Arrest warrant – Mother incapable or unwilling to participate

Arrest warrant – Mother incapable or unwilling to participate

Crane & Hayward

Summary – Interim arrangements for care of child aged 2 years and three months – child in the care of respondent mother since birth – applicant father incarcerated at time of child’s birth – father has spent no time with the child – father commenced proceedings seeking parentage testing and to spend time with child – proceedings personally served on mother – mother has failed to attend court voluntarily – mother brought to court compulsorily via arrest warrants on two occasions – mother has indicated her willingness to undergo parentage testing but has failed to comply with testing procedure – mother apparently incapable or unwilling to take part in the proceedings – given mother’s failure to engage in proceedings inference drawn applicant is father of the child – mother has failed to attend at child dispute resolution conference – father has concerns that mother has substantive abuse problems mental health issues and is neglecting child – concerns confirmed by subpoenaed documents – independent children’s lawyer appointed – request made to child welfare authorities to intervene pursuant to section 91B – invitation declined – independent children’s lawyer concerned in respect of notifications of abuse received by department – further warrant issued for mother’s arrest – how to get mother to become engaged with proceedings – practical considerations – Kafkaesque disconnect between this court’s proceedings and child welfare authorities –best interests – court requesting help.

1. This case represents both a common conundrum and a perennial source of frustration for the court. It also demonstrates, in my view in stark terms, the dangers for vulnerable children of falling between the cracks (some might say the chasm), which arise between the Commonwealth based and funded system for resolving disputes between parents, regarding care arrangements for their children and the state based and funded system for ensuring the fundamental protection of children from coming to serious harm, either because of their parents’ actions or those of others.
2. On the one hand, there are the Family Law Courts, funded by the Commonwealth of Australia, of which the Federal Circuit Court is one, which apply the provision of the Family Law Act 1975 (Cth). On the other hand, in the state of South Australia, there is the Department for Education & Child Development (Families SA), which is responsible for child protection and applying the provisions of the Children’s Protection Act 1993 (SA). In my experience, numerous children fall within the potential purview of both systems. However, some may fall between the two systems and so not receive the attention, which their welfare and circumstances requires.
3. The applicant in these proceedings is Mr Crane. It is convenient to refer to him as “the father”. I mean Mr Crane no disrespect but he cannot be regarded as a model citizen, as he has a number of serious and recent prior convictions for criminal and traffic offences.
4. The respondent to the proceedings is Ms Hayward “the mother”. There is no controversy that Ms Hayward is the mother of the child, who is the subject of the proceedings. He is X born (omitted) 2014. As far as I am able to understand, X is currently living with Ms Hayward and has done so since his birth.
5. Besides X, Ms Hayward has five other children, aged between 15 years and 5 years. They are A, B, C, D and E. I am unsure of the identity of the father of all of these children. It is Mr Crane’s evidence that the father of E, D and C is Mr D.
6. Mr Crane and Ms Hayward commenced a relationship in mid-2013, after Ms Hayward and Mr D had separated. It is Mr Crane’s evidence that Mr D had been violent towards Ms Hayward on many occasions.
7. In his affidavit, Mr Crane concedes that both he and Ms Hayward used intravenous methamphetamines, on a daily basis, during their relationship. It is his evidence, which I approach with some caution, that Ms Hayward had a greater degree of reliance on drugs than he did but both of them provided care for Ms Hayward’s children whilst under the influence of the drug.
8. On 16 April 2014, some two months prior to X’s birth, Mr Crane was arrested for trafficking a controlled drug; causing serious harm by dangerous driving; and dishonesty taking property without consent. He was remanded in custody, but was released, on home detention, on 11 September 2014. I understand the drug charge was resolved in his favour.
9. It is his evidence that this period of incarceration resulted in him being able to end his dependency on drugs and, with the assistance of Narcotics Anonymous, he remains drug free. He has since obtained employment, which is to his obvious credit. As a consequence of his employment, he now no-longer qualifies for legal aid, although he did when the case commenced.
