Independent Children’s Lawyer and Richards and Anor

[2017] FCCA 475

FEDERAL CIRCUIT COURT OF AUSTRALIA

INDEPENDENT CHILDREN’S LAWYER & RICHARDS & ANOR [2017] FCCA 475

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:

Family Law Act 1975 (Cth)

Applicant: INDEPENDENT CHILDREN’S LAWYER

First Respondent: MR RICHARDS

Second Respondent: MS HUNT

File Number: LNC 702 of 2009

Judgment of: Judge McGuire

Hearing date: 22 February 2017

Date of Last Submission: 22 February 2017

Delivered at: Burnie

Delivered on: 22 February 2017

REPRESENTATION

Counsel for the Applicant
Independent Children’s Lawyer: Ms Ryan

Solicitors for the Applicant: Legal Aid Commission

First Respondent in person

Counsel for the Second Respondent: Mr McVeity

Solicitors for the Second Respondent: McVeity & Associates

ORDERS

1. That the appointment of Ms Mary Anne Ryan as Independent Children’s Lawyer be extended to the resolution of these proceedings or otherwise by Court Order.

2. That the Orders made ex-parte on 17 February 2017 in respect of the child X born (omitted) 2009 be discharged.

3. That the Order of His Honour Judge Roberts made 11 April 2016 in respect of X remain in full force and effect.

4. That the father be and is hereby restrained from consuming any illicit drug.

5. That the party’s submit prudently and do all thing necessary including signing documents and attending interviews for the purposes of any assessments requested by the Department of Child Safety Service Tasmania and/or by the Independent Children’s Lawyer.

6. That the matter is otherwise listed for mention and direction in the Federal Circuit Court at Burnie on Monday 3 April 2017 at 11.00 a.m.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 702 of 2009

INDEPENDENT CHILDREN’S LAWYER

Applicant

And

MR RICHARDS

First Respondent

MS HUNT
Second Respondent

REASONS FOR JUDGMENT

1. These are proceedings in respect of the parties’ child, X born (omitted) 2009, so X is just seven years of age.  The applicant in this matter, perhaps unusually, is the Independent Children’s Lawyer.  The Independent Children’s Lawyer has an ongoing appointment by reason of orders made by Judge Roberts as recently as 11 April 2016 after a five day defended hearing.  His Honour then, as I have said after a full testing of evidence, made orders whereby X live with the father for nine days a fortnight and with the mother for five days a fortnight. 

2. The Independent Children’s Lawyer’s application was filed urgently, I think on Thursday or Friday of last week, it matters little which day, and with an application that I perceive as being ex parte the father.  The essence of the application were concerns by the Independent Children’s Lawyer in respect of X that: 

   a)the father was homeless; 

   b)the father’s behaviour had been volatile by reason of an altercation and an alleged assault by the father on the paternal grandfather.  On that day and in the sense of an ex parte order on the basis of that material only, I acceded to the application and made orders that X be with the mother and that the father’s time be reserved.  I made an order in respect of X not be removed from her school.  There was discussion about involvement and potential involvement by the State Department of Child Safety.

3. I ordered that the matter be brought back to me quickly by reason of the fact that ex parte orders had been made, thereby prima facie disadvantaging the father. It is now the following Wednesday and the matter comes back before me. The mother is represented by counsel. Mr Richards, the father, represents himself, and I have before me two affidavits by the Independent Children’s Lawyer dated respectively 17 February and 20 February 2017. Those documents were read into evidence. There is also evidence adduced from the Independent Children’s Lawyer in the form of a joint affidavit of the paternal grandparents, Ms K and Mr K. That document is read into evidence. I have an affidavit of the mother, Ms Hunt. That is read into evidence. And I have an affidavit accepted in court, not yet properly filed by the father, Mr Richards which is read into evidence. I also have helpful material from the office of the Director of Public Prosecutions on behalf of the Department of Child Safety in the form of a report prepared pursuant to section 69ZW of the Family Law Act.

4. When the matter was called on today I had the benefit by telephone of Ms Graham, solicitor for the Department of Child Safety.  I had made an order that that department be invited to participate as a party in these proceedings.  They declined to do so but, as I have said, I had the benefit of the report and the courtesy of an appearance by Ms Graham.  That appearance was short and, not being a party, Ms Graham did not take part in the interim hearing.

5. The orders that I am asked to make today by the applicant Independent Children’s Lawyer are that X live with the mother and that X spend time with the father supervised at a formal contact centre.  I am asked to make orders that the father submit to assessments of a psychological or psychiatric nature and also tests normally called drug tests in respect of the father. 

6. The Independent Children’s Lawyer’s case is essentially supported by the mother, although I must say the affidavit material suggests that the mother has been perhaps independently altruistic in whatever circumstances have taken place in the last week or so, and I note that the mother may have offered the father and X assistance with accommodation at some time.

