HANDEL & JESAULENKO

[2011] FamCA 134

FAMILY COURT OF AUSTRALIA

HANDEL & JESAULENKO [2011] FamCA 134

FAMILY LAW – CHILDREN – Matter finalised by discontinuance

Family Law Act 1975 (Cth)

APPLICANT: Ms Handel

RESPONDENT: Ms Jesaulenko

INDEPENDENT CHILDREN'S LAWYER: Ms Perren

FILE NUMBER: BRC 13275 of 2007

DATE DELIVERED: 17 January 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 January 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms E. Rowan of Charltons Lawyers

THE RESPONDENT: In Person

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Ms Perren of Madden Solicitors

Orders

IT IS ORDERED THAT

1. All applications and responses by any of the parties in these proceedings be dismissed.

2. The Independent Children's Lawyer be discharged.

3. A copy of the s 69ZW Report by the Department of Communities (Child Safety Services) dated 17 January 2011 be provided to the parties and to the Independent Children's Lawyer.

4. To the extent that the exception provided for in Section 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish an account of these proceedings to the Department of Communities (Child Safety Services) … office, namely:

   a.any such documents contained on the court file that she might consider appropriate or relevant for the purposes of the Department of Communities (Child Safety Services) having a continuing role in the life of the child L born … April 2000; and

   b.a copy of the Reasons for Judgment by his Honour Justice Murphy and the Orders of today.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED THAT

(a)      The Orders of FM Howard of 5 August 2008 shall continue.

(b)The Department of Communities (Child Safety Services) continues to actively monitor and have a role in the family and it is respectfully considered that such continued involvement to be directly in the child L’s best interests.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13275 of 2007

Ms Handel

Applicant Mother

And

Ms Jesaulenko

Respondent Maternal Grandmother

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter has a lengthy history in the Federal Magistrates Court of Australia and more recently, in this court.  It can be seen to have commenced with an application by the mother for orders that the child, the subject of these proceedings, L born in April 2000, live with his mother and spend time with the maternal grandmother as agreed. 

2. L’s father has not at any stage been involved in these proceedings, and his current whereabouts are unknown.  Indeed, there are real doubts surrounding who is L’s father. 

3. The essential background to the orders about to be made can, I think, be best summarised by reference to the fact that L has a child protection history, evidenced by reports prepared by the Queensland Department of Communities in a report prepared pursuant to section 69ZW of the Act, stretching back to 2003 when he was not yet three. 

4. Since that time, there have been, it seems, 23 separate notifications to the Department. 

5. Earlier proceedings in this court had, as a background to them, the spectre of the Department themselves taking action in respect of L, pursuant to state legislation.  Indeed, earlier proceedings in this court related to the possibility of the Department becoming a party and actively seeking orders in these proceedings. 

6. The first report prepared by the Department of Communities in March 2010 concluded with a summary that said:

   Departmental records indicate that the Department has had no direct contact with L since early 2005.  The Department has considered a number of reports that the child is at risk in the care of the maternal grandmother.  However, none of the reports have met the threshold to record a child protection notification.  This indicates that the Department has no current information to suggest that L is at risk of harm in the care of his grandmother.

7. Some concerns were expressed by the court at that conclusion, given material that was before the court at that time. 

8. Subsequently, the Department has prepared a further report pursuant to s 69ZW, a copy of which I will order be provided to each of the parties to these proceedings.  That report was only received by the court some 10 minutes or so prior to the commencement of these current proceedings.  In that respect, it should be noted that the relevant Departmental office is in northern Queensland and that region’s difficulties and with its own flood crisis, preceded the current difficulties being experienced by other areas, including Brisbane.  I have little doubt that the earlier flood crisis in that region contributed significantly to the report being received when it was and I make it plain that I direct no criticism to the Department in that respect.

9. That report details further Departmental involvement, including, importantly, most recently, since about March 2010, when information was received in relation to L, that listed a number of concerns.  Those concerns are recorded as:

   ·[L] currently resides with his grandmother, [Ms Jesaulenko], who has interim custody of the child.  [The grandmother] is not engaged in the Family Law Court process and has refused for [L] to be seen by a psychologist as ordered by the court. 

