Hambly and Anor and Clifton

[2014] FCCA 2593

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMBLY & ANOR & CLIFTON [2014] FCCA 2593

Catchwords:
FAMILY LAW – Parenting – urgent interim parenting application made after Department of Children and Families withdrew proceedings in the Local Court – concerns raised about the role of the Department of Children and Families in the local court proceedings.

Legislation:

Care and Protection of Children Act2007 (NT), ss.10, 121

Family Law Act 1975, s.69ZK

In the CEO Department of Children and Families v MGM & Ors [2012] NTSC 69

First Applicant: MR HAMBLY

Second Applicant: MS BATES

Respondent: MS CLIFTON

File Number: DNC 451 of 2014

Judgment of: Judge Harland

Hearing date: 28 October 2014

Date of Last Submission: 28 October 2014

Delivered at: Darwin

Delivered on: 11 November 2014

REPRESENTATION

Solicitors for the First Applicant: Mr J Barry of Darwin Family Law

Solicitors for the Second Applicant: Mr M Strong of Northern Australian Aboriginal Justice Agency

Solicitors for the Respondent: Ms J Holtham of Story & Associates

Solicitors for the Independent Children's Lawyer: Ms M Romeo of Margaret Orwin Barrister & Solicitor

ORDERS

Orders made on 28 October 2014 By Consent

1. That the mother do undergo a urine analysis drug test within 7 days of this order and do provide the results of same as soon as they become available and that such testing be collected in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 provided that the father pays for the test.

Orders made on 28 October 2014 By the Court

1. That the child [X] born [omitted] 2011 live with the maternal grandmother and father as agreed (between them) from this afternoon until Thursday 13 November 2014 and then live with the mother for 1 week and the maternal grandmother for 2 weeks on a 3 week rotation.

2. That handovers occur on Thursday at 2.00pm at CatholicCare if available and if not at [omitted] Park.

3. Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship [X] born [omitted] 2011 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 27 February 2015 and to be prepared by Mr R.

4. The family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

5. The Family Consultant is granted leave to inspect all documents produced in response to subpoena.

6. If the Family Consultant is unable to inspect documents produced in response to subpoena at the Darwin Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

7. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

8. The parties are to telephone the Case Coordinator Children Dispute Services on 08 8219 1589 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

9. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

10. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;   

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

11. NOTING:

    A.    At the date on which a copy of the Report is to provide to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

    B. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

    C.     In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 11 herein, they shall write to the Chambers of Judge Harland seeking that the matter be listed on short notice for their objection to be heard.

12. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

13. That the matter is adjourned to 16 December 2014 at 9.30am for mention.

14. That the matter is adjourned to 16 March 2015 at 9.30am for mention after the release of the family report.

Order made on 11 November 2014

1. That the Darwin Registry Manager cause a copy of the transcript of proceedings on 12 September 2014 in Local Court proceedings LA 5 of 2012 together with a copy of these reasons to be sent to the CEO of the Department of Children of Families.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 451 of 2014

MR HAMBLY

First Applicant

MS BATES

Second Applicant

And

MS CLIFTON

Respondent

REASONS FOR JUDGMENT

1. [X] will be three years old on [omitted] 2014. [X] lived with his maternal grandmother from 4 September 2012 until 9 September 2014. The Department of Children and Families (DCF) placed [X] in the maternal grandmother’s care due to protective concerns with respect to [X]’s parents.

2. [X]’s father is the first applicant in proceedings before this court. [X]’s maternal grandmother is the second applicant. The mother is the respondent.

3. [X]’s father lives next door to the maternal grandmother and regularly helps the grandmother with [X]’s care. The father has an older child [Y], aged 12 from a previous relationship living with him full time.

4. The mother has an older child [Z], aged 13 and [A] aged 1 living with her.

5. The mother obtained NT housing accommodation in [B] in December 2013. DCF returned [Z] to the mother’s care in December 2013.  

