Department of Communities and Justice and Hallsbury

[2020] FamCA 200

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES & JUSTICE & HALLSBURY [2020] FamCA 200

FAMILY LAW – CHILDREN – Recovery order sought by the Department of Communities & Justice – Best interests of the child – Order made.

Family Law Act 1975 (Cth) ss 60CC 67U, 67V

APPLICANT: Secretary, Department of Communities & Justice

RESPONDENT: Ms Hallsbury

SECOND RESPONDENT: Mr Thompsett

THIRD RESPONDENT: Ms Keen

FOURTH RESPONDENT: Mr Pemberton

INDEPENDENT CHILDREN’S LAWYER: Mrs Evans

FILE NUMBER: CAC 678 of 2016

DATE DELIVERED: 31 March 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 31 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moore

SOLICITOR FOR THE APPLICANT: NSW Crown Solicitor's Office

COUNSEL FOR THE RESPONDENT: Mr McLeod

SOLICITOR FOR THE RESPONDENT: Sam Mason Legal Pty Ltd

SOLICITOR FOR THE SECOND RESPONDENT: Elringtons

SOLICITOR FOR THE THIRD RESPONDENT: Dillon-Smith Lawyers

SOLICITOR FOR THE FOURTH RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Evan's Family Lawyers

Orders

IT IS ORDERED THAT

1. Ms Hallsbury is to deliver the child, X Pemberton, born … 2010, to an officer of the Secretary of the Department of Communities and Justice, New South Wales at 10 am on 2 April 2020 at the Town B Community Centre, Town B, in New South Wales.

IT IS NOTED THAT

1. It is intended that an officer from the Town C office of the Department will attend to collect X along with Mr E Keen, if Mr E Keen is available.

2. In the event that there is a border restriction between New South Wales and Victoria in place on that day, that the departmental officers will meet Ms Hallsbury at the border so as not to cause her to cross the border to deliver X in accordance with the above order.

IT IS ORDERED THAT

1. In the event that X is not delivered in accordance with the above order then a recovery order will issue in the usual terms directing the Marshal, All Officers of the Australian Federal Police and All Officers of the State and Territory Police Forces of Australia to recover X at 4 pm on 2 April 2020.

2. It is directed that the Secretary advise the Canberra Registry of the Family Court of Australia immediately on X being delivered in accordance with order 1 and that failing such notification the recovery order will issue.

3. Leave is granted to Ms Hallsbury to amend her Response to an Initiating Application filed 31 March 2020 to seek orders on a final basis for sole parental responsibility and that X live with her.

4. Ms Hallsbury is to file and serve within seven days of today's date by 4 pm on 17 April 2020 an Amended Response to an Initiating Application incorporating the interim orders that she seeks along with a single consolidated affidavit from herself and each witness she intends to rely upon in pursuit of that Interim Application.

5. The Secretary of the Department of Communities and Justice, along with each other party, is directed to file and serve any Response and a single consolidated affidavit from each witness they intend to rely upon in respect of the interim orders pursued by Ms Hallsbury by 4 pm on 14 April 2020. 

6. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for X Pemberton, born … 2010, and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.

7. The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.

8. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

9. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

10. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

IT IS NOTED THAT

1. It is requested that the Legal Aid Office consider the reappointment of Mrs Evans as the Independent Children’s Lawyer, she having previously been the Independent Children’s Lawyer in the proceedings and indicated to the Court on appearing on an Amicus basis on the last occasion her willingness to accept such further appointment.

IT IS FURTHER ORDERED THAT

1. I request that a limited issues Family Report be prepared concerning the wishes of X and concerning an assessment of Ms Hallsbury as an appropriate carer of X.

2. It is requested that the Family Consultant if possible interview X, Ms Hallsbury and a caseworker nominated by the Secretary and if available use video link facilities to do so.

3. It is directed that any person with X in their care comply with directions given by the Family Consultant for the interviewing of X.

4. It is requested that the Family Consultant consider the three reports prepared by the Single Expert, Dr D, in the previous proceedings in this matter.

5. This matter is listed for interim determination on 24 April 2020 at 2 pm. 

6. Any party is at liberty to seek the urgent relisting of this matter should further directions become necessary for preparing the matter for hearing.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym The Department & Hallsbury and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 678 of 2016

Secretary, Department of Communities & Justice 

Applicant

And

Ms Hallsbury

Respondent

And

Mr Thompsett

Second Respondent

And

Ms Keen

Third Respondent

And

Mr Pemberton

Fourth Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an Application for a Recovery Order made pursuant to s 67U of the Family Law Act 1975 (Cth). It is paramount when considering such applications in accordance with s 67V of the Act that X's best interests is the paramount consideration. In determining X’s best interests, I am to examine the considerations that are set out at s 60CC of the Family Law Act 1975 (Cth).  In the context of interim proceedings such as these are, I am to do so in the knowledge that it is difficult, if not impossible, to drill down to solid facts where facts are contested.  I am also to consider this matter in the shadow of what is a recent final disposition following approximately three years of litigation.

