Harrington and Harrington and Anor

[2017] FamCA 703

FAMILY COURT OF AUSTRALIA

HARRINGTON & HARRINGTON AND ANOR [2017] FamCA 703

FAMILY LAW – CHILDREN – where the Court requests the intervention of the relevant state child welfare authority.

Family Law Act 1975 (Cth) s 91B

APPLICANT: Mr Harrington

RESPONDENT: Ms Harrington

INTERVENOR: Ms Bitar

INDEPENDENT CHILDREN’S LAWYER: Ms G Dee, Cooper Grace Ward Lawyers

FILE NUMBER: BRC 8692 of 2012

DATE DELIVERED: 13 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 13 September 2017

REPRESENTATION

THE APPLICANT:

Mr Perry, solicitor, appearing as a friend of the Court

THE RESPONDENT:

In person

SOLICITOR FOR THE INTERVENOR:

Ms Terrell, Carswell & Company

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Ms G Dee, Cooper Grace Ward Lawyers

Orders

IT IS ORDERED THAT:

1. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Court requests the intervention of the Director-General of the Department of Communities, Child Safety and Disability Services in the proceedings, relating to the welfare of the children, B born … 2002 and C born … 2004 (“the children”).

2. 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.

3. Leave is given to the Independent Children’s Lawyer to publish these Orders and the Ex Tempore Reasons for Judgment delivered today to the

   
   

   Director-General of the Department of Communities, Child Safety and Disability Services.

IT IS ORDERED BY CONSENT AND UNTIL FURTHER ORDER THAT:

1. The Father is not to instigate contact or communication with either of the children, but he is permitted to respond to any contact or communication they instigate with him.

2. The Intervenor is to provide a weekly email to the Father updating him in respect of the children in terms of their schooling and other activities, and matters relevant to their welfare.

3. The Mother is to undergo hair follicle drug testing within two (2) days of being requested to do so by the Independent Children’s Lawyer, of no more than once per month and, in implementation of this order:

   (a)       The Mother is hereby restrained from cutting her hair until that process          is undertaken;

   (b)       The Mother shall attend upon a collection centre as directed by the      Independent Children’s Lawyer and allow the removal from her of            segments of hair of sufficient length to test for the presence of drugs in the 5 drug classes of opiates, benzodiazepines narcotics, codeine and            amphetamines for the last twelve (12) months;

   (c)       When attending the collection centre the Mother shall produce her      current driver’s licence or equivalent means of photographic and official identification to enable the centre to identify her;

   (d)       The results of the testing are to be provided to the Independent Children’s Lawyer when it is received by the Mother.

IT IS FURTHER ORDERED THAT:

1. The matter be adjourned for further mention before the Honourable Justice Kent at 9:30 am on 4 December 2017, with the parties given leave to appear by telephone.

2. Each of the parties have liberty to apply by filing and serving any interim application, pending the further mention date on 4 December 2017.

3. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED THAT:

A.The Intervenor, by her solicitor, indicated a willingness by the Intervenor to assist with the financial costs that might be involved in the drug testing to be undertaken by the Mother.

B.The child B has indicated a willingness to attend distance education with the D School.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrington & Harrington and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8692 of 2012

Mr Harrington

Applicant

And

Ms Harrington

Respondent

And

Ms Bitar

Intervenor

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. These parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children, B born in 2002 and who is thus now aged 15 years, and C born in 2004 and who is thus now aged 12 years (“the children”).

2. For present purposes it is unnecessary to recount the entire lengthy history of these proceedings or the allegations underlying them from time to time.  It suffices to refer only to the more recent history of the children’s circumstances to give context to today’s mention of the proceedings.

3. On 30 November 2016 orders were made including an order that the children’s adult step-sister Ms Bitar have leave to intervene in the proceedings.  That leave was given in circumstances where, since October of 2016, the children have been living with their step-sister. 

4. Also on 30 November 2016 interim parenting orders were made by consent as between the intervenor, the children’s father and the Independent Children’s Lawyer (“the ICL”) appointed to represent the children’s interests in the proceedings pursuant to s 68L of the Act.

5. I interpolate here that the children’s mother, the named respondent in the proceedings, did not participate in the proceedings on 30 November 2016 as has previously been the position from time to time in the course of these proceedings.

6. The consent orders of 30 November 2016 relevantly provided that the children live with the intervenor and spend time with the father as agreed between the father and the intervenor, or as expressed by the children, but failing agreement at least by telephone at reasonable times with the father to initiate those calls.  An order was made for the intervenor to use her best endeavours to ensure that the children spend time with the father. 

7. At that time each party sought, by consent orders, that each party be restrained by injunction from bringing the children into contact with the mother.  An order was made also for the parties to cause the children to attend a Child Inclusive Conference.

8. The Child Inclusive Conference took place in May of 2017 and a Memorandum of that conference undertaken by a family consultant was before the Court for the further mention in June 2017.  Notably the Memorandum reflects ongoing and continuing concerns about both children in terms of the conflict in which they find themselves, and in terms of difficulties in the midst of the dispute between the adults surrounding them.

9. For example, one of the concerning observations made by the family consultant who undertook that assessment, is that the older child B was presenting as experiencing symptoms of depression.  In respect of the younger child C she is described as presenting as a confused and distressed child. 

10. The author of the Memorandum opines that it is likely that the behaviour and the distress of these children is the result of ongoing exposure to chronic conflict litigation and competing families.  The author observed “[f]or [C] and [B], the last nine years of their life has been spent navigating their world of separated parents which has featured with-holding, relocation, conflict, child protection issues and parental drug and alcohol misuse.  It is little wonder that for [C] families are confusing”. 

