Department of Communities and Justice and Hallsbury and Ors (No 2)

[2020] FamCA 344

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITIES & JUSTICE & HALLSBURY AND ORS (NO. 2) [2020] FamCA 344

FAMILY LAW – CHILDREN – Parenting orders – interim arrangements – limitations on the scope of available arrangements where the Department of Communities and Justice holds parental responsibility – safety net should arrangements fail.

Family Law Act 1975 (Cth) s 60CC
Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 135A, 136 and 137

APPLICANT: Department of Communities and Justice

1^st RESPONDENT: Ms Hallsbury

2^nd RESPONDENT: Mr Thompsett

3^rd RESPONDENT: Ms Keen

4^th RESPONDENT: Mr Pemberton

INDEPENDENT CHILDREN’S LAWYER: Evans Family Law

FILE NUMBER: CAC 678 of 2016

DATE DELIVERED: 8 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

COUNSEL FOR THE 1^ST RESPONDENT: Mr McLeod

SOLICITOR FOR THE 1^ST RESPONDENT: Sam Mason Legal Pty Ltd

SOLICITOR FOR THE 2^ND RESPONDENT: Elringtons

SOLICITOR FOR THE 3^RD RESPONDENT: Dillon-Smith Lawyers

SOLICITOR FOR THE 4^TH RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Evans

Orders

1. The Application in a case filed by Ms Hallsbury on 14 April 2020 is dismissed.

2. The interim application in the Response to an Initiating Application filed by the Secretary of the Department of Communities and Justice is dismissed.

3. The matter is listed for further directions for the preparation of the matter for trial on 18 May 2020 at 4.00pm, at which time the parties are to appear by videolink.

4. At the directions hearing the parties are to be in a position to address:

   (a)The availability and applicability of obtaining further evidence from Dr D;

   (b)The witnesses each intends to call and the subject matter it is anticipated the witnesses will give evidence about;

   (c)The factual matters that it will be necessary to determine in order to decide on the living arrangements for X;

   (d)What, if any, courses or professional assistance any party should receive to support them in the orders that they seek;

   (e)       The orders each party will seek at final 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 Department & Hallsbury 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

Department of Communities and Justice

Applicant

And

Ms Hallsbury

1^st Respondent

And

Mr Thompsett

2^nd Respondent

And

Ms Keen

3^rd Respondent

And

Mr Pemberton

4^th Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter arises in the context of Final Orders entered into by the parties in December 2019, which, amongst other matters, provided for the NSW Department of Communities and Justice (DoCJ) to exercise parental responsibility for, and determine where X lives.  The orders also provided for X to spend time with Ms Hallsbury (the paternal grandmother), Mr Thompsett (his stepfather), and with his brother, Y.  At the time of the making of those orders X was placed with the maternal grandfather in rural NSW, in what was hoped to be a long term placement.  Provision was made for the DoCJ to advise the parties in advance if there was a change to that arrangement.  It is an arrangement that has broken down in the context that the maternal grandfather was unable to provide adequate supervision for X.

2. By judgment of 31 March 2020 I set out the circumstances that led to the matter coming back before the Court, following X being removed to, and retained by Ms Hallsbury.  He was subsequently returned to the care of the DoCJ and the matter is now before me to determine whether, on an interim basis, he should live with Ms Hallsbury, whether she should exercise parental responsibility, or whether parental responsibility should remain with the DoCJ and they should determine where he should be placed.  The DoCJ indicated that they intend to place him with a foster family in Sydney.  The mother in that family is the cousin of X’s mother.

3. The further context is that although X has spent time with Ms Hallsbury, the visits between X and Ms Hallsbury, and X and Mr Thompsett have not taken place in accordance with the orders of December 2019, in the context of severe bushfires affecting the area that X was living in.  The Department now seeks an amendment to the orders that provide for X to spend time with Ms Hallsbury and Mr Thompsett.

Material Relied Upon

1. The Applicant relied upon the Affidavit of the caseworker, Mr G filed 21 April 2020.

2. The First Respondent, Ms Hallsbury, relied upon the following material:

   a)Affidavit of Mr Hallsbury filed 6 April 2020;

   b)Affidavit of Mr K filed 6 April 2020;

   c)Amended Response to Initiating Application filed on 7 April 2020;

   d)Her affidavit filed 6 April 2020.

3. The Single Expert’s report of 9 December 2019 was relied upon, as well as carer assessment reports prepared in relation to the foster family.

