Director-General, Communities Services Directorate & Alexander (No. 2)

[2021] FamCA 366

FAMILY COURT OF AUSTRALIA

Director-General, Communities Services Directorate & Alexander (No. 2) [2021] FamCA 366

File number(s):	CAC 2524 of 2020
Judgment of:	GILL J
Date of judgment:	2 June 2021
Catchwords:	FAMILY LAW – PARENTING – child-related proceedings – shared parental responsibility – where child is in foster care and parents seek shared parental responsibility.
Number of paragraphs:	19
Date of hearing:	2 June 2021
Place:	Canberra
Counsel for the Applicant:	Ms Davis
Solicitor for the First Respondent:	Pennicott Weir Lawyers (ACT)
Counsel for the Second Respondent:	Ms Snelling
Solicitor for the Third Respondent:	Robinson McGuinness
Solicitor for the Independent Children's Lawyer:	Jeanine Lloyd & Associates

ORDERS

CAC 2524 of 2020

BETWEEN:

DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE

Applicant

AND:

MS ALEXANDER
First Respondent

MR MILLS
Second Respondent

MS CARY

Third Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	2 JUNE 2021

THE COURT ORDERS, BY CONSENT, UNTIL FURTHER ORDER:

1.The Child shall spend time with her mother as agreed in writing between the Applicant, the mother, and the Foster Carer, and being no less than once per calendar month, and in accordance with X’s wishes.

2.As soon as reasonably practicable, the parties shall facilitate Family Therapy involving the father and X, and such other people as recommended by the Family Therapist appointed in Order 3 below to assist in the Family Therapy.

3.The parties shall take all steps necessary to engage a suitably qualified and available counsellor to oversee Family Therapy (“Family Therapist”).

4.The following shall apply in relation to Family Therapy:

(a)the goal of Family Therapy is to develop and support the Child’s relationship with her Father.

(b)the father will engage with B Services, or such other counsellor as recommended by the ICL and chosen by him (“the Father’s Therapist”).

(c)that by this Order, the father authorises the Father’s Therapist, his General Practitioner and any other treating mental health professional to talk with each other and with the Family Therapist at the request of the Family Therapist.

(d)the Applicant and Foster Carer will make their best endeavours to engage X with Ms C, or such other treating psychologist or mental health practitioner, as appropriate (“the Child’s Therapist”).

(e)that by this order, the Applicant and Foster Carer, and such other party as is necessary, authorises the Child’s Therapist, her General Practitioner and any other treating mental health professional to talk with each other and with the Family Therapist at the request of the Family Therapist.

(f)the Family Therapist will consult with the Father’s Therapist and the Child’s Therapist to make recommendations as to ongoing treatment of the father and/or Child in furtherance of the goal of the Family Therapy, including the father and Child working directly with the Family Therapist in joint sessions.

(g)the parties shall request the Family Therapist to provide written feedback to the parties, at a frequency of no less than each three months, regarding the progress of therapy and any recommendation as to the Child spending time with the father.

5.That upon receipt of a recommendation in accordance with Order 4(g), the parties shall consult in order to try and reach agreement as to the Child spending time with her father. In the event the parties do not agree, the Director-General shall decide on arrangements for the Child spending supervised time with the father.

6.The Applicant shall provide the Family Therapist with the following:

(a)Report of Dr D dated 3 October 2019

(b)Report of Dr D dated 27 April 2020

(c)Letter from Ms C dated 24 September 2020

(d)Report of Ms F dated 23 April 2019

7.Noting that the report writers in 6(a)-(d) have not interviewed the mother in the preparation of those reports, and the mother does not concede the statements made by the Father to the report writers as to her health.

8.The Applicant will pay for the cost of the Family Therapy, inclusive of the Father’s Therapist and the Child’s Therapist.

9.The parties will cooperate with all reasonable requests made by the Family Therapist for involvement by a party in providing information to, or attendance on, the Family Therapist.

10.The father and mother are at liberty to provide the Child with gifts, cards and letters and the like, at an address nominated by the Foster Carer, noting that until further order that address is care of ACT Together.

11.The Foster Carer shall facilitate the Child communicating with the mother and father by telephone or other electronic communication in accordance with her wishes.

12.By this Order, each party is hereby authorised to obtain from the Child’s school, at that party’s sole cost, all notices, letters, school reports, and school photograph order forms.

NOTATION

13.All communication between the father, mother and Foster Carer shall be facilitated through the Applicant by their delegated agency ACT Together, or as otherwise agreed in writing.

THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:

14.The Director-General of the Community Services Directorate, Ms Alexander and Mr Mills shall equally share parental responsibility for X.

15.As soon as reasonably practicable after the making of the decision in relation to the long term care, welfare and development of X by the Director-General, Ms Alexander and Mr Mills the Director-General shall advise the mother of the terms and the decision that has been made.

