Ness & Firmin (No 3)
[2024] FedCFamC2F 1454
•17 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ness & Firmin (No 3) [2024] FedCFamC2F 1454
File number(s): AYC 144 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 17 September 2024 Catchwords: FAMILY LAW – Parenting – where final orders were made in February 2024 – where the father was given sole parental responsibility – where the children were to live with the father – where the orders did not allow for the children to spend time with the mother unless otherwise agreed between the parties – where child protection were notified of risk to the children in the fathers care the same day as the final orders and reasons were handed down to the parties – where the court makes no finding on that notification to the department – where the department appeared amicus curae – where the department intervened – where there are orders made in City B children’s court – where the department did not have access to the reasons of the proceedings in this court – where the department did not give consent for orders in this court be made under section 69ZK – children court proceedings in October – parties are directed to advise chambers of future children court proceedings – fixed for a further hearing on a date to be advised. Legislation: Family Law Act 1975 (Cth) ss 69ZK, 102NA Cases cited: Hearne v Street [2008] HCA 36 Division: Division 2 Family Law Number of paragraphs: 33 Date of hearing: 17 September 2024 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: Tonkin Legal Group Counsel for the First Respondent: Ms Tunace Solicitor for the First Respondent: Myers Family Law Solicitor for the Second Respondent: Ms Toner of Toner & Associates Appearing Amicus Curae Ms Snibson of the Department of Families, Fairness and Housing ORDERS
AYC 144 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FIRMIN
Applicant
AND: MR NESS
First Respondent
MS NESS
Second Respondent
THE DEPARTMENT OF FAMILIES, FAIRNESS & HOUSING
Amicus Curae
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.All extant applications be and are adjourned to a date to be fixed, but after 2 October 2024, with a request that the parties advise this Court of future dates of the Children’s Court Proceeding relating to the Applicant and the Respondent and their children.
2.Ms Firmin (‘the Mother’), Mr Ness (‘the Father’) and Ms Ness (‘the Second Respondent’) be and are released from the obligation (commonly known as the implied obligation) as described in Hearne & Street (2008) 235 CLR 125 96 and Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for the purpose of the hearing within the Children’s Court Proceedings and any investigation of the welfare of the children concerned by the Department of Families, Fairness and Housing (‘the Department’).
3.The parties and/or their representatives be at liberty to provide the relevant materials to any Court proceeding regarding the children, and that relevant material being:
(a)The affidavits of the Mother and the Father within the proceedings of AYC144/2021;
(b)Any expert reports that were made within the proceedings of AYC144/2021;
(c)The judgment of Ness & Firmin [2021] FCCA 1669;
(d)The judgment of Ness & Firmin [2023] FedCFamC2F 504;
(e)The judgment of Ness & Firmin (No 2) [2024] FedCFamC2F 191;
(f)The Transcripts of proceedings in the matter of AYC144/2021; and
(g)The affidavit of any witness in these proceedings and/or document produced to the Court on subpoena.
4.The Secretary of the Department is requested to assess, as is convenient to the Secretary, whether the procedures (including training) of Child Protection investigations by the Department should be revised to include consideration of the orders, reasons and/or expert evidence of decisions of this Court that may be relevant to the welfare of the children concerned.
AND THE COURT NOTES THAT:
A.Section 69ZK reads
(1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a)the order is expressed to come into effect when the child ceases to be under that care; or
(b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2)Nothing in this Act, and no decree under this Act, affects:
(a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b)any such order made or action taken; or
(c)the operation of a child welfare law in relation to a child.
(3)If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first - mentioned court may adjourn any proceedings before it that relate to the child.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
In the matter of Ness and Firmin, on 15 February 2024, I handed down final orders and reasons relating to the children, X, Y and Z (‘the children’). X was born in 2010, Y in 2012 and Z in 2014. We now know that on that day, the Department of Families, Fairness and Housing (Child Protection) (‘the Department’), commenced an inquiry into the welfare of the children. There may be no connection between the commencement of that investigation and the handing down of orders and reasons.
I refer to and recite the reasons provided previously in this matter, first on 2 July 2021, and on 17 March 2023, and on 15 February 2024.[1] That means I dealt with the matter, apart from some days reading evidence-in-chief and expert reports, over two days in July 2021, four days in March 2023 and one day in May 2023. On the last day of the hearing, on 5 May 2023, I reserved my orders and reasons. I handed down the decision on 15 February 2024. Between 5 May 2023 and 15 February 2024, there was no application to reopen the case by any party.
