Ferme & Ferme
[2022] FedCFamC1F 85
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ferme & Ferme [2022] FedCFamC1F 85
File number(s): NCC 2992 of 2020 Judgment of: CLEARY J Date of judgment: 24 February 2022 Catchwords: FAMILY LAW – PARENTAL RESPONSIBILITY – Best interests of four subject children – Where the Secretary Department of Communities and Justice intervened in the proceedings – Where each child requires support services – Where the parents and children are receiving Intensive Family Support Services to teach, encourage and support the parents to exercise their parental responsibility to properly care for the children – Where the Secretary and both parents proposed that for a period of two years the Minister [Families Communities and Disability Services] have parental responsibility for the children in relation only to decisions about support services in which the children or each of them would participate – Where the Independent Children’s Lawyer opposed that order and proposed parental responsibility for the Minister for each child until age 18 years – Where the Secretary opposed such order – Where the Secretary proposed in the alternative that orders be made for the Minister to have sole parental responsibility for the children pending further order, with proceedings adjourned to a date to be fixed – Where the Minister would relist in the event of the Minister removing a child from a parent – Ordered that the Minister be vested with sole parental responsibility for the children for a two year period with the parents thereafter to reassume equal shared parental responsibility for the 2 youngest children, currently in the care of the mother, and for the father to have sole parental responsibility for the second eldest child, currently in his care – Where leave is granted for the matter to be re-listed in the event that the Minister removes a child from a parent during the two year period and in the event that all parties do not agree on orders for residence, time and communication prior to expiry of the order for the Minister to have sole parental responsibility. Legislation: Family Law Act 1975 (Cth)
Children and Young Persons (Care and Protection) Act 1998 157NSW
Cases cited: Secretary, Department of Communities and Justice & Opunui [2021] FedCFamC1A 41
Oberlin v Infeld and Others (2021) 63 Fam LR 88
Director General of the Department of Human Services (NSW) v Tran and Another (2010) 44 Fam LR 1
Secretary of Department of Health and Human Services & Ray and ORS (2010) FLC 93-457
VR v RR [2002] 29 Fam LR 39
Division: Division 1 First Instance Number of paragraphs: 145 Date of hearing: 1-4 November 2021 Place: Newcastle Counsel for the Applicant: Mr Allen Solicitor for the Applicant: PKG Lawyers Pty Ltd Counsel for the Respondent: Mr Fermanis Solicitor for the Respondent: Wm Lloyd & Associates Counsel for the Intervener: Mr Guterres Solicitor for the Intervener: Crown Solicitor’s Office Counsel for the Independent Children's Lawyer: Mr Mueller Solicitor for the Independent Children's Lawyer: Fielden & Associates ORDERS
NCC 2992 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FERME
Applicant
AND: MR FERME
Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
IntervenerINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
24 FEBRUARY 2022
THE COURT ORDERS:
1.That all prior parenting orders made in this Court for:
·X born in 2005;
·Y born in 2006;
·Z born in 2008;
·W born in 2011;
together referred to as “the children”, are discharged.
2.That pursuant to Section 68B(1)(a) of the Family Law Act 1975 (Cth) the parents and each of them are restrained by way of injunction from:
(a)Allowing any of the subject children to be left under the supervision of a person who appears to be intoxicated and/or drug affected;
(b)Speaking in front of the children in a rude or critical way of the other parent or members of the other parent’s family;
(c)Striking or hitting the children or allowing anyone else to do so;
(d)Permitting Ms M to live in the home where a subject child is living and from allowing the children or any of them to have unsupervised time with Ms M;
(e)Allowing Y and W to spend any unsupervised time together, unless by written authority of the Secretary.
3.That for a period of two years expiring 21 August 2023 [being two years from the date on which Family Preservation Services by Q Services commenced], the Minister for Families, Communities and Disability Services (“the Minister”) shall have sole and exclusive parental responsibility for the children.
