Bensley and Delmar and Anor

[2017] FCCA 3317

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENSLEY & DELMAR & ANOR [2017] FCCA 3317

Catchwords:
FAMILY LAW – Parenting – two children aged 8 and 6 – interim proceedings – allegations of psychological harm to children through exposure to family violence – allegations of serious family violence committed against other children in the household – party de-registered as a carer – intervention of the Department of Family and Community Services – parental responsibility to be exercised by the Minister of the Department of Family and Community Services – change of residence – best interests of the children.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Cases cited:

Eaby & Speelman (2015) FLC 93-654

Marvel & Marvel (No.2) [2010] FamCAFC 101
Salah & Salah [2016] FamCAFC 100
SS & AH [2010] FamCAFC 13

Applicant: MR BENSLEY

First Respondent: MS DELMAR

Second Respondent: MS MOTT

File Number: NCC 1719 of 2014

Judgment of: Judge Middleton

Hearing date: 5 December 2017

Date of Last Submission: 5 December 2017

Delivered at: Wauchope

Delivered on: 6 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Mueller

Solicitors for the Applicant: East Coast Law

Counsel for the First Respondent: Ms Beck

Solicitors for the First Respondent: Steven Young Lawyers

Counsel for the Second Respondent: Mr McKenzie

Solicitors for the Second Respondent: Collett Lawyers

Counsel for the Independent Children’s Lawyer: Mr Taylor

Solicitors for the Independent Children’s Lawyer: Joplin Lawyers

Counsel for the Intervener: Mr Boyd

Solicitors for the Intervener: Secretary, Department of Family and Community Services NSW

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Orders are made in accordance with the Orders as proposed by the Intervener in their entirety.

2. The Solicitor for the Department of Family and Community Services is to file a clean certified typescript of the Orders proposed by the Department to be placed on the court file within forty eight (48) hours of today by email.

3. The children be removed from the Paternal Grandmother’s home by no later than 6.00pm this evening and they immediately be placed in the care of the Minister for Family and Community Services.

4. Any reports prepared by or for the Minister or his delegate in relation to the children are to be forwarded to all parties within 48 hours of receipt of the report by the Minister.

5. The parties are granted liberty to restore the matter on provision of 7 days’ notice in writing.

6. The matter is adjourned to 9.30am on 22 May 2018 at Wauchope for directions hearing.

THE COURT NOTES THAT:

A.The issue as to whether the matter should be transferred to the Family Court of Australia will be considered again on the next occasion.

ORDERS PROPOSED BY THE INTERVENER IN THEIR ENTIRETY

THE COURT ORDERS THAT:

1. The Secretary, Department of Family and Community Services NSW (“Intervener”) be joined as an intervener in proceedings (omitted) pursuant to s. 92A of the Family Law Act 1975 (Cth).

2. The Intervener's legal representative be granted leave to inspect and photocopy the Court file, including the Family Consultant Report of Dr T dated 26 August 2015, the Updated Family Consultant Report of Dr T dated 29 January 2016, and Subpoena material produced relating to proceedings (P) NCC 1719 of 2014.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Minister for Family and Community Services (“Minister”) exercise sole parental responsibility for the following children (referred to collectively as “the children”):

   (a)X, born (omitted) 2009; and

   (b)Y, born (omitted) 2011.

2. The children live as directed by the Intervener or his delegate.

3. The children spend time with their mother, Ms Delmar (“the Mother”), and their father, Mr Bensley (“the Father”), and their paternal grandmother, Ms Mott (“Ms Mott”), at times and for a duration as directed by the Intervener or his delegate. Such time will be supervised at the discretion of the Intervener or his delegate.

4. Unless otherwise agreed to in writing by the Intervener or his delegate, the Mother, Father, and Ms Mott are hereby restrained by injunction from entering or approaching within 100 meters:

   (a)the residence of the children;

   (b)any education institution attended by the children; and

   (c)any venue where the children are participating in extra-curricular activities.

