MAGUIRE & CARLYLE

[2014] FamCA 394

FAMILY COURT OF AUSTRALIA

MAGUIRE & CARLYLE [2014] FamCA 394

FAMILY LAW – CHILDREN – Whether the children’s time with the father should be suspended on an interim basis

FAMILY LAW – INTERVENTION – Request pursuant to Section 91B of the Family Law Act 1975 (Cth) for Director-General of the NSW Department of Family and Community Services to intervene – Court’s concerns as to the parenting capacity of each of the parents in respect of the needs of the children and the children’s safety

Family Law Act 1975 (Cth) s 91B

APPLICANT: Mr Maguire

RESPONDENT: Ms Carlyle

FILE NUMBER: PAC 5051 of 2011

DATE DELIVERED: 12 June 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 June 2014

REPRESENTATION

APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT: Ms Coady of Parks Coady Family Lawyers Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Samuel of Brian Samuel & Associates

Orders

1. The matter be adjourned to 13 June 2014 at 9.30am for a continuation of the Less Adversarial Trial.

2. The Orders as to time the children spend with their father are suspended until 13 June 2014.

3. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Director-General of the NSW Department of Family and Community Services (“the Department”) is requested to intervene in these proceedings.

4. The Reasons for Judgment delivered today be provided to the Department.

IT IS ORDERED IN CHAMBERS THAT

1. The Children’s and Parents Issues Assessment and Family Report prepared by Family Consultant Mr P be provided to the Department.

2. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Department to inspect and copy any documents on the Court file forming part of the Court record.

3. The Independent Children’s Lawyer is granted liberty to provide a copy of any documents produced on subpoena to the Department to assist with their decision.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maguire & Carlyle 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 5051 of 2011

Mr Maguire

Applicant

And

Ms Carlyle

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These are my reasons relating to the Orders I have made in respect of the children and the request to the Department of Family and Community Services (“the Department”) to intervene in these proceedings pursuant to section 91B of the Family Law Act 1975 (Cth) (“the Act”).

2. The Orders that I made, to adjourn the proceedings to tomorrow, to suspend the Orders relating to the children spending time with their father and to invite the Department again to intervene in the proceedings, relate to three children of the parties – C, who is 12, S, who is 9, and N, who is 7.

3. The parties separated in December 2009 and parenting proceedings have been ongoing since October 2011.

4. Each parent wishes for the three children to live with them and spend time with the other parent.

5. From the time of the Children and Parents Issues Assessment in December 2011, the Family Report of June 2013 and various Judges’ involvement, including Justice Collier in March 2013 and myself at the first day of the Less Adversarial Trial in August 2013, there have been a number of serious issues identified in relation to these children.

6. These issues include their ongoing exposure to serious family conflict, allegations by the mother of the father’s engagement in family violence, concerns about each parent’s parenting capacity, the mother’s need for family support and each parents’ inability to distinguish their own needs from the children’s and inability to prioritise the children’s needs ahead of the conflict.  It has also been noted that there is very limited capacity, really no capacity, in either parent to promote a relationship between the children and the other parent.

7. There has also been as a specific issue of significant concern for the entirety of the proceedings and earlier as to S and N’s access to regular speech therapy.

8. In summary, the Family Consultant refers to his recommendations as the least detrimental of the two options available for the children and the Family Consultant also raised the possible necessity for the involvement of the Department, as I say, from at least the middle of last year.

9. The matters were unable to be resolved and the hearing of the matter commenced in November 2013.  After hearing the father’s case only for two days, I formed the view that further concerns had arisen and, in fact, his case had deteriorated significantly.  I adjourned the matter for the purpose of inviting the Department to intervene in the proceedings.  I gave reason for that invitation in an ex tempore decision of 14 November 2013.  Included in that decision at [21] I said:

   … If the parents can demonstrate that they are capable of going and getting the help that they need for themselves to support their children, well, that will help them when the case resumes and it will be something that the Department will look at.  If they are not, quite frankly, I do not know what to do on the state of the evidence if the Department does not intervene, because I could not be confident, even on an interim basis about the capacity of either parent.  As far as I understand it, the Court cannot make the Department intervene, and so I would be concerned about this matter going over for much longer than to give the Department time to decide whether to intervene.