4.That commencing from 22 August 2023 the parents shall have equal shared parental responsibility for Z and W and that the father have sole parental responsibility for Y.
5.Leave is granted for the matter to be relisted before a senior judicial registrar for directions in the event that:
(a)The children or any one of them are removed by the Minister from the care of either parent in the exercise of parental responsibility;
(b)The parents cannot agree on orders for residence, time and communication prior to the commencement of Order 4 above.
6.The Independent Children’s Lawyer is discharged after 30 days from the date of these orders but may be re-appointed consequent on relisting pursuant to Order 5.
THE COURT NOTES THAT
(A)At date of trial X and Y were living with the father and Z and W were living with the mother.
(B)The Secretary [NSW Department of Communities and Justice] expressed the present intention to allow those living arrangements to continue and for three younger children to see the parent with whom they were not living in a way that ensured that W and Y were not brought into contact with each other. The intended pattern of contact is as follows:[1]
[1] Exhibit 20, proposed orders 8, 9 & 10.
[8]That W and Z spend time with the father as follows:
a.During the school term, every alternate weekend, from 9.00 am Saturday until 5.00 pm Sunday;
b.For one half of the Term 1, Term 2 and Term 3 school holidays being the first half in odd numbered years and the second half in even numbered years;
c.For two weeks of the Christmas school holidays, being the first two weeks in odd number years and commencing on 28 December in even numbered years;
d.On each Christmas Day, from 1.00 pm until 7.00 pm;
e.Any further time as agreed in writing.
[9]That Y spend time with the mother:
a.During the school term, every alternate weekend, from 9.00 am Saturday until 5.00 pm Sunday;
b.For one half of the Term 1, Term 2 and Term 3 school holidays being the first half in odd numbered years and the second half in even numbered years;
c.For two weeks of the Christmas school holidays being the first two weeks in odd number years and commencing on 28 December in even numbered years;
d.On each Christmas Day, from 1.00 pm until 7.00 pm;
e.Any further time as agreed in writing.
[10]That the changeovers to facilitate the time in Orders 8 and 9 is to occur outside the B Town Police Station, located at N Street, B Town.
(C)The parents agreed during the course of the trial that unless otherwise agreed [or directed by the Secretary] changeover of the children would take place as follows:
(a)At the commencement of the time the father is to spend with W and Z and the mother is to spend with Y, those children shall be collected from outside the B Town Police Station, located at N Street, B Town;
(b)At the conclusion of the time the father is to spend with W and Z and the mother is to spend with Y, those children shall be delivered to the outside of the R Town Police Station, located at L Street, R Town.
(D)The Secretary of the NSW Department of Communities and Justice (“the Secretary”) intends and the parents have consented to enter into written agreements with the parents that each of them will:
(a)Permit the Secretary or his delegate to conduct unannounced and announced home visits and permit access to the children;
(b)Comply with all reasonable directions of the Secretary or his delegate with respect to decisions about the children’s engagement with support services, including but not limited to Q Services Family Preservation Program, any counselling, sexual assault counselling, occupational therapy, speech therapy or additional learning support services nominated by the Secretary or his delegate;
(c)Permit Q Services Family Preservation Service to conduct home visits, engage in casework and case planning with the family and permit access to the children;
(d)Comply with all reasonable directions of the Q Services Family Preservation Program with respect to the engagement of the children with family support services, counselling, sexual assault counselling, occupational therapy, speech therapy or additional learning support services, and facilitate the children’s enrolment and attendance with such services;
(e)Comply with any referrals or recommendations made by the Q Services Family Preservation Service, including their participation in parenting programs or education in relation to sexual harm;
(f)The mother and father engage in urinalysis testing as requested and arranged on behalf of the Secretary’s delegate. The Secretary will fund the costs of such testing; and
(g)Advise the Secretary or his delegates of any change of contact details including telephone number within two (2) days of any change occurring and any proposed change of accommodation at least twenty-one (21) prior to any change taking place.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferme & Ferme is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J:
INTRODUCTION
These are applications by two parents, an Independent Children’s Lawyer (“ICL”) and the Secretary, Department of Communities and Justice (“DCJ”), for orders concerning four children, aged at date of trial, X almost 17 years, Y 15 years, Z 13 years, and W 10 years.
