Burwell & Jarvis

[2023] FedCFamC1F 402

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Burwell & Jarvis [2023] FedCFamC1F 402

File number(s):	CAC 505 of 2023
Judgment of:	GILL J
Date of judgment:	19 May 2023
Catchwords:	FAMILY LAW - PARENTING - Recent consent interim orders - Leave to make oral application to suspend orders - Section 69ZW material - Indications of risk of exposure to extreme family violence - Temporary suspension pending further hearing
Legislation:	Family Law Act 1975 (Cth) - s 69ZW
Division:	Division 1 First Instance
Number of paragraphs:	18
Date of hearing:	19 May 2023
Place:	Canberra
Solicitor for the Applicant:	Mrs Lloyd, Jeanine Lloyd & Associates
Solicitor for the Respondent:	Ms Storrier, JS Family Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Dillon-Smith, Dillon-Smith Lawyers

ORDERS

CAC 505 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BURWELL Applicant
AND:	MR JARVIS Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	GILL J
DATE OF ORDER:	19 MAY 2023

THE COURT ORDERS THAT:

1.Orders 1 to 4 and 14 of the orders of 12 April 2023 are suspended.

2.The children will live with the mother.

3.The children may spend time with the father as agreed in writing with the mother, provided such is supervised.

4.The father is restrained by injunction from attending at the childrens’ schools or the mother’s place of residence. 

IT IS NOTED THAT

5.The father has indicated his willingness to engage in services offered by CYPS, some of which are outlined in the previous orders of the court, including attending at a men’s behaviour change program. 

6.It has been emphasised that it is a matter of importance that the mother offers her cooperation with CYPS. 

7.I have been advised by the solicitor appearing for the Director-General that the solicitor will be available to, and will, attend the next appearance of the matter.

IT IS ORDERED THAT

8.The proceedings are adjourned to 1 June 2023 at 10 am for further interim determination.

9.The mother is to file and serve an application in a proceeding, along with single consolidated affidavits from each witness she intends to rely upon for that purpose by 4 pm on 25 May 2023.

10.The father is to file and serve single consolidated affidavits from each witness he intends to rely upon, along with a response to an application in a proceedings by 4 pm on 30 May 2023.

11.In the event that the Director-General seeks to rely upon affidavit material then the Director-General is to file and serve such by no later than 12 pm on 31 May 2023.

12.The mother shall cause the children to have telephone contact or electronic communication contact with the father at reasonable times, pending further order.

13.Any documents produced by CYPS pursuant to s 69ZW or otherwise and released to the parties is only released to the legal representatives such that any copy of such document is to remain in the custody of the legal representatives and is to be destroyed 28 days after the expiration of the relevant appeal period.

IT IS FURTHER ORDERED THAT

14.The unredacted document contained in MFI-1 is to be placed into a sealed envelope on the court file marked “Not to be opened without the leave of a judge”.

15.Pending further order, the unredacted document contained in MFI-1 will be released to the legal practitioners of the parties and admitted into evidence in court at the interim hearing of this matter.

16.The Director-General is directed to place the notifier on notice of the effect of the above order and to advise the notifier that the notifier is entitled to make an application to the court to prevent the documents release.

17.The ICL is granted leave to appear by Microsoft teams in the next occasion.

18.Any party is at liberty to seek the urgent relisting of this matter should a matter arise which requires the court’s urgent attention.

19.The mother is granted leave to appear by Microsoft teams on the next occasion.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

GILL J

1. The parties have entered into recent consent orders before a Senior Judicial Registrar in relation to parenting matters on 12 April 2023.  Those orders, in general terms, provide for the children to live with the father and to spend substantial and significant time with the mother. 

2. Following the making those consent orders the proceedings were adjourned for further directions to Wednesday 17 May 2023 before a Judicial Registrar. It was anticipated that by then the s 69ZW order would have been met by the Director-General of Child and Youth Protection Services (CYPS). That order was met and voluminous material was produced at that stage encompassing care records, not only from the Territory but also care records that had been obtained presumably by CYPS from the New South Wales Department. The picture that emerged from the heavily redacted s 69ZW material was of serious emerging threats of risk to the children, both posed by exposure to family violence in their current living circumstances and risks to their development posed by potential deficits in parental capacity to deal with the significant needs being experienced by the children. That material posed genuine questions as to whether or not the children were at risk with each parent, and as to the capacity of each of the parents.

3. What followed from that is the involvement of the Director-General on an amicus basis following, as a result of what was contained in that s 69ZW material, the matter being listed so that it could be considered whether or not leave would be given to the mother to make an oral application to displace the arrangements that had been reached by the parties shortly before in their consent orders. Given what was contained within the s 69ZW material the mother was so given leave to make oral application.

4. Her oral application, in general terms, sought the suspension or discharge of the orders that provide for the children to live with the father and to provide for the children to live with her, coupled with an arrangement for the children to have supervised time with the father and various restraints prohibiting the father from attending at the mother’s home and now, on the part of the Independent Children’s Lawyer (the ICL), prohibiting the father from attending at the childrens’ schools.

5. It may be observed that each of the parties, the ICL and the Director-General appearing as amicus have had to scramble to ready this matter as best as it could for what was in fact an emergency dealing with the risk issues that were apparently emerging on the s 69ZW material.