5. The Mother, Father and Ms Mott are hereby restrained by injunction from:

   (a)consuming alcohol in excess of the applicable legal driving limit within twelve (12) hours of spending time with the children pursuant to these Orders or permitting another person to do so;

   (b)consuming or being under the influence of alcohol or illicit drugs whilst caring for, or spending time with, the children, or permitting another person to do so;

   (c)using abusive language to or within the hearing of the children;

   (d)physically disciplining or striking the children;

   (e)denigrating the other parent, any member of that parent’s family, or the child's carer in the presence of, or within the hearing of the children;

   (f)discussing any allegation made, or evidence given in the proceedings in the presence of, or within the hearing of the children; or

   (g)questioning the children about the appropriateness of the other parent or carer’s parenting or behaviour while taking care of, or spending time with, the children.

6. The Mother, Father and Ms Mott shall:

   (a)Permit the Intervener or his delegate to conduct random home visits to their residence or (to the extent that they are legally able) any residence where the children live or spend time.

   (b)Ensure at all times that the Intervener or his delegate may enter the premises at which the children live or (to the extent that they are legally able) spend time.

   (c)Ensure that the Intervener or his delegate may meet with the children at the request of the Intervener or his delegate.

   (d)Accept all reasonable directions of the Intervener or his delegate in relation to their care of the children and provide truthful information to the Intervener's delegate in relation to the children's care.

   (e)Participate in a risk assessment conducted by the Intervener's delegate and comply with any case plans developed by the Intervener or his delegate.

   (f)Accept and facilitate all reasonable referral made by the Intervener or his delegate for the children.

   (g)Engage with support services recommended by the Intervener or his delegate.

   (h)Cooperate and be contactable by the Intervener or his delegate, and provide updated contact information within twenty four (24) hours to the Intervener's delegate if it should change.

7. The Mother and Father shall attend random chain of custody drug urinalysis testing in accordance with the current Australian Standard within twenty four (24) hours of the request of the Intervener's delegate.

8. The children are to be removed from the care of Ms Mott by no later than 6:00 pm on 6 December 2017 and immediately placed in the care of the Minister or her delegate.

9. Any reports prepared by or for the Minister or her delegate are to be forwarded to all parties within twenty four (24) hours of receipt by the Minister or her delegate.

10. The matter is adjourned to 9:30am on 22 May 2018 for a directions hearing in Wauchope.

11. Leave is granted to the parties to restore the matter on the provision of seven (7) days’ notice.

IT IS NOTED that publication of this judgment under the pseudonym Bensley & Delmar & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WAUCHOPE

NCC 1719 of 2014

MR BENSLEY

Applicant

And

MS DELMAR

First Respondent

MS MOTT

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before me by way of an application in a case which was filed by the first respondent mother. It involves parenting arrangements for two children X born (omitted) 2009, who is almost eight years old, and Y born (omitted) 2011, who is almost six years old.

Material relied upon

1. The parties relied on the following material.

The applicant

1. The applicant read their material and made short submissions that pointed out that the children had expressed the desire to live with the paternal grandmother and also took me to paragraph 163 of the respondent mother’s affidavit where she says that she is on her learner plate.

The first respondent

1. The first respondent relied upon the affidavit of Ms Delmar, dated 29 November 2016. In particular paragraphs 135 to 143, 151, 163 and annexure “O” to the mother’s affidavit were relied upon.

The second respondent

1. The second respondent relied upon the affidavit of the paternal grandmother, dated 31 October 2017, particularly in relation to paragraphs, 177, 183 to 187. A case outline and the Updated Family Report dated 2 January were also relied upon.

The independent children’s lawyer

1. The Independent Children’s Lawyer made submissions that there was a requirement for a further report moving forward, pointed out the significant risks of alleged violence, the significant risk of potential for psychological harm, and indicated that notwithstanding a number of the (omitted) children had left the home, that risk was still very apparent.

