Knights and Milford

[2018] FamCA 222

FAMILY COURT OF AUSTRALIA

KNIGHTS & MILFORD [2018] FamCA 222

FAMILY LAW – CHILDREN – Where both parties have withdrawn their applications for parenting orders – Where the parties have agreed that the children should live with the mother – Where there are allegations of violence and substance abuse – Where there is evidence the children have been exposed to family violence in the care of both parents – Where there are concerns about the parenting capacity of both parents – Where concerns are held for the safety of the children in the care of the mother and the father – Where it is appropriate that the Department of Family and Community Services be notified of these concerns.    

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

APPLICANT: Mr Knights

RESPONDENT: Ms Milford

INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd  

FILE NUMBER: PAC 981 of 2017

DATE DELIVERED: 10 April 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 14 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: AS Family Lawyers

SOLICITOR FOR THE RESPONDENT: SCB Legal Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: JLM Family Lawyers Pty Ltd

Orders

1. Leave is granted to the Independent Children’s Lawyer to inspect all material produced on subpoena.

2. Each of the parties has instructed their legal representatives to withdraw their respective applications before the court.

3. The Appointment of the Independent Children’s Lawyer is to continue for a further 28 days from today noting that although the proceedings are now discontinued I will be informing the Department of Family and Community Services of the significant concerns that arise in respect to the welfare of the children particularly as a result of the parties themselves agreeing that the children being placed in the care of the mother.

THE COURT NOTES

1. As foreshadowed, I intend notifying the Department of Family and Community Services about the circumstances of the family.

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 Knights & Milford 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 981 of 2017

Mr Knights

Applicant

And

Ms Milford 

Respondent

REASONS FOR JUDGMENT

Introduction

1. Parenting proceedings before this court which were commenced in March 2017 relate to the two children of Ms Milford (“the mother”) and Mr Knights (“the father”). The children are B who is currently six and C who is currently five (“the children”).

2. Following the parents’ separation in 2013 or 2014 the children lived with the mother until February 2017 when the father alleges disclosures were made that the mother’s partner at the time, Mr D, had physically and sexually assaulted B.

3. The father then commenced parenting proceedings in March 2017 in which he sought final orders that the children live with him and spend supervised time with the mother.

4. On 14 November 2017 both parents agreed the children should live with the mother and both subsequently withdrew their respective applications for parenting orders. In the absence of any application before the Court the proceedings were discontinued and I informed the parties that I intended to notify the Department of Family and Community Services (“the Department”) of my concerns regarding the children living with either parent.    

Background

1. The parents commenced a relationship in 2008. The mother contends the parties separated in early 2014 while the father contends that separation occurred in 2013.

2. Following separation the children lived with their mother.

3. The family is well known to the Department which has had ongoing involvement with the family, particularly the mother and the children, since 2016. Prior to February 2017 there were ten reports made to the Department concerning possible risks of harm to the children in the care of the parents including inadequate shelter, alcohol abuse by a parent, risk of physical harm, the emotional state of a parent, inadequate supervision, drug abuse by a parent, exposure of the children to violence and risk of sexual harm.

4. In December 2016, while the children were in the care of the mother and Mr D three risk of harm reports were made to the Department concerning the mother’s drug abuse, inadequate nutrition of the children, the exposure of the children to violence between the mother and Mr D and the children being at risk of physical and sexual harm.

5. In February 2017 11 risk of harm reports were made to the Department concerning the mother’s drug use, the children being exposed to violence, risks that the children may be physically and sexually harmed, inadequate nutrition and legal guardianship issues.

6. The Department conducted a safety and risk assessment in February 2017 and confirmed that the children had first been placed with the maternal aunt by the mother and had then moved into the care of the father. The father alleges that the children came into his care following disclosures that the mother’s partner had sexually harmed B.

7. The father filed an Initiating Application on 7 March 2017 seeking that the children live with him and spend supervised time with the mother. On the same date the father filed a Notice of Risk alleging the mother’s partner had physically and sexually abused the children and tat the children had been exposed to family violence and the mother’s drug abuse. 

8. The Department completed a safety and risk assessment on 8 March 2017. The children were determined to be safe but the risk assessment outcome was very high. Around this time the mother obtained an Apprehended Violence Order (“AVO”) for her protection against Mr D.

