DONNELLY & BRYSON

[2020] FamCA 101

FAMILY COURT OF AUSTRALIA

DONNELLY & BRYSON [2020] FamCA 101

FAMILY LAW – CHILDREN – whether one or both parents present an unacceptable risk of harm to the children – staged determination of issues of risk – invitation for state welfare authority to intervene.

Family Law Act 1975 (Cth) s 69ZN, 69ZR, 91B

APPLICANT: Mr Donnelly

RESPONDENT: Ms Bryson

INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

FILE NUMBER: CAC 1351 of 2019

DATE DELIVERED: 12 February 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: KPW Lawyers

COUNSEL FOR THE RESPONDENT: Dr S Leslie

SOLICITOR FOR THE RESPONDENT: Barker & Barker

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr G Stagg

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Evans Family Lawyers

Orders

1. The parties’ application to involve the Department and adjourn the proceedings is dismissed.   

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 Donnelly & Bryson 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 1351 OF 2019

Mr Donnelly

Applicant

And

Ms Bryson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. An issue has arisen during the final hearing of the proceedings as to whether or not to invite the relevant welfare authority to intervene in the proceedings. 

2. That occurs in proceedings in which the issues and evidence that have been led raise the prospect that perhaps either or both of the parents present an unacceptable risk of harm to the children and that that may particularly be so absent safeguards such as oversight by a third-party of either of the parents.

3. The Independent Children’s Lawyer, after each of the parties has given evidence, has indicated that she opposes any order being made for the children to live with either of the parents without appropriate safeguards.  Those issues were live prior to the commencement of the Final Hearing.  

4. An invitation had previously been made to the state welfare authority to intervene pursuant to s 91B of the Family Law Act 1975 (Cth). On 5 September 2019 Judge Hughes of the Federal Circuit Court made such a request, noting in relation to that request:

   a)the proceedings are complex and involve serious allegations of risk to each party and each child;

   b)the Court is advised the Department has had significant involvement with the family.

5. Judge Hughes then transferred the matters to this Court.  No response had been made to that invitation when the matter came before me on 30 September 2019 and a further request was then made for the Department to attend and to advise whether or not it intended to intervene, this time noting

   a)The proceedings are complex and involve serious allegations of risk to each party and each child;

   b)The Court is advised the Department has had significant involvement with the family;

   c)On the case as currently presented by each of the parties there is a prospect that neither party may be suitable as a parent for the children.

6. When the matter came before the Court again on 4 November 2019 it was noted that the Department had determined that it would not at that stage intervene in the proceedings. 

7. We are now at a stage of final hearing where both of the parents have given oral evidence and been cross-examined. 

8. A non-exhaustive identification of the live issues in this case includes the issue of whether or not the Father poses an unacceptable risk to the children via exposure to family violence.  He has conceded that he has committed a serious act of family violence against the Mother. 

9. A further issue arises as to whether or not the Father poses a risk of abuse of the children. 

10. An issue arises as to the risk posed to the children by the Mother of exposure to family violence.  She has conceded an act of family violence against the Father occurring in January 2020. 

11. Further, a significant issue of neglect on the part of the Mother is raised, raising potentially serious deficits in her parental capacity and exposure of the children in her care to drug use and to sexualised conduct.

12. These are live and genuine issues, they are unresolved and they raise the spectre that perhaps there is no available parent or no available parent absent the oversight of a third-party.  The evidence points to the children currently being under a dangerous set of circumstances, particularly the two eldest children.  There is evidence that each of those children has been involved in drug use and also that the 15-year-old has been involved in sexual interactions both with her peers and with a 40-year-old man. 

13. There is evidence that the 14-year-old has also been involved in sexual interactions with his peers.  Each, the evidence reveals, is heavily school resistant.  If developmental disaster has not already arrived it is fast looming. 

14. The Independent Children’s Lawyer asks me to now re-invite the Department but continue the proceedings.  The balance of the proceedings involves the calling of two witnesses, one from B Group who has provided support services for the family and the Mother.  The second is Dr C, the Single Expert, who has raised the issues that I have identified as potentially requiring Departmental intervention. 

15. The position for the Mother and the Father is firstly that the Authority should not be invited to join the proceedings, but that if I make a determination that the authority is to be invited that determination should be made now, the Authority should be invited now and the proceeding should be adjourned.  In short, they indicate that this allows the Department to be involved in testing the balance of the evidence that may be led in the case.  It also enables the parties to know in the conduct of the balance of their case whether or not the Department is involved, and if the Department is involved, what the Department's position might be. 

16. It is at present unknown whether the Department would intervene.  A conclusion has not yet been made as to unacceptable risk being presented by either of the parents.  That is a conclusion that is to be made on the hearing of all of the evidence and the submissions of the parties.  Those conclusions may then provide compelling reason for the Department to intervene.  Those conclusions may identify what classes of protection are necessary for these children.  Those conclusions may result in the hearing not being finalised, as they may reveal that final orders cannot yet be made but rather that the matter will need to be dealt with by a staged series of determinations and findings as envisaged by s 69ZR of the Act. 

17. In determining the approach to the issue I am to bear in mind that these are child related proceedings and the principles contained at s 69ZN are applicable.  Of those five principles it seems to me that the first three principles have application.  They are as follows.

Principle 1

1. The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

Principle 2

1. The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.

Principle 3

1. The third principle is that the proceedings are to be conducted in a way that will safeguard

   a)the child concerned from being subjected to or exposed to abuse, neglect or family violence; and

   b)the parties to the proceedings against family violence. 

2. I note that the context of the current final hearing is that the proceedings have already been expedited.  They were filed in 2019; they have moved rapidly to Final Hearing.  It may be observed that a prompt resolution of the issues of risk helps to alleviate the risk that these children may be facing, or if it is unable to alleviate that risk immediately facilitates the rapid intervention of the Department on the basis of judicial findings of risk if such findings are made.  That is, it provides a solid factual basis for the Department to determine whether or not to intervene in the proceedings.

3. That points to a staged determination if findings of risk preclude orders being made for the children to live with these parents.  To adjourn the proceedings now and to await the Departmental involvement before recommencing them risks the drift of these proceedings, particularly where the two remaining witnesses are available (I am told) today and the parties are here and are prepared for a final hearing which includes these general issues of risk which are now confronting them.

4. The Independent Children’s Lawyer’s position is to invite the Department now. 

5. The Mother’s and Father’s positions are, if the Department is to be invited do so now, but do not invite them.  There will be no necessity to invite the Department to intervene dependent on the determination of risk.  If no unacceptable risk is determined, it would seem that there is no reason to delay the proceedings for the Department to become involved.  If a determination is made of unacceptable risk, it would seem to be compelling circumstances that would dictate that the Department would intervene.  I propose under those circumstances to reserve the question of invitation to the conclusion of the evidence, evidence to be taken from the support worker and the single expert and to reserve it until after determinations are then made as to the issue of risk.  This determination of course may need to be revisited depending on how the proceedings unfold.

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 12 February 2020.

Associate: 

Date:  24 February 2020