The intervener

1. On behalf of the Department of Family and Community Services, I was taken to the affidavit of Mr P, particularly paragraphs 53 to 61, paragraphs 80 to 94, page 77 of the annexures, page 165 (the interview with the mother), and also a flagged page 14 conclusion in relation to F, another child, on 24 November 2017, where it was said she was in need of immediate removal.

Exhibits

1. There were four exhibits in the proceedings:

   a)The Independent Children’s Lawyer’s minute;

   b)The second respondent’s minute;

   c)The applicant’s minute;

   d)A large bundle of subpoenaed documents with an index.

Background

1. In summary, both the mother and father have had a significant and very checkered past with drugs, crime, prostitution, jail time for the father, and some mental health issues. There was, on any view, family violence in their relationship.

2. The parties in the proceedings are the father, the mother, the paternal grandmother, the Independent Children’s Lawyer, and the Secretary of the Department of Family and Community Services.

3. The children subject to this application went into the care of the paternal grandmother on or about 25 May 2014. They were then forwarded to the father. On 1 September 2014, the court made orders for the children to see their mother supervised at Interrelate. The children were removed from the father’s care by the paternal grandmother around that same time.

4. The children have remained in the care of the paternal grandmother since that time. The mother has been spending unsupervised time with the children. The mother has changed her circumstances considerably. The mother is, it would seem, well-settled in a unit in (omitted). The children are used to going to the home, including overnight time, since orders were made in June of 2017. The mother has consistently tested negative for drugs.

5. The paternal grandmother says the children are often injured when in the mother’s care, and that since overnight time has commenced, Y has begun wetting the bed.

6. The applicant father says the children want to live with the paternal grandmother. The father’s last jail term was from November 2015 until March 2017 for a breach of parole.

7. The father sees the children a minimum of two days per week for approximately three hours supervised by the paternal grandmother.  There is some suggestion that the father spends more time than that.  There is a suggestion that the father actually lives with the paternal grandmother. A finding cannot be made in relation to that at this stage.

8. The father says that since he was in custody the last time, he has got his life back on track by doing courses relating to addiction, parenting and religion, in particular, (omitted).

9. The father’s criminal history dates back to 1999 when he committed armed robberies, and he has served jail time in Western Australia and New South Wales.

10. The Independent Children’s Lawyer submitted that the children are in danger of suffering psychological harm in the paternal grandmother’s care.

11. A Family Report dated 26 August 2015 by Dr T recommended that the children live with the mother. An updated report by the same Family Consultant dated 29 January 2016 recommended that the children live with the paternal grandmother and spend alternate weekends with the mother. The deciding factor, it would seem, turned on the mother not having suitable accommodation at that time and some question marks around her stability.

12. The Secretary of the Department of Family and Community Services provides evidence from Mr P, a case worker. His evidence, filed on 29 November 2017, sets out the relevant material.

13. Since August of 2009, the following children were in the care of the paternal grandmother:

    a)A, born (omitted) 1999 (age 18);

    b)B, born (omitted) 2000 (age 17),

    c)C, born (omitted) 2001 (age 16);

    d)D, born (omitted) 2003 (14) and;

    e)E, born (omitted) 2004 (age 13).

14. On 19 August 2015, F, born (omitted) 2015 (age 2) the father’s child to his partner Ms B was placed in the care of the paternal grandmother.

15. On 6 November 2015, X (age 8) and Y (age 6) were placed into the paternal grandmother’s care by order of the Federal Circuit Court.

16. Between 27 August 2012 and 13 July 2017, the Department of Family Community Services received 25 risk of harm reports in relation to X and Y. 

17. The (omitted) children were left the care of the paternal grandmother between 10 November 2016 and 13 June 2017. In September of 2017, a full investigation was conducted by (omitted) Reportable Conduct Unit. As a result, both the paternal grandmother and paternal grandfather were de-registered as (omitted) carers and E was removed from their care on 17 October 2017.