9. On 8 March 2017 the parties came before a Registrar. The matter was marked Magellan and orders were made appointing an Independent Children’s Lawyer (“ICL”) and for a Magellan Report to be prepared.

10. On 18 April 2017 interim orders were made in the proceedings for the children to live with the father.

11. On 17 May 2017 Orders were made by consent for the children to live with the father and spend time with the mother for two hours per fortnight at a local contact centre and for the first three Saturdays of each month under the supervision of maternal aunt provided she file an undertaking concerning that supervision. Further orders were made by consent for the mother to submit to urinalysis to monitor her drug use and for the mother to be restrained from bringing the children into contact with Mr D.

12. On 14 June 2017 it was noted by the Court that the maternal aunt had not filed an undertaking as ordered and the mother appeared not to be engaging in the proceedings. Orders were made for the ICL to obtain the criminal history of Mr D, for the father to submit to urinalysis and for the parties to attend on a Family Consultant for the purposes of Child Responsive Program.

13. The father and the children attended on the Family Consultant on 3 August 2017 for interview. The mother did not attend on that date and sent a message to the Family Consultant that she was unwell. The mother was interviewed by phone on 4 August 2017.

14. At the time of the interviews the mother had not filed any documents in the proceedings.

15. When the matter was next before the Court in October 2017 orders were made for Departmental, Police and Local Court records to be obtained in relation to the parents, children, the paternal family and the mother’s current partner. On that date the following notations were also made:

    A.The Children and Parents Issues Assessment dated 4 August 2017 raises serious matters of concern in relation to each of the parent’s households and the Department of Family and Community Services will be invited to intervene in the proceedings. 

    B.So far as the father’s compliance with random urinalysis directions are concerned it is noted that there has been one result indicating the father’s use of cannabis. 

    C.The Children and Parents Issues Assessment raises concerns about the father’s partner and other members of her extended family who live in the father’s household. 

16. On 13 November 2017 both parents withdrew their applications for parenting orders and came to an agreement between themselves that the children should be placed in the care of the mother. In circumstances where concerns are still held as to the safety of the children in each parent’s household I informed the parties that I intended to notify the Department of these concerns.     

Matters of concern

1. The Magellan Report dated 14 April 2017 appears to be incomplete and in draft format. However, it does contain the following relevant information:

   [The Department] has reviewed the Notice of Risk filed by [the father] on 7 March 2017.

   a. In relation to the particulars listed in Section 2(a) [the Department] received similar information in reports dated 7 and 17 December 2016 and on 5, 6, 13. 16, 17 and 23 February 2017. [The Department] interviewed [B] on 9 November 2016 and 21 November 2016. During these interviews B disclosed being smacked on the bottom by [Mr D] as a form of discipline and witnessing domestic violence between [the mother] and [Mr D]. [B] did not disclose any sexual abuse. The Child Protection Unit at [E] Hospital completed a General Examination of [B] and [C] in February 2017 as requested by a General Practitioner. Both [C] and [B] were found to have bruises that can result from accidental injury. [C] had mild redness on the tip of his penis and [B] a scar on her left thigh which she reported to have had cut herself on broken glass. [The Department] has received no information in relation to any current charges for [Mr D].

   b.   In relation to the particulars listed in Section 2 (b) and Section 4 [the Department] received similar information in reports dated 5, 7 and 17 December 2016 and on 6, 13, 17 and 23 February 2017. [The mother] has consistently denied current drug use in interviews with [the Department]. [Mr D] disclosed occasional marijuana use outside the home and denies any other current drug use. On 16 December 2016 [the Department] offered [the mother] and [Mr D] the opportunity to complete urinalysis which they declined. [The Department] has recently commenced urinalysis with [the mother] and there have been no observations consistent with current drug use. Review of the information from NSW Health and NSW Police indicates no information about any current drug use by [the mother] or [Mr D] (only historical). Information provided by NSW Police includes observations of [Mr D] being under the influence of alcohol in an event dated 21 November 2016.

   c.  In relation to the particulars listed in Section 4 [the Department] has received no information that [the mother] is having current contact with [Mr D]. [The mother] has an agreement with [the Department] to comply with the conditions of the current AVO.  

2. The Department indicated no intention to intervene in the proceedings.

3. In the Children and Parents Issues Assessment dated 4 August 2017 the Family Consultant reported that both children lacked an understanding of appropriate boundaries and sought physical contact with the Family Consultant. Both children also reported witnessing violence in both parents’ households. 

