Department of Human Services and Santorno & Anor

[2010] FamCA 185

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF HUMAN SERVICES & SANTORNO AND ANOR [2010] FamCA 185

FAMILY LAW – CHILDREN – Intervention
FAMILY LAW – CHILDREN – Parental responsibility
FAMILY LAW – CHILDREN – With whom a child spends time – Parents time supervised

Family Law Act 1975 (Cth)

APPLICANT: Director General of the Department of Human Services

RESPONDENT MOTHER: Ms Santorno

RESPONDENT FATHER: Mr Santorno

INDEPENDENT CHILDREN’S LAWYER: Ms Mowbray

FILE NUMBER: NCC 384 of 2009

DATE DELIVERED: 3 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Judicial Registrar Loughnan

HEARING DATE: 3 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Guterres, Crown Solicitor’s Office NSW

COUNSEL FOR THE RESPONDENT 

MOTHER:

Ms Gibbons

SOLICITOR FOR THE RESPONDENT

MOTHER:

Hunter Family Law Centre Pty Ltd

SOLICITOR FOR THE RESPONDENT FATHER Ms Temelkovska, Legal Aid NSW

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Verekers Solicitors

Orders

1. Until further order, orders are made in terms of paragraphs 1, 2 and 3 of the Interim Orders sought by the Director-General, Department of Human Services on 2 March 2010 as set out hereunder:

   “1.That parental responsibility for the children [N] (born […] November 1998) (“[N]”) and [E] (born […] June 2004) (“[E]”) be allocated solely to the Minister for Community Services (“the Minister”).

   2.That [N] and [E] spend time with the Mother [Ms Santorno] once a week for two hours, such contact to be supervised by the Director General of the Department of Human Services or her delegate (“the Director General”) and exercised separately from the Father’s contact.

   3.That [N] and [E] spend time with the Father [Mr Santorno] once a week for two hours, such contact to be supervised by the Director General, and exercised separately from the Mother’s contact.”

2. Until further order all existing orders are varied to the extent of those orders.

3. The parties’ lawyers are restrained from disseminating a copy of or part of the report by Dr R dated 10 February 2010 beyond the legal representatives for the parties and the Single Expert until further order.

4. That effect be given to today’s orders by officers of the Department of Human Services collecting the child N from school this afternoon.

5. That if practicable the officers facilitate telephone communication between the child and the father at the earliest available moment and preferably before the child leaves the school, to give the father an opportunity to ease the mind of the child in relation to the handover arrangements and the orders.

6. That within 21 days from today’s date the Director General provide documents recording, or information in the custody of the Department, in relation to any notifications to the Department of suspected abuse of a child, or suspected family violence affecting either child, any assessments by the Department of investigations into a notification in relation to suspected abuse or family violence, and the findings or outcomes of those investigations and finally any reports commissioned by the Department in the course of investigating those notifications. THE COURT NOTED the exclusion contained in s 69ZW(3)

7. That prior to making any substantive change in the living arrangements of the children or either of them the Director General provide advice to the solicitors for the parents as to the substance and detail of that proposed change.  THE COURT NOTED it is the Director General’s intention that the children reside together and that they both attend the school into which the child N has already been enrolled.

8. Leave to any party to restore these proceedings to the list on giving 48 hours’ notice to the Court and to each other party.

9. That any further affidavit on which the Department seeks to rely be filed and served within 21 days from today’s date.

10. Any documents on which either of the parents seek to rely are to be filed and served not later than close of business on 14 April 2010.

11. The proceedings are adjourned to the Judicial Registrar's Duty List call-over at 9:30 am on 28 April 2010.

12. That the reasons for judgment given on 16 February 2010 and today be taken out.

IT IS NOTED that publication of this judgment under the pseudonym Santorno and Santorno is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:       NCC 384 of 2009

DEPARTMENT OF HUMAN SERVICES

Applicant

And

MS SANTORNO

Respondent Mother

MR SANTORNO

Respondent Father

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, N, born in November 1998 and E, born in June 2004. The matter came before me, on 16 February, 2010 and has been in the list on many earlier occasions. 

2. On 16 February 2010, a report of Dr R, who is the single expert in the proceedings, was released to the parties. I made interim orders to cause the two children, E, who is five years of age, and N, who is eleven, to live with the father. I ordered that the mother return the child E to the father at the Centacare facility at G on the following Friday, the 19^th.  I made a recovery order, authorising the police, in aid of that order. I ordered that the mother’s time with the children thereafter, be supervised.