   ·There are concerns regarding the ongoing emotional wellbeing of [L], given he resides in an isolated family environment and is not seen by people outside of the family home.  [Dr W], psychiatrist, in a report from April 2009, identified [the grandmother] as having disordered thinking.  This assessment was made without direct contact with [the grandmother].  There are ongoing concerns regarding [the grandmother’s] ability to meet the needs of [L], given her inability to function with the best interests of the child in mind.

10. There are a number of child protection concerns identified in the information provided, which are outlined in that Magellan report.  The issues referred to in the summary just quoted will make it plain that this court has, in earlier proceedings, connected with this matter’s life in the Magellan list, expressed significant concerns about L’s wellbeing, including those associated with L’s apparent social isolation. 

11. As but one example of that, he had apparently been home‑schooled for some time by the grandmother. Included amongst the matters noted by the Departmental investigation, is that:

    [L] is a ten-year-old boy who states that he does not need friends because all he needs is family.

12. Departmental officers referred to L looking to the grandmother prior to answering any question asked of him.  The report refers to:

    [L’s] lack of involvement with education, establishments and professional services, therefore he is not observed by independent persons outside the family unit who can report on changes in appearance and behaviour.

13. L’s mother has had to endure a number of significant difficulties in her life, and she identifies as suffering from an intellectual disability among them.  The complexities of the situation, very briefly described, have clearly troubled the Department in more recent times.  The report just referred to refers to a Departmental case plan that involves an “Intervention with Parental Agreement” as the most appropriate Departmental intervention to meet L’s protective needs.  That case plan is focused on the following areas:

    ·[L] being given the opportunity to participate in social and recreational activities outside of the family home, as well as regular home visits to [L] by the Department;

    ·[L] consistently participating in an educational program and the Department being given feedback in terms of his progress;

    ·[L’s] medical needs being met, including continuing to see his occupational therapist fortnightly, and [the grandmother] obtaining a referral to a therapeutic program for [L];  and

    ·[L] to continue to have contact with his mother, [Ms Handel], as per court orders at a minimum.

14. Notwithstanding the reference to the Intervention with Parental Agreement and the case plan just referred to, the report also goes on to refer to significant concerns which continue to be held by the Department and, as it appears from the report, those concerns are ongoing (emanating I infer, from the history with the Department stretching back, as it does now, for some seven years).  The report goes on to say that:

    For this reason the … CSSC has sought an independent review of the current intervention by a senior practitioner from another region within the Department.  The outcome of this review has not yet been finalised, however this review will assist the Department in decision-making with respect to continuing Departmental intervention with this family.

15. The report then goes on to record the following summary:

    In light of the concerns that have been identified for [L] whilst in the care of his maternal grandmother, [Ms Jesaulenko], the Department has assessed that [L] has suffered emotional harm and is at risk of suffering further emotional harm with [the grandmother] being identified as the person responsible.

    For this reason, [L] has been determined to be a child in need of protection, and, as such, the Department commenced an intervention with parental agreement with [the grandmother] in May 2010.

    Some progress has been made by the family in addressing the goals and outcomes of this case plan and a review of this case plan is currently being undertaken.

    During the Department’s recent contact with family positive observations have been made in terms of [L’s] presentation.  However, concern has come to light in relation to [the grandmother’s] willingness to continue to engage with the current intervention once the Family Court process has been finalised.

    For this reason the … CSSC has sought an independent review of the current intervention by a senior practitioner from another region within the Department.  The outcome of this review has not yet been finalised, however this review will assist the Department in decision-making with respect to continuing Departmental intervention with this family.

    In light of the level of Departmental involvement with this family, it is respectfully requested that consideration be given to the court providing the Department with a copy of the final orders and judgment in this matter when it/they(sic) have been finalised.

16. The difference in the attitude by the Department evidenced by the summary just referred to, when compared to the summary contained in their report of March 2010, will be obvious. 

17. The relationship between L’s mother and her mother has been at times very turbulent.  This is evidenced, if by nothing else, by the fact that the mother initiated proceedings in this court seeking orders, as it were, against the grandmother in respect of L’s care.

18. However, it is said, both by the solicitor representing the mother and by the grandmother, that the two women have reached an agreement with respect to L’s future care.  With that in mind, the mother has filed a Notice of Discontinuance in respect of her application. 