In August 2020 the mother initiated parenting proceedings, in what was then the Federal Circuit Court, which were shortly after transferred to this Court and allocated into the Magellan Protocol.
In June 2021 the Secretary of DCJ intervened in these proceedings at the request of the Court.
HISTORY OF RELEVANT EVENTS
The parents formed a relationship and began living together in 2003.
At that time the mother had three small children from two prior relationships. Ms M aged four, V aged one and Ms S a newborn infant, days old. Ms M’s father has not been part of her life. V and Ms S’s father died by suicide before Ms S was born. V died of cancer aged six years in about 2009.
The father treated the three children of the mother as if they were his own from the outset of the parents’ relationship. He worked full time, applied his income to the needs of the family and assisted the mother with the care of all the children.
The parties married in 2007. The four subject children were born to the parties between 2005 and 2011.
Between 17 July 2011 and April 2021 thirty two reports of significant harm were received by DCJ with respect to the subject children. They are summarised by the current child protection caseworker as follows:[2]
(a)Physical abuse of the children by the mother and father;
(b)The mother and father not seeking medical treatment for the children;
(c)Neglect of the children;
(d)The sexualised behaviour of Ms M;
(e)The sexual abuse of W by Y;
(f)The sexual assault of X by a family friend;
(g)Inadequate housing;
(h)Abuse of the children by Mr D.
[2] Affidavit of Ms H filed 19/10/2021, para 26.
The parties separated in 2018. They are not divorced.
Separation of the parties 2018
The mother moved with three subject children and Ms S to live with the maternal grandmother. Y remained living with the father. In the months following separation, the father cared for all children on most weekends.
The mother met her new partner Mr D.
In January 2019, under the guise of taking the three subject children and Ms S away on holidays the mother moved with Mr D to live in E Town on the C Region of NSW. She enrolled the children in local schools.
Ms S maintained contact with the father and complained to him of abuse and cruelty by the mother and Mr D. Ms S moved to live with a family friend.
In mid-2019 there was an incident where Mr D is alleged to have pushed his naked body against W (then aged eight years) until she hit her head on the bedroom wall.
In December 2019 Y came to visit the mother and was physically assaulted by Mr D.
Assault on W
All children were with the father for three weeks in the Christmas school holidays 2019. During that time Y (then aged 13 years) forced sexual intercourse on W and repeatedly sexually assaulted her in other ways. An older boy may also have been involved.
The child disclosed to her mother what had happened. The mother told the father immediately what W had said. The father spoke to Y then took him to the police station where he made admissions consistent with W’s allegations.
Both parents acted responsibly in response to these traumatic events to vindicate W and to hold Y responsible for his actions.
In February 2020 an Apprehended Violence Order was made for the protection of W. Y was ordered to participate in counselling at AA Services. W attended counselling through Victims Services.
In mid-2020 the mother returned to the P City area with the children and commenced proceedings in this Court.
THE PARTIES
The Applicant Mother
The mother is aged 44 years. She lives in B Town, an area north west of P City.
The two youngest children live with the mother. The oldest child X, almost 17 years at date of trial, had been living with the mother but has recently moved to live with her father. X had stopped going to school and was intending to move to Queensland to live. During the course of the trial she returned to school.
The mother asserted, inconsistently with her own evidence, that she no longer has a relationship with her two elder daughters Ms M now aged 22 and Ms S 18 years. Until very recently the eldest Ms M was living in the home of the maternal grandmother where the mother and children had also been living. Both she and Ms S regularly contact the mother by telephone.
The household of the mother consists of herself, her partner Mr D aged 37 years and the two younger children Z and W.
