Ellison and Mallick

[2019] FamCA 899

FAMILY COURT OF AUSTRALIA

ELLISON & MALLICK [2019] FamCA 899

FAMILY LAW – CHILDREN – Interim Parenting – Where there are serious risk factors involved in the care of each parent – Where parental responsibility allocated to the Minister – Where alternate care such as foster care not available to children – Where the Secretary is considering whether restoration to the care of either parent is a realistic possibility – Where having regard to evidence of an appropriate qualified expert mother identified as parent who poses less of a risk of harm – Where order increasing mother’s time with children supervised by the Secretary and order restraining mother from bringing any person other than maternal half-siblings to spend time with children is in the children’s best interests.

APPLICANT: Mr Ellison

RESPONDENT: Ms Mallick

INTERVENOR: Secretary, Department of Communities and Justice

INDEPENDENT CHILDREN’S LAWYER: Ms Rutkowska

FILE NUMBER: PAC 266 of 2018

DATE DELIVERED: 25 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 25 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Mr Williams

COUSEL FOR THE INTERVENER: Mr Anderson

SOLICITOR FOR THE INTERVENER:	Crown Solicitors Office
SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Rutkowska

Orders

1. Order 5 made by the Family Court of Australia on 3 August 2018 be discharged.

2. The children, X born in 2010, Y born in 2011 and Z born in 2013 (“the children”) are to spend time with the mother, Ms Mallick (“the mother”) for a period of up to three hours per week commencing 28 October 2019;

   (a)Such time shall occur at the discretion of the delegates of the Secretary and subject to the availability of the supervising agency;

   (b)Such time is to be supervised by a professional agency as is determined by the Secretary;

   (c)The mother is hereby restrained from bringing any other person to spend time with the children during periods that she is due to spend with them in accordance with these Orders unless she has obtained written consent from a delegate of the Secretary; and

   (d)Notwithstanding any other order the mother is permitted to bring the maternal half siblings D born in 2004, and E born in 2002, during periods of time that she is due to spend with the children in accordance with these Orders.

3. The Independent Children’s Lawyer is to facilitate a conference between the legal representatives in accordance with previous directions in relation to the conduct of trial. 

4. In the event the proceedings are resolved the Independent Children’s Lawyer has liberty to forward any consent orders to chambers.

5. The father is to file an address for service forthwith.

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 Ellison & Mallick 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 PARRAMATTA

FILE NUMBER: PAC 266 of 2018

Mr Ellison

Applicant

And

Ms Mallick

Respondent

REASONS FOR JUDGMENT

1. This is an application of quite limited scope in the context of complex proceedings in relation to three children, where it has been identified that there are serious risk factors involved in the care of each of their natural parents.  The proceedings in a family law context began in January 2018 when the father commenced proceedings in the Federal Circuit Court after the mother refused to return the children to his care.  At that time the parties had an informal arrangement that had been ongoing for almost a year, which arose from the mother having relinquished the care of the children to the father. 

2. Each of the children has vulnerabilities, and, in particular, the parties’ son, Y, has significant disabilities. There have been various proceedings in other jurisdictions spanning a great deal of the children’s lives, including in the Children’s Court commencing in late 2013.  After the father commenced the current round of proceedings in the Federal Circuit Court, which were subsequently transferred to this Court, the Secretary of the Department then known as Family and Community Services (“the Department”) intervened in the proceedings.

3. There were many significant factors identified in the care of each of the parents in relation to the children, such that the Independent Children’s Lawyer sought that parental responsibility be allocated to the Minister on an interim basis in relation to the children, and an order was made to this effect.  As there were ongoing concerns held by me in relation to the care of each of the parents, but initially, the children remained in the care of the mother, an order was made restraining the parents from having either of the children in their care in July 2018.