19. But, there are other proceedings live by reason of a Response filed by the grandmother in relation to that earlier application.  The agreement just referred to can be seen annexed to an affidavit filed by the grandmother on 27 July 2010.  It is, I think, important to record it here:

    We agree to the following terms;  being in the best interests of [L] born [in] April 2000:

    (1)that he reside with his maternal grandmother, [Ms Jesaulenko], Aunt [Ms C] and Uncle, [Mr D], for the natural duration of his needs and wishes;  and that this care continue for [L] by [Ms C] and [Mr D] in the event of [the grandmother] not being able in any way.

    (2) that [Ms Handel] [the mother] be able to have open written contact and phone contact with him.

    (3) that [the mother] may have some family dinners with the maternal family, providing that agreement with all parties is reached, including [L].

    (4) that his daily care be decided by the maternal family, as now, including his education and doctors.

    (5) that outings are possible between the parties, ie, as when recent visit to the Show in May 2010, by [the mother] and [Mr D] and [L].

    (6) that weekly visits between [the mother] and [L] remain as they are at present, and as now, subject to any other commitments, by either party.

    (7)       that [L] be known as surname [Jesaulenko].

    (8) [sic]

    (9) that contact phone numbers be always available to each respective party.

    (10) that either party will always be notified in the situation of moving house, by the other, and contact maintained.

    (11) that [the mother] recognises [L’s] wishes to remain in the maternal family and agrees that he would turn to his own accord in 2007.

    (12) that [the mother] not involve any third party in meetings with [L].

    (13) that [the mother] not make contact with [L’s] doctors, teachers, or any other person in regards to [L], unless requested by the maternal family.

20. The document is signed by each of the mother and grandmother in the presence of a Justice of the Peace on 23 June 2010.  The reference in that document to the mother seeing L “as now” refers to a situation which the mother and grandmother agree involves, as at today, her seeing him in accordance with the orders made by Howard FM in 2008, and also, I gather, for an extended period, as it is said by the grandmother, agreed upon between she and the mother.

21. The order of Howard FM made on 5 August 2008 provides by way of interim order that L live with the grandmother and that the child spend time with the mother, relevantly, each Saturday for two hours each week from 11 until 1 with a specified changeover place and delivery arrangements. 

22. The order also provides that the mother is not to remove L from the local area during her times with the child and that he is to attend the V State School.  It transpires that L is not attending the V State School, and the grandmother has today nominated a Christian school that she says he attends.  The mother and grandmother would, then, effectively have the court make, by way of consent orders, the orders contained in the agreement just referred to.

23. If orders are not made, either in accordance with that agreement or otherwise, the orders that would continue to remain in place are those made by Howard FM on 5 August 2008.  Those orders make no provision in respect of parental responsibility, but provide that L live with his maternal grandmother. 

24. A strong underlying theme in the evidence from the Department of Communities (and I make it clear that I will receive into evidence the Magellan report, pursuant to section 69ZW of the Act, received today) is that the Departmental involvement with this family (as it is called in the report) is by no means at an end.  A strong underlying theme of the current report is, indeed, that the Departmental involvement might be more significant than what it currently is.

25. The Independent Children’s Lawyer says that she cannot consent to the agreement being made by way of orders. 

26. I am not persuaded that the material before this court justifies the agreement being made by way of orders in L’s best interests. 

27. It will be plain, I think, from the broad summary given in these short reasons, that this court has held, and continues to hold, very significant concerns about L’s best interests in the environment in which he finds himself.  That said, there are very real issues associated with any alternative environment. 

28. The orders made by Howard FM on an interim basis provide, as it seems to me, an appropriate foundation or structure within which the parties can avail themselves of such agreement as they might come to, noting that the Department is now actively involved in the family and intends to continue its role in a formal way into the future.

29. I make it very plain, to the extent that I may respectfully do so, that I consider that the continued active role of the Department in this family is vital to L’s best interests.  The reasons for saying that are, I think, evident in the most recent report from the Department, but also from all of the material previously filed by all of the parties to these proceedings. 

30. The court continues to hold real concerns for L. 

31. Having said that, the mother has discontinued, and has indicated her agreement to an arrangement which, it is said by the Department, is, with their intervention, an effective current arrangement.  That being the case, it seems to me that insofar as this court has a role, that role is best met by allowing the orders of Howard FM to continue and by noting, in that respect, that the Department continues to actively monitor and have a role in the family.

32. I will order accordingly.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 17 January 2011.

Associate

Date:  4 March 2011