Hill & Ebert

[2016] FamCA 122

FAMILY COURT OF AUSTRALIA

HILL & EBERT AND ANOR [2016] FamCA 122

FAMILY LAW – INTERVENTION – Department of Family and Community Services invited to intervene in proceedings.

APPLICANT: Ms Hill

FIRST RESPONDENT: Mr Ebert

SECOND RESPONDENT: Ms Bentham

INDEPENDENT CHILDREN’S LAWYER: Mr Nasti

FILE NUMBER: PAC 5356 of 2013

DATE DELIVERED: 2 March 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE:

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Stanfords Solicitors

SOLICITOR FOR THE RESPONDENT:
SOLICITOR FOR THE SECOND RESPONDENT:	JPM Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: S P Nasti & Co

Orders in chambers

1. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

2. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention (by no later than 8 March 2016).

3. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5356  of 2013

Ms Hill

Applicant

And

Mr Ebert

Respondent

And

Ms Bentham
Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a judgment in parenting proceedings concerning two young children, B who is seven, and C who is five (“the children”).

2. On 27 November 2015 a judge of the Federal Circuit Court transferred the proceedings to the Magellan program of the Family Court of Australia. The judge also invited the Department of Family and Community Services (“the Department”) to intervene in the proceedings and forwarded to the Department a copy of a Family Report dated 20 November 2015. The family consultant who wrote the report made recommendations including that the Department intervene in the proceedings and raised significant issues of harm in each of the homes of the adults caring for the children.

3. On 1 February 2016 the Department provided a Project Magellan Report to the Family Court which includes a finding made in January 2016 that one of the children is at risk of serious harm. The Department as indicated that there is no intention to intervene in the proceedings.

4. The purpose of this judgment is to ensure that the Department is aware of information pertaining to risk in each of the households connected with the children, to invite the Department to intervene once again and to request that particular attention be paid to the Family Report in deciding whether to intervene.

Background

1. These proceedings concern B who is seven and C who is five, the only children of the parents Ms Hill (the mother) and Mr Ebert (the father).

2. The parents formed a relationship in early 2007 and separated on a final basis in September 2011. There appears to be no dispute that the relationship was characterised by substance misuse, family violence and crime.

3. As I understand it, the father also fathered another child during the relationship named D. The mother of D is Ms E. The father says that (as at February 2014) he was in a relationship with another woman who has five children, one of which lives with that child’s grandmother.

4. After the parents separated, Ms Hill, was in a relationship with Mr F and has two children with him.

5. In January 2012, when B was almost two, the father took B into his care and since that time B has been living with the father and his mother, Ms Bentham (the paternal grandmother), who is also a party to these proceedings. However, Mr Ebert has spent the last 18 months in jail serving a sentence for assault occasioning grievous bodily harm. He was expected to be released on about 26 February 2016 and return to the paternal grandmother’s home.

6. The mother and Mr F separated, as I understand it, about 12 months ago. Mr F is apparently currently in prison. Accordingly, B has lived with his father and extended paternal family since January 2012 while C remains with her mother and two younger half-siblings. Although arrangements were made for the children to spend each weekend together at their mother’s home and paternal grandmother’s home, I understand that this arrangement has broken down.

7. The mother seeks orders for C to live with her and for B to remain living with the paternal family and that orders be made for the children to spend time together. The paternal grandmother seeks orders that both children live with the father and herself (paternal grandmother) and that they and the mother share parental responsibility for them. The father appears to have currently disengaged from the proceedings.

8. Since the proceedings have commenced in late 2013 little is known of the current circumstances of the children as very little material has been filed by the parties.

Risk factors

1. The Notice of Risk filed by the mother alleged that the father has perpetrated family violence towards her on many occasions including in the presence of the children. The mother also alleges in the single affidavit that she filed in December 2013 that the father used cannabis on a daily basis during the relationship. The mother’s version of how B came to be in the care of the father and paternal grandmother is that the two of them retained B in their care without her consent and that the paternal grandmother assaulted her. However, she also says that she was charged assault occasioning actual bodily harm against the paternal grandmother. According to the mother, the paternal grandmother took both children into her care but a few days after the violent altercation between the two of them returned C to her.

2. The father alleges in his Notice of Risk that the mother’s partner uses excessive physical discipline against the children, has assaulted B and broken C’s property.

3. The father raises serious issues concerning safety in the mother’s home and alleges that the mother has a significant problem with the misuse of cannabis. He does not dispute that he was incarcerated during the relationship and that he has a significant and lengthy criminal history. The father raises serious concerns about the mother’s subsequent partner Mr F including his violence and drug use. The father says he has been in receipt of a disability support pension and his limited literary skills.

4. The paternal grandmother raises issues concerning Mr F and his violence and says that B has been resistant to seeing his mother due to the state of her house. The paternal grandmother alleges that in 2013 she was the subject of a home invasion perpetrated by siblings of the mother’s then boyfriend Mr F. She alleges that they took C who was only two at the time and that B was present. She alleges that one person was charged though the outcome of this matter is unknown. She also refers to an altercation earlier that day between Mr F and one of the father’s friends in which Mr F was “punched unconscious”. C was apparently in her pram at the time and the father arranged for some of his friends to pick her up “put her in the father’s care” and drive to the paternal grandmother’s home.