The mother is not in paid employment. Throughout her adult life she has been engaged full time in the care and upbringing of children.
The Respondent Father
The father is aged 56 years. He lives in Suburb BB, a suburb of the city of R Town in the G Region.
The father is unable to confidently read and write. It appears to be the case that he did not have the opportunity to become literate, rather than a lack of capacity. The paternal grandfather also could not read and write.
The father has recently learned that he is an indigenous man and is interested to pursue information about his Aboriginal culture and connection to country for himself and the subject children.
The father is presently unemployed.
The household of the father consists of himself, X and Y.
The Intervener – Secretary, DCJ
On 3 May 2021, after consideration of recommendations in a Family Report[3] this Court requested intervention by DCJ.
[3] Dated 9/04/2021, paras 242-246.
On 8 June 2021 the Secretary filed a Notice of Intervention and was joined to the proceedings by order on 28 June 2021.
Between intervention and commencement of trial, DCJ had effected two important changes in the lives of the children:
1)Provision of accommodation for the mother and three of the children enabling them to live independently of the maternal grandmother; and
2)For the parents and children to be assisted by a Family Preservation Service (run by Q Services) which provides intensive in-home support and supervision.
THE TRIAL
The trial had been allocated for five days commencing 1 November 2021.
On the morning of the first day the Court was advised that the Minute of Order put forward by the Intervener was acceptable to both parents, such that orders could be made by consent.[4] The proposal was for the parents to retain parental responsibility with the Intervener having parental responsibility in relation to decisions about support services for the children for the two years following.
[4] Exhibit 4, pages 23-26..
The Independent Children’s Lawyer (“ICL”) did not consent to the orders proposed. The ICL pressed for parental responsibility for the Minister for each child until age 18 years.
The Secretary opposed an order for parental responsibility to the Minister to age 18 years, but confirmed that whatever order the Court made would be accepted. This was a helpful and proper acknowledgment not only of the fact that the Court has the power to make such an order but that the Secretary would not decline to take the children if it were contemplated by the Court.
Counsel for the ICL cross-examined both parents, the DCJ caseworker and the court child expert (“Q Services”).
The parents maintained a united front and did not cross-examine each other.
The matter was efficiently conducted. Submissions by all counsel, particularly those made for the main protagonists, the Secretary and the ICL, assisted the Court to explore the most effective way of meeting the best interest of these vulnerable children.
The matter concluded on the fourth day.
Judgment was reserved.
THE ISSUES
What order for parental responsibility should be made?
Proposal One - by the ICL[5]
[5] Exhibit 5.
Sole parental responsibility for the children until age 18 years to the Minister for Families Communities and Disability Services, with the Minister to direct where the children live, (together with restraints on the parents for the personal protection of the children).
OR
Proposal Two - this was the initial proposal put forward by the Intervener[6] which was consented to by the parents but not the ICL
[6] Exhibit 4, page 23.
For a period of two years the Minister to have parental responsibility for the children in relation to decisions about support services in which the children, or each of them, will participate. During that period the parents comply with and be subject to the direction of the Secretary.
For the parents to have equal shared parental responsibility for three of the children (X, Z and W) and for the father to have sole parental responsibility for one child (Y).
That W and Z live with the mother, and X and Y live with the father, with the children (other than X) to spend substantial time with the other parent in a pattern that ensures Y and W did not come into contact.
Restraints on conduct of the parents.
OR
Proposal Three - alternate proposal by the Intervener in submissions[7]
[7] Exhibit 20.
That PENDING FURTHER ORDER the Minister have sole parental responsibility for the subject children with notations encapsulating the intentions of the Minister.
That the Secretary relist the proceedings if the Minister removed a child from the care of either parent.
That the proceedings be adjourned for mention on a date to be fixed [in 18 months to 2 years].