[1] Ness & Firmin [2021] FCCA 1669; Ness & Firmin [2023] FedCFamC2F 504; Ness & Firmin [2024] FedCFamC2F 191.
In those proceedings, the respondent mother, Ms Firmin (‘the Mother’), had been unrepresented for some time, but late in the proceedings became represented by the provisions of section 102NA of the Act and the Family Law Cross-Examination Scheme. At the final hearing, she was represented by a solicitor and counsel for all five days. The Mother did not appear in the courtroom but appeared on some of those days electronically.
The decision comes back before me this day after the Mother filed an initiating application on 12 September 2024, seeking orders that the children be immediately placed in her care, and seeking a recovery order. The respondent to that application, Mr Ness (‘the Father’), filed a response 16 September 2024, whereby he sought an order that the children be returned to his care and that a recovery order proceed.
At the start of the hearing, I drew to the parties’ attention the provisions of section 69ZK of the Family Law Act 1975 (Cth) (‘the Act’), which is as follows:
Section 69ZK Child welfare laws not affected
(1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a)the order is expressed to come into effect when the child ceases to be under that care; or
(b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2) Nothing in this Act, and no decree under this Act, affects:
(a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b)any such order made or action taken; or
(c)the operation of a child welfare law in relation to a child.
(3)If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first - mentioned court may adjourn any proceedings before it that relate to the child.
Department removed the children
I was informed, and I am satisfied, that in September 2024, the department decided to remove the children from the care of the Father and place them initially with the Mother, and then with parties who are alleged to be friends of the Mother. Currently, by the Children's Court orders, the Father is to spend a minimum of once per week with the children and the Mother may spend a minimum of six hours per day with the children.
Children’s Court orders
The Children's Court at City B made an Interim Accommodation Order in September 2024, which provided as follows:
Until further order, I order that the child is to be:
placed with [Ms AA] and [Mr BB], who is a/are suitable person(s) pending that hearing, or the resumption of, the hearing, and following a report (whether oral or written) from the Secretary on that person’s or those persons’ suitability.
The following conditions apply to this Order:
1. Father, Mother must accept visits from and cooperate with DFFH.
2. Father, Mother must accept support services as agreed with DFFH.
3. Father, Mother must not live or have contact with the child other than court ordered contact.
4. [Ms CC] must not have any contact with the child.
5. Mother may have contact with the child for a minimum of 6 hours per day at times and places as agreed with the Carers and/or DFFH. The Carers will supervise contact unless DFFH assesses that supervision is not necessary. All contact is subject to the child’s wishes and is proposed to take place outside of school time.
6. Father may have contact with the child for a minimum of 1 times per week at times and places as agreed between DFFH and the child. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary. All contact is subject to the children’s wishes.
7. Mother must go to family violence counselling as agreed with DFFH and must allow reports about attendance to be given to DFFH.
8. Mother must go to a psychologist or psychiatrist as agreed with DFFH for assessment and treatment and must allow reports to be given to DFFH.
9. Mother must submit to random supervised alcohol and drug testing as directed by DFFH and must allow the results to be given to DFFH.
Notice to the department
When the matter came before me this morning, I was unprepared to deal with it without the Department having formal notice of the proceedings and being in a position to attend before me. Notwithstanding the very short notice that they had (having adjourned the proceeding to 2.15pm) the Department was able to assist me by having a solicitor and a solicitor advocate appear as well as child protection officers, including the child protection officer involved in key decisions in the matter.
Department letters (now Court exhibits)
In September 2024, the Child Protection Officer, Ms DD, had observed as follows in a letter dated September 2024:
To Whom it may concern,
I am [Ms DD], and I am the current allocated child protection practitioner for [X], [Z] and [Y]. I am writing from the Department of families, fairness and housing to notify that child protection currently have an open case for [X], [Y] and [Z], we have [sic] been open since [mid] 2024 and currently in the protective intervention phase. Following initial investigations, the department has determined that the father has been responsible for harm.
No Children’s Court application has been made at this stage and the children are not subject to any Children’s Court Orders.
We have had previous involvements with the family, having found the father responsible for harm in early 2024.
please [sic] contact me if you have further questions or please consider requesting the department file via subpoena.
…
Subsequent to that, what is known as a “Form B”, was prepared to provide the Children’s Court with information. That document includes the following information:
CP History
A review of Child Protection history shows 14 previous reports for the family. Most recent report called at protective intervention [in mid] 2024. Child Protection History identifies 14 previous reports and 3 community-based consults between [early] 2021 and [late] 2022, 11 closing at intake and 3 progressing to further assessment and investigation. Historic concerns have pertained to [Mr Ness] using [a weapon] to scare [Ms Firmin] during their relationship, [Mr Ness] perpetrating family violence towards [Ms Firmin] and children, parental acrimony, [Ms Firmin]’s substance misuse ([illicit drugs]), [Mr Ness]’s alcohol and substance misuse, lack of appropriate supervision of the children, [Mr Ness]’s poor mental health and suicidal ideation, [Ms Firmin]’s transient lifestyle, general neglect, and [Mr Ness]’s emotional manipulation of the children.