3. In 2009 there had been a request from the Court that the then Department of Community Services intervene in the proceedings. The Department had not intervened. That request was repeated by the single expert. The Department, now part of the Department of Human Services, has now agreed to intervene. Indeed E is already in foster care, under the care of the Director General pursuant to action under the state legislation and an order of the NSW Childrens Court. That order lapses next Monday.

4. The Director General seeks parental responsibility for the children and that the parents’ time be supervised by the Department.  The application was filed on 2 March 2010. It has only just reached the parents and they have not had much notice of the application. 

5. The mother doesn't oppose the orders except that she seeks that the decision making responsibility be shared with the parents.  Her position is that the primary danger to the children is the father and these proposals, although restricting her time with the children, protect the children in relation to that danger. The children are represented and their representative supports the Department's application.  The father is represented and his representative strongly argues that the proceedings be adjourned. The father seeks that in the meantime the orders I made on 16 February 2010, remain in force and that the father have an opportunity, after all of the relevant material has been put on the record, to answer the matters that are raised by the Department. The parents’ are entitled to an adjournment but urgent action is required in the meantime.  

6. It is true that none of the parties has had enough time with the applicant’s documents. The documents relied on amount to the affidavit of the Department of Human Services case worker having responsibility for this family. That affidavit annexes file notes of various interviews, including interviews going back some time, in relation to the children. Some of that material is blacked out and I am told that is in aid Departmental policy. As to that issue, I know that the question of conflict between section 69ZW of the Family Law Act, has been allocated to a judge and there is at yet no outcome of that issue. Ms Temelkovska sought to agitate that dispute before me again today and I declined her application. The same issue is already before the Court in other proceedings.

7. In any event in this case the Department does not rely solely or primarily on the records in question. Here the Department (and the mother and the ICL) rely on the single expert’s recommendation: that the children be placed in care if that facility is available and that thereafter certain enquiries and investigations be undertaken.

8. I am to make orders in the best interests of a child. In giving reasons on 16 February 2010 I set out what that means and will not repeat those matters here.

9. It must be said, from everybody's point of view, these are very unsatisfactory circumstances. The question is one of risk.  There have been problems attending the parents and the children for many years. The relationship of the parents is fraught. It started badly with the parents meeting as adult entertainer and client, and, according to the single expert, notwithstanding their separation, there continues to be a level of enmeshment between them. Dr R observed that the father is desperate to resume a relationship with the mother. He thinks that the mother has taken opportunities to incite the father and with the father having little capacity to control himself, that has caused some problems.

10. It is not unremarkable that the police were called to the rooms of Dr R when the family attended so he could undertake his investigation. Thus the material belatedly relied on by the department is not the only source of concern. This is a case where the court was satisfied, some months ago, that it was important that the Department intervene in the proceedings and requested the Department's intervention. 

11. It is possible that at a final hearing, Dr R’s report will not be accepted. However, for the purposes of an interim hearing, his opinion carries some weight. He has no axe to grind in the proceedings. He is not involved because he was treating one of the parents. Nor was he chosen by one of the parties. He is the single expert appointed in the proceedings as somebody independent, as somebody willing to commit to the obligations of an expert providing evidence to a court. He is a Psychiatrist who regularly prepares reports as a single expert, in parenting proceedings before this court.

12. Mrs Temelkovska is right, Dr R has a little bit each way in terms of his opinions. That may simply be because he was not confident that the Department would agree to take the children. I will not repeat here what I said on the 16th about the observations he made, at some length, in relation to the presentation of the parents in his rooms or his concerns about their capacities. I will not repeat here what I said on the 16th about the presentation and reaction of the children to their parents on that occasion. The recommendations of Dr R are: 

    I recommend that the Department of Community Services intervene and assess the situation for these children.  I suspect that the level of care from the father is probably adequate at present, at this stage, and he would probably be the preferred parent.  However, I don't believe that is likely to continue and the father's need to see the matter is likely to destabilise his parenting.  Therefore, my first preference would be for the children to be taken into care by the Department of Community Services and then for appropriate limited contact with both parents to be assessed.  

13. The underlining is mine. He says in a summary section:

    However, I do have major concerns about the parenting capacity of both parents.   I believe that these children are highly at risk from both parents.   Neither is in a good position to care for the children.  

14. He goes on later: 

    The involvement of the police during the assessment, I believe, is indicative of the explosive nature of the situation and I believe that the children are at great risk from the situation as well both parents.

15. He says at another point: 

    Should it not be possible for the children to be taken into care, I believe that the children should probably stay in the care of the father in preference to the mother although this would still be of grave concern to me.  

