Millhouse and Husserl

[2017] FamCA 1112

FAMILY COURT OF AUSTRALIA

MILLHOUSE & HUSSERL [2017] FamCA 1112

FAMILY LAW – CHILD ABUSE – Request for intervention – Where the Department of Family and Community Services is requested to intervene in the proceedings.

Family Law Act 1975 (Cth) s 91B

Tallant & Kelsey [2017] FamCA 210

APPLICANT: Ms Millhouse

RESPONDENT: Mr Husserl

INDEPENDENT CHILDREN’S LAWYER: Mr Walkden

FILE NUMBER: PAC 3726 of 2017

DATE DELIVERED: 12 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kim Bolas Legal Group

SOLICITOR FOR THE RESPONDENT: Bowral Legal  

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Campbelltown Family Law  

Orders

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.

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 Millhouse & Husserl 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 3726 of 2017

Ms Millhouse 

Applicant

And

Mr Husserl

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. On 12 December 2017 I made orders that the Secretary of the Department of Family and Community Services (“the Secretary”) be invited to intervene in parenting proceedings involving the parties two children.

2. I indicated that I would publish my reasons for the invitation to the Secretary to intervene in these proceedings at a later date. These are those reasons.

3. In summary I am of the view that having regard to the evidence filed in this court and documents produced on subpoena that the court may find that there is an unacceptable risk of harm to the children in the care of each of the parents. For this reason the Secretary has been invited to intervene.

4. The Secretary is requested to treat the information in these reasons as new information against which to assess the current circumstances of the children and whether it is appropriate to intervene in the family law proceedings before this court.

Background

1. The parenting proceedings before this court relate to the two children of Ms Millhouse (“the mother”) and Mr Husserl (“the father”). The children are B who was born in 2011 and is currently six and C who was born in 2012 and is currently five (“the children”).

2. The parents began a relationship in early 2010 and moved to live together in Queensland.  It would appear that in moving to Queensland the father breached his parole in New South Wales. The father has, as I understand it, a criminal history and has served time in prison though I am unaware of the full extent of his criminal history.

3. The parties first child was born in 2011 in Queensland.

4. The mother returned to D Town in New South Wales in about mid-2011where she previously had been living and where there are other family members.

5. As I understand it the father then returned to New South Wales which led to the revocation of his parole and him serving the balance of a term of imprisonment in this state.

6. In January 2012 the parties second child was born and although it is not entirely clear it appears that the parents may have continued a relationship for some time following that child’s birth.

7. Although it is not clear when the parties separated the father contends that this occurred in about January 2013 and that for a period of about two months the children lived in an equal shared care arrangement with both parents. Subsequently the children lived with the mother and spent time with the father as agreed between the parties though there were no orders in place in relation to this arrangement. Generally it appears that B and sometimes C spent every second weekend with the father.

8. The father formed a relationship with his current partner Ms E (“Ms E”) from about February 2014 and began living with her. Ms E has care of another child from another relationship.

9. At some time in 2014 or 2015 the mother formed a relationship with Mr F (“Mr F”) and it appears that they began living together from about July 2015.

10. In about 2016 it appears that the mother had formed some form of relationship with another man, Mr G (“Mr G”) who it appears was convicted of child pornography offences in November 2011 and following a four year sentence of imprisonment was released in about November 2015. Although it appears that the father became aware of the mother’s relationship with Mr G in mid-2016 he did not take any action in relation to ensuring that the children did not come into contact with Mr G. It appears from police records however that there was some form of concerning interaction between Mr F and Mr G and in July 2016 an apprehended violence order (AVO) was taken out for the protection of Mr G against Mr F.

11. At some time in 2016 it appears that the mother broke of her relationship with Mr G and returned to a relationship with Mr F.

12. In December 2016 Ms E gave birth to a child whose father is the father in these proceedings.

13. From September 2016 to February 2017 Mr F spent time in custody though the nature of his offending is unclear. On 1 November 2016 an AVO was made against Mr F for the protection of the mother for two years. On 12 December 2016 a correctional facility’s records indicate that the mother was visiting Mr F in custody.

14. The father claims that he became concerned about the presentation of the children after the mother recommenced her relationship with Mr F and that in particular the eldest child was regularly suffering from urinary tract infections which I understand the father alleges may be associated with sexual abuse of the child.

15. In the course of the children spending time with the father on 3 July 2017 the father claims that the eldest child disclosed to his partner that Mr F had been touching her. This disclosure was reported to the Department and the child was interviewed by JIRT. As a result of disclosures made by the child in that interview police sought and obtained an AVO for the protection of the child against Mr F. The father subsequently refused to return the eldest child to the mother and claims that on 7 July 2017 of the child made further disclosures that implicated both the mother and the younger child in sexually abusing the older child.

16. On 10 July 2017 the mother commenced these proceedings in D Town Local Court. She deposes in an affidavit filed at the same time that Mr F was then living in Sydney. Interim orders were made by consent that the older child live with the father and spend defined time with the mother (four hours was on three occasions per week) to be supervised by the maternal grandmother.

17. The father has made regular allegations since the time the interim orders were first made that the mother has discussed the allegations of sexual abuse in the presence of the child, and that the maternal grandmother has not always been present to supervise the mother’s time with the child.

18. The mother continued to make the younger child available to the father for his time with the child and on 4 August 2017 while spending time with the child the father decided to retain the younger child in his care.

19. The proceedings were subsequently transferred to this court and allocated to the Magellan protocol on 14 September 2017 orders were made including that both children to live with the father and spend time with the mother for two hours each Saturday and during holidays and Tuesday to be supervised by the maternal grandmother at a “Playhouse” facility and that Mr F not be present.

