Kalmar and Kurz

[2020] FamCA 121

FAMILY COURT OF AUSTRALIA

KALMAR & KURZ [2020] FamCA 121

FAMILY LAW – CHILDREN – Request for intervention – Where the Department of Family and Community Services (“the Department”) (as it was then known) previously declined to intervene – Where orders previously made that the child live with father’s former partner (“the stepmother”) at a time when the child lived with the father and stepmother and the father was incarcerated and there existed risks of harm to the child being returned to mother’s primary care – Where father is no longer in custody – Where allegations of physical abuse of the child made against stepmother – Where stepmother filed a Notice of Discontinuance – Where there are current concerns held about the wellbeing of the child in the care of either parent based on family consultant’s report.

Family Law Act 1975 (Cth) s 91B
Family Law Rules 2004 (Cth) r 24.13

Tallant & Kelsey (No. 3) [2016] FamCA 933

APPLICANT: Mr Kalmar

RESPONDENT: Ms Kurz

INDEPENDENT CHILDREN’S LAWYER: Shedden Lawyers

FILE NUMBER: PAC 5209 of 2017

DATE DELIVERED: 28 February 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 February 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: King & York Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lee

SOLICITOR FOR THE RESPONDENT: Rafton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

Orders

Pending further order

1. Order 3 of the orders of the Federal Circuit Court on 16 November 2018 is discharged.

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

3. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention as soon as practicable.

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

5. The Department of Communities and Justice is requested to respond to the above request by 20 March 2020.

6. In the event the Department decide to intervene, a legal representative will be required to be in attendance at the interim hearing on 24 March 2020 and the intervener is to file any Minute of Order or affidavit upon which they may seek to rely by 20 March 2020.

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 Kalmar & Kurz 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 PARRAMATTA

FILE NUMBER: PAC 5209 of 2017

Mr Kalmar

Applicant

And

Ms Kurz

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the long term parenting arrangements for X aged 11 (“the child”), the only child of Mr Kalmar (“the father”) and Ms Kurz (“the mother”). Each of the parents make serious allegations about risks of harm said to be posed by the other parent to the child.

2. In August 2018 the Secretary (“The Secretary”) of the Department then known as Family and Community Services (“the Department”) was invited to intervene in the proceedings due to the possibility that the Court may find that both parents pose an unacceptable risk of harm to the child. For reasons which are unclear the Department declined this initial invitation.

3. In October 2018 the father’s then partner, Ms B (“the stepmother”) was joined as a second respondent to the proceedings. Around this time the father with whom the child had lived was incarcerated and there remained risks of harm to the child being returned to the mother’s care. Interim orders made in November 2018 provided that the child live with the stepmother. 

4. On 13 February 2020 the father sought urgent orders that the child live with him and spend no time with the stepmother after an incident the previous day. He alleged that the stepmother physically abused the child which had also caused a breakdown in his relationship with the stepmother. On the same day the stepmother filed a Notice of Discontinuance indicating her withdrawal from the proceedings.

5. At a court event on 17 February 2020 I made a further invitation to the Department to intervene in the proceedings. These are the reasons for making such an order which I request that the Department treat as new information in deciding whether to intervene.

Background

1. The parents of the child who were in a de facto relationship for a number of years separated in June 2016. The child who was then aged seven lived with the mother and spent regular time with the father.

2. In November 2016 the father commenced a relationship with the stepmother and thereafter lived in her home with her two children from a previous relationship.

3. The child began living with the father in the stepmother’s household shortly after the father commenced proceedings in October 2017 seeking that he have sole parental responsibility for the child and that she live with him. In his Notice of Risk and affidavit filed in support, the father raised concerns about the mother’s mental health and drug use. He claimed that on several occasions in 2017 she was admitted to hospital for psychiatric assessment following numerous attempts at suicide and that on at least two occasions she perpetrated family violence against him and the stepmother which required police intervention. He also deposed to observing used syringes around the mother’s home in which the child was then primarily living.

4. On 23 November 2017 short term interim orders were made restraining the mother from entering in or remaining at the child’s home and school. It was also ordered that her contact with the child be limited to electronic communication every second evening which only occurred for a short amount of time.