6. The nature of the proceedings necessitates that they will be returned to the court in short order so that a more formalised process can take place which gives each of the parties, the ICL and potentially the Director-General the opportunity to put on more comprehensive material to address the risk issues and care issues that have emerged.  While the Director-General has at this stage appeared as amicus, and it may be observed it was appropriate for the Director-General to do so, it may be that the Director-General has little option other than to take up the invitation of the court to join these proceedings. 

7. While I concede that at the moment I have only a broad overarching view of the proceedings and the material that has been put before the court, the extent of the s 69ZW material indicates that this is a case in which there may be only the prospect of a parent being available and adequate to care for the children, if that parent is given strong support from the Director-General, or in fact it may be a case in which there is no parent, in the long-term, who is able to provide adequate care for the children, thus converting this into a consideration of whether or not care proceedings would need to be taken rather than proceedings under the Family Law Act 1975 (Cth).

8. Of particular concern arising from the s 69ZW material is the fact that there has been ongoing police involvement since the making of the consent orders that appears to involve the father’s household, although the terms of that involvement are difficult to currently understand given the redacted nature of those records.

9. The Director-General called at short notice Ms B, who is the team leader in relation to the case manager who is undertaking the appraisal of the three children, the subject of these proceedings.  Ms B gave cogent oral evidence, undoubtedly supported by her qualifications, holding a postgraduate qualification and her involvement in child protection for the last six years, speaking from, in part the most recent appraisal that is contained at exhibit F1 of these proceedings, being an appraisal of the children taking place in April of this year and noting that multiple other appraisals have taken place in the short past.

10. It was observed that in speaking to that appraisal Ms B was able to offer assessments that relied upon the receipt of material that is not currently before the court given she had access to the unredacted versions of material that are contained in the s 69ZW material, whereas the court is reliant on redacted versions which reduces significantly its probative effect before the court.

11. What was identified by Ms B is a risk of emotional abuse from the children being exposed to family violence while they remain in the father’s household. There are also identified significant risks of abuse and neglect, and at this stage it was indicated that it was considered that the father may be responsible for such. In particular there was indicated by Ms B reports of a family violence incident allegedly perpetrated by the father upon his partner. Of particular concern is the nature of that alleged incident, being an allegation that the father had seriously assaulted his partner. There are implications that flow from assault of such a nature if it was to have occurred. It may be observed that an assault of that nature of another person is an incident of high lethality, it carries with it grave risks to the person who is being assaulted of serious harm and one may suppose even death. It forms, if it has occurred, a criminal act of grave seriousness and if, as recorded in the s 69ZW material the children have been exposed to that, exposes them to both an extreme example of family violence and exposes them to direct harm from merely being exposed to it. Accordingly, it represented a matter of extreme risk which compels protective action to be taken by the court pending a more fulsome examination of the factual matters that surround it.

12. The material also indicated that there are risks that the children’s health and development needs are not being met.  X and Y, it may be seen, both have a high degree of needs and both are reported as having expressed thoughts of serious self-harm.  The risk identified by the Director-General is a risk of, in addition to the exposure family violence, a risk of the children’s needs not being met in the father’s household.  The father submits to me reasonably that there is also a risk that those needs will be unable to be met in the mother’s household at present.  It may be observed that in the assessment the extreme behaviours of X pointed to extreme difficulties that will be faced by the mother in seeking to meet X’s needs.

13. Ms B gave further evidence about supports that would be available given the Director-General has determined that it will engage in a further internal assessment process that will take approximately 10 to 12 weeks.  The Director-General has also indicated that a package can be provided for support to the mother for a period of up to three months while that assessment takes place in order to assist her to care for the children.

14. It that should be noted that the mother requires a mobility aid, having been the subject of a terrible accident.  The supports to be offered by the Director-General include, at least as a proposal at this stage, case management from an organisation such as C Organisation along with intensive support workers.  Preliminary discussions regarding the nature of the support are in place to provide, in addition, before and after school and weekend care.  To the extent that those supports are not currently finalised it is imperative that the Director-General take immediate steps to ensure that those are in place immediately, given as a consequence of these orders these high needs children will be moving into the care of the mother today.  That means that it is imperative that the Director-General ensure that those supports are in place immediately. 

15. The assessment process has been expressed to be one which will involve ground up assessment not only of the mother and her capabilities and the children’s needs, but also of the father’s, including his capacity to provide for the children’s developmental needs and protectively otherwise to ensure that they are not exposed to family violence.  It may also be noted that Y has, at least when speaking to a caseworker yesterday, indicated a desire to live with the mother, X a desire to live with the father and Z being happy living with either parent.  Limited weight can be placed upon the children’s wishes at this point however.

16. In this matter I am unable to make even tentative factual conclusions.  However, on an assessment of the material that has been placed before me the strongest considerations that emerge are the need to protect the children from abuse, neglect and family violence and to enhance the parental capacity to care for these vulnerable, high needs, potentially damaged children.

17. The orders that I make today are temporary, as I acknowledge the parties have had little opportunity to address the difficult factual matters that are being put before me.  However, on the material that has been advanced, particularly the material that has been advanced by Ms B there is no option but for the court to act to suspend the time that the children are spending with their father at present, pending the filing of further material. 

18. The only option available, considering the support that has been offered to the children in the care of the mother, is to order that they will live with the mother pending further determination of the court.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:       

Dated:       19 May 2023