6. The maternal grandmother and the father live next door to each other in [omitted].

7. This matter was listed for an urgent interim hearing before me on 28 October 2014. I took the unusual step of making interim orders that afternoon but indicated I would provide the reasons as soon as possible. The legal representatives were content with this course. I felt it was important to provide written reasons which I intend to send to DCF because of concerns the court has about DCF’s handling of this case. The case also highlights the systemic problems of having child protection matters dealt with by the States and Territories and family law matters dealt with by Federal courts which often results in families like this one having to conduct two sets of court proceedings.  

The local court proceedings

1. DCF took [X] into care when he was about 10 days old. He was placed with the maternal grandmother for about a week before being returned to the mother. He was taken into care again in March 2012.  He was returned to the mother, but then removed again in May 2012.  It is not disputed that [X] has lived with the maternal grandmother for most of his short life.

2. DCF obtained a two-year parental responsibility order for [X] on 8 March 2012.

3. Proceedings were commenced urgently in this court after DCF withdrew its application before the local court. DCF did this because it was of the view that [X] was no longer in need of protection.

4. DCF prepared an out of home care plan for [X] on 7 May 2014. A copy of the plan is next to the maternal grandmother’s affidavit filed 19 September 2014.  

5. The care plan notes [X]’s needs and the actions which need to be addressed by the parties and DCF. This included DCF ensuring that it conducts monthly home visits and observations of contact visits with both parents.

6. The plan includes notes about meetings with family members and a note that on 4 February 2014 the mother informed DCF that she felt that long-term care was in [X]’s best interests and she did not think she could care for him. On 10 April 2014 she informed DCF that she wanted [X] to be returned to her full time care.

7. Significantly the plan records that contact between [X] and the mother had been sporadic during the review period. The plan further noted that contact between the mother and [X] should recommence on a monthly basis and be reviewed every three months for consistency. It noted that the father saw [X] every day in the afternoons. It noted that the grandmother and father wanted the placement to continue. The plan further noted that the mother was to continue to work with the psychologist Dr R and attend fortnightly sessions which DCF would fund through to September 2014 and with Dr R to provide monthly reports as to the mother’s progress. The mother was also required to continue to engage with Ms C from [omitted] Community Services for family support fortnightly, with written feedback to be provided to DCF monthly. The mother was also required to meet with the general practitioner every month for a mental health review. The mother was required to complete drug screens for cannabis and other drugs with DCF to pay for the costs. The testing was due to recommence on 5 June 2014.

Contact between the mother and [X] prior to reunification

1. The maternal grandmother says at the paragraph 11 of her affidavit filed on 19 September 2014 the mother spent the following times with [X] before he was returned by DCF to the mother’s full-time care on 9 September 2014. Those visits were:

   a)Between August 2012 and November 2013, supervised daytime visits and one overnight visit;

   b)June 2013, one overnight visit;

   c)July – August 2013, one overnight visit;

   d)Christmas 2013, two night block visit;

   e)22 to 27 August 2014, five night block visit.

2. In her affidavit filed on 26 October 2014 the mother says that she saw [X] every two to three weeks in 2013. She says in 2014 she had difficulties with travelling and managing the logistics with her other children. The driving distance is considerable. The mother says she saw [X] on 6 June 2014, for 2 days in July including one overnight and then for 5 nights in August 2014.

3. The annexure at pages A11 and A12 of the grandmother’s affidavit filed on 19 September 2014 is a further care plan prepared by the previous DCF care worker Ms R on 2 June 2014. That plan was to be reviewed on 13 September 2014. The plan refers to the goal for the mother of developing attachment and planning for reunification.  The plan notes that DCF is to monitor at least one hour of each contact visit and sets out the following proposed visits:

   a)19 to 20 June 2014, one overnight visit in [B];

   b)3 to 4 July 2014, one overnight visit in [B];

   c)16 to 18 July 2014, two night block visit in [B];

   d)8 to 11 August 2014, three night block visit in [B];

   e)21 to 25 August 2014, four night block visit;

   f)8 to 12 September 2014, five night block visit.