EVIDENCE
The documents relied on were as follows:
The Applicant Mother – Ms Ferme
(a)Amended Initiating Application filed 30/07/2021;
(b)Notice of Risk filed 20/08/2020;
(c)Affidavit of the mother filed 15/10/2021;
(d)Affidavit of Mr D, the mother’s partner, filed 15/10/2021;
The Respondent Father – Mr Ferme
(e)Amended Response to Initiating Application filed 23/07/2021;
(f)Affidavit of the father filed 18/10/2021;
(g)Notice of Risk filed 26/10/2020;
The Intervener
(h)Minute of Order filed 25/10/2021;[8]
(i)Amended Minute of Order;[9]
(j)Affidavit of Ms H, child protection caseworker filed 19/10/2021;
(k)Document titled “Proof of Evidence”[10] of Ms H;
Reports
(l)Magellan Report dated 22/12/2020;
(m)Family Report by court child expert, Ms J, dated 09/04/2021;
THE LAW
[8] Exhibits 4.
[9] Exhibit 20.
[10] Exhibit 17.
Objects of Legislation
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
Parenting Orders
These are applications for parenting orders pursuant to s 64B(2) of the Act.
The Act provides that a parenting order may deal with the person or persons with whom a child is to live to spend time and communicate with (s 64B(2)(a). The Court is not mandated to make such an order.
In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration.
With relevance to the subject children the Court concludes that orders about residence, time and communication with respect to the parents should not be made. The present intention of the Secretary is that the children will continue to live with each parent as they do now. However, the Secretary must have the flexibility of directing that a child should move to the household of the other parent or to a third party or even into statutory out of home care, without the need to return to this Court for a variation to orders.
If the minister has parental responsibility there is no impediment to changing residences for the children and altering or stopping time and communication between a child and a parent.
Not one of the four parties submitted that any of the children should be moved into out of home care. There was consensus that they should all live with one parent or the other.
Parental Responsibility
An application for an order for the allocation of parental responsibility is made by all parties.
In this case the parents concede that to some extent at least parental responsibility should be vested in the Secretary.
The issue for the Court is for how long that period should be. The ICL advocates to age 18 for each child. The Intervener suggests that two years should be the maximum and as a first preference that the parental responsibility only extend to provision of which services the children are engaged in, and that the parents otherwise retain parental responsibility.
The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The subject children lived with both parents until 2018 and then with one parent or the other.
The mother reports a history of depression. She has emphysema and is currently being treated by a neurologist.
The father has been diagnosed with depression and anxiety. His own father committed suicide and he is determined not to take that path.
The children benefit from knowing their parents and being raised within a family, although now divided, but the parents themselves require the intervention which has been in place to learn to moderate their behaviour, to be more attuned to the needs of the children, to be less authoritarian in the case of the mother and better informed about the developmental stages of childhood and adolescence in the case of the father.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
These children have all been exposed to harm. There have been accidents which suggest inadequate supervision, there have been sibling sexual assaults on two children [X by Ms M/W by Y] and a criminal assault by a neighbour on one child [X]. The children have lived in risky, hostile, environments including the home of the maternal grandmother and a long period living in a shed in a rural setting.
Both parents have alleged that the other parent has been violent and exposed the children to violence. In these proceedings they both largely resiled from those allegations, probably in a united attempt to avoid losing control over care of the children.
Counsel for DCJ acknowledged[11] historical intervention support and monitoring of the family and also conceded that “… in the absence of more substantial intervention that the children would be at unacceptable risk of harm in the care of either parent.”
[11] Exhibit 4, paras 21-22.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
X was 16 years 10 months at date of trial. She began in Year 10 at a new high school after she began living with the father in January 2021. She did so having been told by the mother to leave her home. X told the Q Services that she missed her mother but felt “mostly closer to Dad”.
She had not enjoyed a good relationship with the mother’s partner. She described being yelled at and being sent to her room by him.
X described the father letting her and her siblings doing anything they want while the mother “doesn’t let us do anything”. Both approaches are unhelpful to her.