16.I direct the Director-General to promptly notify the Registrar of the Family Court of Australia on discontinuance of the proceedings before the ACT Children’s Court.

17.The matter is adjourned to a date to be notified.

18.Any party, including the Independent Children’s Lawyer, is at liberty to seek the relisting of this matter on short notice.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX-TEMPORE REASONS FOR JUDGMENT

GILL J

1. These proceedings concern parenting arrangements for X, who is eleven years old.  The context of the proceedings is that there have been proceedings conducted in the welfare jurisdiction since approximately 2013. 

2. Further context is that X is currently under the care of the Director-General and in the foster care of Ms Alexander.  Now, by consent, orders are made in this Court for X to live with Ms Alexander, until further order.

3. I have been advised that on the making of orders here the proceedings in the Children’s Court in the welfare jurisdiction will be discontinued.

4. The parties have resolved a significant number of matters but remain at odds as to the temporary allocation of parental responsibility for X. 

5. There is no dispute that the Director-General and Ms Alexander should exercise parental responsibility equally between themselves.  The dispute is as to whether or not the father and mother should also share parental responsibility. 

6. It is not controversial that the father and mother have of late had only limited time with X.  At present the father’s time is not occurring, there being cogent evidence of overt refusal by X who is saying things such as that she hates the father.

7. Accordingly, despite recent efforts on the part of the Director-General to facilitate time, the time with the father has ceased. 

8. The parties are in common, as is reflected by the Consent Terms that I have made, as to the father and X engaging in family therapy.  The complex scheme for that family therapy tailored to the particular needs of X is set out in those Consent Terms.  It is in that context that the interim allocation of parental responsibility is to be determined.

9. Although the presumption of equally shared parental responsibility between the parents applies, the common position of the parties that the Director-General and Ms Alexander will hold parental responsibility, whether in combination with others or not, demonstrates that the presumption is displaced by the particular needs of X in her particular circumstances. 

10. The question is whether it is in her best interests that either parent also hold parental responsibility, that is, are X’s best interests served by also having either, both or none of the parents determine long term matters in combination with the Director-General and Ms Alexander.  The various positions of the parties were as follows. 

11. The Director-General sought for a sharing of parental responsibility between herself, Ms Alexander and the father.  The father adopted that position.  The Independent Children’s Lawyer adopted that position.  Ms Alexander said that the parental responsibility should merely be shared between herself and the Director-General, whilst the mother’s position is that it should either be both parents sharing parental responsibility with the Director-General and Ms Alexander, or neither.

12. There are factors that speak against either the mother or father exercising parental responsibility in this matter.  Each has had only limited involvement in X’s day to day life such as to understand and participate in decision making and there can be no expectation from the material that has been filed in the case that the mother and father would find it practicable to cooperate in making decisions about X.  There is a tense relationship reported by Ms Alexander as to herself and the father which might also undermine cooperation between them in long term decision making.  There was also the apparent previous disengagement of the mother from the proceedings, her non-involvement in the welfare proceedings since 2016, although it is notable now and important that she is participating in the proceedings before this Court.

13. There are a number of factors in favour of parents also exercising parental responsibility.  Despite difficulties for the father with the Director-General, with Ms Alexander and with the mother, the father has not been obstructive in his approach.  That attitude in his approach is apparent in his approach to the proceedings today in the matters that he has not pursued and the limited range of matters that he has pursued.

14. Secondly, the involvement of the father and potentially also the mother, in long term decision making for X signals to her their significance and that neither of them has abandoned her.

15. Further, the father and the Director-General and Ms Alexander’s joint participation in sharing parental responsibility is supportive of their cooperation in respect of family therapy, the scheme of which is set out in the Minute of Interim Consent Orders.

16. The fourth matter that was advanced was the symbolism that would be apparent in involving the parents in the long term decision making for X. 

17. Of those four matters it is the first three that carry weight.  Whilst I have said that symbolism might be important to the parents, the focus is on the importance to X and I would note that to some limited degree it is symbolism that is being pursued in signalling matters to X as to the roles of the parents. 

18. Those first three matters are sufficient to support, despite the difficulties apparent, a sharing of parental responsibility between the father, Ms Alexander and the Director-General.  The mother’s disengagement, the fact that she will not be directly involved in the family therapy point away in the context of the other difficulties in having four persons and sharing parental responsibility from her also doing so, at least on a temporary basis.  However, it also seems that it is in X’s best interests that the mother be kept fully appraised of her circumstances in respect of the long term decision making to assist the mother in her interaction with, and understanding of, X’s circumstances.

19. I will impose an obligation on the Director-General to notify the mother of major decisions that are made in respect of X promptly. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:       

Dated:       2 June 2021