Kayne and Ebison

[2019] FamCA 771

FAMILY COURT OF AUSTRALIA

KAYNE & EBISON [2019] FamCA 771

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 the father appears to have relinquished the children into the care of the mother – Where there are concerns held about the wellbeing of the children in the care of the mother – Where Department is requested to intervene.

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

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

APPLICANT: Mr Kayne

RESPONDENT: Ms Ebison

INDEPENDENT CHILDREN’S LAWYER: Auslawyers

FILE NUMBER: PAC 6350 of 2017

DATE DELIVERED: 24 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Auslawyers

Orders

THE COURT NOTES

A.    Neither parent appears today and the Independent Children’s Lawyer informs the court that the mother has advised her by telephone that since 3 October 2019 the children have been in her full time care.  Having regard to the contents of the family report which recommended supervised time with the mother only, a further invitation to intervene in the proceedings will be given to the Department of Communities and Justice.

THE COURT ORDERS THAT

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 as soon as practicable.

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.

4. The family report and Child Responsive Program Memorandum is to be provided to the Department along with a short Reasons for the request to intervene.

5. Both the mother and the father are to attend in person at 2.15pm on 20 November 2019.

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 Kayne & Ebison 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 6350 of 2017

Mr Kayne

Applicant

And

Ms Ebison

Respondent

Introduction

1. The parties in these proceedings are engaged in a parenting dispute concerning the long term care arrangements for their three children aged 12, 10 and four.  Each of the parents makes serious allegations about risks of harm said to be posed by the other parent to the children.

2. In March 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 children.

3. The Secretary declined the March 2018 invitation to intervene by letter dated 21 May 2018.  In that letter the legal officer from the Department indicated that the Department will review what action (if any) needs to be taken when or if new allegations or information are received.

4. On 14 October 2019 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 parties who were in a de facto relationship for a number of years separated in October 2016. The children who were then aged nine, seven and one lived with the mother and spent regular time with the father.

2. From around August 2017 the children spent increasing time with the father until the mother entered a rehabilitation or detoxification program with respect to alcohol abuse and after completion of that program the children spent equal time in the care of each parent pursuant to an agreement between them.

3. By November 2017 the arrangements changed again such that the oldest child lived with the father and the two youngest children lived with the mother. Subsequently there were other arrangements for the children including the older two living with the mother and the youngest living with the father.

4. Since the commencement of these proceedings by the father in December 2017 he has made allegations of significant risk to the children in the care of the mother. A Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the father when he commenced the proceedings indicates that the respondent mother “ suffers from alcoholism” which the father contends has led to the serious neglect of the children in the mother’s care. The father nonetheless initially sought orders that the children live with him and spend substantial and significant time with the mother.

5. In her Response filed in March 2018 the mother sought orders that the children live with her and spend substantial and significant time with the father. She also filed a Notice of Risk in relation to alleged risks posed by the father and in particular she alleges that he was the perpetrator of family violence towards herself and had been physically violent towards the children.

6. In March 2018 orders were made with the consent of the parties that the children all live with the father and spend time with the mother on alternate weekends and for two afternoons per week. Orders were also made for the monitoring of both parent’s alcohol use.

7. The family met with a family consultant for the purposes of the Child Responsive Program in 20 April 2018 a short time after the Department had first been invited to intervene in the proceedings.

8. It was observed in the family consultant’s Memorandum to Court dated 20 April 2018 that serious issues of family violence, alcohol misuse and child abuse/neglect have been raised in the matter. It appeared to the family consultant that the eldest two children were aware of the mother’s problematic alcohol use and that the mother presented with limited insight into how her behaviour may have affected the children. She appeared focused on the impact on herself of not having the children living with her. The family consultant also observed that it was unknown whether the mother will be able to manage sobriety in the longer term. 

9. The family consultant also noted that family violence and conflict appeared to have been witnessed by the children and is likely to have had a negative impact on their mental health and well-being and also their physical safety. The second child appeared to be having some difficulties with his behaviour. The two eldest children also reported that the mother is sad as a consequence of them not living with her. The family consultant strongly advised that the mother and/or maternal grandparents not share this information with the children as it places them in a position where they feel responsible for and guilty about the arrangements. The family consultant opined that this is likely to place a burden on the children that they are not developmentally equipped to handle and can also signify to the children that their parents’ emotional experiences are more important than their own.

10. Orders were subsequently made for the preparation of a family report.

The family report

1. A copy of the family report dated 4 April 2019 is released to the Department for consideration by the relevant officer in determining whether to intervene in the proceedings.

2. As can be seen from the family report when the family were interviewed by the family consultant in January 2019 the children were living with the father, his partner and his partner’s children from a previous relationship. The mother was living nearby in the home of the maternal grandparents. Although the maternal grandmother was requested to attend the family assessment appointment she did not do so and the mother informed the family consultant that it was unlikely that she would be able to attend due to her anxiety. The children were at that time spending time with the mother two afternoons per week from after school for a few hours and alternative weekends from the conclusion of school on Friday until the commencement of school on Monday. The then current orders stipulated that the children’s time with the mother was to be in the presence of one of the maternal grandparents.

