WINTON & DAWSON (EX TEMPORE)

[2013] FamCA 1169

FAMILY COURT OF AUSTRALIA

WINTON & DAWSON (EX TEMPORE) [2013] FamCA 1169

INTERVENTION - Request for Director-General of the Department of Family and Community Services to intervene - Reasons behind order pursuant to Section 91B of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth)

APPLICANT: Ms Winton

RESPONDENT: Ms Dawson

INDEPENDENT CHILDREN’S LAWYER: Ms Wulf

FILE NUMBER: PAC 6079 of 2007

DATE DELIVERED: 19 September 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 19 September 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Mr Lennon as agent for Adams & Partners Lawyers

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

Orders

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

   (a)In the event that the Director-General intervenes, he is to file and serve a Notice of Intervention by no later than close of business on 4 November 2013.

2. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Director-General of the NSW Department of Family and Community Services, or his delegate, to inspect and copy any documents on the Court file forming part of the Court record.

3. The matter is adjourned to 5 November 2013 at 9.30 am.

   (a)For that occasion, the parties are to prepare a list of witnesses and a brief case outline to assist the Court in making trial directions.

   (b)Personal attendance of the Respondent is not required.

   (c)Leave is granted to the Applicant to attend by telephone, however, it is noted that she has indicated that she will attend in person. In the event that she chooses to attend by telephone, she is to advise the Court of her contact telephone number in advance of the listing.

4. The current Orders are to continue until the next occasion.

5. Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as she considers relevant to the issues before the Court, without further leave of the Court.

6. Subject to any objection as to privilege, leave is granted to the Independent Children’s Lawyer to have photocopy access to documents produced on further subpoena in the proceedings.

7. The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

Notation:

1. The Independent Children’s Lawyer is to ascertain the availability of Dr C in respect of final hearing dates.

IN CHAMBERS

1. The Independent Children’s Lawyer is at liberty to provide any relevant document, produced on subpoena, to the Director-General of the Department of Family and Community Services as she considers appropriate in relation to Order 1 of the substantive Orders made this day.

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

1. On 19 September 2013, I made an order pursuant to section 91B of the Family Law Act 1975 (Cth) requesting the Director-General of the NSW Department of Family and Community Services to intervene in these proceedings. In chambers, I made a further Order that the Independent Children’s Lawyer is at liberty to provide any relevant document produced on subpoena to the Director‑General of the Department of Family and Community Services that the Independent Children’s Lawyer considers appropriate. These are my reasons for those Orders.

2. The child, D, born 2003 (“the child”), who is currently 10 years old, has been the subject of family law proceedings between his maternal and paternal grandmothers (Ms Dawson and Ms Winton respectively) for much of his life.

The history of proceedings

1. In June 2005, there was a five day hearing (“the first proceedings”) and as a result the child was to live with his maternal grandmother, who had parental responsibility for him, and to spend time supervised time with his father and time with his paternal grandmother.

2. The second proceedings commenced in November 2007 and the matter was placed in the Magellan program in January 2009.  In December 2009, Final Orders were made by consent in the second proceedings for the child to live with his maternal grandmother, who had sole parental responsibility for him, and to spend time with the mother, father and paternal grandmother. 

3. In February 2012, the paternal grandmother commenced the third proceedings, initially in the Local Court in Town E.  These proceedings were transferred to the Federal Magistrates Court (as it then was) and then to the Family Court of Australia.  In April 2012, the Final Orders of Benjamin J were reinstated by the Federal Magistrate, that is, for the child to live with the maternal grandmother and for the maternal grandmother to have sole parental responsibility for the child, amongst spend time with Orders.

4. In August 2012, interim Orders were made discharging some of the previous Orders.  The orders provided for the paternal grandmother’s time to be for half of each school holiday period and each third and sixth weekend in each school term, for the father to spend time with the child during his time with the paternal grandmother, and various restraints placed upon the parties (such as restraining excessive consumption of alcohol whilst the child is in each of their care, and against physical punishment).  The maternal grandmother continues to have sole parental responsibility for D.

5. The final hearing dates for the third and current proceedings are yet to be fixed. 

Concerns about abuse and neglect

1. There were initial concerns from shortly after D’s birth of neglect, inadequate supervision and maternal drug and alcohol abuse, which resulted in the Department of Community Services (as it then was) intervention and D living with the maternal grandmother from two years of age and ultimately Orders in the Family Court for parental responsibility. 