4. The stepped progress of visits which was meant to be reviewed in September 2014 did not take place.  There was a much truncated series of visits and then reunification.  The plan noted that the brief reunification plan was to be reviewed at the end of each month to monitor progress and that it was intended to be a three month plan to enable the mother and DCF to determine the feasibility of reunification occurring and it was intended to be reviewed at the end of that three month period.

5. The plan noted with respect to the father that the aim was to develop a meaningful relationship with him which meant he was to spend every afternoon with [X] at the grandmother’s home for three hours and that was to be reviewed in July 2014.

6. The plan also referred to DCF carrying out random home visits and monitoring any substance use during contact visits and also referred to the mother implementing strategies to prevent any incidences of domestic violence in front of [X] and the mother to act protectively and report any concerns to police.

7. Annexure A is the transcript of the proceedings before Magistrate Armitage on 12 September 2014. On that occasion DCF’s lawyer indicated that DCF was withdrawing its application. The other parties opposed DCF withdrawing and argued it needed leave to withdraw. The effect of the DCF withdrawing from the proceedings is that the Local Court proceedings come to an end. This issue has previously been raised in the Local Court and the Supreme Court In the CEO Department of Children and Families v MGM & Ors [2012] NTSC 69. In that case Kelly J upheld on appeal from orders of Hannam CM (as she then was) wherein Hannam CM refused to grant DCF leave to withdraw. The distinguishing factor in that case was that the parents agreed with DCF’s position.

8. In the current case, understandably enough the mother did not oppose DCF withdrawing as they had reunified her with [X]. It seems from DCF’s perspective the issue is simple. DCF brought proceedings because it had child protection concerns. It now no longer has child protection concerns.

9. The maternal grandmother’s lawyer and the father’s lawyer outlined their concerns before Magistrate Armitage that the grandmother and father will not have ongoing contact with [X] if [X] is in the mother’s care as historically the mother said she has difficulties with her family. They also highlighted concerns about [X]’s attachment having been in the grandmother’s primary care the past two years to be suddenly placed in mother’s full-time care ignores that attachment.

10. They also expressed concern about apparent inconsistencies in DCF’s position and DCF’s failure to ensure its own care plan was complied with, prior to reunification between [X] and the mother.

11. DCF was well and truly on notice about the concerns of the maternal grandmother and the father. For example in an email from Mr Strong to Mr Fisher dated 25 August 2014 the following issues were raised:

    -the concern about the altercation between the mother and her sister on 19 July 2014, which took place in front of the children;

    -the concern about [X] not having spent much time away from the maternal grandmother and attachment issues arising from that;

    -concerns which were raised in previous correspondence from the mother’s solicitor saying the mother’s counsellor had not been able to contact the mother and was unaware of whether or not the mother had undertaken the drug screening.

12. Mr Strong sent a further email to Mr Fisher on 4 September 2014 after DCF notified the grandmother that they would be reunifying [X] with the mother. The concerns highlighted in that email include:

    -the concerns about attachment given the fact of [X] being in the grandmother’s primary care since 10-months-old;

    -the mother not doing counselling (noting that DCF prepared and signed a care plan requiring the mother to continue to counselling);

    -the altercation between the mother and sister which took place in front of [X];

    -the mother not engaging in mediation (noting that matter had been adjourned by consent in June 2014 for the parties to attend a legal aid conference), the concern being that the mother would not facilitate [X] spending time with his grandmother and the father if [X] was returned to her care.

13. These are all legitimate and reasonable concerns that were appropriately raised by the grandmother’s solicitor. DCF did not address them in correspondence or during the local court proceedings.

14. Section 10 of the Care and Protection of Children Act 2007 (NT) is also relevant. It addresses the best interests of the child:

    Best interests of the child

    (1) When a decision involving a child is made, the best interests of the child are the paramount concern.