The Child Protection history reflects the children being at risk of cumulative harm as there have been ongoing concerns for family violence perpetrated by the father, despite [Mr Ness] having historically worked with services, the children have expressed ongoing fear and have articulated in recent reports wanting to be removed from their [Mr Ness]’s care [sic]. There appears to be a pattern of behaviour whereby the children have consistently disclosed physical assaults and excessive physical discipline by [Mr Ness]. Child Protection is aware that there has been an effort thus far in attempting to preserve the family, however the children have continually verbalised the same concerns, which appear to be escalating in frequency and severity to the extent they are verbalising feeling unsafe in the care of [Mr Ness].
[Mr Ness] has been recorded as Responsible for Harm in the involvement commencing 15/02/2024[2] and again in the current intervention. On both occasions where he has been recorded as Responsible for Harm, it has been assessed [Mr Ness] utilises excessive physical discipline and the subsequent impacts have been identified to the children as having the children express fear of him and can articulate a number of different situations where he has physically hurt them. In the past involvements, Child Protection have attempted to support the family specifically [Mr Ness], with referrals for him to learn more about how to safely manage the children’s behaviour without using excessive physical discipline.
…
[In] 09/2024, Child Protection completed an interview with [Ms Firmin] and her lawyer present, specifically relating to improving the understanding of the FCC proceedings. Within this meeting, it was identified during the FCC proceedings concerns were identified whereby there was a view that [Ms Firmin] was alienating the children from their father by raising concerns about his use of violence. This was the narrative that continued throughout the proceedings. The Magistrate[3] stated that based on [Ms Firmin]’s assessment, if they placed the children in her care, she wouldn’t maintain the children’s relationship with their father. It was identified they believe this occurred because all of [Ms Firmin]’s allegations were unfounded which is noted to be common in the context of family violence. It was noted that [Ms Firmin] was self-represented for a large portion and did not have access to matrimonial funds. [Ms Firmin] detailed a dynamic whereby there was a power imbalance and her mental health significantly declined throughout the proceedings, due to the control given to [Mr Ness] and how he used this to perpetrate further family violence which then included the systems around them. She identified she felt like she became reactive to disclosures made by the children, due to the significantly emotional distress following the FCC proceedings. One of these occasions, then lead to [Mr Ness] ceasing contact between the children and herself. It was noted [Ms Firmin] disclosed him surveying her video contact with her and the children via a recording device in an [item of furniture] close to the call.
…
[In] 08/2024, Child Protection completed an interview with [Ms Firmin]. Within the interview, [Ms Firmin] articulated holding significant concerns[4] for the children in the care of [Mr Ness]. She conveyed empathy and understanding for the children in relation to the reported concerns articulating an understanding of [Mr Ness]’s behaviour. She disclosed a considerable extent of family violence by [Mr Ness] spanning the entirety of their relationship including a number of physical assaults by him to her which occurred in front of the children. She disclosed physical, emotional abuse, put downs and surveillance by [Mr Ness] throughout their relationship. [Ms Firmin] articulated [Mr Ness]’s use of systems manipulation “systems abuse” to the extent the Federal Circuit Court informed her she was engaging in parental alienation. There were incidents disclosed where he had threatened suicide at points of separation. [Ms Firmin] identified being disenfranchised by the systems and feeling like she gave up through the family court. She advised she had previously withheld contact due to [X] speaking about [Mr Ness] getting angry, however she was fearful of the consequences. [Ms Firmin] conveyed holding significant concerns for the children’s safety in [Mr Ness]’s care. Within this interview and following, [Ms Firmin] conveyed situational poor mental health, adversely impacted by [Mr Ness]’s use of family violence and system abuse. [Ms Firmin] articulated positive progress in her addressing her mental health, given she had relocated to Queensland and received support for the previous circumstances, where she was adversely impacted by the family violence by [Mr Ness]. [Ms Firmin] articulated wanting the children to receive support including counselling and mental health support, given their experiences of trauma and demonstrated willingness to engage in these supports. [Ms Firmin] has since shown Child Protection clean SUDS results from when the Federal Circuit Court Proceedings were continuing, and has disclosed no current substance use. There is no concerns identified at this time for [Ms Firmin]’s substance use being a current concern at this time.