5. In her Response filed 19 December 2017 the mother sought orders that she hold sole parental responsibility for the child and that the child return to live with her and spend time with the father every weekend. It was the mother’s concern that the child was at risk of psychological harm and neglect in the father’s care given he had in the past failed to adequately supervise the child causing her injury. She also alleged that the father had a history of substance abuse and had on several occasions assaulted her in the presence of the child.

6. On 20 December 2017 interim orders were made with the consent of the parties that they each undertake urinalysis and an engage in a post-separation parenting course and an anger management program.

7. When the parties attended a Child Inclusive Conference on 5 March 2018 serious issues of family violence, substance misuse and child abuse/neglect were raised. The child told the family consultant that she would like to see her mother but that she was opposed to overnight time with her as she felt “unsafe” in her home. It was the family consultant’s recommendation that the child’s long-term living arrangements be determined after findings are made regarding each parent’s substance use.

8. A copy of the family consultant’s Memorandum to Court was later sent to the Department in August 2018 for consideration in relation to intervening in the proceedings. No response was given by the Department to this invitation to intervene.

9. The child remained in the father’s primary care until he was incarcerated in October 2018 for an aggravated break and enter and theft. The stepmother then joined the proceedings as a second respondent and following an interim hearing on 16 November 2018 orders were made that the child live with her in light of the father’s incarceration and an assessment of the risk posed by the mother. On this occasion a restraint on the mother was also made for the personal protection of the stepmother and it was noted that the mother’s drug test result produced by the ICL to the Court was positive for opiate use.

10. In around November 2018 the father was seeking admission into the Drug Court, a court monitored program for rehabilitation of serious offenders whose offending relates to their drug use. At that time there were also criminal proceedings against the mother in various courts.

11. During the father’s imprisonment the child spent no face to face contact with him but did communicate with him electronically. The father was subsequently released to the stepmother’s home on 5 March 2019 and placed on strict Drug Court conditions.

12. The family again met with a family consultant in April 2019 for a Child Inclusive Conference.  Ongoing issues of family violence and concerns relating to the parties’ mental health and co-parenting relationship were raised. Further allegations were made by each party as to the child’s safety and wellbeing but it was the family consultant’s view that the use of illicit substances by each parent and the associated risk of harm to the child was the central issue in the matter. It was recommended that a family report be prepared.

13. On 26 July 2019 the parties were again interviewed by a family consultant for the preparation of a family report. At the time of the interview the child was still living with the father in the stepmother’s household and was not spending any time with the mother despite the then current orders stipulating that time with the mother be supervised at a contact centre.

14. A copy of the family report dated 3 September 2019 is released to the Department for consideration by the relevant officer in determining whether to intervene in the proceedings.

The family report

1. As can be seen from this report, it appeared to the family consultant that the child has experienced developmental trauma since birth as a result of deficits in both parent’s parenting capacity which may have caused or has contributed to learning difficulties and social difficulties.

2. Although the family consultant acknowledged that it was beyond the scope of the assessment to determine the parties’ then current drug use, she was concerned that their historical abuse of illicit substances may have contributed to the child’s learning difficulties and psychological health as it “reduces the likelihood that a parent is able to identify a child’s needs and provide consistent, sensitive and attuned care”. She also opined that parental substance misuse “increases the risk of a child being exposed to physical abuse and/or neglect and poor role modelling”. When interviewed, the mother denied her current use of illicit substances but reported that she underwent urinalysis at the request of the ICL which returned positive results. The father, although he maintained that he had not used illicit substances since his incarceration, told the family consultant that in the past “he very quickly became addicted to cocaine” and estimated that he had used “approximately one million dollars worth of the drug over the last couple of years”.  The family consultant assessed that both parents are at risk of relapsing unless they engage with intensive treatment and appropriate social supports are put in place.