    (2) Without limiting subsection (1), consideration should be given to the following matters in determining the best interests of a child:

    (a) the need to protect the child from harm and exploitation;

    (b) the capacity and willingness of the child's parents or other family members to care for the child;

    (c) the nature of the child's relationship with the child's family and other persons who are significant in the child's life;

    (d) the wishes and views of the child, having regard to the maturity and understanding of the child;

    (e) the child's need for permanency in the child's living arrangements;

    (f) the child's need for stable and nurturing relationships;

    (g) the child's physical, emotional, intellectual, spiritual, developmental and educational needs;

    (h) the child's age, maturity, gender, sexuality and cultural, ethnic and religious backgrounds;

    (i) other special characteristics of the child;

    (j) the likely effect on the child of any changes in the child's circumstances.

15. The concerns raised by the grandmother and the father are clearly relevant to the best interests of the child. These are matters that DCF should have turned its mind to as part of the reunification process. The impression that this court is left with is DCF was determined to place [X] back with a parent from whom they had removed [X], without regard to the other factors that impact on [X]’s welfare.

16. DCF is in a position of power in care and protection proceedings. It is the only one who can bring the proceedings[1] and it seems once DCF decides to withdraw proceedings the parties and indeed the Local Court have no recourse. The proceedings come to an end. This appears to be an issue for consideration in the context of law reform. The consequence is that instead of the Local Court which is already seized of the matter and familiar with the issue, is not able to see the case through.  The parties must incur the additional expense as well as the stress of proceedings in a different court, being a court that is not familiar with the matter.

    [1] See s.121 of the Care and Protection Act 2007 (NT).

17. Particularly when one considers the transcript of the proceedings before Magistrate Armitage, it is difficult to avoid the conclusion that DCF acted in a high handed and obstructive manner and could be seen by the grandmother and the father to have become an advocate for the mother. Clearly while DCF had every entitlement to file the application for a stay in the Supreme Court it has not helped this family including the mother and [X] in doing so. It appears that DCF’s focus became very narrow, with the goal to return [X] to the mother’s care as soon as possible without considering the factors relevant to [X]’s best interests as set out in s.10 of the Care and Protection of Children Act 2007 (NT).

18. It is clear from the transcript that not only were the grandmother and the father concerned about DCF’s actions, but the Court was as well.

19. During the course of the hearing on 12 September 2014 Magistrate Armitage noted that the care plan had not run its course. The child representative that submitted that the sudden placement with the mother was not in [X]’s best interests said that the court did not have an update as to how the mother was progressing and about her capacity to care for the child. The child representative expressed great concern about removing a child from the grandmother when he had been in the grandmother’s care for two years. Mr Fisher called evidence from [X]’s current DCF worker Mr P. Magistrate Armitage noted that DCF had not filed any affidavit evidence in response despite being on notice of the grandmother’s application.  Mr P has only been involved in the case since 10 July 2014. He observed the mother and [X] on two separate occasions for between 45 minutes and an hour. 

1. Mr P’s evidence was that the grandmother had cooperated with the visits. Mr P said that the grandmother was very upset about the plan to reunify [X] with his mother and he says that he was under the impression that the grandmother was fully aware of DCF’s plans but that ignores the fact that DCF did not implement its own plan which it had only formulated a couple of months before with an intention to review the arrangements in September 2014.

2. Mr P confirmed that he does not have concerns about [X] being in the grandmother’s care.

3. Mr P said DCF has not been receiving monthly reports from the mother’s psychologist Dr R (which was in the previous plan). The last report he could see on his file was from May 2014. He also had not received any feedback from the mother’s counsellor Ms C since his involvement. Ms C was also supposed to provide monthly reports.