5. Clearly the matters alleged by each of the parties will require resolution at a later stage. However, for the purposes of the invitation to the Department to intervene in the proceedings the greatest concerns arise in the Family Report.

Family Report

1. The Family Report dated 20 November 2015 is annexed to these Reasons, for consideration by the Department in determining whether to intervene in the proceedings.

2. The Family Report was ordered by a judge of the Federal Circuit Court prior to the transfer of the matter to the Family Court. The family consultant met with all of the family members in November 2015 and considered the affidavits and Notices of Risk and affidavits filed by the parties at that time. She also made observations of the children with the mother and paternal grandmother. The greatest areas of concern and the reason for the invitation to intervene in the proceedings arise from this Report. When the Report was prepared the father was not participating in the proceedings and his former solicitor had ceased to act for him. The father was incarcerated at the time

3. The mother was 27 when interviewed and a full-time parent for three of her four children. The mother described Mr F, from whom she says she is now separated, as having been “in and out of jail for the past few years”. The mother agreed that she has a criminal record and has had difficulties with substance misuse.

4. The paternal grandmother expressed to the family consultant extreme concern about C’s welfare in her mother’s household, in particular when the mother had repartnered with Mr F who is alleged to be very violent. The paternal grandmother also expressed concerns that the mother may be using the substance “ice” and also said that she could tolerate the mother’s marijuana use. The paternal grandmother also expressed the fear that Mr F may have sexually abused C and said that the Departmental offices told her that Mr F is not allowed to live at the mother’s home while the mother has care of the children because of the allegations that she molested C.

5. When interviewed, C, who was five, described having seen her mother’s ex-partner, Mr F, fight with her mother and stab her in the throat. She also described an incident in which an adult male associated with the mother touched her on the genitals. The family consultant wrote at [86]:

   …without hesitation [C] nominated an adult male associated with her mother [by name] and described in very explicit terms what had been done to her. She said it was “a long time ago but I still remember”. She said it “stung a tiny bit”. What [C] described was unequivocally sexual abuse (emphasis added).  

6. Concerns about the physical environment in the mother’s household are also raised in B’s account of that environment to the family consultant.

7. The family consultant was unable to assess the father as he was incarcerated at the time of the assessment. It also appears that he has disengaged from these proceedings. It suffices to say that the father has a significant criminal history and his participation in the Drug Court program suggests that he has significant substance abuse issues associated with his offending. The maternal grandmother and mother both allege serious violence perpetrated by the father against the mother.

8. The paternal grandmother was assessed by the family consultant. She expressed fears at the outset that her involvement in the proceedings could put her physical safety at risk and told the family consultant that Mr F had previously conducted a home invasion on her and her family and she feared similar reprisals associated with the proceedings. In her report the family consultant records that B, who was seven:

   …gave a graphic and very detailed account of the home invasion he has witnessed at [his paternal grandmother’s] home where “Herbie and his brothers kicked down the door with a baseball bat, ran in and stole C then drove away”. [B] said that everyone was fighting and he sat on the lounge and watched them fight.

9. Concerns have also been raised about B’s alleged sexualised behaviour towards his sister.

10. Although the family consultant was of the view that the paternal grandmother appeared to be currently better positioned to care for the children [than the other parents] she also raises risk factors in that household. The family consultant says at [104]:

    [Ms Bentham] also has a problematic history. She is a former amphetamine addict who came to the attention of the criminal justice system. Her son [Mr Ebert] [the father] has been in trouble with the law for a number of years. He suffers long-standing attentional problems. [Ms Bentham] said that in her view [the father] will be with her always, as he cannot manage living independently.

11. In summary, the family consultant described the family as one “in which there is no unequivocally good option, but rather assessment of the least damaging option.” She is of the opinion that there are significant risk factors in each of the households. She says “as there are clear risks of significant harm issues and DFACS has had extensive involvement with the family, it is strongly recommended that DFACS become an intervenor in the proceedings” (emphasis added). Although the family consultant makes recommendations on an interim basis, her overall recommendation is that the Department become an intervenor in the matter. On the only evidence in the case, albeit untested, I am of the view that there is serious risk of harm issues in each of the parties’ households and none of the parties may be able to appropriately protect the children from harm. In these circumstances the Department is requested urgently to intervene in the proceedings.

Future application

1. Following release of the Family Report to the legal representatives of the parties only, on 19 February 2016 the paternal grandmother filed an Application in a Case seeking interim parenting orders that the children live with the her and the father, that they share parental responsibility for the children and that the mother spend supervised time with the children one day each week with a professional service and other specific orders.

2. At the time of writing neither the mother nor father have filed any documents in response. The matter has been set down for interim hearing on 8 March 2016. It would be in my view appropriate for the Department to reconsider its position by this date and participate in the interim proceeding on 8 March.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 March 2016.

Legal Associate:

Date:  2 March 2016