3. The family constant also expressed concern about the high level of conflict between the parties that she noted has subjected the child to psychological harm and undue emotional pressure. Although in the course of the assessment the parties reported various instances of family violence perpetrated by the other parent, the family consultant noted that neither parent alleged that the other parent’s capacity was compromised as a result. Rather, each parent identified that drug abuse influenced the abusive and irrational behaviour and neglect of the child by the other parent. The family consultant urged the Court to determine whether either parent engaged in coercive controlling family violence as it would indicate a reduced capacity to provide the child with consistency, stability and warmth.  She also expressed a concern that the parents may instead “morally corrupt the child by encouraging amoral or criminal behaviour”. The family consultant later concluded:

   The parental conflict is so great and the apparent communication and emotion regulation skills of the parents so poor, that it appears extremely unlikely that they would ever be able to communicate or cooperate in a civil manner…

4. In these circumstances, she urged:

   Given [the child] already experiences some developmental difficulties, this would have an even greater negative impact on her well-being and orders may be required to protect [the child] from this as a matter of priority.

5. The family consultant observed both parents to be affected by past traumatic experiences that have in turn negatively impacted their mental health. It appeared to the family consultant that the father displayed personality vulnerabilities which required further assessment by a clinical psychologist or psychiatrist and when interviewed, the father conceded that he had used cocaine to manage stress. The mother was also recommended to attend upon a clinical psychologist or psychiatrist. It was the family consultant’s view that she experienced difficulties in managing her emotional regulation, particularly in the context of her relationship with the father and the ongoing dispute, which has compromised her capacity to focus on the child’s needs.

6. There were other concerns in relation to each parent’s significant criminal offending and the “elevated risk” to the child of being negatively influenced by poor role modelling displayed by either parent. The family consultant concerningly opined:

   …parents displaying antisocial behaviour may have a tendency to engage a coercive parenting style, administering ineffective discipline which may include expressed hostility, negative teasing, nagging, hovering too closely or applying developmentally inappropriate discipline.

7. She further opined:

   Frequent contact with such a parenting style can lead to behavioural problems in the child and/or the rejection of the parent by the child.

8. In the course of the interview the child identified no positive attributes of the mother and reported a number of concerns about her past experience living in the mother’s household and the more recent contact she has had with her pursuant to court orders. At the end of the child’s observation with the mother, although at first she expressed some unease about the event stating that she was glad she had “got it over and done with”, she was not opposed to spending time with the mother “in the future”. It was the family consultant’s evaluation, however, that the child’s relationship with the mother “has clearly been strained by the lack of frequent, positive contact but likely also due to factors such as one or both parents exposing [the child] to poor parenting and/or parental conflict”. In the family consultant’s view, the mother’s capacity to consistently prioritise the child’s needs above her own and provide attuned care was “diminished” and the mother “did not appear astute at reading [the child]’s emotional cues” nor was she responsive to the child’s medical needs. The family consultant concluded that there did not appear to be any protective factors in the mother’s home.

9. The father, when observed with the child and the stepmother’s children was noted by the family consultant to not remain actively engaged with them and “looked tired which may have influenced the degree to which he interacted”. It was the family consultant’s evaluation that his capacity to consistently provide attuned and appropriate care to the child without the stepmother’s assistance is limited. She noted that “[the father] appeared to have little insight into [the child]’s learning difficulties, personality and inner world and this may indicate that he has poor parental reflective functioning”. She further opined that “poor parental reflective function is linked to poor mental health and other developmental outcomes in children.”

10. The family consultant also interviewed the stepmother and assessed her at the time as “most likely providing a protective factor to [the child] whilst she is living with [the father]”. The family consultant noted that in the event the father’s relationship with the stepmother broke down:

    …concerns would be held regarding [the child]’s wellbeing in [the father]’s primary care, however, concerns would also be held for [the child]’s wellbeing in [the mother]’s primary care and thus, in this instance, the family consultant is unable to make a recommendation regarding with which parent [the child] should live with and who should hold parental responsibility.

11. Relevantly, she further stated:

    It is possible that neither parent would be a suitable primary carer for [the child], particularly if they were abusing illicit substances and the Court may need to consider inviting the Department to intervene in this manner.

Events following the release of the family report

1. In October 2019 the mother was incarcerated for criminal offences not identified in these proceedings and released on bail in December 2019.

2. According to the father’s affidavit filed 13 February 2020 in around mid 2019 the stepmother experienced difficulties in her relationship with the child. On 12 February 2020 the father deposes that the stepmother “slapped the child across the face” by way of excessive discipline and he immediately removed the child from her home. The next day when the child complained to school authorities about the stepmother’s conduct the day before, school staff advised the father that they would not release the child to the stepmother.