[2] 15/02/2024 was the day this courts decision and reasons were handed down
[3] That was not “the Magistrate”, but this court, and the account recited does not accurately reflect findings in this case.
[4] A version of these events was Ms Firmin’s case during the proceedings before this court and was not accepted.
Department access to FCFCOA documents
With the assistance of the Department this day, I have been able to ascertain that the Department had available to them, or at least a knowledge of, the orders that I had made on 15 February 2024 at some earlier period than recently. However, it appears to be common ground that the Department actually had in their hands a copy of the reasons which I had delivered only on 10 September 2024, and I am satisfied that they were provided by the Mother’s solicitor at that time.
After the matter was first mentioned to me, I made the following orders:
4.IT IS DIRECTED that the Solicitors for the Applicant, Respondent, & Second Respondent bring these proceedings to the attention of the Department of Families, Fairness and Housing (‘DFFH’) immediately. AND IT IS DIRECTED that the Solicitors are to provide a copy to DFFH of:
(a)The Initiating Application of [Ms Firmin] filed 10 September 2024;
(b)The Affidavit of [Ms Firmin] filed 10 September 2024;
(c) The Affidavit of [Mr Ness] filed 16 September 2024;
(d) A copy of these sealed Orders;
(e)[Ness & Firmin] [2021] FCCA 1669;
(f) [Ness & Firmin] [2023] FedCFamC2F 504; and
(g)[Ness & Firmin] [2024] FedCFamC2F 191.
5. IT IS DIRECTED that the Solicitors for the Applicant, Respondent and Second Respondent are to immediately do all acts and things necessary, including by telephone and/or email, to bring these proceedings to the attention of
(a) [Ms DD];
(b) [Ms EE]; and
(c) [Ms FF].
6.The documents listed in Order 4 herein are to be provided to the Case Workers listed in Order 5 herein via email on:
(a) […]@[…];
(b) […]@[…]; and
(c) […]@[…].
7.DFFH are requested to appear on the adjourned hearing to assist the Court with information and a position in regards to these proceedings.
The matter resumed in the afternoon
After discussion with the solicitor appearing for the Department (and I note at very short notice), it became apparent that between 15 February 2024 and 10 September 2024, the Department did not have in their hand the reasons for the 15 February 2024 decision. It is also apparent that those reasons have only been considered this day after I have made the order above recited. Those orders and reasons, of course, do not stand alone but are the third set of reasons, with the other major reasons being the reasons delivered in 2021. The reasons of 17 March 2023, whilst providing some information, may not be pivotal to the decision.
It also transpired from the discussion before me this day that it appears common ground that a Child Protection officer charged with the heavy burden and duty of determining children's welfare in urgent circumstances has (save for requests to the liaison officer that I will come to later), has no way of being able to automatically access orders of this Court. It is common ground, and I accept, that the process where a Child Protection officer wants to know about what the relevant Court orders are, can request them, or information about them, from the department liaison officer with the Court. It is my experience that those officers do a very efficient job of very quickly keeping the Court informed, where requests are made, of developments in the child protection sphere. And, vice-versa, provide Child Protection officers with information about developments in the Court.
There is no automatic way that Child Protection officers or, indeed, the Department are informed of even the existence of the court orders, let alone the content thereof. There is in existence the 2011 protocol, which, in substance, says that the department agrees to take cognisance of orders of this court and this court agrees to take cognisance of the findings of the department. I am not satisfied that that protocol has had much airing recently.
I am also not satisfied that child protection officers have training or procedures or regulations that would cause them to be inquiring of orders of this court and reasons and evidence behind it.
Implied obligation
The matter is further complicated by the general understanding of the existence of the law relating to what's known as the Harman obligation, and/or the determination of the High Court in Hearne v Street [2008] HCA 36 (‘Hearne v Street’). The long and the short of that is, where documents or information are obtained in a court, they cannot be used in any other court proceeding without the permission of the court. The matter is further complicated by the restrictions on publication of matters relating to the identity of parties in these proceedings.
These orders should not be regarded as impugning the integrity or professionalism of the child protection officers involved at all. As I have been advised, it appears to me unfortunate that from 15 February 2024 until 10 September 2024 the Department officers did not have available in their hand the reasons of this court or have considered them. I accept reasons of this court would not bind the Department.
