hearing fee not having been reduced on the basis of financial hardship, the Applicant and Respondent shall pay any such fee equally no later than 21 days after the allocation of trial dates by the List Clerk.

NOTATIONS – TRIAL PLAN

Witnesses

1. It is noted that the following witnesses are to be called on behalf of the parties:

   (a)Applicant

   (i)Applicant paternal grandmother.

   (b)Respondent

   (i)Respondent, maternal grandmother;

   (ii)Ms B;

   (iii)Dr C.

Length of hearing

1. It is noted that the parties anticipate that the final hearing will take approximately three days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Winton & Dawson 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 PARRAMATTA

FILE NUMBER: PAC 6079 of 2007

Ms Winton

Applicant

And

Ms Dawson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This is an application for interim orders in relation to B (“the child”), who is 10 years old, and the grandchild of each of the parties.  The parties have been in dispute over the child for almost all of his life.

2. The current application arises in the third set of parenting proceedings relating to the child, which were commenced in February 2012 in E Town Local Court, transferred to the Federal Magistrates Court, as it then was, and then this Court in April 2012.

3. In August 2012, on the first day of the Less Adversarial Trial, orders were made by Loughnan J which provided for the Respondent maternal grandmother (“Ms Dawson”) to have sole parental responsibility for the child, for the child to live with Ms Dawson and for the child to spend time with the Applicant paternal grandmother (“Ms Winton”) in school holidays and on particular weekends.

4. There have been ongoing disputes with respect to the care of the child from at least the commencement of the first proceedings in 2005, but from what I have been told today, the evidence supports that it predates even that.  At that stage, the child was an infant.  There have also been ongoing disputes with respect to the time the child spends with Ms Winton. 

5. In addition, I have expressed my own concerns about whether living with either of the parties is in the best interests of the child, and I invited the Director-General of the Department of Family and Community Services to intervene.  Although the Court has not been formally notified, I understand through information given to the Independent Children's Lawyer, but not to the Court, that the Director-General will decline to intervene.

6. There are many matters in dispute between the parties, and they will not be able to be resolved, if even then, until the final hearing, which is still yet to be fixed. 

7. This application is made in the context that school holidays have just commenced, and the child is due, under current Orders, to spend time with Ms Winton.  Although it has been described as an application to suspend the Orders providing for the child to spend time with Ms Winton, in fact, it is an application for sole parental responsibility to Ms Dawson, that the child live with Ms Dawson and spend no time with Ms Winton. 

The undisputed facts

1. The undisputed facts in this matter are that there were initial concerns from shortly after the child’s birth of neglect, inadequate supervision and maternal drug and alcohol abuse, which resulted in the Department of Community Services, as it then was, intervening and placing the child under the care of his maternal grandmother, Ms Dawson, from two years of age.

2. From December 2004, most of the concerns made to and investigated by the Department of Community Services, which formed the basis of the first proceedings, related to allegations of sexual assault on the child.  Initially, these allegations were said to have been perpetrated by Ms Dawson’s partner, and were investigated by the Joint Investigative Response Team, but determined to be a malicious report. 

3. In June 2005, there was a five-day hearing, and as a result, the child was to live with Ms Dawson, who had parental responsibility for him, and to spend supervised time with his father, and time with Ms Winton. 

4. Subsequently, Ms Dawson made allegations of sexual harm by the child’s father in 2007, which were also investigated by the Department of Community Services and found not to be substantiated.  This issue also formed the basis of Ms Dawson’s application in the second proceedings.

5. The second proceeding commenced in November 2007.  Throughout 2008, there were allegations of neglect and physical harm relating to Ms Dawson’s care of the child, and also allegations of sexual harm by the child’s brother.  The allegations of sexual harm were investigated by the Department of Community Services, and in 2009, were also found not to be substantiated. 

6. A report was prepared by Dr C in May 2009, following the parties appointing him by consent.  At that time, the doctor’s recommendations included that there be no sexual abuse counselling allowed, that the respective grandparents have counselling to assist them with the current circumstances, circumstances supporting contact with the other family, and to understand the child is not a prize and that they are potentially damaging him by their internecine battle over him.