2. From late 2004, most of the concerns made to and investigated by the Department of Community Services, and which formed the basis of the first proceedings, related to allegations of sexual assault on D.  Initially these allegations were said to have been perpetrated by the maternal grandmother’s partner and were investigated by the Joint Investigative Response Team (“JIRT”) but determined to be a malicious report.

3. Subsequently, the maternal grandmother made allegations of sexual harm by D’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 the maternal grandmother’s application in the second proceedings.

4. Throughout 2008, there were allegations of neglect and physical harm made relating to the maternal grandmother’s care of D, and also allegations of sexual harm by D’s brother.  The allegations of sexual harm were investigated by the Department of Community Service and in 2009, were also found not to be substantiated. 

5. 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, 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”.  The Doctor recommended 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 it may be necessary for the child to change residency or the Department to take the child into foster care.

6. 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 D, including neglect, physical harm, the maternal grandmother’s alcohol misuse and poor school attendance.  In early 2010, the paternal grandmother took D to the local police to report alleged abuse and the police took out an interim Apprehended Domestic Violence Order for the protection of D against the maternal grandmother. 

7. At the commencement of 2010, the paternal grandmother did not return D to the maternal grandmother’s care in accordance with the Orders after school holiday time and enrolled him in local school in a different area under a changed name.  The paternal grandmother also at this time commenced the current proceedings in the Local Court and Orders were made for D to live with her.  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.

8. In April 2012, the Federal Magistrate (as she then was) reinstated the Orders giving the maternal grandmother sole parental responsibility and ordered that the child live with her and spend time with other family members, including the paternal grandmother.

9. In August 2012, there was a First Day of the Less Adversarial Trial before Loughnan J.  The issues related to neglect, physical abuse in either household, exposure to risk of sexual abuse, impact of grandmothers’ conflict on D, domestic violence at the maternal grandmother’s home, alcohol consumption in both grandparent’s homes, ability of parties to meet D’s physical and emotional needs and D’s school attendance, including multiple changes of school.  

10. Interim Orders were made in August 2012 discharging previous Orders in respect of D’s time with his paternal grandmother, and for the child to spend time with her in the school holidays and each third and sixth weekend of each school term.

11. 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 expert’s recommendations at this time were for the child to continue to live with the maternal grandmother.  It was his view that the maternal grandmother had heeded the recommendation in respect of making allegations and involving authorities, but the paternal grandmother had not.  In light of this, the Doctor recommended there be no contact between the child and the paternal family for six months, except telephone contact once a week.  If no further allegations had been 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.

12. I am concerned that whilst the making of allegations and reports to the Department of Family and Community Services (as it now is) may have been reduced, the underlying concerns about D’s care still remain and D may not be adequately protected from harm.

19 September 2013 proceedings before me

1. In the course of the proceedings before me on 19 September 2013, the Applicant in these proceedings, Ms Winton (“the paternal grandmother”), repeated the claims relating to the risk of harm to D whilst in the maternal grandmother’s care, which formed the basis of her application.  However, rather than simply assert that D 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 or the maternal grandmother’s care.

2. On this occasion, the Independent Children’s Lawyer also expressed concern about D’s current living circumstances, including his difficulties at school, possibly as a result of suspensions due to his behaviour, him being involved in offending in the community, including breaking into property and violence, and also being exposed to violence in the home. 

3. In addition, the Independent Children’s Lawyer said that it was not clear who was residing at the home and actually caring for D on a day-to-day basis.  She was concerned that the maternal grandmother was spending significant time in Sydney away from the home.  She was concerned that D may be under the care of his mother, who has an injury and who has not participated in the current proceedings.

4. The Independent Children’s Lawyer based her concerns on the fact that it was very difficult to obtain information from the maternal grandmother, and bank records of the maternal grandmother, that she did eventually obtain, indicated that the grandmother had spent time between Sydney and the home.  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.  She has concerns in respect of D living with either grandmother.

5. It is clear that in the past, the Department has not intervened.  It would appear that the allegations of sexual harm, in particular, have been found to have no foundation.  However, over the years, there have also been persistent allegations in relation to neglect, school attendance and other matters relating to the care of D other than sexual abuse, and it is not clear that these have been investigated.

6. The concerns in relation to D offending are entirely new.  These concerns, in combination with the other allegations concerning neglect, poor supervision, poor school attendance and exposure to violence, many of which have been persistent throughout D’s life and may not have been investigated, form the basis of the order requesting the Director-General of the Department to intervene.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered in chambers on 19 September 2013.

Associate: 

Date:    2 October 2013