X denied that the father had ever hit her. The father conceded in oral evidence that he had once hit X with his belt but after seeing the marks on her legs afterwards had never done it again.
X had been angry with the father about an assault on her by a neighbour Mr K who had been the father’s friend. The mother had unhelpfully, perhaps deliberately untruthfully, told X that the father knew about the assault but did nothing to stop it. X and the father are on good terms now.
X was noted by the Q Services to have speech difficulties. Records reveal that those difficulties were identified 10 years ago but referrals were not followed up.
X will benefit from assistance offered to her by Q Services until she becomes a young adult in early 2023.
Y was 15 years at date of trial. He is in Year 8 at high school.
He wants to remain living with the father and feels well supported by him. There is no other option for Y. The mother will not allow him to live in her household.
Z was 13 years at date of trial. He is in Year 7 at a high school near his mother’s home. Z misses his father and enjoys “sleepovers” at the father’s home. The Q Services was confident that the mother and her partner had instructed Z not to disclose that W and Y had been in contact. The mother had informed the Q Services that information from Z was unreliable because of his developmental delay, which the Q Services interpreted as evidence of the mother manipulating the interview.
W was 10 years and 9 months at date of trial. She is in Year 5 at primary school. The Q Services was confident that W had been told not to reveal that she [W] had been in contact with Y which probably adversely affected her ability to participate comfortably in the interview.
Of all the children W was the only one developmentally within standard parameters.
She enjoys the counselling she has been having although the mother described it as “useless”.
W said she had felt lonely and cried a lot because “I missed Dad”. Residence for W has been determined by Y and herself needing to live separately and the mother refusing to house Y. It is apparent that W has a close, loving, relationship with the father and would like to see him as often as possible.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
All the children expressed having felt unhappy when living in the home of the maternal grandmother both because of her adverse reactions to their presence and exposure to their half-sister Ms M in that home.
Y’s view that “Nan really hates my guts” is probably an accurate assessment.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
There are limitations on the parents’ capacity to meet the needs of the children. The parents have each been inclined to give up when problems are not easily solved or require persistence.
The Court accepts the evidence of the DCJ caseworker that the parents are engaging well and cooperating with both her and the social workers from Q Services.
The medical and psychological interventions the children need will be delivered through the intensive service now in place.
The Mother
The cross-examination of the mother tended to align with the observation of the Q Services in her interview with the mother “… the mother’s demeanour was noted to be somewhat cautious and cynical, yet she was cooperative and accommodating...”[12]
[12] Family Report dated 9/04/2021, para 45.
The Q Services reported the mother’s intellectual and psychological capacity as “unclear” and “there were aspects of her presentation in this assessment which may indicate some issues with her cognitive and/or psychological functioning”.[13]
[13] Ibid.
That assessment is consistent with the mother having moved the family seven times in a year [2008] because “she couldn’t settle after V’s death.”
My impression was that the mother does her best to avoid attracting the attention of authorities and becomes angry with, and rejecting towards, a child who attracts that attention. She told Y that she could have “killed him and flogged him” for having sexually assaulted his sister W. The mother wanted nothing to do with him. Nevertheless she expects W and Y to have contact in future “depending on how W feels about it.”[14]
[14] Family Report dated 9/04/2021, para 60.
The mother appeared to be an observer of events involving her children but not an active manager or protector of them.
The Father
The Q Services observed that the father’s demeanour was “friendly and co-operative”; also “There were aspects of the father’s presentation which revealed some degree of cognitive difficulty and emotional immaturity”.[15]
[15] Family Report dated 9/04/2021, para 64.
That observation aligns with the evidence of the father about the parents allowing X and Ms S, then aged about 13 and twelve, to stay overnight at a neighbour’s house. The neighbour was a single middle aged man, a ranch hand on a property, who invited the family for bbqs and lent the mother money. I accept the evidence of the father that he had had no suspicion about this man’s motives for inviting the children to stay at his house, “none at all.”
