Department of Community Services and Roland and Anor

[2008] FamCA 1093

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF COMMUNITY SERVICES & ROLAND AND ANOR [2008] FamCA 1093

FAMILY LAW – CHILDREN – Unacceptable harm – Lack of parenting capacity – Serious medical neglect

Family Law Act 1975 (Cth)

APPLICANT: Director General, Department of Community Services

RESPONDENT MOTHER: Ms Roland

RESPONDENT FATHER: Mr Speltis

INDEPENDENT CHILDREN’S LAWYER: Ms Ferguson

FILE NUMBER: LEC 588 of 2007

DATE DELIVERED: 24 November 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 24 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms England

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

SOLICITOR FOR THE RESPONDENT

MOTHER:

Mr Hunter

Somerville Laundry Lomax

SOLICITOR FOR THE RESPONDENT

 FATHER:

Mr Denmeade

Paul Denmeade & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ferguson

GJ Legal Solicitors

Orders

IT IS ORDERED THAT

1. Orders 1-6 and 8-9 made by the Federal Magistrates Court on 18 September 2007 and signed by the parties on 23 August 2007 be discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Minister for Community Services have sole parental responsibility of the child … born … July 2004 (“the child”).

2. The child live with a person chosen by the Minister for Community Services or his delegate.

3. The child spend time with the father for two hours per week at the Community Services Centre to be supervised by an employee of the Department of Community Services or employees of an agency engaged by the Department to supervise conditional upon:

   a.The father attending to provide a urine sample within two hours of the test being requested and at the location nominated by the Departmental caseworker allocated to the child or by any other Departmental officer and the father providing the child’s caseworker with a telephone number on which he can be contacted 24 hours a day;

   b.The father not being affected by drugs or alcohol prior to or during the visits with the child;

   c.The father not questioning the child about the personal life of his mother or his carers;

   d.The father speaking respectfully of the mother, the mother’s partner and family members;

   e.The father not denigrating or insulting the mother in the presence of or hearing of the child.

4. The child spend time with the mother for two (2) periods of not less than four (4) hours per week conditional upon:

   a.The mother attending to provide a urine sample within two hours of the test being requested and at the location nominated by the Departmental caseworker allocated to the child or by any other Departmental officer and the mother providing the child’s caseworker with a telephone number on which she can be contacted 24 hours a day;

   b.The mother not being affected by drugs or alcohol prior to or during the visits with the child;

   c.The mother not questioning the child about the personal life of his father or his carers;

   d.The mother speaking respectfully of the father, the father’s partner and family members;

   e.The mother not denigrating or insulting the father in the presence of or hearing of the child.

5. The father and mother are restrained from contact the child other than any contact they have with the child pursuant to orders 4 and 5.

IT IS FURTHER ORDERED THAT

1. Leave is granted to the Director General, NSW Department of Community Services to issue subpoenas in the Sydney registry and returnable in the Sydney Registry to:

   a.the NSW Commissioner of Police;

   b.Probation and Parole;

   c.North Coast Area Health Service;

   d.Director General NSW Department of Education and Training;

   e.Men and Family Centre;

   f.K Child Care Centre.

2. Leave is granted to the Director General, NSW Department of Community Services to have the child examined and assessed by either the Royal Children’s Hospital in Brisbane or by the Summerland Intervention Centre.

3. Leave is granted to the Independent Children's Lawyer to issue subpoena to paediatrician Dr L.

4. Leave is granted to the NSW Department of Community Services, or any officers thereof, to discuss with Mr S, Family Consultant, such matters relating to the best interests of the child, as each might consider reasonably appropriate.

5. Subject to any objection taken by the recipients of any subpoena ordered by Justice Murphy today, leave is granted to the legal representatives of the parties to inspect all documents produced pursuant to subpoena.

6. Leave is granted to the legal representatives of the NSW Department of Community Services and the Independent Children's Lawyer to copy such documents produced pursuant to subpoena, as they consider reasonably appropriate, but that copying of any documents by the legal representatives of the mother or the father be first referred to Justice Murphy for such order.

7. The legal representative of the mother has leave to file a Response and Affidavit notwithstanding it not being in the appropriate Family Court of Australia form.

8. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED THAT

The matter is listed for further mention in the Magellan Directions List at 10.00am on 29 January 2009 in the Brisbane Registry of the Family Court of Australia.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 588  of 2007

DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES

Applicant

And

MS ROLAND

Respondent Mother

And

MR SPELTING

Respondent Father

EX TEMPORE

REASONS FOR JUDGMENT

1. By an urgent application filed on 21 November 2008 the Minister for Community Services for New South Wales seeks a number of orders on an urgent basis. 

2. That application essentially emanates from an order made previously by Federal Magistrate Slack pursuant to s 91B of the Act requesting the intervention of the Department in parenting proceedings between the parties with respect to the child, a son, born in July 2004. 

3. The matter was transferred by Federal Magistrate Slack to this Court, and on 9 September 2008 the matter came before me in the Magellan directions list, at which time the process dictated by this Court, once it is accepted into that list, commenced. 