10. He is funding the current proceedings, which have cost him around $3,000.00 to date. I accept that this is an indication of the level of his concerns about X and his fervent desire to have some form of relationship with him. The fact remains that there is no such relationship at present.
11. Mr Crane commenced these proceedings, on 12 February 2015, seeking to spend regular periods of time with X. Given the circumstances of the parties’ relationship, he also wished that the issue of X’s parentage be determined beyond any shadow of scientific doubt. He had been apparently advised, by a mutual acquaintance of both he and Ms Hayward, that he was not X’s father. As a consequence, he sought that each party and X undergo a prescribed parentage testing procedure.
12. This parentage test has never taken place. This is because Ms Hayward has taken no useful part in these proceedings, although why this is so – whether as a result of obstinacy; social disadvantage; drug addiction; psychological impairment; or a combination of all these factors; or for some other, as yet, undetermined reason; – has not as yet been established.
13. Mr Crane’s application was first returnable on 4 May 2015. The mother was personally served with this application, at an address in suburban Adelaide, on 19 February 2015. The process server, who served the documents on Ms Hayward, recorded having the following conversation with her:
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    “Are you Ms Hayward? “Yeah”. Do you recognise the name Mr Crane? “Yes”. Do you and Mr Crane have a child together? “Well hmmm”.”^[1]

14. Ms Hayward did not attend court on the first return date of the application. She had apparently contacted the father’s then solicitor and advised that she would not be able to come to court because one of her children was ill. In the circumstances, it was ordered that she file a response and affidavit within 28 days and that the parties and X undergo a parentage testing procedure, with Mr Crane to pay the initial costs of the test so ordered.
15. Ms Hayward did not comply with any of these orders and did not attend court on the next adjourned date which was 22 July 2015. During this period, it appears to be the case that the then solicitors for Mr Crane lost contact with Ms Hayward, in the sense that it became apparent that she was no longer living at the address at which she had been initially personally served with the proceedings.
16. In these circumstances, on 22 July 2015, orders were made for information to be conveyed to Ms Hayward, particularly in respect of directions made by the court, through electronic means delivered to what was believed to be her email address. This did not result in either answering documents being filed or Ms Hayward coming to court.
17. Ultimately, application was made, on Mr Crane’s behalf, for a Commonwealth Information Order. A Commonwealth Information Order is an order of the court directed to a commonwealth instrumentality to provide information to the court about the whereabouts of a child which is available to the instrumentality concerned from its records.
18. For obvious reasons, where a person who is the custodian of a child is also receiving a Commonwealth allowance, Centrelink is likely to have information about the whereabouts of any child in that person’s care. The court should not make such a Commonwealth Information Order, unless it is persuaded that it is in the best interests of the child concerned to do so [see section 67L].
19. These interventions were fruitless in securing the attendance of Ms Hayward at court of her own volition. Ultimately, out of frustration the court issued a warrant for her arrest. At the same time, as a consequence of Mr Crane’s concerns about Ms Hayward’s conduct and its potential implications for X, he instructed his solicitors to direct subpoena to the Department for Education & Child Development (Families SA) which, as previously indicated, is the South Australian government authority for administering the child protection scheme within the State of South Australia.
20. Following the issue of the information order, on 30 September 2015, the court orders were served on the address provided by Centrelink and Ms Hayward was directed to attend at court on the adjourned date (14 October 2015) or otherwise a warrant would issue for her arrest. The intent of this order was to place Ms Hayward on notice that she was required to attend at court in person otherwise she would be brought there compulsorily.
21. As indicated above, this order did not achieve its objective. Ultimately, officers of the Australian Federal Police executed the warrant and brought Ms Hayward to court, in custody, on 3 November 2015. Ms Hayward presented well in court. She was deeply apologetic. She did not appear drug affected or disorientated in any way. Rather, she indicated that she had simply elected to ignore the proceedings which she conceded was remiss of her.
22. In these circumstances, she readily agreed to undergo the parentage testing procedures ordered on the earlier occasion. It was clearly explained what she needed to do to complete the test which was attend at the pathology laboratory nominated with X and undergo a painless oral swab to extract DNA, in saliva form, for testing.