4. The Family Consultant relevantly opined:

   The children presented with some unusual behaviours, in terms of them seeking out contact with a person they have just met. They may be indiscriminately affectionate if they have experienced neglect and/or abuse. They also both had significant issues with focusing and it was understood that this is currently being assessed by their paediatrician.

   [The father] reported that the children have witnessed violence in his house. Concerns about other members of his family/household (the paternal grandmother and [the father’s partner]) were also raised. If accurate, these are significant child protection concerns and the children may not be safe in their current arrangements.

   [The father] raised concerns about [the mother’s] drug use and the children both reported witnessing family violence in the past or experiencing violence. The children may not be safe in [the mother’s] household.

   If the Court finds that [the mother] is still in a violent relationship and/or is misusing drugs and exposing the children to this, and [the father] is also exposing the children to violence, drug use, and/or risk of sexual abuse, the children may not have a suitable carer and the Court may need to invite [the Department] to intervene.

   The children have not spent time with [the mother] in a significant amount of time for the children their ages. If the Court identifies that the maternal aunt Charlene is an appropriate supervisor, then the children may benefit from spending time with [the mother] in a supervised setting in the interim, until the risk issues can be determined.

5. Concerns are raised in both of the above reports and other evidence of the parties throughout the proceedings concerning the parents’ drug use and the exposure of the children to family violence in both parents’ households.

6. As to the parents’ drug use, the father has failed at least one urinalysis test undertaken at the request of the ICL, testing positive for cannabis.

7. The mother and her previous partner declined to participate in urinalysis testing when asked to do so by the Department and there is no evidence before the Court that the mother ever engaged with court ordered urinalysis testing in these proceedings. While the mother may deny any current usage of drugs, her refusal to undergo drug testing raises concerns about her truthfulness in light of her historical use of methamphetamines as recently as, by her own admission, early 2017.

8. Of greater concern in these proceedings is the reports of the children to the Family Consultant that they have been exposed to family violence while in the care of both parents. B reported to the Family Consultant that her mother’s previous partner “Mr F” had yelled at her mother and punched her mother in the eye and had thrown her brother. She also reported that her father and his partner “sometimes fight and hit each other” and she had witnessed a big fight between them that resulted in her father bleeding.

9. C reported to the Family Consultant that the father and his partner “sometimes fight and yell at each other” and that this made him scared. Like his sister he reported that the mother’s previous partner “Mr F” had thrown him and was “naughty” to the mother.

10. The mother makes allegations that the father was violent towards her during the relationship and while the father denies any violence between himself and the mother he does admit to an Apprehended Violence Order being taken out against him for the protection of the mother and children.

11. In light of the evidence before the Court there are concerns that the mother has a history of engaging in relationships involving family violence and exposing the children to this violence. There are also concerns that the father may have perpetrated family violence against the mother and may now be in a relationship involving violence to which the children are exposed.

12. Further, the mother makes allegations that a member of the father’s household has been charged with child sex offences and that the children may be at risk of sexual harm in the care of the father.

13. None of these allegations have been able to be appropriately tested by the Court.

14. These issues give rise to a clear concern that neither parent may be an appropriate carer for these children as the children may be at an unacceptable risk of harm in either parent’s household.

Matters to consider regarding intervention

1. When considering these Reasons the Secretary’s attention is brought to paragraphs [270] – [276] in Tallant & Kelsey[1] which are in my opinion equally applicable in this case despite there being no formal request for the Department to intervene in these circumstances. These paragraphs are extracted as follows:

   [1] [2017] FamCA 210.

   … 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. 

2. The issues raised in these proceedings, as outlined earlier in these Reasons, raise the concern that the children may be at unacceptable risk of harm for a number of reasons in the care of either parent.

1. Although the parents have agreed that the children are to live with the mother they have now withdrawn their applications for parenting orders and the matter is no longer able to be monitored by either the Court or the ICL. It is also to be noted that the mother only sporadically engaged in the family law proceedings and did not always comply with court orders, particularly orders for drug testing.

2. In these circumstances, it is important that the Department be notified of the possible risks of harm faced by B and C and encouraged to remain involved with the family.    

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 April 2018.

Legal Associate: 

Date:  10 April 2018