16. As to the risks associated with the orders sought by the Department, the children are not babies. There is no suggestion that the attachments of either child are particularly fragile.  If the material that is attached to the Department's affidavit is to be accepted, then E has settled reasonably well. I appreciate that there are problems with the Department’s evidence. However, balancing the risks, the father's behaviour in the premises of Dr R is of greater concern.  If a parent cannot constrain himself or herself in so structured an environment as the offices of an expert appointed to make an assessment of that person for the purposes of proceedings about the living arrangements of a child, then there is obviously a concern about that parent’s behaviour in a less structured environment.

17. Now Dr R reports all of that, reports all of the problems that occurred in the past, makes adverse observations about the father and yet says, of the two parents, he thinks that the father is the preferable parent. This is early days, and as I say, Dr R might not be accepted about that or about something else. It takes some inquiry for the court to be in a position to make a judgment about what is in the best interests of a child.  The critical thing is to keep the children safe. 

18. Both children have a loving relationship with their parents. I accept that their parents love them. Those relationships are not at risk in the short term, by the orders that are proposed on behalf of the Department.  However, one incident where a child is exposed to violence, one incident where a child is exposed to psychological harm as a result of conflict, whether it is in the presence of both parents or just one, that has the capacity to cause significant long‑term harm to the children. 

19. So on the basis of those concerns, it seems to me that the safest course is the course proposed on behalf of the Department, the mother and the Independent Child lawyer. I appreciate this calls on the parents to be patient. One of the hardest things we ever ask of parents is that they be patient while inquiries are made and we try and define what will be in the best long‑term interests for their children. At risk here is the safety and welfare of these children forever; how they will develop; how they will behave as adults. A bit of patience now, while the children are in an environment which involves supervision and checks and balances, will promote the best outcome for the medium term. That isn't to say that these arrangements will be in place indefinitely. I would expect there to be a focus on bringing the proceedings to a head, to make the best use of Dr R’s report. 

20. The Department will get on with its statutory role in making assessments and providing recommendations but now as a party to the proceedings. As to the other issues, the only practicable order is that the Department have decision making responsibility for the time being. The Department has elected to deal with the welfare of these children in the Family Court. It always has the option of taking action under the state legislation. Whatever might occur in the Children’s Court, in this Court the parents have a right to information about the children. The parents have a right to be consulted. There should be some impost on the Department in terms of the normal provisions of the Family Law Act in relation to the children's circumstances. If those constraints are not required in care proceedings then that is always an option.

21. There is an issue about the releasing Dr R’s report to the parties and/or to an expert for the mother. Dr R, himself, expressed some concern about the report being disseminated and that concern, in the short‑term, will be respected. Natural justice requires that the parties be aware of the contents of the report. They have discussed the report with their legal representatives but to date have not been given a copy of the report. For the time being I will continue the restriction. It is one thing to be told of the contents of a report and quite another to the report in your hand, to be able to worry about it and over it. There is a risk that the report would achieve a greater prominence than it should, that a parent with poor impulse control could be distracted by the report from a focus on the best interests of the children. 

22. The question arose particularly in relation to the mother’s wish to show the report to a therapist. Her counsel says that the mother has taken on board, some of the things that Dr R has said. For the time being her consultant will have to do without the report because I won't allow the report to be disseminated further than Dr R and the legal representatives of the parties.

23. There are a couple of issues about the hand over arrangements and quite properly concerns are raised. On 16 February 2010 I noted that N has special needs. Dr R refers to a degree of developmental delay and some hearing deficiency in the boy. Those issues have been raised again on behalf of the father today, particularly in light of the sudden change of residence that will occur as a result of my orders. The father is concerned that the child not just have the change of circumstances so dramatically imposed on him this afternoon, without having any opportunity to learn what is happening from his father. As the father’s solicitor says, there should be an opportunity for the father to put a positive spin on these arrangements; to say that this is just a temporary arrangement and that’s what we all intend; so that the child is comforted. I accept the thrust of that submission. The child finishes school in a few minutes. Arrangements have been made for the child to be collected by officers of the Department. It seems to me, because of the concerns I referred to earlier, that the father’s communication with the boy would be effected by telephone.

24. There is an issue about the information yet to be provided by the Department. The father's solicitor seeks documents under section 69ZW of the Family Law Act. That section clothes documents produces with evidentiary status without the usual formalities. That avoids the need for Departmental officers verifying the truth of anything. The order is sought in the general terms of the section and I will make such an order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  11 March 2010