11. The author strongly recommended medical appointments be made for C as a matter of priority to assess her mental health, based on her accounts of feeling suicidal and homicidal at times and appearing to have a suicide plan.

12. The family consultant also recommended that family counselling be undertaken in an effort to rebuild relationships, including between the father and his daughters. 

13. The matter came before the Court again on the 12 June 2017 when further orders were made.  Relevantly, the parties, including the mother, consented to an order for all parties to do all acts and things necessary to support the children attending family counselling therapy as had been recommended by the family consultant in the Child Inclusive Conference Memorandum earlier referred to.  The parties were also obliged to register with E Group at F Town for the purpose of the mother having supervised time with the girls every second week.  It was further ordered that the matter be mentioned before me again on 4 December this year, but an order was also made for each of the parties to have liberty to apply by filing and serving any interim application pending the further mention date on 4 December 2017.

14. Whilst no further interim application has actually been filed by any party, the matter comes before the Court today as a result of correspondence received by the Court from the ICL. 

15. That correspondence attaches an email from the Head of Middle College at D School where both girls had been attending.  The email outlines the school’s concerns about both children.  Without detailing in full the content of the email suffice it to note that with respect to C, the email records repeated and concerning episodes of C self-harming and other disturbing behaviours and statements by her.  With respect to the older child, the email details episodes of her running away from home and staying with friends and refusing to come to school.

16. I interpolate here that it would seem that the medical issues with respect to C are so notwithstanding some involvement of her in a mental health plan and other medical interventions. 

17. It is, to say the least, disturbing to read about these two girls after this long a process of parental conflict as evidenced by these proceedings. 

18. Confronted with the report from the D School, the ICL sought the matter to be mentioned before the Court for the purpose of the Court considering a request pursuant to s 91B of the Act that the Director-General, Department of Communities, Child Safety and Disability Services (“the Department”) intervene in the proceedings.

19. Explanation was given to the parties as to what that intervention might mean, but moreover the time delay in which it usually occurs, if it occurs, but also the fact that a request by the Court to the Department to intervene does not necessarily result in such intervention.

20. As to that I would observe that it would seem that from time to time requests for intervention by the Department are made by this Court and they might be interpreted by the Department as being a mechanical or machinery type of request, and that might explain why it might be that not in every case, or indeed many cases, where a request is made, does the Department respond by intervening. 

21. I seek to emphasise in these reasons that the request in this case does not fall into this category.  I intend to permit the publication of these reasons by the ICL to the Department in an effort to impress upon the Department the need for these girls to be given the help that they require and for the Department to respond.

22. For these reasons I therefore make the usual order in terms of s 91B requesting the intervention in these proceedings of the relevant Department, via the Director-General.

23. Also in the course of the hearing today, at the instigation of the ICL, the mother indicated her willingness to consent to an order that she submit to random drug testing as requested by the ICL at intervals of no more than once per month, and I will make an order with the mother’s consent to that effect.  There will also be a notation on the orders to the effect that the intervenor, by her solicitor, indicated a willingness by the intervenor to assist with the financial costs that might be involved in the drug testing to be undertaken.

24. I should mention that the purpose sought of the drug testing is in circumstances where, as indicated by the ICL, there might be scope for an increase of time between the children and their mother, and moreover them spending time and communicating with their mother outside the limitations imposed by a supervised setting as is currently occurring.  Indeed as indicated by the ICL these girls are reaching, if they have not already reached, an age where they will “vote with their feet” as it were in terms of who they see and the circumstances in which they see the persons involved, including their mother.

25. What was also raised in the course of the hearing today was an allegation that a potential cause of distress to one or both girls is their father instigating contact with them via the school. 

26. It is not possible for this Court, without any evidence, to make a finding one way or another about that allegation, which is disputed by the father.  However, on an interim basis and given that the matter will again be mentioned on the 4 December 2017, the father was prepared to consent to an order, and I will make an order, that he will not instigate contact with the girls, but be permitted to respond to any communication or contact that they instigate.  That is in circumstances where the intervenor, in turn, expressed her willingness to consent to an order that she provide to the father by email a weekly report in relation to the girls.  I do not wish to be overly prescriptive in the order about that report, but obviously it is intended to cover their school activities and the like, and more generally matters as to their welfare.

27. Another matter raised in the hearing was the feature that B is currently not attending the D School and that there might be attempts made, and willingness on her part, to attend distance education in lieu of attendance at the D School.  I do not propose to make an order about that at this stage, but as was discussed in the course of the hearing, the father seemingly supports B in that endeavour and she seemingly was willing at least to consider attending to the requirements of her schooling by that method.  I note in passing that in the Child Inclusive Conference Memorandum B at that stage was speaking about leaving school for the purpose of undertaking some trade. 

28. I will therefore make the orders that I have indicated and will otherwise repeat the earlier order that the matter be further mentioned before me on the 4 December 2017 as previously prescribed, and that between now and the 4 December 2017 there will be liberty to each party to file and serve any interim application thought to be necessary. 

29. It would be hoped in circumstances where the request is made of the Department today that it will be known one way or the other whether or not the Department has chosen to intervene in the proceedings, or to take steps in response to the request by the Court for their involvement, by 4 December 2017.

30. For these reasons I make the orders set out at the commencement of them.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 13 September 2017.

Associate:

Date:  14 September 2017