10. The Department made an initial decision not to intervene, which was known when the matter was next mentioned on 20 December 2013 but it did seem possible that the Department would reconsider that position.  The Department was invited to reconsider the decision but again declined to intervene and the Court was advised of this on 13 January 2014.

11. Surprisingly, when the matter came back to Court on 18 February 2014, it did appear that there had been some improvement for the children and, significantly, it appeared that the matter may resolve.  It was of particular significance that it appeared that the parents were engaging with service providers and the children appeared to be receiving the services that they needed.

12. One of the Orders made on 18 February 2014 was for the Independent Children Lawyer to monitor progress of the parents in accessing services and to relist the matter if there were any concerns. 

13. The Independent Children’s Lawyer relisted this matter on fairly short notice for today for a number of reasons.

14. Firstly, the Independent Children’s Lawyer informed the Court that he was of the view that the matter would not resolve and needed to be listed for a resumed hearing.

15. Secondly, that the parties were not cooperating with each other and each were making allegations against the other in relation to the children’s care.  In particular, C had not had any time with her father for some time.

16. The Independent Children’s Lawyer said that it also had become apparent that the father, in particular, was not complying with the Orders of the Court.  Of particular significance, considering the importance of speech therapy in this matter where the children’s needs are particularly high, the younger two children have been receiving much less speech therapy than they require, particularly when in the father’s care and have received none at all when in the father’s care since March of this year.

17. Ms Coady, the legal representative for the mother, then sought leave to make an oral application for the Orders relating to the children’s time with their father to be suspended.  I granted leave for that oral application to be made but Ms Coady was not in a position to put anything further to the Court at that stage.

18. The matter was stood down for the Independent Children’s Lawyer to make further enquiries in relation to any other issues, such as the issue that Ms Coady had indicated which was another matter in additional to those matters that the Independent Children’s Lawyer had raised.

19. The Independent Children’s Lawyer ascertained that the child N had made a serious disclosure to his counsellor in the course of his counselling sessions last week to the effect that he was on a bike with his father, that his father got off and shot someone in the leg and got back on and drove away.  The Independent Children’s Lawyer had ascertained that this disclosure, which the counsellor had reported to the Department, had resulted in an investigation by the Department and the police, but he had advice from a particular police officer that no further action would be taken.

20. The Independent Children’s Lawyer ascertained that the mother also had reported the child making this same disclosure to her family support provider at the Brighter Futures program.

21. Nothing further was put before the Court and, in particular, no affidavits were supplied.  However, it appeared that the father was aware that the disclosure had been made and that there was at least a suggestion of the police inquiry, though it appeared to be his position that there was no further police action to be taken.

22. The Court would certainly be loath to act without any evidence to suspend the time between the child and the parent and the parties have indicated it would take at least two weeks for appropriate subpoenas to be issued and material to be put before the Court.

23. However, as it appears to be common ground that the disclosure was made by the child and the content of the disclosure was provided to me by the Independent Children’s Lawyer and in light of an extremely high level of conflict between the parties, in my view, it is in the best interests of the children for the time with the father to be suspended for one day to at least allow a further investigation of the matter and more complete material to be put before the Court.

24. The reasons that such serious action as suspending the children’s time with the father needed to be taken today is because the father was due to commence his time with the children today and he opposed the suspension, even on the basis that he could make it clear to the Court that he made no admissions as to his conduct and even though he was invited to do so, for one day.

25. In these circumstances, where there may be very serious issues of risk of harm on the material available to me, I am of the view that it is in the best interests of the children that I make the order.

26. The father wished that the matter be heard today and did not seem to understand what may be required of him, but he did have some material he wished to put before the Court.  For that reason, in fairness, I felt it appropriate to list the matter tomorrow at least to give him an opportunity to put some evidence before the Court, even if only by way of oral evidence.

27. When the Department declined to intervene previously, it was indicated that should further information come to light that they may once again reconsider their position.  For these reasons, I direct that these ex tempore reasons be provided to the Department immediately.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 June 2014.

Legal Associate:      

Date:    12 June 2014