23. In the order, which ultimately issued from the court, she was provided with the telephone number of the relevant laboratory and its address. She also agreed to register at the most convenient children’s contact centre, in the event that the parentage test revealed that Mr Crane was X’s father.
24. In these circumstances, I was prepared to release Ms Hayward on a reconnaissance on the condition that she obey the court order to which she had agreed and attend court on the adjourned occasion. Ms Hayward did apparently ring the relevant laboratory but did not follow through with the necessary appointment for testing for both her and X. The manager of the laboratory indicated, in a letter tendered to the court, that she had sent Ms Hayward details to her email address and left several telephone messages on her voicemail but to no avail.
25. I was perplexed that Ms Hayward had not done what she had undertaken to do and which, from my perspective, seemed not unduly oppressive. On 16 February 2016, in these circumstances, I issued a further warrant for Ms Hayward’s arrest. This was executed on 22 February 2016 and, once again, Ms Hayward was brought back before the court. Again, she was equally apologetic and promised to undertake the necessary test.
26. Ms Hayward presented as an intelligent person. Certainly, I considered that she would be able to navigate from her home to the relevant pathology laboratory. She and I, with the assistance of Mr Crane’s solicitor, discussed the location of the relevant laboratory at (omitted) and how Ms Hayward could get there. She indicated that she would be able to do so and agreed that it was in everybody’s interest, particularly X, that the issue of his paternity be resolved sooner rather than later.
27. Once again, Ms Hayward was released on a reconnaissance. Once again, she disregarded both her oral undertakings to the court and the obligations arising from the orders of the court. When the matter returned to court in March of 2016, all concerned were perplexed as to what should happen next. It is not an ordinary occurrence that a person who is apparently well mannered and sensible should have to be brought compulsorily to court by police on two occasions.
28. I decided to see if another approach might be more successful. In these circumstances, I directed that the parties attend a child dispute resolution conference. The conference was scheduled for 9 June 2016. Mr Crane and his mother attended. Ms Hayward did not and efforts to contact her by telephone were unsuccessful.
29. The difficulty in the case is self-apparent. Mr Crane and X have never lived in the same household. Indeed, so far as I know, the two have never even met one another. In such circumstances, for obvious reasons, it would be highly unpalatable to remove the child from Ms Hayward’s care and place him with Mr Crane, so some form of relationship may be formed through compulsion.
30. On the other hand, for understandable and human reasons, it is only natural that Mr Crane would want to have some form of relationship with a person, whom he believes to be his biological progeny. Mr Crane was also concerned, from his own experience of Ms Hayward and what he had gleaned from Families SA, at the level of care X was likely to be receiving from his mother.
31. One of the primary functions of the court, exercising jurisdiction under the Family Law Act, is to resolve dispute between parents regarding what are the appropriate arrangements for the care of their children. It does so by the making of parenting orders. In making a parenting order the best interests of the child, who will be affected by the order in question, are the paramount or most important consideration.
32. The court has available to it mechanisms to deal with situations in which a party to proceedings fails to take part in them appropriately. Pursuant to Rule 13.03B of the Federal Circuit Court Rules, if a respondent to an application in the court fails to file a response or otherwise comply with court orders, the court may give judgment or make any other order against the respondent concerned.
33. Clearly, it is not likely to be in X’s best interests to make some form of default order, regarding his care arrangements, in favour of Mr Crane, because of Ms Hayward’s various forms of default in respect of the court’s orders. The difficulty being that the court and indeed Mr Crane were largely operating in a vacuum, so far as the care arrangements for X were concerned. As a consequence, I was anxious that information be gathered in respect of X, given that Ms Hayward seemed unwilling to provide it.
34. In these circumstances, on 12 July 2016, I made an order pursuant to section 69ZW of the Family Law Act. The order required Families SA to produce to the court the following types documents:
    • any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
    • any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
    • any reports commissioned by the agency in the course of investigating a notification.