18. There were 23 allegations identified at paragraph 41 of Mr P’s affidavit as follows. 

    a)   Neglect – Carer neglect:

    It was alleged that Ms Mott denied D meals and sent her to bed without dinner as punishment. This allegation was not sustained due to insufficient evidence.

    b)   Serious Physical Assault:

    It was alleged that Ms Mott hit the (omitted) children on the back of their head and in the temple area of their head.  This allegation was sustained. 

    c)   Ill-treatment:

    It was alleged that Ms Mott would yell, swear and demoralise the (omitted) children. The allegation was not reportable conduct.

    d)   Serious Physical Assault:

    It was alleged that Ms Mott held a knife at D. This allegation was found to be false.

    e)   Physical Assault / Serious Physical Assault:

    It was alleged that after an altercation with her sister at school, D was kneed in the belly by Ms Mott and punched in the face. The allegation was sustained.

    f)    Physical Assault / Serious Physical Assault:

    It was alleged that Ms Mott kneed D in the stomach and put her thumbs into her throat to choke her.  The allegation was sustained.

    g)   Physical Assault / Serious Physical Assault:

    It was alleged that Ms Mott kneed D in the belly as punishment for being in trouble at school. The allegation was sustained.

    h)   Ill-treatment:

    It was alleged that Ms Mott made D brush her teeth with dishwashing liquid. The allegation was not sustained due to insufficient evidence.

    i)    Serious Physical Assault:

    It was alleged that Ms Mott grabbed B by her shirt and choked her. This allegation was not sustained due to insufficient evidence.

    j)    Serious Physical Assault:

    It is alleged that Ms Mott hit B on the head and split her lip. This allegation was not sustained due to insufficient evidence.

    k)   Ill-treatment:

    It was alleged that D was forced to bathe with her sister. This allegation was not reportable conduct.

    l)    Physical Assault:

    It was alleged that Ms Mott slapped E for not cleaning the (omitted) properly. The allegation was not sustained due to insufficient evidence.

    m) Physical Assault:

    It was alleged that Ms Mott pushed C into the wall for not cleaning the “car litter” properly. This could be a typographical error, and may mean “cat litter”. The allegation was not sustained due to insufficient evidence.

    n)   Ill-treatment:

    It was alleged that Ms Mott smashed/destroyed three mobile telephones that belonged to A. The allegation was not reportable conduct.

    o)   Physical Assault:

    It was alleged that Ms Mott punched A in the face after an eight hour verbal argument. The allegation was sustained.

    p)   Physical Assault:

    It was alleged that Ms Mott would regularly kick the (omitted) children on their bottoms with full force when they did not do chores or did not do as told.  This allegation was not sustained due to insufficient evidence.

    q)   Physical Assault:

    It was alleged that Ms Mott intentionally pushed D up against a wall, head butt her head against the wall or push her against the fridge and freezer on separate occasions. This allegation was sustained.

    r)   Physical Assault:

    It was alleged that Ms Mott grabbed C by the throat, causing injury. The allegation was not sustained due to insufficient evidence.

    s)   Serious Physical Assault:

    It was alleged that Ms Mott knowingly slammed a door, causing crush injury to C’s fingers. This allegation was not sustained due to insufficient evidence.

    t)    Threat of Harm:

    It was alleged Ms Mott threatened to kill the (omitted) children by yelling, “I’m going to kill you”.  This allegation was not sustained due to insufficient evidence.

    u)   Unauthorised Administration of Medication:

    It was alleged that Ms Mott administered medication to B in a way that contravenes the medically prescribed dosage and frequency on the script. The allegation was not sustained due to insufficient evidence.

    v)   Breach of the Carers Code:

    It was alleged that the (omitted) children were encouraged not to engage and access casework support, monitoring and assessment from June of 2016 to the present date, and, further that any testimony/statement was influenced by Ms Mott. This allegation was sustained and found to be misconduct amounting to supervisory neglect.

    w) Breach of Carers Code.