4. With respect to the incident between the mother’s sister and mother,

   
   

   Mr P he says he was given conflicting versions about the physical altercation but says that [X] was in the car and so was not present. That comment is concerning because [X] was still exposed to conflict which occurred behind the car. He may have seen it and also certainly was exposed to it. It is clear that there was a physical altercation on that occasion. The grandmother witnessed it. She says her daughter punched [name omitted]. The mother says she and [name omitted] pushed each other. On any version there was a physical altercation which [X] was exposed to.

5. Mr Fisher submitted that it was in [X]’s best interests that he remain with his mother. It is difficult to see how that submission could be made in light of the evidence and the lack of adherence to the care plan. It does appear that proper consideration was given to the factors outlined in s.10 of the Care and Protection of Children Act 2007 (NT).

6. After hearing submissions Magistrate Armitage said “yes, this is a very difficult matter and it seems to me that the difficulties that have substantially arisen because of the approach taken by the Department.” I agree with Her Honour’s comments.

7. Magistrate Armitage went on to say that the matter had been adjourned for a three month period with a plan for a family law conference to take place. That conference did not take place because the mother failed to participate. During the adjournment DCF put a further care plan in place which was stated that would be reviewed on the 13 September 2014 after which a decision would be made about how to progress the matter further. The care plan did not indicate that reunification would occur at the end of the plan and everything about the plan indicated that there would be some further period of time after the plan concluded rather than immediate reunification.

8. She stated:

   “it is obvious that significant aspects of the care plan had not been complied with, in particular, the drug testing and transitioning with regular and [sic] visits and increasingly lengthy visits which are monitored and assessed and that simply has not occurred. And there is no evidence before me that other aspects have been complied with such as monthly feedback in relation to various counselling and no contact with the general practitioner and the like.

   It is clear that the department at some point move away from following that care plan and/or complying with the care plan and recently informed grandma, who has cooperated fully with the department throughout two orders of this court, now to proceed to indicate that there would be effectively immediate reunification. [sic]”

9. Magistrate Armitage found that it was in [X]’s best interests for him to be returned to the grandmother for the period of the adjournment and adjourned the matter part heard to 15 September 2014 to hear further argument about whether or not DCF needed leave to withdraw.

10. Magistrate Armitage further noted that the child has been with the grandmother for over two years and the Department has no concerns about the grandmother’s capacity to care for the child. Whilst the child is with the grandmother the child has regular time with his father and other extended family members. She was also satisfied that despite difficulties the grandmother and mother facilitate contact with the mother and that should continue to do so with the assistance of the father. She noted the mother has a traumatic history involving drug use, addressing violence and mental health issues and that whilst it may be that there will be evidence before the court as to the progress of the mother in the future, currently the evidence was of the secondary nature there was no direct evidence as to her progress with the counselling. There had been no drug testing this year and is limited evidence about the limited contact that has occurred which has not occurred in the staged way that was imputed by the plan. She noted that she presumed the care plan had been developed with the best interests of the child in mind.  The care plan had envisaged a very staged process of reunification and that this had not occurred.  What had occurred was a much more abrupt process.

11. Magistrate Armitage clearly identified the very concerns that this court shares. It would have been much more constructive and helpful for [X] and his family if DCF had addressed these concerns rather than circumventing the Local Court process by filing a stay application which effectively ended the Local Court proceedings. DCF is in a position of power in care and protection proceedings. DCF as a government organisation has a duty to act as a model litigant.

Federal Circuit Court proceedings

1. The applicant father filed an initiating application on 19 September 2014. He relied on the Initiating Application filed by the grandmother. The grandmother sought an urgent recovery order for [X] to be returned to her.

2. The applicants have their own legal representatives but at this stage of the proceedings their position is united. The applicant sought that the matter be listed urgently.  It first came before this court on 17 October 2014.

3. On 17 October 2014 Mr P, the DCF case worker swore an affidavit for the mother in the FCCA proceedings. The mother had not yet filed any material in these proceedings. It is most unusual for DCF to file an affidavit in support of a parent in family law proceedings. He was appointed as [X]’s case manager in June 2014.

