Hagle and Diver and Anor

[2010] FamCA 650

FAMILY COURT OF AUSTRALIA

HAGLE & DIVER AND ANOR [2010] FamCA 650

FAMILY LAW – CHILDREN – Application concerning an Indigenous child – Whether the child’s statements have been coached – Section 91B report requested – Order for service of the initiating application on the paternal grandmother with whom the child is residing

APPLICANT: Ms Hagle

RESPONDENT: Ms Diver

SECOND RESPONDENT: Mr Partridge

FILE NUMBER: BRC 1612 of 2007

DATE DELIVERED: 19 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 19 July 2010

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Mr Turnbull, Solicitor of Journey Family Lawyers appearing for the Applicant

COUNSEL FOR THE FIRST RESPONDENT: No appearance

COUNSEL FOR THE SECOND RESPONDENT: No appearance

Orders

IT IS ORDERED THAT:

1. The matter be adjourned to the Judicial Duty List at 10.00 am on 1 November 2010 at the Brisbane Registry of the Family Court.

2. Leave is given to the Applicant’s legal representatives to file and serve updating affidavit material by filing an affidavit of the Applicant only.

3. The Applicant’s legal representatives to forward a copy of this Order by Registered Post to the First Respondent Mother at her last known address.

4. The Applicant’s legal representative to serve on the paternal grandmother the Applicant’s initiating application in these proceedings together with other relevant documents filed so as to appraise the paternal grandmother of the status of the current application.

5. Leave is given to the Applicant’s legal representatives to issue a subpoena directed to the Department of Education.

6. Leave is given to all parties to inspect subpoenaed documentation with no copies to be taken without the leave of the Court.

7. Pursuant to Section 91B of the Family Law Act, the Court requests the intervention of the Director-General of the Department of Communities (Child Safety Services) in the proceedings relating to the welfare of the child, J born … January 2000.

8. Upon request from the Director-General, the Registry Manager permit inspection of the Court file by a person authorised by the Director-General and copying of any part of it to enable consideration of the request to intervene in the proceedings.

NOTATION:

The Court requests a report from the Director-General, Department of Communities (Child Safety Services) as to any intervention by the Department over the last two (2) years in relation to the subject child be prepared by 15 October 2010.

IT IS NOTED that publication of this judgment under the pseudonym Hagle & Diver and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1612 of 2007

MS HAGLE

Applicant

And

MS DIVER

First Respondent

And

MR PARTRIDGE

Second Respondent

REASONS FOR JUDGMENT

1. I am asked to make child related orders for an 11 year old aboriginal girl.  She is believed to be currently living with the paternal grandmother in M.  I accept that the mother has been served with the relevant documentation for the purposes of today’s application.

2. Now, I note and have read the report of Mr N.  I note that at paragraph 9.1.9 of that report on page 19, the child was very distressed.  The child was crying and shaking and screaming that she didn’t want to go back to her mother.  However, at paragraph 11.3 of the same report – I do take in to account that this report is nearly two years old:

   [The child] clearly indicated to me at interview that she wished to remain living with her mother and did not want to see [the Applicant] at all, and would not miss her if she did not see her.

3. Later on in the same paragraph, in her account, the child referred to the Applicant as corrupting and destroying her family.  The report writer says:

   These are not terms that one would normally expect an eight year old to use and suggests that she had either been coached in what to say or she has overheard her mother’s comments.

4. At this stage the situation is, I do not know whether she was coached, whether she was in fear of her mother, was threatened by her or whether the statements are genuine.  But in any event, it is a situation where I simply cannot ignore it.  Although the report writer says:

   11.10I have considered possible explanations for the inconsistencies that are apparent in this matter.  Possibilities that occur to me are as follows; [the child] is a very confused child who changes her behaviour according to whom she is with at any time.

   2.[The child’s] behaviour on the date of assessment was not typical.  She modified her behaviour out of fear that her mother would react angrily if she expressed concerns about her home environment.  [The child] has exaggerated her fears about her mother to [the Applicant] and her Aunt [T].  I must admit to the court that I have great difficulty in determining which of the above possibilities is the most likely. - -

5. I have had regard to the recommendations that were made by Mr N.  I will adjourn this matter.

6. I will have inquiries made by the registrar with the Department if they can do that the alternate date will be 1 November.  Depends on the work load of the Department, but I request a 91B report.  I give leave to you to subpoena any education records and a copy of this is to be forwarded by registered post to the mother at her last known address and service is to be effected on the paternal grandmother of the initiating application. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  19 July 2010