RECORDED :  NOT TRANSCRIBED

The father for his part opposes the application.  He seeks orders that simply reinstate the orders of Judge Roberts of 11 April 2016.  Inherent in his submissions is that he would, if I ordered I think take part in any psychological or psychiatric assessment testing, assessment or procedure that is anticipated by this Court.

1. The proceedings that I am conducting today are interim proceedings.  That being the case they are necessarily a truncated process.  Whereby although I am to follow the statutory and intellectual course of consideration dictated by the well-known decision in Goode & Goode, in reality it is difficult in the extreme if not impossible, for courts conducting interim hearings to make findings of credit and disputed fact.  Not unusually this is a matter where the material is littered with such issues of credit and disputed fact.  I should say at this stage that during the submissions of the Independent Children’s Lawyer it was put that I should “err on the side of caution.”  I respectfully disagree that this is an option open to me.  As I said to counsel in interrupting her submissions, I took an oath to make decisions as best as I could on my ability on the basis of assessing and weighing and balancing probative evidence.  I did not take an oath to err on the side of caution.  Having said that, such might well and better describe the brief of the child protective departments which may or may not be involved in this matter in the future where my brief is to make decisions on the best interests of the child by weighing and balancing probative evidence, the State department has a brief to protect children.  The differences are subtle and usually overlap but are nevertheless important distinctions.

2. This being an interim hearing involving a child, I am mandated to have X’s best interests as my paramount consideration pursuant to section 60CA of the Family Law Act. In determining X’s best interests, I am to address the probative evidence and the parties proposals to the considerations set out in section 60CC(2) and (3) of the Family Law Act. And insofar as I am obliged to do so and able to do so in interim proceedings, I do reference those subsections.

3. The case for the Independent Children’s Lawyer is that X is at an unacceptable risk of physical or emotional harm in the continued unconditional care of the father.  That is the case as supported by the mother.

4. The background is that recently the father was involved in a physical altercation with his own father, the paternal grandfather when the father and X had been temporarily living with the paternal grandparents.  That has resulted, I understand, in either an intervention order and/or police charges.  It may be that X was exposed to that alleged incident.  The case of the Independent Children’s Lawyer when brought on before me last Friday and again today, but subject to material that has now been brought before the Court is:

   a)that the father is homeless and in care of a child; and

   b)that the father’s behaviour was volatile and perhaps impacted by drug use and/or mental or emotional illness.

5. The material suggests that, supported by the affidavits of the paternal grandparents, there was an altercation between the grandfather and the father.  Ms Ryan’s first affidavit deposes at [a] “that in mid-January the mother contacted her by telephone and indicated that the paternal grandmother had told her that the father had assaulted his father” and that Tasmania Police had attended their home and removed the father.  The father took X with him.  The restraint order had been made protecting the paternal grandparents from the father, and that “his behaviour led she and her husband to consider the father was using drugs, or had mental health issues or a combination of both, and that the father and X were now homeless.”  That remains the case for the Independent Children’s Lawyer, and as I said, supported by the mother.

6. The material from the Department of Child Safety before me pursuant to section 69ZW of the Act assists me to a large degree. It goes through the history of notifications to the department in respect of X. Suffice to say that they are numerous. However, I note again that on 11 April 2016, his Honour Judge Roberts made an order placing X in a shared care arrangement between the parents nine days a fortnight to the father and five to the mother. The relevant part of the report is this: and I read from it under the heading Tasmanian Risk Framework:

   X is seven years of age.  She is the child of Mr Richards and Ms Hunt.  Mr Richards has been the primary carer of X, Ms Hunt also playing a significant role.  In December 2016, Child Safety were alerted to concerns that Mr Richards was not taking proper care of X, and that he is taking drugs and having issues with his mental health.

7. That provides me with some corroboration with respect of the material, given and adduced by the Independent Children’s Lawyer.  It goes on to say:

   Following this in January 2017, there were further concerns and Mr Richards had an altercation with his father in front of X and Mr Richards is homeless.

8. Again, this is corroborative material.  I dwell there to note my questions last Friday and again today, noting that there has been no intervention either in December 2016 or in January 2017 or February 2017 by the state department seeking state court welfare orders and despite their obvious understanding and interest in this matter.

9. The report goes on to say that X attends (omitted) Primary School and the school have no concerns regarding X’s development, behaviour or functioning.  I place some weight on that evidence given the recent concerns that have been aired in this Court in respect of X’s parenting.  The report also references the mother, says that she has been open to Child Safety and other support services about her previous problems including with drugs, and that Child Safety have assessed allegations of abuse whilst X has been in the mother’s care but none have been substantiated.  The report goes on in respect of the father to say this:

   Child Safety staff have attempted to engage with Mr Richards as a part of the current open assessment.  Mr Richards continues to yell at staff, bring up historical matters rather than discussing current concerns.  Mr Richards told Child Safety, a Child Safety memory on 13 January that “if you call back it will be no different.”