4. The mother had not filed material by the first return date but relied on an affidavit prepared by Mr P the DCF case worker. The mother was in a remote location and out of the mobile phone range celebrating [Z]’s birthday. On that occasion I appointed an independent children’s lawyer and made an order that the mother attend court in person on the next occasion and bring [X] to court.  I did so because the father and grandmother raised serious concerns about [X] remaining in the mother’s care and the parties live some considerable distance apart.  The grandmother and father had not had any contact with [X] by that stage for about five weeks.  The mother was in the bush with [Z] and [X] and was not contactable.  She had taken the children away for a week to celebrate [Z]’s birthday.

5. The matter was listed for interim hearing before me on 29 October 2014. Due to the complex history in this matter that hearing took some two and a half hours. The Independent Children’s Lawyer had only recently been appointed but has some experience with the family having been [Z]’s legal representative in the Local Court previously. It was not possible to appoint [X]’s legal representative as the ICL in these proceedings because that lawyer is not on the ICL panel and does not do family law work. This is not uncommon.

6. The father says he gets on well with the maternal grandmother and visits her home and spent time with [X] when [X] was living with her most days. He says [X] has extensive aboriginal family in [omitted] and that he regularly exposes [X] to his aboriginal culture in Kakadu. He says that [X]’s older brother [Y] gets on very well with [X] and also saw him most days when [X] was living with the grandmother.

7. The father says in his affidavit filed on 19 September 2014 that DCF had not spoken to him about their plans to return [X] to the mother permanently and that DCF had not spoken to him for months. He complains that they do not seem to respect the role he plays in [X]’s life. It appears that the father has good grounds for complaint in that regard. It is fortunate that the father lives next door to the grandmother and gets on well with her so has been able to see [X] regularly. It appears that he has largely been forgotten by DCF in this dispute even though he is also [X]’s biological parent. He says he would like to have part-time care of [X] and eventually full-time.

8. I have some concerns about apparent insensitivity on the part of the DCF lawyer which is apparent from two emails that have been indexed to the grandmother’s and father’s affidavit. The Court acknowledges that these are not all of the emails between the lawyers. Mr Fisher, DCF’s lawyer, was well aware that the grandmother and the father had concerns about [X] being returned to the mother’s full-time care and their desire to commence proceedings in the Federal Circuit Court for parenting orders. That consent from DCF never came.

9. The reason for seeking that consent is because of section 69ZK of the Family Law Act 1975 which states:

   Child welfare laws not affected

   (1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:

   (a) the order is expressed to come into effect when the child ceases to be under that care; or

   (b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.

   (2) Nothing in this Act, and no decree under this Act, affects:

   (a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or

   (b) any such order made or action taken; or

   (c) the operation of a child welfare law in relation to a child.

   (3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.

10. The Federal Circuit Court is a busy trial court. In my view there is no point in the parties commencing proceedings in the Federal Circuit Court when there are local court proceedings on foot unless DCF has given the consent referred to in section 69ZK above. It makes little sense both for court resources and also legal aid resources (acknowledging that often legal aid represents one or both parents and the child) and other public resources into court at the same time concerning the same family. It is not apparent why DCF could not have simply provided an answer as to why it would not provide consent at the time.

11. The day before the matter was before the Local Court hearing, in response to an email from Mr Barry indicating that it was likely that there would need to be interim argument, Mr Fisher sent an email at 1:22 PM stating: “I write to inform you that DCF will be withdrawing its application tomorrow. The child has been reunited with a very happy Mother.”

12. On 18 September 2014 at 3:30 PM Mr Strong sent an email to

    
    

    Mr Fisher which is set out in full:

    “We made an offer that we would agree to consent orders being filed in the Supreme Court with orders that the proceedings in the local court were discontinued and there being no further orders.

    The reason we sought to resolve this quickly is because the CEO is refusing to give leave the parties to commence proceedings in the Federal Circuit Court.