3. In the course of the assessment interview the eldest child reported a number of concerns about the mother’s alcohol use including being scared of the mother such as when the mother drove while drinking alcohol and reported that she did not think the mother had stopped drinking alcohol. She also reported the [maternal] grandparents telling her not to discuss the mother’s drinking with the family consultant and her fears about them finding out that she had done so. This child also reported alcohol use by the maternal grandfather and “fighting” between the mother and maternal grandfather over alcohol, and the maternal grandfather driving a car when he is not supposed to when she has been a passenger.

4. Overall the eldest child stated that she would be “fine” to spend alternate weekends with her mother but only if she does not drink. This child also stated that she wanted to remain living with the father and did not want to live with the mother because of her alcohol consumption. She stated that the mother cannot protect her and her siblings like her father can because of her alcohol consumption.

5. The eldest child also spoke positively about the father’s partner describing her “like an actual mum, she looks after us”.

6. The second child also reported the mother acting differently when she is drinking and sometimes feeling scared of the mother when she has been drinking. He also reported the maternal grandfather drinking and pushing the mother. This child also raised a concern that he did not know who in his family he should trust. He provided the example that the father told him that the maternal grandfather should not be driving but he had seen the maternal grandfather driving.

7. When evaluating the family for the purposes of the family report the family consultant first commented on the family violence that had been reported in the earlier assessment in April 2018. She opined that the violence between the parties was most likely conflict instigated violence, being violence that arises from poorly managed conflict and outlined the type of difficulties in parenting typically displayed by that parents who engage in this type of violence and the negative impacts upon the children exposed to such violence.

8. The family consultant also had serious concerns about alcohol use by the parents and particularly in recent times by the mother. The family consultant expressed the view that it appeared the mother would benefit from immediate intervention to assist her to address and manage her issues with alcohol misuse. The family consultant set out in some detail the detrimental impact on parenting by parents who misuse alcohol. The family consultant also set out the way in which the well-being of these particular children appeared to have been impacted by the mother’s alcohol use. The family consultant expressed concern about the possibility that the mother’s time with the children was not being supervised by the maternal grandparents in accordance with the orders and the impact this may be having upon the children.

9. There were other concerns in relation to the children’s well-being and welfare in the care of both parents but in particular in the care of the mother. The family consultant opined in summary “there appear to be significant risk factors for the children with [the mother] that may need to be given priority over the children’s relationships with her”.

10. Overall it was recommended that the children remain living with the father and that if the Court were to find that neither of the maternal grandparents are an appropriate supervisor that the children not spend any overnight time with the mother. The family consultant was of the view that the children are unlikely to be protected from exposure to alcohol misuse and family violence in spending unsupervised and/or overnight time with the mother and maternal grandparents.

11. Ultimately the family consultant’s recommendation is that the father hold sole parental responsibility for the children, that they live with the father and spend very limited supervised time with the mother. In the event that the mother is unable to abstain from alcohol at all during periods of supervised time with the children then no time with her is recommended. There were also concerns given statements made by the eldest child that the mother may react negatively to the contents of the report and for this reason it was recommended that the report be released in Court.

12. The family report was released in Court in a staged manner and on 6 May 2019 the proceedings were relisted for consideration of the interim arrangements for the children. At that Court event orders were made with the consent of the parties suspending all earlier orders for the children’s time with their mother and providing for the children to spend time with their mother for two to three hours on two weekend occasions each month supervised by a nominated person and then a professional supervision agency and for two other two hour periods each week also under supervision. The parties also agreed to an order that they then attend a family dispute resolution conference to be facilitated by the Independent Children’s Lawyer in an effort to resolve the entire proceedings on a final basis.

13. On 14 October 2019 when the proceedings next came before the Court neither party appeared and the Independent Children’s Lawyer advised the Court that the proceedings had not resolved. The Independent Children’s Lawyer also informed the Court that the mother had advised her that since 3 October 2019 the children had been in her full-time care. I also understand that the father is no longer in a relationship with his former partner and has returned to live with the paternal grandparents.

14. The father appears to have relinquished the children into the care of the mother who on his own case poses a significant if not unacceptable risk of harm to them. The family consultant is of the view that the only way to mitigate the risk of harm posed by the mother is for the children to have limited supervised time with her. In these circumstances the Independent Children’s Lawyer supports my view that it is appropriate to invite the Department to once again intervene in the proceedings.

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:

   30.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:

   31.91B 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.

   32.…

   33.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. 

   34.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.

   35.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. 

   36.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. 

   37.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. 

   38.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.

   39.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 the children in the care of the mother to whom the father has effectively relinquished their care. It seems highly likely given the contents of the family report and the undisputed evidence regarding the mother’s pattern of alcohol use that I will find that the mother poses an unacceptable risk of harm to the children which may only be mitigated by spending limited and supervised time with them. Real concerns about the father’s insight into the risks posed by the mother and his own parenting capacity and ability to protect the children from harm may be found to arise from his recent actions. In any event it appears likely that he no longer seeks an order that the children live with him and he have parental responsibility for them.

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

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 24 October 2019.

Associate: 

Date:  24 October 2019

[1] [2016] FamCA 933.