10. There appears to have been an issue dealt with by his Honour Judge Roberts involving an alleged allegation of sexual abuse on X.  I stop there to say that matter in my view has been dealt with by his Honour.  Child Safety would like to work with the father so that the current concerns regarding his mental health can be addressed.  The grandparents are referenced in the report.  It says that the father and X had been living with the grandparents since the father was evicted from his (omitted) property.  Ms K, the grandmother, has confirmed to Child Safety that she now has a restraining order against Mr Richards due to his erratic behaviour.  The grandparents are still having overnight contact with X through her mother but report concerns that the father will take this out on X’s mother. 

11. On a risk analysis the department’s report says this: “The severity of harm for X in her father’s care is assessed as serious, given Mr Richards has no stable accommodation and family are so concerned for their safety they’ve taken out a restraining order and Mr Richards refuses to discuss the present concerns about his behaviour with Child Safety.  There is no evidence to indicate that X is at risk of harm in the care of her mother.”  It appears that Mr Richards has been offered assistance from the department in the form of open assessments but that he has refused to take up those offers.  My reading of the material suggests that Mr Richards may have some issues with certain authorities or persons such as psychologists, lawyers etcetera etc.  That is, perhaps his behaviour towards the department of child safety might be consistent with that part of his personality. 

12. On the face of it there have been some obvious concerns in respect of the father’s behaviour and his capacity to parent X.  I will stop there to say I have no material before me specifically as to X’s views, but in any event, she is just six years of age.  I can infer from the orders made by his Honour and the general submissions before me that X enjoys a meaningful relationship with each of her parents. 

13. The issues under section 60CC of the Act which interest me today with a focus on X’s safety, are matters of family violence.  Also relevant is the father’s capacity to attend to X’s care.  There are also matters concerning the mother which were dealt with by his Honour.  Whilst there are concerns in respect of the father’s care, the question for me is whether they are of sufficient probity and corroborated such that I should disturb an order made by a judge of this court just 10 months ago where on my short reading of those materials, many of these issues or similar issues were canvassed by his Honour resulting in orders which placed X into the shared care of these parents including for nine days a fortnight with the father. 

14. To my mind, these are the factors that need to be addressed.  Firstly the information before me last week was that the father was homeless.  He has now put material before me which satisfies me that he has adequate accommodation for himself and X.  It is by no means ideal or optimum accommodation.  It is a cabin in a caravan park.  But it is not for this court to make qualitative determinations rather than simply considering whether such accommodation should be adequate for children, at least at interim proceedings such as this. 

15. There are issues in respect of the father’s drug-use.  To my mind, the evidence is not strong.  At its highest it comes with the comments of the grandparents to the Independent Children’s Lawyer to say that his behaviour led the grandmother and her husband to consider whether the father was using drugs or had mental health issues.  In any event, I take the view that I can make orders of an injunctive nature, which would be accompanied by an explanation to the father as to the force and effect of an injunctive order. 

16. There is the issue of the father’s mental health.  Again the strongest evidence that comes before the court is a suggestion by a layperson that he may have mental health issues or a combination of both.  My inquiries of counsel for the Independent Children’s Lawyer suggest no history of a diagnosable psychiatric or psychological illness.  It is clear from my reading of his Honour’s reasons, my observations of Mr Richards today, and the submissions of counsel for the Independent Children’s Lawyer and the mother, that Mr Richards has a peculiar and perhaps at times quirky personality.  It is incumbent upon me to consider those traits in his ability to parent his daughter.  Having said that, I can infer from his Honour’s reasons that Mr Richards carried those particular personality traits into the trial in 2016. 

17. What troubles me in the balancing process here is that the proposals of the Independent Children’s Lawyer are that X in the interim have supervised time with her father at a contact centre.  I am not provided with any material to suggest when, how, for what duration and for what periods that could happen.  To my mind, that leaves open the very real possibility that if I was to accede to that application then X would have no direct relationship with her father, at least for some significant time.  I may not be able to take particular judicial notice, but I can comment that regularly sitting in this court in this area I am told that there are significant delays and issues with available time for the resource-strapped contact centres.  To my mind, that is a matter I need to take into account. 

18. Taking all of those matters into account, I am not persuaded on balance that I should move away from the orders made by his Honour Judge Roberts as recently as 11 April 2016.  Having said that, I will be making an order that – I am not sure of the practicalities of it, but – that the father and the mother both attend for assessments.  I am concerned that X, who appears to be progressing successfully academically and socially at her school where she has a relationship with both her parents, should not have one of those relationships disturbed on the basis of what I think is controversial and not highly probative evidence to the contrary.  As I have said earlier, I can make injunctive orders, and I will make orders in relation to drug-use.  I will take submissions as to whether I should make those orders in respect of the mother.   

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  15 March 2017