    You have been asked about the reasons why the CEO objecting [sic] the grandmother bringing proceedings on numerous occasions. You have still not responded to that request.

    You say that the department is not causing intentional delay to the proceedings but you refuse to provide consent to the commencement of Federal Circuit Court proceedings. You also refused to provide reason for withholding consent.

    On Friday before her honour Justice Kelly we put the parties on notice that we intended bringing Federal Circuit Court proceedings and there was no objection.

    We again ask that you provide written consent for the commencement of proceedings in the Federal Circuit Court or in the event that the department still does not consent the reasons.”

13. Mr Fisher sent an email to Mr Strong in response at 3:49 PM that afternoon copied in to several people including people within the Department stating the following:

    “Dear Matthew

    You objected to the Department withdrawing its application last Thursday and Friday in the Magistrates Court. Consequently DCF appealed to the Supreme Court. As you know the Supreme Court is now seized of the matter. As you know this will be heard on Monday. On Monday I assume the court will withdraw its application by the CEO. Then, if you really wanted to hear the child from his family, it is up to you to institute proceedings in the Federal Family Court.

    I am too busy to continue applying to these meandering, repetitive, abusive and ultimately meaningless emails.”

14. I accept that these emails are not the whole chain of emails but there appears to be no justification for Mr Fisher to have such an attitude as it seems clear that the parties are justifiably frustrated by the Department actions and it would have been a simple thing for the department is simply provide an answer is requested on numerous occasions about the issue of consent.

15. Both emails show a concerning lack of sensitivity to [X]’s other family members being his father and maternal grandmother, both of whom are very significant figures in his life.  It is not at all helpful for the legal representative of the Department to make such remarks which no doubt will hurtful to both the father and grandmother.

Interim orders

1. The lawyers for the father and the maternal grandmother argued that what had occurred was a unilateral relocation facilitated by DCF. They argued that I should ignore DCF’s role in that. I do not accept that submission. It is not analogous to a unilateral relocation. The mother cannot be (and the lawyers did not) criticised her for accepting DCF’s decision to place [X] back in her care. The real issue here is the lack of consideration of the disruption to [X] in terms of his attachment to his primary carer, DCF not adhering to its own care plan and DCF not explaining how this sudden change was in [X]’s best interests.  The father and grandmother sought a recovery order.

2. The ICL has only been recently appointed. She gave some submissions by telephone. She was not available to hear the submissions of the other parties.  The ICL said that it would be confusing for [X] if he was returned to the grandmother’s primary care.  I suspect the recent months have been confusing and unsettling for [X] because of his primary attachment to the grandmother.  This is not to say that he does not enjoy time in his mother’s care.

3. The mother says that she and DCF do have concerns about the grandmother’s capacity to care for [X]. This is contradicted by the evidence from DCF including oral evidence given by Mr P on 12 September 2014.  The mother only offered limited day time contact in her response.  Both parties sensibly shifted their positions at the interim hearing.

4. The task the court faced in making interim orders in this matter was not easy.  The orders are not ideal but reflect the fact that [X] has now spent a significant time in his mother’s care and there is a significant distance between the grandmother and the mother’s home which makes shorter more frequent time impractical. In addition to the distance there is also the cost of fuel for the parties. The Court is also mindful of the fact that [X] has now spent several weeks with the mother.

5. [X] has a meaningful relationship with his parents and his maternal grandmother. He also has important relationships with his half-siblings. The interim orders will allow [X] to maintain connections and strengthen connections with the important people in his life. There remains concerns about the mother’s parenting capacity. It is clear though that the mother has been working on her parenting capacity and has done what DCF has asked of her.  DCF is offering her only family support which it has indicated the mother has engaged with.

6. The mother seeks orders on a final basis enabling her to relocate with [X] to Victoria. This is a new issue.  The mother will need to give evidence about her proposal in more detail including how [X] will maintain a relationship with his father and maternal grandmother.  Issues concerning [X]’s Aboriginal heritage on his mother’s and his father’s side will also need to be explored.

