Firmin & Curtin

[2021] FamCA 494

FAMILY COURT OF AUSTRALIA

Firmin & Curtin [2021] FamCA 494

File number(s):

MLC 7934 of 2016

Judgment of:

BENNETT J

Date of judgment:

7 July 2021

Catchwords:

FAMILY LAW – PARENTING –where parenting proceedings in which evidence is complete and decision is reserved are stayed pending completion of proceedings about the same child under child welfare law

Legislation:

 Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Number of paragraphs:

15

Date of last submission/s:

[3 June 2021]

Date of hearing:

2-5 and 18-19 March 2020

Place:

Melbourne

Counsel for the Applicant:

Mr Sweeney

Solicitor for the Applicant:

SPL Lawyers Pty Ltd

Counsel for the Respondent:

Ms Teicher

Solicitor for the Respondent:

Vernon Da Gama and Associates

Counsel for the Independent Children's Lawyer:

Ms Jenkins

Solicitor for the Independent Children's Lawyer:

Southern Family Law

ORDERS

MLC7934/2016

BETWEEN:

MR FIRMIN

Applicant

AND:

MS CURTIN

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	7 JULY 2021

THE COURT ORDERS THAT:

1.These parenting proceedings be and are hereby stayed:

a)until further order; or

b)until the mention date provided for in paragraph 2. of this Order; or

c)until the child X born … 2012 (“X”) ceases to be under the care of the Secretary of the Department of Family, Fairness & Housing and subject to any order made under a child welfare law within the meaning of s. 69ZK of the Family Law Act 1975 –

whichever first occurs.

2.These parenting proceedings be adjourned to Tuesday 19 October 2021 at 9:00 a.m. for case management, estimated to take 50 minutes (“the mention date”).

3.The independent children’s lawyer  keep my Chambers notified by email to …@familycourt.gov.au of any finalisation of the proceedings in the Children’s Court in relation to X and, in any event, by not later than 12 October 2021 the independent children’s lawyer  notify my Chambers of the progress of the Children’s Court proceedings.

4.The parties be at liberty to apply for an administrative adjournment of the mention date, by consent, if they agree that it would be appropriate for the case management hearing to be held on a different date.

5.There be liberty to apply to relist the matter urgently or as a party may otherwise be advised. For the purpose of relisting, a practitioner for a party or a self-represented party may contact my Associate by email …@familycourt.gov.au and must contemporaneously copy each other practitioner or self represented party into that communication with the court.

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 r 17.02 Family Law Rules 2004 (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 Firmin & Curtin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

1. These parenting proceedings concern X who will be nine years old next week. The mother and the father each seek orders that X reside with them. X’s interests are represented by Ms Kristy Hams, a very experienced, Independent Children’s Lawyer. The matter ran as a contested hearing before me for six days, on 2 to 5 March, 18 and 19 March 2020. My decision was reserved on 19 March 2020.

2. In September 2020 the parties provided a statement outlining significant changes in circumstances since the evidence was closed in March 2020.[1] It was agreed that I could have regard to those statements as evidence in the proceeding.

   [1] The father’s Short Summary is dated 9 September 2020 and is Exhibit “F16”. The mother’s Short Summary is Exhibit “M5”.

3. In late December 2020 the Secretary of the Department of Health & Human Services (as it was then known) (“the Department”) made a protection application to the Children’s Court of Victoria in respect of X under a child welfare law within the meaning of s69ZK of the Family Law Act 1975 (“the Act”). An interim accommodation order was made in favour of the Secretary of the Department with the consequence that this court must not make an order in relation to X unless the order is expressed to come into effect when X ceases to be under the care of the Secretary of the Department or the court has the specific written consent of a child welfare officer of the Department in Victoria to do so. The effect of the interim accommodation order was to place X in the care of the father.

4. On 7 May 2021 the Department, the mother and the father had a conciliation conference in the Children’s Court to see if the outstanding issues could be resolved by agreement at the conference and without the need to proceed to a contested hearing in that jurisdiction. The matter was not resolved.

5. On 21 May 2021[2] the father gave notice that he would seek to reopen his case in these parenting proceedings, prior to delivery of my reserved decision, to adduce fresh evidence of events which had occurred since March 2020.

   [2] Exhibit “F17”.

6. On 1 June 2021 the Department of Families, Fairness and Housing (also referred to as “the Department”) responded to an order made by me on 5 May 2021 pursuant to s91B of the Act requesting that the Department intervene in these parenting proceedings.[3] The Department notified the court that it proposed that the matter progress in the Children’s Court jurisdiction. The response included an updated child protection history.

   [3] Exhibit “C1”.

7. The current Interim Accommodation Order which places X in the care of the father has attached to it the following conditions:

   1.        Mother and Father must accept support services as agreed with DHHS.

   2.        Mother and Father must accept visits from and cooperate with DHHS.

   3. Mother must go to a psychologist &/or psychiatrist as agreed with DHHS for assessment & treatment and must allow reports to be given to DHHS.

   4. Mother must submit to random supervised alcohol & drug testing as directed by DHHS and must allow the results to be given to DHHS.

   5. If mother completes a drug screen that is positive for illicit substances or medication not prescribed to must participate in assessment and/or treatment for alcohol and drug dependence as directed by DHHS and must allow the reports to be given to DHHS.

   6. X may have respite as agreed between DHHS and father. Mother to be kept informed.

   7. Mother must not live with or have contact with the child other than Court-ordered contact. unless agreed otherwise with DHHS

   8.        Mother must not expose the child to physical or verbal violence.

   9. Mother must allow the child to be taken to the doctor for regular check-ups as required by DHHS or the doctor and must allow reports to be given to DHHS.

