Finney and Connell

[2016] FCCA 1167

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINNEY & CONNELL [2016] FCCA 1167

Catchwords:
FAMILY LAW – Interim parenting – family report released – conflicting information from different Department of Health and Human Services offices – not all information was before family report writer –Independent Children’s Lawyer appointed.

Legislation:

Family Law Act 1975, ss.67Z, 68L(2)

Applicant: MR FINNEY

Respondent: MS CONNELL

File Number: DGC 2489 of 2015

Judgment of: Judge Harland

Hearing date: 9 May 2016

Date of Last Submission: 9 May 2016

Delivered at: Dandenong

Delivered on: 9 May 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Gates

Solicitors for the Respondent: Bona Fide Lawyers

ORDERS

1. The proceeding is adjourned for a Mention Hearing on 1 July 2016 at 9.30am.

2. Pursuant to s.68L(2) of the Family Law Act1975, the child/ren X born (omitted) 2007 and Y born (omitted) 2009 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent children’s lawyer copies of all relevant documents relied upon;

   (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

   (e)the independent children’s lawyer liaise with the Department of Health and Human Services prior to 1 July 2016.

3. Once appointed leave is granted to the independent children’s lawyer to photocopy material produced by the Department of Health and Human Services and Victoria Police.

4. Once appointed authority is granted to the independent children’s lawyer to forward the Department of Health and Human Services material to Ms G, specifically the letter dated 29 October 2015.

5. Order 4 of the consent orders made 26 October 2015 be varied to provide that there also be time to be supervised by Ms R, if the parties are able to engage her and if the father can afford the cost associated with the supervision.

AND THE COURT DIRECTS THAT:

1. The parties do all acts and things necessary to cooperate with an intake with Ms R.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2489 of 2015

MR FINNEY

Applicant

And

MS CONNELL

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter has come before me today after the release of a family report. As it turns out there are difficulties in this matter caused by incomplete information being before the family consultant. That is not either party’s fault. What appears to have happened is that the material produced by the Department of Health and Human Services (“DHHS”) initially on 29 October 2015 in response to a Section 67Z request was not placed before the family report writer. That report details historical concerns about family violence, including police attendances in 2014 and also indicates other concerns about serious family violence with the children being exposed to that family violence and there being some allegations made through the children to their counsellor about experiencing direct family violence from the father.

3. The report indicates that given there were proceedings in the Federal Circuit Court of Australia it did not intend to proceed with its investigation further, but indicated that it had concerns about unsupervised time occurring between the father and the children.  In the event unsupervised time was to occur DHHS asked to be informed so that it could carry out an investigation.

4. It is clear from reading Ms G’s report that this is confirmed by the list of documents that she refers to at the beginning of her report.

5. The information that she did have was a letter dated 5 October 2016 from a different case worker and from a different regional office which was a support letter to the father with respect to the father and his partner having been assessed as suitable kinship carers for his partner’s granddaughter, A. 

6. It is very clear from the content of the report that Ms G did not have the other information from the southern division of DHHS that related to these two children.  There is no doubt that the report raises issues of concern and raises issues of concern about the mother, including coaching the children and exposing the children to negative views of the father and not encouraging contact.  The same could be said of the grandmother.

7. It needs to be recognised that the family report is an untested piece of evidence at this stage and that her conclusions with respect to that may well differ depending on her information with respect to family violence.  These are issues, as I have attempted to explain this morning, that need to be tested at a final hearing.  It is not open for me today to simply make orders in accordance with the family report recommendations when it is clear that there is very important information that was not before that family report writer that may well have impacted on her recommendations.

8. It is somewhat concerning that there is material from two different regional offices of the department that seem to have different information available to them and come up with different results. I do note that one is in relation to a different child and would be with respect with a different file. The mother seeks that an Independent Children’s Lawyer be appointed today in part to attempt to address the issues within the Department. In my view, given the serious allegations of family violence, given the nature of DHHS’s involvement and given the high conflict in this matter, I think it is appropriate to appoint an Independent Children’s Lawyer.

9. I am going to request that the Independent Children’s Lawyer liaise with DHHS prior to the next return date.  I am going to list the matter in the next duty list on 1 July 2016 at 9.30am.  On that occasion I will consider whether or not it is necessary to order an updated family report or whether it will be sufficient to provide Ms G with the updated material and have her cross-examined on those issues, as well as her report generally.  I am concerned that this matter needs to have a final hearing sooner rather than later to resolve these issues.  I will also be looking at setting the matter down for a final hearing on the next occasion to take place late in the year, which will involve over-listing against many other matters.  In my view, that is going to be necessary. 

10. I will to grant leave to the Independent Children’s Lawyer to photocopy the material that he has been produced by DHHS to date, as well as the police material.  I will make an order authorising the Independent Children’s Lawyer to forward the DHHS material, and specifically the letter of 29 October 2015, to Ms G.

11. In addition to that letter, there is additional subpoenaed material which has been made returnable, and which both parties inspected today, which indicates that DHHS’s position has not changed from the letter of 29 October 2015.  Understandably, the father is frustrated by this experience, and feels that he has a family report in his favour, and that the recommendations should be implemented. 

12. The father has had two occasions of unsupervised time which the mother, through her solicitor, proposed after receiving the family report.  In light of the family report and in absence of knowledge of the missing information before the family report writer, that action was consistent with the family report writer’s recommendations. 

13. Today, she seeks that supervision be reinstated given that lack of information that I have referred to above and given the question mark that that raises over the report and its recommendations.  The options are either that the supervision continues in accordance with the interim consent orders which were made in October 2015, or the parties engage a private supervisor, Ms R, who is able to provide supervision very quickly after an intake session. 

14. I’m told that the costs are $220.00 for an intake session and then $60.50 per hour on a weekday, for a minimum of two hours, for supervised time, and $93.00 per hour for a minimum of two hours on the weekends.  An observation report of each session costs $38.50. 

15. It is the mother’s position that the father should pay the costs of supervision. The mother says that she is funding these proceedings. She is the respondent. She has the care of the two children and says that the father is in arrears of child support. The father says that the costs should be shared as it is due to the report from DHHS rather than anything that he has done, and that he pays child support, as the costs will be expensive.

16. The advantage of having someone like Ms R supervise time between the father and the children is obtaining reports from her that provide some independent evidence of the father’s relationship with the children.

17. The only real information I have about the parties’ financial circumstances comes from the bar table, which is unsurprisingly, given the way this matter has panned out this morning.  What I intend to do is to leave the current supervision order in place, but provide for there to be supervised time by Ms R, if the parties are able to engage her in that supervision, and if the father is able to pay for it. 

18. In my view, given that the mother has the fulltime care of the children, the father should pay for those costs in the first instance.  It may well be that the reality is that supervision happen once a fortnight, rather than once a week, because of the cost.  But that is something that I will leave to the father in terms of what he feels he can afford in terms of contact supervised by Ms R, and I will direct that both parties do all acts and things to cooperate with an intake with Ms R.  It will be a matter for the father to indicate to the mother’s solicitor his intentions with respect to supervised time with Ms R.  Otherwise, the current supervision arrangements will remain in place.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  16 May 2016