2. On 16 December 2019, Final Orders were made investing sole parental responsibility in the responsible Minister of the New South Wales Government.  Orders were made for X to live in accordance with the directions of the Secretary of that Department and given the concerns about stability for X's arrangements, noting as has been emphasised by the former Independent Children’s Lawyer in this matter who appears today on Amicus basis, X has suffered a history where he has gone from care with his Mother to out-of-home care, to care with various relatives.  It has been extremely unstable and is, one might think, likely to have done harm to X by virtue of that instability in his care arrangements.  Those Final Orders provided for X to have time with Mr Thompsett, who is a person who has had long-term involvement with X and, through the process of litigation, demonstrated a commitment to continuing his involvement with X, even if X was not to live with him. 

3. Those orders also provided for time to commence with Ms Hallsbury, who is the current applicant in the proceedings.  She is the paternal grandmother.  The orders provided a mechanism whereby a transition to longer block periods of time may well have been facilitated following Ms Hallsbury spending initial time with X, that process being assessed and the matter moving on to longer term school holiday time.  It was required as a part of that process that Ms Hallsbury would be cooperative in the process and would attend on courses as requested by the Secretary.  It was also anticipated that the review of the arrangements, as a transition potentially in the school holiday time, would be by a psychologist.

4. Importantly, order 31 of those orders provided all the parties with liberty to apply at short notice should X’s then placement with the maternal grandfather, Mr E Keen, break down.  The Secretary was obliged, as a result of the orders, to notify the parties if there was a proposal to change that arrangement.  That is the situation which currently confronts the Court.  The Secretary has apparently given that notice to the other parties and they have taken part in a conference in respect of that. 

5. The orders provided liberty to apply, not a liberty to act pre-emptively before the Court had the opportunity to consider the effect of any proposed arrangements.  That is, the orders catered for a breakdown in what were hoped to be long-term stable arrangements for X but in the recognition that such breakdown could occur and if it occurred it will be a matter which justified the Court's consideration of what was best for X again.  Those mechanisms provided for X’s best interests, where as here, he faced a change in residence from staying with Mr E Keen. 

6. What has instead occurred is the removal by Ms F Hallsbury, who is X’s aunt and who has previously been a long-term carer for X, from Mr E Keen.  X has been taken by Ms F Hallsbury to reside with Ms Hallsbury, the paternal grandmother.  It may well be that that placement, as has been suggested might be the possibility by the former Independent Children’s Lawyer, is an appropriate placement for X under the circumstances of instability he faces.  It could be considered to be such a placement by the Department.  It could be considered to be such a placement by the Court.  That consideration, however, involves an orderly consideration of appropriate evidence either addressed to the Department or to the Court to consider what is in X’s best interests. 

7. The orders that were made were designed to permit that consideration rather than have X face yet another presumptive change as he has now faced. 

8. It was asserted in the material that the Department has not complied with the requirements for Ms Hallsbury to spend time with X, or rather X with Ms Hallsbury in January.  It is contended for Mr Thompsett that his time with X has also not been facilitated.  It has been asserted in the material that the Department has recognised that it has been too busy to organise those arrangements.  It is alleged that the Department has not acted quickly enough or supportively enough to sustain the placements with Mr E Keen.  Those are matters which may require consideration on the filing of evidence directed to those matters. 

9. The Court is not in a position today to make determinations as to whether or not those matters have occurred.  Clearly if the Department is in such a position it is a matter which will be relevant in determining what the next arrangements should be for X.  That is, they may be legitimate complaints, but even if they are legitimate complaints they do not equate to a justification for a removal from the care of the Department as being in X’s best interests.

10. It seems that the s 60CC considerations are touched on in the following factual matters:

    1.X has had a supportive relationship with Mr E Keen.

    2.I am told on the evidence that it is a placement that is to be maintained until a new suitable placement can be found for X.

    3.X has a desperate need for stability and stability with people who love him and will care for him.

    4.X’s history is that he has been moved from carer to carer to carer, undermining to a great extent his development.

    5.The parental capacity of Ms Hallsbury is yet to be scrutinised or tested.

    6.The Department is imperfect as a parent, and it may be recognised that the State is not always a good parent, but the Department has been engaged in the care arrangements for X by virtue of Family Court orders that were considered to be in X’s best interests in December of 2019.  Under those circumstances the Department was found to be the best holder of parental responsibility and the entity best able to determine where X would live in X’s best interests. 

11. It is to be noted that the orders contemplated an increase in time between X and Ms Hallsbury through school holidays, but not absent an appropriate review of how that relationship between X and Ms Hallsbury was progressing.  

12. In short, the presumptive change from the Department's care is not in X’s best interests.  What is in X’s best interests is that a recovery order issue if X is not to be returned, otherwise absent a recovery order, to the Department's care.

13. It is to be noted that a recovery order has the potential to be disruptive to X.  It may be observed that although it is in X’s best interests, if necessary that he be returned by the operation of a recovery order, it is in his better interests if he is to be returned in a way that is facilitated by those under whose care he is currently staying.  That is, if X, who will be the subject of recovery order if necessary, is returned in a supportive fashion by the paternal grandmother, that will be very much in X’s best interests. 

14. He is to undergo another change.  He is to be returned to Mr E Keen as a result of the orders that I intend to make.  That is, a place that is familiar with him.  The better those arrangements are able to be supported by those around him, the better the experience will be for X.  I will hear from the parties as to the appropriate arrangements to be made.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 31 March 2020.

Associate:   

Date:    1 April 2020