4. A limited report was prepared by a Family Consultant on 21 April 2020.

Circumstances

1. The Independent Children’s Lawyer (the “ICL”) strongly supported Ms Hallsbury’s application for X to live with her in the interim.  The key driver behind that application is the instability that X has experienced in his living arrangements since the time that his mother determined that he would no longer live with her.  It was uncontroversial that each placement facilitated by the DoCJ leading up to and following the making of Final Orders has failed in the sense that they have not been able to be maintained long term.  A question arises then as to the durability of the arrangements that the DoCJ is now putting in place, which requires X to change towns, schools, home and carers.  The risk that faces X is that this placement (with carers assessed as suitable for children of 0 – 5 years of age with low to medium needs) will also come to an end, leading to more upheaval for him.

2. Against that, Ms Hallsbury has for some time expressed a keenness to care for X.  She was assessed by the Single Expert as not posing a risk to X, and as being an option of last resort.  The ICL suggested that the position now calls for such an option.

3. The DoCJ raised issues regarding Ms Hallsbury.  They noted that they arranged an assessment process for Ms Hallsbury which recommended that she not be authorised as carer for X.  It has not been identified why this recommendation was made.

4. The DoCJ has also asserted that if X is placed with Ms Hallsbury, she should exercise sole parental responsibility, as the DoCJ would not be willing to exercise parental responsibility should X be placed with her.  The DoCJ identified potential statutory issues for the exercise of functions by the DoCJ on placement with Ms Hallsbury.  It appears from the operation of s 135A, s 136 and s 137 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) that it would be impermissible for a placement to be made by the DoCJ with Ms Hallsbury, as an unauthorised person, whilst the Minister of Secretary holds whole or part of parental responsibility for X.

5. It should be noted that Ms Hallsbury lives in Victoria, while the DoCJ is NSW based.  The DoCJ noted limited capacity to have an ongoing role for X should he be living in Victoria with Ms Hallsbury.

6. The assessment by the Family Consultant took place five days after X had commenced his placement with the foster family.  His primary desire was to live with his mother again.  That option is not available.  If unable to live with her, his stated preference was to maintain in the placement with the foster family.  Realistically the Family Consultant observed that caution needed to be exercised in giving weight to these views under such limited circumstances.

7. The Family Consultant noted that the foster family’s experience and access to resources would assist them in meeting X’s needs.  Disadvantages in living with them flow from the remoteness of the placement from X’s other family, and whether X might pose a risk to the other child in that household given his previous history of aggressive and sexualised behaviours.

8. The Family Consultant thought that:

   Regardless of where X is placed, he will need long term specialist trauma therapy, a school that has the resources to determine and address his poor academic functioning and access to social and recreational opportunities to improve his self esteem and functioning in the world.  X’s carers will require extensive support, both professional and family to provide adequately for X’s needs.

9. Recent circumstances when X was temporarily in the care of someone (while placed with the maternal grandfather), where X was exhibiting emotional disturbance, holding a knife and expressing that he wanted to be dead, emphasise the depth of the issues that confront X and his need for support.  They are also indicative of caring for X not being a straightforward exercise.

10. The Family Consultant was also of the view that Ms Hallsbury may present as a viable care arrangement, if she undertook an appropriate “trauma informed parenting program” and had access to ongoing supervision from local services.

Discussion

1. Whatever the outcome of these interim proceedings, priority will need to be accorded this matter to determine X’s longer term arrangements. 

2. The interim arrangements are to be determined by X’s best interests, reliant on the s 60CC considerations.  Those that emerge as dominant in the interim relate to X’s particular characteristics, as seen in his need for trauma informed parenting, and the capacity of relevant persons to care for X, in particular emotionally and developmentally.  A significant aspect of this is the entwined needs for stability of care for X and, on failure of a care arrangement, the ability to mitigate the harm to X by the provision of alternate arrangements as a safety net.

3. In that context, neither Ms Hallsbury nor the placement with the foster family are guaranteed as long term propositions.  The DoCJ’s capacity to support the foster family places that circumstance as better able to cater for X than with Ms Hallsbury in the interim.  The DoCJ’s capacity to act if there is a failure in that placement is again a better option for X in the interim, than the uncertainty that accompanies a collapse in a placement with Ms Hallsbury.

4. On balance, X’s best interest are supported by orders that continue to give the DoCJ parental responsibility and the ability to place X.

5. Although the DoCJ sought a reduction in the face to face arrangements for X and his family, particularly given the geographical difficulties and those caused by the current COVID-19 crisis, it is imperative that X have continuity in those relationships that are important to him, particularly with his brother, with Ms Hallsbury and with Mr Thompsett.  It may be sensible for those involved in these arrangements to come to alternate arrangements that maintain the frequency of direct face to face time, but in the absence of such alternatives being identified, the current arrangements should remain pending hearing.

6. The matter will be relisted for the purpose of determining its pathway to Final Hearing.

7. Although the interim orders pursued by the DoCJ in their Response to an Initiating Application addressed arrangements for Y, these were not argued or pressed by the DoCJ.

I certify that the preceding [twenty-four] (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 May 2020.

Associate:

Date:  8 May 2020