35. In addition, pursuant to section 91B(1) of the Family Law Act, I also invited the Department to intervene in the proceedings. The relevant section reads as follows:
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    “(1) In any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare.”

36. Families SA produced documents to the court, pursuant to the section 69ZW order, on 1 August 2016. The material produced was concerning. It indicated that various notifiers had contacted Families SA alleging that Ms Hayward was both using and trafficking drugs and, as a consequence, was neglecting the care of the children. Concerns were also raised about the mother’s current partner.
37. Needless to say, during this period, Ms Hayward did not attend at court or otherwise attempt to contact either the father’s solicitor or the registry in an attempt to advance matters. In this vacuum, Mr Crane and those advising him became understandably but increasingly agitated at their perception that both they and the court were powerless to do anything to advance the matter constructively.
38. Given the impasse which had come about, I also elected to make an order that X be represented independently of his parents in the proceedings pursuant to the provisions of section 68LA. Perhaps naively, I hoped that such a lawyer might form a means of communication between Ms Hayward and the court and encourage her to take part in the proceedings or at least investigate how more information could be gathered at what was happening in Ms Hayward’s household.
39. It seemed to me to be highly probable, given the notifications received by the Department, in conjunction with Ms Hayward’s apparent paralysis in the face of the proceedings, that something was likely to be seriously amiss in her household, which would possibly have implications for the welfare of X. However, this court does not have access to social workers or analogous professionals, who can be tasked to knock on someone’s front door and inquire of them what is happening or to use the vernacular eye ball a child. The tools available to it are considerably blunter – it can either maker a default order or issue an arrest warrant.
40. In all these circumstances, on 12 August 2016, with some significant reservations as to what it was likely to achieve, I directed that a further warrant (the third) be issued for Ms Hayward’s arrest. The case was then adjourned to 16 September 2016. In court, I expressed some frustration about the matter and directed that my comments be passed on to Families SA.
41. The independent children’s lawyer appointed under the auspices of the Legal Services Commission of South Australia is Ms Lewis-Dermody, an experienced family law solicitor. I am grateful for her appointment. I am also well aware that her appointment has the potential to be comparatively expensive, if the case becomes protracted and that this expense is likely to be borne by the public purse.
42. There are also significant cost implications, for the public, arising from the number of court appearances (so far 11); the costs of the Australian Federal Police in bringing Ms Hayward to court; and the not insignificant expenditure of Mr Crane in pursuing the application to date. It troubles me that not a great deal has been achieved, certainly not in terms of obtaining accurate and objective evidence as to what is actually happening in X’s life.
43. Shortly prior to the adjourned date, I was advised that Families SA declined the invitation to be involved in these proceedings. They provided me with a lengthy letter, for which I am grateful, which detailed their involvement in the family to date, particularly details of the various allegations of child abuse received by it, which had been each characterised as being a Notifier Concern.
44. Under the heading “child protection/history background” the following was noted:
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    “Families SA’s records indicate there is a history of reported concerns for this child from June 2014. Of these reports, one notification was assessed as a Tier 2 intake, however this was closed with no action due to limited resources. All other reported concerns were assessed as Notifier Concern and did not meet the threshold for child protection intervention. It is noted that there have also been concerns reported for half siblings A, B, C, D and E who are not subject to these proceedings. Concerns reported related to poor school attendance; the mother’s mental health and drug use, including the mother allegedly selling drugs; DV and neglect. Families SA’s records indicate there has been no investigative involvement with this family.”

45. In this context, Ms H, the Family Courts Liaison Officer for Families SA wrote as follows:
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    “Families SA Assistant Manager, Ms R has considered the request for Families SA to intervene in these proceedings. In consideration of this request, the Department acknowledges the concerns regarding this child and in particular the reported concerns of the mother’s drug taking and neglect. It is also noted that there has been no concerns reported in 2016 that have reached the threshold for child protection intervention as defined under legislation. Given this and other pressing work load priorities, it has been determined that the Department respectfully declines to intervene in these proceedings.”