7. The doctor recommended that the Department oversee management of the child because of the conflict between the families and their battle over him.  If further spurious allegations and counter-allegations of abuse were made, the doctor was of the view that it may be necessary for the child to change residency, or the Department to take the child into foster care. 

8. In December 2009, final Orders were made by consent in the second proceedings, once again for the child to live with Ms Dawson, who was allocated sole responsibility for him, and to spend time with the mother, father and Ms Winton. 

9. Following the second proceedings and Orders made by consent, further allegations were made by both grandparents against the other in relation to the care of the child, including neglect, physical harm, Ms Dawson’s alcohol misuse and poor school attendance.

10. In January 2010, Ms Winton took the child to the local police to report alleged abuse and the police took out an interim Apprehended Domestic Violence Order for the protection of the child against Ms Dawson.  At the commencement of 2010, Ms Winton did not return the child to Ms Dawson’s care in accordance with the Orders after school holiday time and enrolled him in a local school in a different area under a changed name.  Ms Winton, also at this time, commenced the current proceedings in the Local Court and Orders were made for the child to live with her. 

11. Subsequently, when the matter was transferred to the Federal Magistrates Court, as it then was, an Independent Children's Lawyer was appointed.  In the Local Court, the interim Apprehended Domestic Violence Order was discharged. 

12. On 30 April 2012, the Federal Magistrate, as she then was, reinstated previous Orders giving Ms Dawson sole parental responsibility and ordered that the child live with her and spend time with other family members, including Ms Winton.  

13. In August 2012, the first day of the Less Adversarial Trial took place before Loughnan J.  The issues related to neglect, physical abuse in either household, exposure to risk of sexual abuse, impact of the grandmothers’ conflict on the child, domestic violence at Ms Dawson’s home, alcohol consumption in both grandparents’ homes and ability of the parties to meet the child’s physical and emotional needs, as well as the child’s school attendance, including multiple changes of school. 

14. Interim Orders were made in August 2012, discharging previous Orders in respect of the child’s time with Ms Winton, and provided for the child to spend time with her in the school holidays and each third and sixth weekend of each school term. 

15. There has been significant conflict over issues relating to both changeover and spending time with Ms Winton. 

16. On 19 February 2013, an updated report of Dr C was ordered by consent.  The report was prepared on 30 May 2013 and was released on 18 June 2013.  The doctor’s recommendations at this time were for the child to continue to live with Ms Dawson.  It was his view that Ms Dawson had heeded the recommendations in respect of making allegations and involving authorities, but Ms Winton had not.  In light of this, the doctor recommended that there be no contact between the child and the paternal family for six months, except telephone contact once a week.  If no further allegations were made following that six-month period then monthly weekend contact could resume.  The doctor still recommended counselling for the respective grandparents in respect of the ongoing battle over the child.

17. In the course of proceedings before me on 19 September 2013, the Applicant in the substantive proceedings, Ms Winton, repeated claims relating to the risk of harm to the child whilst in Ms Dawson’s care, which formed the basis of her application.  However, rather than simply assert that the child ought to be in her care, she also supported the Department’s intervention, even if it meant that the child was not in either her care or the maternal grandmother’s care. 

18. On that occasion, the Independent Children’s Lawyer also expressed concern about the child’s current living circumstances.  The Independent Children's Lawyer said it was not clear who was residing in the home where the child lives and who was actually caring for the child on a day-to-day basis.  She was concerned that Ms Dawson was spending significant time in Sydney, away from the home.  She was concerned that the child may be under the care of his mother, who has a brain injury, and who has not participated in these proceedings. 

19. The Independent Children's Lawyer requested the Court invite the Department of Family and Community Services, as it now is, to intervene in the strongest terms. 

20. On 19 September 2013, I made an order pursuant to section 91B of the Family Law Act1975 (Cth) (“the Act”), requesting the Director-General of the New South Wales Department of Family and Community Services to intervene, and subsequently published my reasons for Judgment.

21. According to the documents produced on subpoena from a medical practitioner to whom the child was taken by Ms Winton in late September 2013, allegations continued to be made by her of physical abuse and inadequate food being provided by Ms Dawson, which, according to that letter from the doctor, the child reported as being true.  The doctor, however, found no signs of neglect. 

