Yeager and Darnell and Anor
[2010] FMCAfam 479
•16 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YEAGER & DARNELL & ANOR | [2010] FMCAfam 479 |
| FAMILY LAW – Children – Interim orders – mental health issues – allegations of sexual abuse – indigenous children – application for interim order that the children live with the paternal grandmother – whether unacceptable risk to child. PRACTICE & PROCEDURE – Application by paternal grandmother to be joined as a respondent. |
| Family Law Act 1975, ss.60B, 60CA, 60CC Child Protection Act 1999 (Qld), s.83 |
| Applicant: | MS YEAGER |
| First Respondent: | MR DARNELL |
| Second Respondent: | MS DARNELL |
| File Number: | BRC 1573 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 15 & 16 April 2010 |
| Date of Last Submission: | 16 April 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 16 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carmody |
| Solicitors for the Applicant: | Legal Aid Queensland |
| Counsel for the First Respondent: | Mr Smith |
| Solicitors for the First Respondent: | Cobb Law |
| Counsel for the Independent Children’s Lawyer: | Ms Lyons |
| Solicitors for the Independent Children’s Lawyer: | Lyrene Wiid |
ORDERS
The paternal grandmother MS DARNELL is joined as a respondent to the application.
UNTIL FURTHER ORDER the orders of 24 March 2010 continue with the addition of the following orders:
(a)That the Mother continue to attend upon her current treating medical practitioner Dr O of the [omitted] Medical Centre or in his absence another of the Centre’s medical practitioners not less than once every three weeks with the next such attendance to be on or before 7 May 2010.
(b)That the Mother provide to the Independent Children’s Lawyer on a monthly basis commencing on 14 May 2010 a letter from Dr O or in his absence another of the Centre’s medical practitioners which addresses the issues of the Mother’s compliance with her Mental Health Plan, the Mother’s compliance with any of the directions of Dr O or the direction of another of the Centre’s medical practitioners as the case may be, and the Mother’s well-being particularly with respect to her ability to care for the children.
(c)That the Mother not discontinue any prescribed medication unless so directed by Dr O or another of the Centre’s medical practitioners.
(d)That the Mother arrange for the children to attend the [omitted] Day Care Centre at which they currently attend for one day only for a second day with the parents to share equally in the costs and each parent is to pay the Day Care Centre directly.
Orders 6 to 14 sought in the minute of order filed in Court by the Respondent paternal grandmother on 16 April 2010 are refused.
UNTIL FURTHER ORDER the Mother is to ensure that her partner MR E is not left in sole charge of the children.
The Application is adjourned to 17 June 2010 for further mention before Federal Magistrate Jarrett at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Yeager & Darnell & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1573 of 2009
| MS YEAGER |
Applicant
And
| MR DARNELL |
First Respondent
| MS DARNELL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is the mother of two children, a girl aged just under three years and a boy who just under two years of age. She seeks orders that the children live with her and spend time with the Father on alternate weekends, for half of the school holiday periods (although the children are too young to attend school at this stage) and for certain prescribed times at Christmas. The Father, by his Amended Response filed on 8th April 2010, seeks orders that the children should live with him and he should have sole parental responsibility for them. He also seeks orders that the Mother’s time with the children be severely limited.
The matter has been affected by the fact that the Mother now raises concerns that the daughter appears to have been the subject of abuse by the Father. These claims are set out in paragraphs 9 to 28 of the Mother’s affidavit sworn on 30th March 2010.
The present application
The Father’s mother, i.e. the children’s paternal grandmother, seeks to intervene in the proceedings and to be made a respondent. The orders that she seeks are, in essence, that until further order:
a)The children should live with her;
b)The children should spend time with the Father for two hours each second week commencing 21st April 2010;
c)The children should spend time with the Mother for two hours each second week commencing 28th April 2010;
d)The time the children spend with each parent should be spent at [omitted] Centre and supervised by the staff of that centre; and
e)The children should have telephone communication with each parent once every second week.
The paternal grandmother has filed an affidavit in support of her application in which she gives her occupation as [omitted]. She deposes that she has been involved in working with children and families for about seven years.
The paternal grandmother set out in her affidavit a description of her visit to her son’s home on 28th February 2010. She deposed that she had changed her granddaughter’s nappy and stated that during that procedure the child “did not complain of any pain whilst I was wiping her private areas. I saw no signs of redness or infection”.[1]
[1] Affidavit of Ms Darnell sworn 15 April 2010 at paragraph [13]
She went on to state that at no stage during the day did the child complain of any soreness in those areas. Further, in her affidavit she expressed doubt about the claims in the Mother’s affidavit of the alleged disclosures of abuse, stating that she did not believe that the child was capable of articulating the words attributed to her by the Mother.