Key issue identified
This court takes considerable notice of observations of Child Protection officers and there is built into the Family Law Act mechanisms that are meant to ensure that this court obtains regularly and updated information about any involvement of the department in any children's lives. It troubles me, however, that that may be a one-way street. It appears to me that it is entirely optional as to whether a Child Protection officer seeks out and obtains orders of this court, and/or reasons behind those orders, and/or evidence underlying that.
The Court’s “reasons”
The further matter that troubles me, of course, is that “reasons” record the reasoning process by which orders are obtained, but they are not a catalogue of all relevant information and evidence taken into account. Were all information available to the court recited in reasons, they would be interminably long, if they are not already, but to an unbearable or inutile point.
FCFCOA proceedings
This court dealt with this family and the welfare of these children on many occasions, including by me on the following: on 1 and 2 July, 2021, and I note that in the reasons of 2 July 2021, I took into account the information provided by the department pursuant to section 67Z of the Act. Apart from the times that the matter was before me, it was before Registrars of the Court in directions hearing on other occasions.
I dealt with the matter on 14 March, 15 March, 16 March and 17 March 2023. On 17 March 2023, on the application of Ms Firmin, I adjourned the matter to facilitate her request to provide more or better information before the court. I adjourned the matter until 5 May 2023. That adjournment was opposed by Mr Ness and was, of itself, a considerable cost to him.
Common ground: Section 69ZK applies in these proceedings
In the end, it is common ground that section 69ZK applies in these proceedings.
I am not satisfied that it is in the interests of justice or in any way useful to deal with the matter by making an order expressed to come into effect when the order under the child welfare law ceases to have effect.
Upon seeking the view of the Department, the Department's position is that they do not provide written consent for any order relating to the living arrangements of these children being made in this Court this day. I am not critical of them. That is entirely the purpose for which they exist, and the Department is to make its own decisions. What I am concerned about is the Department and/or the Children's Court making decisions about the welfare of these children without being in a position to consider all relevant information. The statements of the children, X and Y, to the Child Protection officers are, on their face, troubling and concerning. The issue arises of what lies behind them.
Conclusion
In the end, it is common ground that I should not make any order relating to the welfare of the children, and I will not. However, it is unopposed or agreed to by the parties before me today and the Department (who appears effectively pro bono), that I should make an order permitting the parties to the proceedings to provide the Department and/or the Children's Court with all relevant materials, and I will make that order.
Those relevant materials would include the affidavits of the parties and witnesses in the proceedings, the expert reports received and the decisions and the reasons on 2 July 2021, 17 March 2023 and 15 February 2024, and the transcript of the proceedings. The transcript of the proceedings already exists because I had that available to me at the time of considering my decision in the matter.
The ordinary practice of the Court is that anyone who wants a transcript of the proceedings should pay for it. In this case, no one has asked for it. I am satisfied that it might (and it is a "might", not a "will") assist anyone looking at what lies behind the decision of 15 February 2024, hence I will order that the transcript, which is voluminous, will be made available to the parties.
Lest there be any doubt in anyone's mind, to the extent that the observation in the “Form B” might be consistent, albeit ambiguous, that it is this Court's position that allegations of family violence being unfounded is common in this Court in the context of family violence, that is far from my position or the position of this Court or the law of the land that governs this Court. In all of those circumstances, I am also satisfied that there is a serious deficiency in the ability of Child Protection officers to obtain information about proceedings in the Family Law Act Courts.
Whilst not satisfied of it and I make no finding, it appears that it might be the case that the training or regulations in regard to child protection matters could be improved by it being mandatory to at least consider whether reasons, orders and information thrashed out in this Court in an adversarial proceeding would be relevant to determinations. In this case, throughout half of February, all of March, all of April, all of May, all of June, all of July, all of August and part of September, the basis upon which the orders were made was not known to the Department.
I note that it is alleged (and I make no finding of it) by Mr Ness, that he attempted or wanted to provide to the relevant Child Protection officers a hard copy of the reasons and orders at the time he was interviewed in February 2024. I note it is also alleged that he did not learn of the existence of the case plan dated 25 June 2024 until later in August or September 2024.
I make no finding about that, but I hope it is not so, hence I will make an order that I request the secretary of the Department to consider whether training and procedures in regard to child protection investigations could be improved by it being mandatory for a Child Protection Practitioner to consider whether or not that Family Law Act court orders should be considered as well as the reasons, if available, behind such orders. Hence, I will make an order that the parties are released from the Harman obligation and the Hearne v Street obligation to enable them, without restraint, to provide the documents and information before me previously to the department and the Children's Court. Of course, it is a matter for the Children's Court what use, if any, is made of those documents and information and it is a matter for the Department what use, if any, is made of those documents and information.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 21 October 2024
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