4. I made a number of orders on that day, including the participation by the parties in a number of different programs.

5. The lengthy, unattractive parenting history in this matter includes a number of varying allegations against each of the parties broadly described as a lack of parenting capacity, a lack of the responsibilities of parenthood, and the risk of various sorts of harm to the child from either of his parents.

6. The concerns revealed by earlier material are that the child has been exposed to domestic violence leading in some cases to physical harm to him; that he himself is at risk of physical harm; that he is at risk by reason of the substance abuse of each of his parents; that he is potentially at risk of sexual harm, and that he has been the subject of serious medical neglect by his parents, most acutely with respect to serious tooth decay which has necessitated the removal of his teeth, and an eye problem, which it is asserted by the Department, has been neglected for some time.

7. The history just described would indicate that this Court, the Federal Magistrates' Court and, indeed, probably other Courts, would have significant concerns about the risk of harm to the child in the care of either of his parents.

8. It is said by the Department that this harm, or the risk of harm is now at an unacceptable level, and it is the recent unacceptability of the risk of harm that founds what is the urgent application made by the Department in this case.

9. The urgency leading to that unacceptable harm is said to have three bases.  First, the child disclosed to his mother and a case-worker from the Department that the father said he would shoot him and shoot the mother, his nanna, and would also shoot “B”, B being a reference to one of the child’s younger siblings. 

10. There has allegedly been a history of alleged statements by the father that he would shoot the mother and her new partner, but it is only last week that those alleged statements have - if what the child said to his mother and the case-worker is to be accepted at face value - included a reference to the child being shot or a younger child being shot.

11. No specific catalyst for that specific threat can be identified by reference to anything that the child has said, but I am told - and indeed part of the second foundation for the unacceptability of the risk - is that there has been an alleged escalation in the alleged harassment of the mother in recent times. 

12. There have been a number of apprehended violence orders made in this matter.  I am told that, very recently, on 14 November 2008 the father was arrested for a breach of the most recent AVO. 

13. The mother alleges that the father has been calling her repeatedly at 4 or 5 o'clock in the morning; that the contents of those calls have been explicitly sexual, and that those calls allegedly involve as a theme expressions of jealousy with strong sexual overtones.  I am told that on the last of those occasions the child was present.

14. Thirdly, in terms of the now unacceptability of the risk and the urgency of the current application it is said by the Department that the child - who it needs to be observed is a 4 year old boy - told the mother and directly told a case-worker who saw him on 20 November 2008 that he did not feel safe.

15. In an interview conducted by the case-worker with the child it is, in my view, significant to note that the child said he did not feel safe, and also said, when asked how his father appeared when he made the threat, that he looked like “a big monster.”

16. The child also told the case-worker and the mother that he was scared and did not want to go to his father's place. 

17. Mr Denmeade appears in the unfortunate position of not having had the opportunity to obtain instructions from his client, the father. 

18. I am told from the Bar table, and Mr Denmeade accepts, that the father was served personally with the material on Friday and was told by a case-worker of these proceedings. 

19. Mr Denmeade submits, correctly as it seems to me, that I should be very cautious about attaching significant weight to the words of a 4 year old boy in circumstances where, on any view of the evidence there has been, and continues to be, profound conflict between the parties.

20. There is no doubt, in my view, that Courts generally need to be circumspect about the statements made by children within those highly volatile situations.  However it also seems to me to be significant that the words used by the child during the interview which forms part of the material before me have with them the accompanying detail, some of which I have referred to.

21. Here a Department which is charged with statutory responsibilities including, importantly as it seems to me, the investigation of allegations of harm, expresses concerns on the basis of interviews conducted by its officers.  In my view, that is a matter which, on an interim basis, before there has been any opportunity for the evidence to be tested in any way, I should give weight to.

22. Furthermore, whilst I am, of course, aware of the limitations just referred to in giving weight to the statements of young children, it seems to me that the Court should give, by reference to the Act, primary consideration to the protection of children from any form of harm.  In circumstances where the allegation of harm includes an allegation of a risk of a child being shot, the Court would be remiss if, on an interim basis, when a statutory agency has intervened, it did not act conservatively and cautiously with the attempted prevention of any such risk uppermost in its mind.

23. Whilst I am acutely aware that interim proceedings in this Court are governed by, and must be determined within,  a statutory process which includes principles, objects, and statutory considerations in the circumstances of this case it is undoubtedly clear that the risk of harm to a young child is the predominant consideration and I proceed on that basis.

24. The mother and the independent children's lawyer each support orders sought by the Department with respect to supervised time between the father and the child. 

25. The independent children's lawyer supports an order that the Department have parental responsibility, is somewhat neutral on where the child should live, but accepts that the material raises profound concerns about the parties’ parenting.

26. The independent children’s lawyer points out in submissions, though, that the mother seems to be addressing a number of those concerns, including concerns raised in the report of Mr S, and concerns that were the subject of orders.

27. In a similar vein to that which I have earlier referred to with respect to the statements of children, it seems to me incumbent upon a Court to proceed cautiously before making orders which can be seen as draconian. 