22. According to the child’s school records, the child had no absences from school in the first two terms of 2013, and five unexplained absences in the last two terms of 2013.  Ms Dawson says the child missed one week of school as a result of Ms Winton unilaterally retaining him. 

23. On 10 October 2013, caseworkers from the Department of Family and Community Services interviewed representatives of the child’s school, who said he was generally a good student, was dressed appropriately and provided with adequate food. 

24. The child was also interviewed by the Department at his school on 15 October 2013.  The child revealed no concerns at home with Ms Dawson and said he did not want to go to his grandmother, which was Ms Winton, in the holidays because she tells him that he is not ever going home.  There were some matters of concern reported by the child such as that he is smacked with a belt if he is really naughty.

25. On 17 October 2013, caseworkers from the Department carried out a home visit at Ms Dawson’s home and found no concerns in relation to living conditions or nutrition provided in the home.  Investigations carried out by the Department as a result of the notifications in October 2013 resulted in the Department having no concerns relating to the child.

26. In her affidavit filed in the substantive proceedings, upon which she relies in the proceedings, Ms Dawson relates many years of issues relating to ongoing difficulties with Ms Winton over the child’s time with Ms Winton, over changeover, over Ms Winton withholding the child and communication problems, all of which seem to be matters disputed by Ms Winton.  Ms Dawson says that she is unaware of any health issues, in particular, mental health issues, in relation to the child, and denies any drug and alcohol misuse.  Most of these matters are also in dispute.

27. Ms Dawson also makes allegations about the child’s experiences and complaints about time with Ms Winton, including being subject to physical abuse, which is also disputed.  Ms Dawson also gives evidence of her current circumstances, to the effect that she provides an appropriate and nurturing environment for the child, ensures that he attends school, and that he participates in homework club.  She also refers to a recent settling in the child and him not being as troubled as he previously was, in particular since the time with Ms Winton has been suspended by agreement. 

28. Ms Winton, in her statutory declaration, which I have read, but to which I attach very little weight, essentially restates the entire history of disputes between herself and Ms Dawson.  She refers to matters going back to 2004 and, essentially, remakes all of the allegations, including about matters which have been settled in previous proceedings.  Really, virtually nothing in the statutory declaration is accepted by Ms Dawson and, essentially, everything is in dispute.

29. I do have some concerns arising from some of the documents that Ms Winton has annexed, in that it is clear that some people, including some people of some significant authority, certainly, attest to her good care of the child and concern about the child.  These include a social worker from the E Health Service, who describes Ms Winton as having nothing but a passionate interest in the child’s welfare in the future, a medical practitioner at the F Medical Centre, who refers to the child seeming fearful when the question of going back to Ms Dawson is raised, and particularly concerns that the child was referred to and, in fact, treated by various health professionals, including psychologists, in 2012.

30. Certainly, in those reports the child makes some very serious complaints about Ms Dawson.  Other doctors draw conclusions, it would seem, purely on the basis of what Ms Winton tells them.  It is clear from the report of Dr C that this child has been deeply affected by his exposure to the conflict between the parties.  Not only is he conscious that it is going on, but he is also subjected to the impact of continued allegations, often of a very unpleasant nature, being put to him, to him being interviewed, medical appointments and various interventions.

31. At the time that Dr C wrote his first report he was concerned that this was, in fact, a form of harm being perpetrated by both parties.  It is clear from the more recent report that it is only Ms Winton who continues to behave in this way, and it would appear that Ms Dawson has gained some insight into the way in which constant allegations, virtually all of which are found to be untrue, impact upon the child.  On the basis of the material attached, in particular the subpoenaed material handed up to me, it would appear that the child is currently doing quite well in the care of Ms Dawson, and he certainly seems to have been settled since he has, again, not been having any time with Ms Winton.

32. Certainly, what is being sought is quite a dramatic order, and in making that order the Court can only have regard to the matters which are not in dispute, as these are interim proceedings and also must have regard, of course, to the matters set out in the Act in Part VII dealing with parenting orders. In this matter, the order sought is also supported by the Independent Children’s Lawyer, and both legal practitioners stress that in the history of the matter, even though such an order as is sought, would mean that the child would have no contact with his paternal grandmother, it is not meeting his best interests for that time with her to be occurring.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1], and in applying the law to the uncontested facts and having regard to the matters in contest the Court, of course, must uphold the relevant objects and principles in the part of the Act dealing with parenting.