4. Since then, there have been a number of steps taken, and, in particular, the Department has put in place various care arrangements for the children.  These have included a motel-style arrangement and also, at least two non-Government agencies taking responsibility for the children.  I accept that the Department is doing the best it can within its resources and in accordance with policies prevailing within the Department but, it seems most unfortunate that these children have languished in less than optimal circumstances and, in particular, that they have not been able to form new relationships that will assist them in all of the individual challenges that they have.

5. The Department has determined, and it would appear on the evidence available, that it is in the best interests of the children that they remain together as a sibling unit.  Due again to the various policies prevailing in relation to child protection in the State and the allocated resources attached, it would seem that there are extreme difficulties in having alternate care, such as with a foster carer, being found for these children.

6. In these circumstances, the Department is considering, which it must consider in any event, whether there is a realistic possibility of the children being restored to the care of either of their parents.  In that regard, I adopt the language of the State legislation.  Having regard to a report from an expert, which was released in March 2019, albeit that that is currently untested in these proceedings, it has been identified that the parent who poses less of a risk of harm to the children and is a more likely candidate for restoration is the mother.

7. It has been made clear to the father, particularly in these proceedings and I certainly approach the matter on this basis, that there is on the current evidence, some significant questions about the mother’s capacity.  It still remains to be seen whether she will be able to address the protective concerns that have been constantly a theme in these proceedings and which would also appear to have been present in the Children’s Court proceedings.

8. Some of the concerns that have been raised in recent times, I have to say, I am not sure that I can attach much weight to, given that the expertise of people who make comments about matters such as attachment is unknown. However, given the entire history of the matter, it very well may be that the risks posed by the mother are considered to be too great and that the children, in fact, are not restored to her care.

9. Just returning for a moment to a matter I just touched upon, I would urge the Department to rely upon the most reliable evidence which is available to this court from an appropriately qualified expert in relation to issues such as the capacity of the mother to meet the needs of the children and to the children’s relationship with their mother. I consider, in this regard, Ms F as a completely appropriate expert.

10. Having given that context, I am of the view that the small increase in the mother’s time with the children that would be brought about if the Department’s application were successful is an arrangement which is in the best interests of the children. They are currently spending time with the mother once a month, supervised by the Secretary or a person arranged by the Secretary, and the proposal is that this is to change to a period of up to three hours each week, but, again, is to remain supervised. 

11. There are other safeguards in place in the Department’s proposal including that the mother be restrained from bringing any other person to spend time with the children, though there is an exception in the case of the two maternal half-siblings.  In my view, this is an entirely appropriate order.  I have real concerns about the mother prioritising her own needs and issues in relation to relationships that she has formed, the status of which are quite unclear to the Court, and acting upon her own needs.  She has been bringing a person who is possibly a partner, possibly is not a partner, to the time with the children, and there is a suggestion that she insists upon or encourages the children to have physical interaction with this person when it is also observed at least one of the children is quite resistant to that occurring.  That cannot be in the children’s best interests and it is one of the matters of concern that remain current.

12. The father’s opposition to the increase in time appears, on the basis of the short submissions that he made today, to relate to the progress of the greater proceedings, the context in which the Department became involved, and his own position.  He stated, and I accept that this is a genuine statement, that he does not actually have any problem with the children spending time with their mother or that time being increased, but if I understand him correctly, he has some concerns about whether supervision really will safeguard the best interests of the children.

13. It is hoped that the Department will take on board my comments about the expertise of the supervisors. That, combined with the quite restrictive restraints put around supervision, including that the mother be restricted from bringing any other person other than maternal half-sisters and the flexibility built in in terms of limiting the time and those sort of matters, in my view, will act as a safeguard for the children. 

14. There is no real reason that the father can point to, other than that he is generally concerned or dissatisfied with the current regime in relation to the children.

15. Taking into account all of the foregoing matters, I am satisfied that it is appropriate to make the orders as proposed by the intervener and as agreed to by both the mother and the Independent Children’s Lawyer, and, accordingly, I make orders in terms of Exhibit 1 in today’s proceedings.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 October 2019.

Associate: 

Date:  28 November 2019