28. In particular it seems to me that a Court should proceed cautiously before removing from parents of children parental responsibility which the law gives to those parents.

29. Similarly, it seems to me a Court should proceed cautiously before making an order that a child live with a person other than the parents of a child.  That is particularly so in a case like the present where the mother has the care of two other young children, who are, of course, siblings to the subject child.

30. However, again, it seems in my view the risk of harm, and the consequences of that harm should the risk be substantiated in practical application, are so grave that it should be of utmost importance when making Orders.

31. I should record that a number of concerns about the mother’s parenting are raised and about her capacity to parent.  In particular difficulties have arisen in the past with respect to caring for the child’s teeth which I have earlier referred to, and caring for a complaint, which I am told, is potentially a serious medical complaint relating to his eye.

32. The evidence reveals that there should be concerns about parental capacity in each of those respects, but I note that the child has been parented in what is frequently called a week-about arrangement for some time, and I am told by the solicitors who appear for each of the parents that the very high conflict between these parties may have been a contributing factor to that lack of care.

33. I record that, concerned though I am about each of those medical issues, I would not be persuaded to remove the child from the care of either of his parents were they only concerns that founded the Department's action in these urgent interim proceedings. 

34. My major concern is what, on the surface of the material, appears to be the escalation in threat in that it is now - if accepted - directed towards a young child, (in fact, more accurately, two young children).  In those circumstances, given the dire consequences resulting from the threat should it be carried out and the risk of harm is what should predominate these urgent interim proceedings.

35. I emphasise that the orders I make today will be made until 4 pm on 29 January 2009 or earlier order, and that the orders made today are based on material prepared urgently where there has been no opportunity for cross-examination and where the issues raised by the solicitors for each of the parties have not been able to be explored in any significant detail. 

36. So, too, Mr S, who is a Court counsellor attached to the Federal Magistrates' Court at Lismore, has previously, on 3 July 2008, filed a very comprehensive report with respect to these parents and their children, and I have not had the opportunity to hear orally from Mr S in light of  this application. 

37. With that in mind I asked the independent children's lawyer whether there was any opportunity for Mr S to re-engage with this family and to provide at least a short form report, or, if necessary, an oral report, to the Court on 29 January 2009, and certainly the independent children's lawyer considered that such a process would be of assistance.

38. I make that reference specifically in part because I am told from the Bar table by Ms England, who represents the Department, that information provided to the Department indicates that the child (who has been described to the Department by his mother as having behaviour which was effectively impossible to control) has settled down dramatically whilst in foster care.

39. I am hopeful that Mr S will have the opportunity to see the child and speak to him and to observe him within that foster care situation so that a comparison can be made between that situation and the situation observed by him at the time of the preparation of his last report.

40. Proceeding cautiously, with what I regard as being appropriately conservatism with respect to the nature of the risk, and the consequences of the harm if the Department is right about its concerns with respect to the risk, I propose to make orders broadly in accordance with the orders sought by the Department. 

41. Those orders seek that the Minister have sole parental responsibility of the child and that the child live with a person chosen by the Minister consequent upon the Minister having sole parental responsibility.

42. The orders also provide for the father to have supervised time with the child.  By reason of the circumstances earlier described I consider that order appropriate.

43. The orders, in terms, provide for the child to spend time with his mother as permitted by the Director-General subject to a number of conditions.  Ms Ferguson, the independent children's lawyer, submitted that the proposed order was lacking in specificity, and both the mother and the child needed to have greater clarity about specific time proposed.

44. Ms England indicated to the Court that the proposed time would be a minimum of four hours per week and, during such time, there would be no problem with the grandmother and the child’s siblings being there.

45. I consider that, in circumstances where a 4 year old child is being parented by his mother for one week out of two, even if the evidence subsequently reveals that there have been significant failings in that parenting, and has spent that week with his two siblings, that a 4 year old child needs to see - despite the obvious needs for stability, as much of his mother as can be facilitated within reasonable bounds.

46. With that in mind, I propose to order that the child spend time with his mother as organised by the Director-General of New South Wales Department of Community Services but for two periods of not less than four hours per week.

47. The orders will otherwise be in accordance with the application.  That application seeks leave for the Director-General of the Department of Community Services to issue subpoenas to a number of named organisations and I give that leave.

48. To the extent that it is necessary, I give leave to the Department of Community Services or any officers thereof to discuss with Mr S, the Court counsellor, such matters relating to the best interests of the child as each might consider reasonably appropriate.

49. I will give leave to the independent children's lawyer to issue a subpoena addressed to Dr L, paediatrician, with respect to treatment provided to the child.

50. Subject to any objection taken by the recipients of any subpoenas ordered by me today I give leave to the legal representatives of the parties to inspect all documents produced pursuant to subpoenas. 

1. I give leave to the legal representatives of the Department and the independent children's lawyer to photocopy such documents produced pursuant to subpoenas as they consider reasonably appropriate, but that any copying of any documents by the legal representatives of either the mother or the father be first referred to me for an order.

2. So that it is clear, I will give leave to file the Response and accompanying affidavit even though it is not in the appropriate Family Court form.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  12 December 2008