More than once in his oral evidence the father referred to having tried to shelter and protect his children, “I’ve been sheltering them from all that stuff [sexuality] all my life”. He did not let them travel on trains. X has been molested by Ms M and later by a neighbour. W has been sexually assaulted by her brother Y. X met a boy on social media and planned to move interstate to be with him. The father has felt bewildered by these events and helpless in assisting the children with the impact it has had on all of them.
The father has not understood that the children needed to be told about human behaviour to understand risk and to become independent safely.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
W (10) is apparently a bright and likeable child. Her elder brother Z (13) has had the habit of jumping on her and holding her so she will not go away from him. He did that at home and at school. The mother acknowledged that W did not like it. When her attention was drawn to it, the mother agreed that would be even more of a problem for W since she had been assaulted by her other brother Y.
W has had respite at school this year because Z is now at high school. The mother gets W to help her with lunches and dinners every day because she is a capable child, willing to help.
Z has speech difficulties and has not had the speech therapy yet which could have assisted him and mitigated his neediness. Other children, in the view of the father, cannot understand what Z says although the father can. The father would like Z to live with him, but accepts that the mother wants him because he reminds her of her deceased son V.
Y (15) has been having counselling through CC Services to teach him why the sexual assaults on his sister W were very wrong and the reasons why. The father is supportive of his learning and of him. To his credit he has not wanted to give up on Y.
X is almost 17 years. She was put out of the mother’s house when the mother learned of the boyfriend she had found. The intervention of Q Services assisted the father to retain X in his home and in her return to school. She is being assisted by the service with advice in preparation for becoming a young adult.
The father was upset, when his attention was drawn to the issue that W would have feelings about the father looking after Y, not her.
If the child is an Aboriginal child or a Torres Strait Islander child
The father now understands that he is an Aboriginal man, so by descent, the four subject children are also Aboriginal. The father is now linked in to T Medical Service.
The father has sought some advice from a local land council. The children are likely to benefit by learning about their culture and country together with the father.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The education of the children has been interrupted by transience. The children have lost continuity of teaching and friendships through sudden moves to Queensland, the C Region of NSW, the F Region and within the P City region. The requirement to advise in advance of any intended change of residence will be the strongest mitigating factor against change of school and consequent loss of community.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
The children have experienced family violence from their parents, each other, other household members and strangers.
There is an order in place protecting W from Y.
X was sexually assaulted by a neighbour who was charged, convicted and gaoled for that offence.
An unacceptably high level of serious harm and injury to date, and risk of future harm, has been identified by the evidence of all parties and by the Q Services.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
The ICL submitted forcibly for the Secretary to have sole parental responsibility for the children to age 18 years. The submission was undoubtedly based in concern for the future safety and well-being of the children.
The Court does not consider that making an order for parental responsibility to age 18 would be less likely to lead to the institution of further proceedings.
The Secretary could apply to have orders varied in the event that departmental officers were satisfied, after the intervention has concluded, that risk has been satisfactorily mitigated such that the parents should have parental responsibility.
ANALYSIS
The issue is which, if any, of the proposals is in the best interests of the children.
The Intervener submitted that the purpose of the Intensive Family Support Service currently in place, was to teach, encourage and support the parents to exercise their parental responsibility to properly care for the children. Also to strengthen the self-protective capacity and skills of the children.[16] In summary to mitigate further risk.
[16] Affidavit of Ms H filed 19/10/2021, paras 181-182.
By necessary inference when the work of the service provider is concluded these parties and the children would be in the same position as any other family which has come to the attention of DCJ. There could be further risk reports and notifications. If so they would be investigated in the usual way.
The Intervener resisted an order for sole parental responsibility to adulthood on the bases that:
1)Such an order was incompatible with the way best interests of children are addressed by DCJ. The approach, as explained to the Court, is to take the least intrusive action in the life of the child to promote best interests with a view to re-allocating parental responsibility within two years.
The caseworker for the family commented that with a two year order “the parents know we are coming back”.