20. On 12 December 2017 at a court event the independent children’s lawyer (“ICL”) raised significant matters of concern in both parent’s households and tendered various documents from a range of sources in relation to those concerns. The ICL requested that the court bring these matters to the attention of the Secretary and request that the Secretary intervene in these proceedings on the basis that the court may find that there is an unacceptable risk of harm to the children in both parents households and there are no other available protective adults known to this court.

21. The father has continued to maintain that the mother may be continuing to discuss the proceedings and the allegations with the children, that the maternal grandmother is not providing adequate or appropriate supervision for the mother’s time and that the mother has permitted the children to come into contact with Mr F notwithstanding restraints in place.

Risk factors in the father’s household

1. Documents produced on subpoena including records of the Australian Federal police from the ACT indicate a number of matters of concern about the father dating back to 2006.

2. In an entry in the AFP records dated 12 January 2006 it is recorded that when police executed a search warrant on a home where cannabis was subsequently located (which the father and his then partner indicated belonged to them both) the father and his then partner were described as upset with police presence. The father and his partner asked whether the execution of the search warrant had anything to do with the death of their four week old baby. The father is recorded as being continuously verbally abusive and aggressive towards police who attended on that occasion.

3. Another AFP entry indicates that on 28 February 2006 when police were investigating an allegation of the father making threatening phone calls to an unidentified person the “job transferred to [named police officer] due to relevance to a current coronial enquiry into the alleged offender’s deceased baby daughter”.

4. Police records also indicate that between mid-2008 to mid-2009 the father spent time in custody in relation to receiving stolen goods, driving and theft offences and in 2011 the father breached his parole by moving to Queensland with the mother.

5. According to the mother’s affidavit from the time the parties first lived together in Queensland in early 2010 the father used illicit drugs. She also alleges that the father was violent to her throughout the relationship and drank to excess. The father agrees that he did drink to excess and used illicit drugs at that time but maintains that he has not done so drugs for about eight years.

6. Police records from Queensland provide some support for the mother’s allegation that the father is a perpetrator of family violence. The records indicate that in April 2011 a DVO was put in place against the father for the protection of the mother as a result of the father threatening to shoot the mother and her family. At that time the records indicate the mother had made allegations that the father had previously assaulted her by punching her to the face and grabbing her by the throat when she was holding the eldest child as an infant.

7. It appears that the mother moved back to New South Wales from Queensland after the birth of the parties first child due to the violence perpetrated by the father against her. She made allegations to the police that the father had made threatening phone calls to her in about June 2011 but the father was then unable to be located and a warrant was issued for his arrest.

8. As indicated the father was subsequently arrested and his parole was revoked and he served the balance of his time in prison

9. So far as the father’s parenting capacity and his ability to recognise risk factors for the children are concerned it is to be noted that although on his case he was aware that the mother had been involved in a violent relationship with Mr F to which the children may be exposed, and was aware that the mother was involved in a relationship with a man convicted of child pornography offences he did not take action to commence family law proceedings then himself.  These proceedings were initiated by the mother.

10. In recent times it appears that the father’s response to concerns about risks in the mother’s household is simply to retain the children in his care.

11. In my view the documented history of the father’s aggression, drug use, family violence and criminal behaviour and allegations of excessive alcohol use give rise to concerns about the risk of harm posed by him. The circumstances of the death of his younger child in January 2006 will also need more complete investigation. In addition in my view there may be real current concerns about the father’s parenting capacity.

Risk factors in the mothers household

1. Documents produced on subpoena including police records indicate that the mother has had a propensity to form relationships with violent partners or partners who may pose other serious risks of harm and that questions may arise about her insight into the impact of these relationships upon her children. In particular concerns arise about the mother forming a relationship in 2016 with Mr G. It is likely that the findings made against him in relation to the distribution of child pornography were serious given that he received a four year sentence of imprisonment.

2. The mothers more recent relationship with Mr F to whom she is currently pregnant also gives rise to significant concerns about the children’s exposure to violence, drug use and sexual abuse by adults in the mother’s household.

3. Police records from New South Wales indicate that on 21 September 2015 police were called to an incident between the mother and Mr F when Mr F was threatening self harm which ultimately resulted in Mr F attending hospital for assessment. It is noted in police records that Mr F informed police he is a self-confessed “ice” user and suffers from depression.

4. It appears uncontested that after having a relationship with Mr G the mother returned to live with Mr F. Although the mother refers in her affidavit to Mr F spending time in custody between September 2016 in February 2017 the nature of his offences is unknown. However as previously indicated the records in indicate that on 1 November 2016 an ADVO was made for the protection of the mother against Mr F for two years. It is also noted that the mother is recorded as having visited Mr F in custody in December 2016.

5. Mr F also potentially poses a risk of harm related to sexual abuse to the children having regard to the alleged disclosures made by the older child against him which appear to have been regarded as credible by the Department and police. Although the circumstances are in dispute and are far from clear it appears that the mother did engage in some form of relationship with Mr F after she said that relationship was over and as noted the mother is currently pregnant with Mr Fs child.

6. Against this background though many of the facts have not been determined there is a real likelihood that it may be found that the mother has such poor protective capacity and insight into risk factors in relation to her children that the court could not make an order that the children live with her.

The invitation to intervene

1. The reason for the court seeking the Secretary’s intervention in these proceedings is because 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.

2. In the matter of Tallent & Kelsey I noted;

   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. 

3. I also noted in that case;

   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.

4. For these reasons I made the orders set out at the forefront of this Judgment

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 December 2017.

Associate: 

Date:  22 December 2017