   10. Mother may have contact with the child for a minimum of two times per week at times and places as agreed between the parties. DHHS or its nominee will supervise contact unless DHHS assesses that supervision is not necessary. Contact subject to COVID 19 restriction and advice of the Chief Health Office.

   11.Mother must allow the child to go to counselling as directed by DHHS and must allow reports to be given to DHHS.

   12. Mother must allow the child to go to counselling as directed by DHHS and must allow reports to be given to DHHS.

8. In the s91B response, the Department advised that Child Protection continue to hold concerns relating to the mother’s substance misuse, parenting capacity and mental health and are further concerned about the mother’s unwillingness to engage with Child Protection and other community support services for her own support. In particular, the s. 91B response states:

   The Family Law Court documentation has been reviewed, whilst it is acknowledged that there are concerns in relation to Mr Firmin’s ability to parent X, Child Protection hold the view that Mr Firmin does not pose an unacceptable risk to X and as such support X continuing to remain in [his] primary care. Child Protection seek Ms Curtin engage with mental health support, engage with a drug support service, regularly complete randomly directed supervised urine drug and alcohol testing and engage with Child Protection in order to address the protective concerns. Further Child Protection will continue to encourage Ms Curtin to recommence contact with X with a plan to progress contact to monitored and unsupervised as Ms Curtin engages with supports and once the unacceptable risk has been mitigated.

   X is currently being assessed by the S Child Services for the purpose of engaging in therapeutic work, Child Protection has sought an update from the service however is awaiting a response. Mr Firmin reports that X is engaged in basketball and football and is progressing well in school, further regular sibling contact between X, Z and Y is arranged and managed by Mr Firmin.

   In summary, Child Protection intend to seek Ms Curtin engage with supports and services as detailed above and recommence attending contact with X in order to implement a plan to progress Ms Curtin’s contact with X to monitored/ unsupervised and allow for extended time, it is however imperative that Ms Curtin engage in the process. Given this position the writer respectfully proposes the matter progress in the Children’s Court jurisdiction in order to further monitor Ms Curtin’s progress in the short term (period of approximately 3-6 months). The writer would ideally seek the matter return to the Family Law Court jurisdiction once the protective related concerns have been adequately addressed in order for further litigation in relation to parenting and contact related orders.

9. In early June 2021, the parties agreed that these parenting proceedings be stayed for a period of four months.

10. Each parent has filed extensive affidavit evidence by themselves and supporting witnesses. I have heard extensive cross examination of the parties. The mother was in the witness box for 5.5 hours over three days.[4] The father was cross examined for 5.6 hours over two days.[5] Other witnesses, Ms O[6], Mr R[7] and Ms Q[8] were also cross examined. Dr J, psychologist, prepared three reports and was cross examined on the fifth day of the hearing.[9]

    [4] Day 2 being 3/3/20 at 14:24-15:43. Day 3 on 4/3/20 at 10:15-10:16, 11:34-12:34, 14:00-16:52. Day 4 on 5/3/20 at 12:00-13:05, 13:25-13:33, 14:50-15:56.

    [5] Day 1 being 2/3/20 at 11:04-1302, 14:29-16:30. Day 2 being 3/3/20 at 10:15-10:54.

    [6] Day 2 being 3/3/20 at 10:56-11:32, 11:59-12:11, 14:10-14:22.

    [7] Day 2 being 3/3/20 lasting 26 minutes.

    [8] Day 4 being 5/3/20 for 21 minutes.

    [9] Day 5 being 18/3/20 at 10:11-11:34, 12:35-13:07.

11. There is a wealth of evidence adduced for the hearing which concluded on 18 March 2020 from which I can make findings. However, in the absence of evidence about what has occurred for X and within the family since March 2020, I cannot say what evidence and findings on the evidence would be relevant to a final disposition of the parenting proceedings. Final parenting orders for X must be based on the court’s consideration of all of the relevant evidence. It would be an error for me to make findings on evidence which is incomplete and to do so may, ultimately, work an injustice for X and his family.

12. When the child welfare proceedings are concluded, or it is at least contemplated that X will cease to be subject to a care order under state legislation, I will permit any party to re-open his or her case to adduce further evidence and to test the further evidence of any other party in cross examination. The court will make final parenting orders about X having taken into account the totality of the evidence.

13. If a party seeks to adduce further social science evidence, such as an updated family report, in his or her re-opened case, that party should consider the delay in obtaining such a report when seeking that these proceedings be relisted for case management purposes.

14. It is apparent that the Department has had access to documents in these proceedings. For the sake of completeness, any request to inspect the court file can be made to the Registrar pursuant to Rule 24.13 of the Family Law Rules 2004. I release the parties from the usual restrictions on production of documents, which have been produced pursuant to subpoena or discovery, so that all or any documents in these proceedings can be produced for the Children’s Court proceedings and/or for the purpose of those proceedings including being legally represented or obtaining evidence for those proceedings.

15. The Children’s Court proceeding is next scheduled for a Conciliation Conference in the Children’s Court on 16 July 2021. Absent a resolution, the Children’s Court proceedings might not necessarily be fixed for a contest hearing. Accordingly, I have reserved liberty to the parties to further adjourn these proceedings, by consent, until a suitable date by which time it is anticipated that this court will be in a position to make final orders. The parties can obtain that adjournment administratively (without the need for an appearance). Otherwise I have reserved liberty to apply generally on short notice.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett j.

Associate:

Dated:       7 July 2021