    It was alleged that Ms Mott used unlawful and prohibited disciplinary measures including seclusion on an outdoor rock pile causing isolation and exposure to the elements to the (omitted) children. The allegation was sustained and found to be misconduct amounting to supervisory neglect.

19. It was determined during the investigation that F, X and Y were not submitted to physical abuse, but they had witnessed the paternal grandmother’s abuse of the (omitted) children. 

20. Furthermore, the investigation revealed that the evidence of the (omitted) children all points to attempts by the paternal grandmother to prevent the children speaking to case workers.

21. On 29 September 2017, Mr P completed a secondary risk of harm assessment in relation to all of the children in the care of the paternal grandmother. 

22. That assessment determined that there are limited factors that would decrease the possibility of harm for the long-term care of E, F, X and Y. The assessment recommended that: 

    a.Ms Mott and Ms Mott be de-authorised as foster carers;

    b.An alternate placement for E be considered;

    c.The Family Court be advised of the current concerns in relation to the care provided by Ms Mott and Ms Mott; and

    d.Consideration be given to varying the current parental responsibility order for F.

23. The assessment concluded that the children were highly vulnerable to harm by the paternal grandmother. Furthermore, the children have suffered historical trauma whilst in the care of their parents, and that the emotional and psychological harm in the current placement increases their vulnerability to the potential for future harm. That risk was assessed as very high.

1. Both the paternal grandmother and paternal grandfather were identified as “person causing harm”; that is, there were sufficient reasons to conclude, on reasonable grounds, that they had caused actual harm to a child physically, sexually, psychologically and/or through neglect.

2. There was harm substantiated to X and Y, including:

   (a) Exposure to domestic violence;

   (b) Persistent caregiver hostility; and

   (c) Emotional state of carer.

3. The mother was interviewed on 7 November 2017. The mother is now working in (employer omitted), and it would seem has become very stable with no indication that she is currently using drugs.

The Orders Sought

1. The applicant sought orders that:

   a)The children live with the paternal grandmother;

   b)The children spend time with the mother each alternate weekend from the conclusion of school on Friday until before school Monday;

   c)The children spend time with the father every Tuesday from 3.00pm to 7.00pm and every Saturday from 10.00am to 1.00pm with such time to be supervised by the paternal grandmother.

2. The first respondent sought orders in the main consistent with the Independent Children's Lawyer, that is:

   a)The Department remove the children from the paternal grandmother and; and

   b)The children live with the mother.

3. The second respondent sought a continuation of the current orders.

4. The Department sought orders in the response, including that they be joined as a party, which was not opposed.

5. The Minister for the Department sought the following orders:

   a)The Secretary, Department of Family and Community Services NSW be joined as an intervener in proceedings (P) NCC 1719 of 2014 pursuant to s. 92A of the Family Law Act 1975 (Cth).

   b)The Intervener's legal representative be granted leave to inspect and photocopy the Court file, including the Family Consultant Report of Dr T dated 26 August 2015, the Updated Family Consultant Report of Dr T dated 29 January 2016, and Subpoena material produced relating to proceedings (P) NCC 1719 of 2014.

   c)The Minister for Family and Community Services (“Minister”) exercise sole parental responsibility for the following children (referred to collectively as “the children”):

   i.X, born (omitted) 2009; and

   ii.Y, born (omitted) 2011.

   d)The children live as directed by the Intervener or his delegate.

   e)The children spend time with their mother, Ms Delmar (“the Mother”), and their father, Mr Bensley (“the Father”), and their paternal grandmother, Ms Mott (“Ms Mott”), at times and for a duration as directed by the Intervener or his delegate. Such time will be supervised at the discretion of the Intervener or his delegate.

   f)Unless otherwise agreed to in writing by the Intervener or his delegate, the Mother, Father, and Ms Mott are hereby restrained by injunction from entering or approaching within 100 meters:

   i.    the residence of the children;

   ii.     any education institution attended by the children; and

   iii.   any venue where the children are participating in extra-curricular activities.