46. I accept that it is not the function of this court to question the statutory or departmental criteria, which mandate whether the Department does or does not take action, under its applicable legislation, in respect of any notifications of alleged child abuse or neglect received by it. I am of course both well aware and sympathetic to the pressing work load under which the Department’s Officers currently operate.
47. On 16 September 2016, Ms Lewis-Dermody provided me with a lengthy and thorough chronology and submission as to what should happen next. She informed me that she did not perceive it to be her function to knock on Ms Hayward’s address and make inquiries as to what was happening within or to offer assistance to bring her to court.
48. She expressed her concern at what she perceived to be the gravity of the concerns reported to Families SA regarding not only X but other of Ms Hayward’s children. The concerns included that Ms Hayward had been missing and homeless and had left the children in the care of others. She noted the family consultant’s recommendation that the father’s mother be encouraged herself to become a party to the proceedings.
49. Given the obvious lack of relationship between X and Mr Crane, Ms Lewis-Dermody was not in favour of the court taking draconian action, in respect of care arrangements for the child in the short to medium term. In this context, it was Ms Lewis-Dermody’s submission that she did not have sufficient information available to her to support an order that X be placed into Mr Crane’s care. A submission with which I heartily concur.
50. In all these circumstances, Ms Lewis-Dermody submitted that the court should make an order requiring Families SA to personally attend any subsequent hearing in the event they fail to intervene and to explain the reason for not accepting the court’s invitation. Ms Nelson, the father’s lawyer supports such an order being made.
51. I feel stymied and frustrated as I am sure do all the other parties and legal representatives who are involved in the matter to date. I am frustrated at the time and money which has been expended to achieve very little. I am concerned that to bring Ms Hayward to court compulsorily for a third time will achieve little unless some thought is given to a strategy to gather information about the case and move it along in a more efficient manner. Necessarily this must involve Ms Hayward being actively involved in the proceedings or the application of some efficient mechanism to ascertain what is going on in her household.
52. I feel stymied that I do not have ready access to such mechanisms. I have gathered what information I can through the avenues available to me. That information is concerning but has not been objectively evaluated in any way. However, as I have already observed, the failure of Ms Hayward to attend at court and take part in these proceedings, after having been arrested twice, is deeply concerning.
53. Families SA do have the mechanisms to provide some support to Ms Hayward and gather some objective information about how she is travelling currently as a parent in a cost efficient manner. They do have workers who can be despatched to make some preliminary inquiries. This court does not.
54. I will make the order Ms Lewis-Dermody proposes. In so doing, I have no desire to act in a way which is perceived as being punitive towards or critical of Families SA. Rather, I am respectfully making a request for assistance from the Department to resolve the conundrum which the case represents for this court.
55. I hope that arrangements can be put in place so that the arrest of Ms Hayward and the attendance of some appropriate person from Families SA can coincide. Details can perhaps be obtained from her and assistance or directions offered with the aim of advancing the matter and breaking the current impasse in some practical way. The aim being to put in place some channels of communication so that information can be gathered about what is happening, so far as X is concerned.
56. At the very least, perhaps steps can be put in place so that the issue of the child’s paternity can be definitively resolved, albeit that I have already made the necessary order in default of Ms Hayward’s attendance at court. In so doing I acted on the basis of the application of an inference that, if Mr Crane was not X’s father, Ms Hayward would have been more proactive in resolving the issue through the application of scientific methods and therefore it can be inferred that she knows it can only be that Mr Crane is X’s father.
57. The current impasse strikes me as being somewhat Kafkaesque in its demonstration of the disconnect between the two systems represented by this court and the Department. Significant funds have been expended, in this court, to no great advantage. Similarly, in responding to the court’s invitation, the Department has also utilised its resources. It seems to me that I am justified in considering that there is something awry in Ms Hayward’s household and it has implications for the welfare of X. The wheels of both systems turn but no traction is gained.
58. However, I am also well aware that I may also be viewed as naïve in my depiction of it. My request for assistance is respectfully made and I hope will be accepted as having been made because of my concern for the wellbeing of the child concerned and in the hope that a short term a lateral solution or solutions can be found for the difficulty which confronts me.