3. The father’s urgent application seeking orders for the child to live with him filed on 13 February 2020 was considered by me on 17 February 2020. At this court event the stepmother did not engage as she had formally discontinued from the proceedings. The mother who is still engaged in criminal proceedings in the District Court did not personally attend. Due to the high level of potential risk in each parent’s care, the Department was once again invited to intervene.

Matters to consider regarding intervention

1. When considering this request the Secretary’s attention is brought to paragraphs [264] and [270] – [276] in Tallant & Kelsey (No. 3)[1] which are in my view equally applicable in this case. These paragraphs are extracted as follows:

   [1] [2016] FamCA 933.

   As noted earlier in these Reasons the Department of Family and Community Services have been invited twice to intervene in these proceedings under section 91B of the Act. That section is set out as follows:

   91B Intervention by child welfare officer

   (1)In any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare.

   (2)Where the court has, under subsection (1), requested an officer to intervene in proceedings:

   (a)the officer may intervene in those proceedings; and

   (b)where the officer so intervenes, the officer shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

   Against this background it was noted in the November 2016 judgment that when the proceedings resumed on 5 December 2016 the court may be asked to make a finding that there is an unacceptable risk of harm to the children in both of the parent’s households and in these circumstances the Department was invited to intervene in the proceedings. 

   The Department declined the court’s invitation to intervene and gave the following reasons:

   ·The information reported is not such as would warrant the prioritisation of these children over other children who have already been assessed as at risk of significant harm.

   ·The reported information does not raise any new risk of significant harm concerns for the children which has not already been reported to the Department.  The last risk of significant harm report for the children was received by the Department in 2014, and as such there is no capacity to allocate this matter compared against other priority work requiring casework intervention.

   In my view the manner in which the Department appears to have considered this invitation to intervene in proceedings gives rise to some issues of concern. 

   Although I have been unable to identify any authority in relation to appropriate matters to which the Department may have consideration in deciding whether to intervene, the reasons given by the Department in this case are difficult to understand in light of the reasons for the invitation.  In circumstances where both parents may be found to pose a risk of significant harm to the children, a judicial officer in the Family Court or any other person associated with the Family Court is of course unable to investigate alternate options for care of the children beyond the parties or provide any intervention itself. 

   I am concerned that the judgment delivered on 4 November 2016 setting out the reasons for the invitation to intervene may not have been given appropriate consideration by a relevant officer in the Department, and that appropriate weight may not have been given to the view of a judge of a superior court with expertise relating to matters concerning the welfare of children. 

   I am also concerned that the response from the Department includes that the “reported information” raised no “new risk of significant harm concerns”. According to the Department’s response no risk of significant harm concerns in relation to these children had been raised since 2014. In writing this the author of the response appears to miss the point that the judgment itself included new risk of significant harm matters. That this judgment was not considered to raise new risk of significant harm concerns raises serious questions about whether it was actually read by someone of appropriate authority in the Department and the process generally within the Department for consideration of invitations to intervene made by this court under section 91B.

   It does not follow that intervention in the proceedings by the Department should only occur where the circumstances are such that the Secretary of the Department may seek an order that parental responsibility for the children be allocated to the Minister.  There are many other ways in which the Department could become involved, in particular in investigating alternate options for the care of the children other than those proposed by the parties and in providing other forms of intervention. 

1. As can be seen from these Reasons the Department’s intervention is requested in this matter in circumstances where there are serious concerns held for the wellbeing of child. It is a real possibility given the assessment by three different family consultants (and in particular the most recent Family Report dated 3 September 2019), that I will find that both parents pose an unacceptable risk of harm to the child. Real concerns about their substance misuse, mental health, propensity to engage in family violence and criminal offending generally, cast doubt on their parenting capacity and ability to act protectively of the child.

2. There are also concerns raised about the child in the stepmother’s care which arise from the stepmother’s recent actions alleged by the father in his affidavit filed 13 February 2020. In any event, the stepmother (who had previously seemed to be the most protective caregiver) has withdrawn from the proceedings and no longer seeks any further role in the care of the child.

3. In these circumstances it is requested that the Department intervene so that alternate options for care of the child beyond the parties and other forms of intervention available uniquely to the Department may be considered.  

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 February 2020.

Associate: 

Date:  28 February 2020