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In this particular matter, in my view, the most pertinent of the objects and principles are protecting the child, in this case, from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and ensuring the child receives adequate and proper parenting to help them achieve their full potential.

1. Section 60CA provides that in deciding whether to make a particular parenting order, and an interim order is a parenting order in relation to a child, I must regard the best interests of the child as the paramount consideration.

2. In relation to the section 60CC factors as to the primary considerations, the first is the benefit of the child having a meaningful relationship with both of the child’s parents. It is clear from case law in the Full Court that that is not to be elevated and applied to non‑parents in the same fashion.

3. In my view, the only primary consideration which applies and is very significant in this matter is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  In this case, this child has been subjected to psychological harm and has been exposed to emotional abuse. 

4. As far as the additional considerations, set out in s 60CC(3), are concerned, subparagraph (a) concerns the views of the child. In this matter it is extremely difficult to know the views of the child, and I agree with the submission that the child seems to express the view that best supports the person he is with at the time. There are likely to be deep‑seated psychological reasons for doing that, and also, taking into account his age, I do not attach any weight to his views.

5. As to the relationship between the child and each of the grandparents (subparagraph (b)), in my view, it appears that he has quite a good relationship with Ms Dawson, his maternal grandmother.  He refers to her as “Mum” and seems to be very comfortable in her company.  He probably also has quite a good relationship with the paternal grandmother, despite all of the concerns.  But it is, in my view, quite clearly an emotionally-damaging relationship. 

6. This is not a matter, really, where the issue about participation in making decisions about the long‑term issues in relation to the child, or spending time or communicating, is significant.  Certainly, in fact, the whole conflict in this matter seems to arise from the fact that each of the parties wants to spend more time with and have the child in their care.  The harm relates to that matter.

7. There is no particularly great change in the child’s circumstances (subparagraph (d)) that would arise as a result of the order sought to suspend the paternal grandmother’s time on an interim basis, except that the child would see his paternal side of the family less.  But it would seem that the other areas of concern outweigh that, though I do take that into account. 

8. The capacity of Ms Dawson to provide for the child (subparagraph (f)) has been demonstrated, notwithstanding some of the complaints of Ms Winton.  This child has gone to school.  He has gone regularly.  She has recognised other things that might help him, like being part of a homework club.  He is well nourished, certainly, and there appear to be no matters of complaint, other than from Ms Winton.  He seems, in all of the circumstances, to be doing reasonably well, and I find that her capacities have been demonstrated to be at least adequate in the circumstances. 

9. In terms of the lifestyle of the child (subparagraph (g)) and the next factor, about the child being an Aboriginal child (subparagraph (h)), certainly, on the evidence before me Ms Dawson appreciates the issues related to the strength that the child gets from his Aboriginal identity and what his culture is able to offer him, whereas, it appears that there is at least an allegation that Ms Winton has behaved in a denigrating fashion in relation to Aboriginal culture.

10. The issue of family violence (subparagraphs (j) and (k)) has certainly been around in the past, but it does not seem to be currently a concern. 

11. I take all of these matters into account, and particularly attach weight to Dr C’s report.  It is current, he has a good grasp of history of the matter, and he gives expert opinions about the ongoing harm from the conflict itself and from the allegations and investigations that relate to it.  I also take into account the fact that Ms Dawson is the person who has stopped that kind of behaviour, and am of the view that the best interests of the child will be met by making the order sought.

12. At the end of the day I do think, on balance, that it is better to express it in terms of suspending the current Orders providing for time between the child and his paternal grandmother.  Otherwise, the wording of the order may give rise to ambiguity.  I will therefore order that the previous Order, providing for the child to spend time with the paternal grandmother, is suspended pending final resolution of the matter.  The other current Orders simply remain in place.

13. The orders that I make are as set out at the forefront of these reasons for Judgment, including directions to prepare the matter ready for final hearing.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 December 2013.

Legal Associate:       

Date:    31 January 2014