7. The mother annexed a copy of a report from Dr R to her affidavit. The report is dated 23 October 2014. Dr R says she has had regular contact with the mother for almost two years. Dr R is also critical of DCF and refers to what she says is unnecessarily harsh treatment by DCF. Dr R’s report is useful in that it shows that the mother has complied with DCF directions to attend upon Dr R regularly.

8. I am concerned about some of the content of Dr R’s report and place little weight on it because it appears that Dr R has become an advocate for the mother. In an extraordinary passage she refers to the stolen generation and the importance of [X]’s relationship with his biological mother. It is a misnomer and somewhat offensive to liken this case to the stolen generation. This is because it ignores the fact that the father and the grandmother are also Aboriginal and also important people to [X]. In the final section of her report Dr R says that as the primary carer it is appropriate that the mother decide what access the maternal grandmother should have. With respect to Dr R the mother is not [X]’s primary carer. [X]’s primary carer for the past two years has been the maternal grandmother. The father is also [X]’s biological parent and a person of some significance to [X]. I place no weight on Dr R’s report other than to express satisfaction that mother has done what has been asked of her by DCF.

9. The interim orders provide [X] with the opportunity to spend substantial and significant time with his mother, father and grandfather and his siblings [A], [Z] and [Y]. This matter can be reviewed further after the family report is released.

Conclusion

1. DCF’s role in this case is concerning. The lack of transparency by DCF and its obstructiveness has not helped this family or the court processes. This case highlights the need for law reform in the area of State child protection laws and Federal family law. The Federal Circuit Court is a busy trial court with a heavy workload. It is not in children’s interests for two courts to be examining their circumstances. It is not a good use of public funds for there to be duplication of proceedings. The only complete solution to this problem is law reform which is complicated by the jurisdictional issues with child protection being the domain of State and Territory courts and family law being dealt with by Federal family courts.

2. Pending any law reform the problems of duplicate proceedings can at least be reduced by information sharing between the courts and welfare agencies. Professor Chisholm report entitled “Information-sharing in family law and child protection enhancing collaboration”, released in March 2013 addresses the importance of this issue. There are protocols in place in some states including NSW and Victoria. The Victorian protocol includes the following clause [2]:

   [2] Establishing the appropriate jurisdiction

   11.1 It is not in the interests of the child or the family that there be concurrent proceedings relating to that child in a court exercising family law jurisdiction and the Children’s Court.

   11.2 When deciding in which court the matter should most appropriately proceed, the Department of Human Services should give consideration to the following:

   (i) whether there is evidence to support a finding in the Children’s Court that the child is a child in need of protection under one of the grounds in s. 162(1) of the Children, Youth and Families Act

   (ii) whether the protective concerns can be alleviated by a change in residence or other arrangements for the child

   (iii) whether there is an appropriate parent or carer prepared to lodge an application under the FLA in relation to residence or other arrangements for the child

   (iv) where there are family law proceedings pending, and whether the Secretary to the Department of Human Services should seek to appear as amicus curiae (friend of the court) or intervene in those proceedings

   (v) which court is likely to provide the quickest and most effective solution to secure the welfare of the child

   (vi) which court has jurisdiction to make the orders that it is anticipated the parties to the proceedings will require.

1. Perhaps if such a protocol was in place here DCF would have taken a different course. It is concerning that in this case DCF thought it appropriate for a case worker to attend the first return date in the Federal Circuit Court and for that case worker to swear an affidavit in support of the mother’s case. DCF is in a position of power compared to the other parties in child protection proceedings. DCF has a duty to act as a model litigant. It did not do so in this case.

2. Due to the importance of the issues raised in this case with respect to DCF I will order the Darwin Registry Manager of the FCCA to send a copy of the transcript of proceedings in the Local Court on 12 September 2014 and a copy of these reasons to DCF.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 11 November 2014