   a)The Mother, Father and Ms Mott are hereby restrained by injunction from:

   i.    consuming alcohol in excess of the applicable legal driving limit within twelve (12) hours of spending time with the children pursuant to these Orders or permitting another person to do so;

   ii.     consuming or being under the influence of alcohol or illicit drugs whilst caring for, or spending time with, the children, or permitting another person to do so;

   iii.   using abusive language to or within the hearing of the children;

   iv.   physically disciplining or striking the children;

   v.   denigrating the other parent, any member of that parent’s family, or the child's carer in the presence of, or within the hearing of the children;

   vi.   discussing any allegation made, or evidence given in the proceedings in the presence of, or within the hearing of the children; or

   vii. questioning the children about the appropriateness of the other parent or carer’s parenting or behaviour while taking care of, or spending time with, the children.

   a)   The Mother, Father and Ms Mott shall:

   i.Permit the Intervener or his delegate to conduct random home visits to their residence or (to the extent that they are legally able) any residence where the children live or spend time.

   ii.Ensure at all times that the Intervener or his delegate may enter the premises at which the children live or (to the extent that they are legally able) spend time.

   iii.Ensure that the Intervener or his delegate may meet with the children at the request of the Intervener or his delegate.

   iv.Accept all reasonable directions of the Intervener or his delegate in relation to their care of the children and provide truthful information to the Intervener's delegate in relation to the children's care.

   v.Participate in a risk assessment conducted by the Intervener's delegate and comply with any case plans developed by the Intervener or his delegate.

   vi.Accept and facilitate all reasonable referral made by the Intervener or his delegate for the children.

   vii.Engage with support services recommended by the Intervener or his delegate.

   viii.Cooperate and be contactable by the Intervener or his delegate, and provide updated contact information within twenty four (24) hours to the Intervener's delegate if it should change.

   b)     The Mother and Father shall attend random chain of custody drug urinalysis testing in accordance with the current Australian Standard within twenty four (24) hours of the request of the Intervener's delegate.

6. There was a notation in the orders being sought. The notation was that the Intervenor had assessed that there was a realistic possibility of the children being restored to the care of the mother, and proposed that the children be placed to live with the mother subject to order 6.

7. Another issue in the matter was whether an updated family report should be ordered. Each party sought an order for an Updated Family Report. The intervenor did not, suggesting that if orders were made consistent with the orders they sought it would mean a very significant change for the children and there would need to be a settling in period and, indeed, significant time to see if the children would be placed with the mother long term.

Application of the law

1. This is a parenting application and, as such, Part VII of the Family Law Act applies.

2. This is an interim hearing and, as a result, none of the evidence has been tested. I note, however, that there is a substantial amount of objective independent evidence that I have been taken to (Exhibit 4) in the proceedings.

3. I must have the children’s best interests as my paramount consideration.[1] Section 60CC sets out the matters that I must give consideration to.

   [1] Family Law Act 1975 (Cth) s 60CA.

Section 60CC considerations

1. In real terms, this matter falls to the consideration of the primary considerations set out in section 60CC(2)(a) and (b).

2. Section 60CC(2A) provides that, when applying the considerations set out in s 60CC(2), I must give greater weight to the considerations set out in subsection (2)(b).

3. The paternal grandmother says the Department has recently changed their mind, that the allegations are simply not true, and that I should wait until all of the evidence can be tested. The paternal grandmother goes one step further to say, that in any event, there is no suggestion that X and Y were physically hurt, and all of the children who were allegedly abused have now left the paternal grandmother’s home, thereby reducing the risk.

4. The allegations involve serious cruelty to children. If they are ultimately found to be true, then it is my view that the paternal grandmother should never be in the vicinity of children ever again. Of course, I cannot make a finding that the allegations are true without the evidence being tested, weighed, and evaluated. Of course, I am also not bound by the findings of either the Department or (omitted).