The grandmother gave her reasons for applying to become a party to the proceedings at paragraph 24 of her affidavit:
I am applying to become a party to these proceedings as I believe that it is in the best interests of the children that I do so. I am mindful that this is a federal proceeding but I would respectfully refer the court to s.83 of the child Protection Act (Qld) 1999, which requires considerable emphasis on the placement of indigenous children in need of care with the children’s aboriginal family.[2]
[2] Affidavit of Ms Darnell 15.4.2010 at [2]
Mr Smith of counsel, who appeared for the grandmother, obligingly tendered a copy of s.83 of the Child Protection Act.
Submissions
Mr Smith submitted that the fundamental basis for the Grandmother’s application was the safety of the children. The Mother’s mental health is an issue in these proceedings. He submitted that the disclosure of sexual assault was serious but the factual matrix was clouded. In his submission the incident demonstrated a lack of care by the Mother which was “extraordinary on its face”. An inference arose that something happened whilst the child was in the care of the Mother’s partner, Mr E. He submitted that the risk was too great for the children to live with the Mother.
Counsel for the Mother, Ms Carmody, opposed the orders sought, submitting that Ms Darnell would not be a suitable supervisor as she was aligned with the Father. She submitted a minute of proposed orders that would require the Mother to be under stringent medical supervision. The children are still very young and it would not be appropriate to remove them from the Mother’s care.
Counsel for the Independent Children’s Lawyer, Ms Lyons, did not oppose the Grandmother being joined as a party but opposed the other orders sought. She adopted the orders proposed by the Mother and submitted that the children would not be at risk in the Mother’s care. To upend where the children were living was likely to cause harm to them. She did, however, seek an order that Mr E not be the sole carer of the children in the interim period.
Conclusions
I propose to join the paternal grandmother as a party. Subsection 65C(ba) of the Family Law Act provides that a parenting order in relation to a child may be applied for by a grandparent of the child, and the Grandmother has set out in her affidavit her reasons for seeking to be a party.
I am not persuaded that I should make orders removing the children from the care of the Mother and placing them in the care of the Grandmother. Whilst the allegation of abuse to the little girl is a matter of concern, the evidence is that the Mother noted a complaint by the child and a further complaint was reported to the mother by Mr E. The Mother took the child to a doctor and later reported the matter to the Department of Child Safety and the Maroochydore Police call centre.[3]
[3] Affidavit of Ms Yeager sworn 19 March 2010 at paragraphs [5]-[19]
There are no allegations of harm to the other child, who is a little boy. Mr E does not live with the Mother, although he is at her house most days.[4]
[4] Affidavit of Mr E sworn 30 March 2010 at paragraph [2]
The best interests of the children are the paramount consideration in making a parenting order.[5] Subsection 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent.
[5] Family Law Act 1975, s.60CA
Clearly, there is a need to protect the child from physical or psychological harm from being subjected to abuse (s.60CC(2)(b)). The evidence does not lead to a strong inference that there is an unacceptable risk to either child in remaining in the Mother’s care, although I propose to accede to the submission of the Independent Children’s Lawyer that an interim order be made that the children not be left in the sole charge of the Mother’s partner, Mr E.
It would appear to me that the children would be distressed at being removed from the primary care of their mother and not to spend time with her except for a period of two hours a fortnight plus one telephone call in the off week. I am not satisfied that this situation would be in the children’s best interests.
I am of the view that the paternal grandmother would not be an appropriate person to supervise the children in their spending time with either parent. Not only is she aligned with the Father, but she is on affidavit as expressing doubt that the claimed abuse occurred.
The reference to the provisions of s.83 of the Child Protection Act 1999 (Qld) is misconceived. The Act has no application to proceedings under federal law. It is irrelevant. The law to be applied is set out in ss.60B(3) and 60CC(3)(h) of the Family Law Act.
The Applicant’s evidence is that she is compliant with the directions of her medical practitioner, Dr O, who has sworn an affidavit in which he sets out his treatment of her. This includes antidepressant medication and a referral to a psychiatrist.[6] The orders proposed by the Applicant’s counsel appear to me to be appropriate and I note are supported by the Independent Children’s Lawyer.
[6] Affidavit of Dr O sworn 14 April 2010, Annexure “B”
The application will be listed for further mention before Federal Magistrate on 17th June 2010.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 14 May 2010
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