The current level of intensive intervention is not “more of the same” as was suggested by the ICL. The caseworker expressed her view that the risk of harm has already diminished with oversight and monitoring at the level of three visits to the home of a parent per week.
The Court is aware that interventions are undertaken where there is hope of keeping children within the care of a parent or both parents. Where levels of risk mean there is little prospect of being able to do so, intervention is not undertaken and removal of children into out-of-home care is pursued.
Counsel for the Intervener submitted that this Court should take into account that policy shifts within DCJ could lead to unintended outcomes for children subject to an order outside the usual suite of orders [made in Children’s Courts].
That submission has weight. After two years these parents may have been assisted to the point of being able to protect the children from abuse and misadventure. Hopefully so. Whether or not there has been that positive change the intervention will end. Effectively, there will be nothing more that DCJ can do by way of project or special intervention for the family.
The practical reality in this case is that whilst it is never too late to implement changes which better protect children, the ages of these children determines the range of protective measures available to the DCJ. X will be 18 in less than a year. Y and Z are teenagers. W is almost 11.
There is no intention to consider care in the community, the focus is on support and connection to medical treatment and psychological therapy with improved oversight by parents.
The Court has come to the conclusion that to make the order sought by the ICL for parental responsibility to the Minister until age 18 years in those terms would be to defeat the purpose and direction of the intervention.
For those reasons there is genuine benefit in accepting the alternate position of the Intervener that parental responsibility be assumed by DCJ, but not indefinitely.
Part of that proposal by the Secretary was that the parties would come back to the Court for resumption of proceedings after 18 months to two years.
The Court considers that the option of coming back should be available but there need not be an assumption that proceedings must resume.
The Court concludes that is in the best interests of the children for the Court to make orders consistent with the family intervention put in place. That is to say that the parents will reassume parental responsibility after two years from its commencement and the children will continue to live and spend time with them as they have been since the intervention began.
During the two year period it is critical that the Secretary have unfettered authority over where the children live, how they spend time and communicate with each parent and which programs and therapies they participate in. Probably the current parenting arrangements will be agreed to continue but they need not if circumstances change.
The fact that the parental responsibility will once again vest in the parents does not mean that DCJ cannot respond to future requests for help or to notifications of risk in the ordinary way.
CONCLUSION
From a legal perspective these four children were part of an intact family until separation of the parents in 2018. Until then each of the parents had all the rights and responsibilities of parenthood.
The large number of notifications to DCJ over the years is a clear indication that there was parental incapacity and the need for intervention. The parents were transient which made them hard to follow up. Neither parent was inclined to involve child protection authorities and/or police in the life of the family if it could be avoided.
When proceedings were commenced for parenting orders information was revealed to this Court through affidavits, material produced in response to subpoena, and the observations and assessment of the Q Services. It was a revelation of historical hardship and parental resignation that “bad things happen”.
There is no going back to rectify past harm.
The intensive service put in place by DCJ may deliver an enduring benefit to the children and the parents who were described as “quite frank and relatively truthful” in submissions. X has benefited already which lead to her return to school.
Y is said to have learned too, about the significance of what he did to his sister and why it was wrong.
Both parents are said to have accepted that they will be accountable and can no longer move away when something goes wrong. The parents entered into agreement with the Secretary to permit supervision and accept directions. There will be no necessity for the Court to be asked to exercise coercive powers in that respect.
A period of two years fits within the departmental model and allows for preparation for resumption of parental responsibility to both of the parents.
The Court anticipates that agreement is likely to be reached about residence time and communication in terms similar to current arrangements directed by the Minister.
The basis for that anticipation is that the parties through their Amended Application/Response documents had, with one exception [that Z would live with the father rather than the mother], proposed orders consistent with present arrangements. In the event the parties cannot agree on orders for residence, time and communication, before the parents resume parental responsibility, the matter can be relisted for further directions. The ICL can be re-appointed in that event.
Orders are made accordingly.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 24 February 2022
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