5. If the allegations are true, it follows that the children have been exposed to significant trauma in the paternal grandmother’s home, and there is a real risk that if they remain in her home, then they too may become victims of serious abuse.

6. In Marvel & Marvel (No.2)[2], the Full Court said:

   “As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.”

   [2] [2010] FamCAFC 101 [120].

7. In SS & AH[3], the majority said:

   “…a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

   [3] [2010] FamCAFC 13.

8. If I do not act on the assertion being put forward by the Department and the allegations are found to be true, then I will have continued to put the children in real danger. If the allegation is not correct and the Department has parental responsibility in the interim, I am satisfied that they do not pose a risk to the children and that they will continue the monitor the safety and welfare of the children, as that is their charge.

9. In short, there is no risk of harm to the children in the interim, because, on the proposal of the Department, the children will continue to spend time with the mother, the father, the paternal grandmother, as assessed as appropriate, and until final order. 

10. Of course, there will be a change for the children. However, any disadvantage to them that flows from that change must be weighed against the risk of harm for the children from remaining where they are.  Protecting the children from that risk must take precedence.

11. The mother and the Independent Children’s Lawyer seek an order for the children to live with the mother.  The mother has made significant improvements to her life and the Department has currently assessed that there is a realistic possibility of the children being restored to the care of the mother.

12. Both the paternal grandmother and the father raise concerns about the mother’s ability to properly care for and meet the needs of the children.  These concerns are legitimate, in view of the very troubled history of the mother, including significant drug use, instability of housing, and some incidents that have occurred in the mother’s care recently. 

13. The intervenor seeks an order that the children live as directed by the intervenor or his delegate.  That order represents the safest option.  The intervenor can make ongoing assessments as to where the children might best be placed and can offer assistance to any carer. 

14. That leaves the issue of whether I should order the preparation of an Updated Family Report. The children’s future is uncertain at this stage.  It is unknown if the children will remain placed in the mother’s care as the intervenor currently intends.  If they do remain in the mother’s care, then they will need to settle, and then a Family Report can be ordered. 

15. If the children cannot stay in the mother’s care, then ultimately the Court will need to decide with whom the children shall live with, noting, of course, that the Department will continue to make assessments and determinations where they may live in the interim.

16. I am of the view that the matter should be adjourned until sometime in the new year to allow the children to settle and for the Department to make further assessments.  In those circumstances, I will not make an order for an Updated Family Report at this time.

Parental responsibility

1. Section 61DA(3) provides that when a Court is making an interim order the presumption applies, unless the Court considers that it would not be appropriate in the circumstances for the presumption to apply.

2. I am not required to make findings regarding family violence at this interim stage.[4]  I am bound by the provisions of section 60CG. I must ensure that my order does not expose a person to an unacceptable risk of family violence.

   [4] See Salah & Salah [2016] FamCAFC 100.

3. A cautious approach is warranted in the circumstances.  As the Full Court said in Eaby & Speelman[5]:

   “…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.”

   [5] (2015) FLC 93-654.

4. I am unable ignore the allegations. I must act cautiously, and the uncontested facts of the case satisfy me that it would be inappropriate for the presumption to apply. I am satisfied in the circumstances that parental responsibility should be exercised by the Minister of the Department of Family and Community Services.

5. For those reasons, I make the orders in their entirety as proposed by the intervenor in their response filed.

6. I will also make a further order for abundant caution that the children be removed from the paternal grandmother’s home by no later than 6.00pm today and that they be immediately placed in the care of the Minister for the Department of Family and Community Services.

7. I will also make an order that any reports prepared by or for the Minister or his delegate be forwarded to all parties within 48 hours of receipt of the report by the Minister. 

8. In the circumstances, I will adjourn the matter to May 2018 to give time for these orders to take effect and for the children to have some time to settle. However, I will also give the parties leave to restore the matter to my list on the provision of seven days’ notice in writing, should there be a need to have the matter restored.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date:  30 January 2018