Parker and Grams
[2012] FMCAfam 401
•17 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARKER & GRAMS | [2012] FMCAfam 401 |
| FAMILY LAW – Children – interim orders – school’s “duty of care” does not override parental responsibility – whether any unacceptable risk. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B Family Law Act in 1988 Commonwealth Powers (Family Law) Act 1987 (Tas) Children, Young Persons and Their Families Act 1997 (Tas), s.8 |
| In the marriage of M and M (1988) FLC 91-979 Lindsay and Baker (2007) FLC 93-347 Waters and Waters and Townsend (1978) FLC 90-428 |
| Applicant: | MS PARKER |
| Respondent: | MR GRAMS |
| File Number: | LNC 158 of 2012 |
| Judgment of: | Roberts FM |
| Hearing date: | 16 April 2012 |
| Date of Last Submission: | 16April 2012 |
| Delivered at: | Hobart |
| Delivered on: | 17 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms A Trezise |
| Solicitors for the Applicant: | Andrea Trezise |
| Counsel for the Respondent: | Mr R Howroyd |
| Solicitors for the Respondent: | Bennett Howroyd |
| Independent Child’s Lawyer: | Mrs K Mooney |
ORDERS
That Orders numbered 9 to 12 inclusive of the Orders of the 22 March 2012 are discharged.
That until further Order MS PARKER (“the mother”) and MR GRAMS (“the father”) have equal shared parental responsibility for [X] born [in] 2002 (“the child”).
That until further Order the child is to live with the mother.
That until further Order the mother and her husband MR PARKER are each hereby restrained from using any form of corporal punishment in relation to the child.
That until further Order the child is to spend time and communicate with the father as follows:
(a)Each 3rd weekend during school terms commencing 12 May 2012 from 10.00 a.m. on Saturday until 5.00 p.m. on Sunday, such to be extended to 5.00 p.m. on Monday if the relevant Monday is a non school day.
(b)For half of each school holiday at the end of Terms 1 and 2, being the first half if the parties are not able to agree otherwise;
(c)From 3.00 p.m. on 25 December 2012 until 3.00 p.m. on the following day;
(d)From 9 January 2013 until the weekend prior to the start of school in 2013; and
(e)By telephone at reasonable times.
That for the purposes of (a) to (d) of the preceding Order hereof, the changeover is to occur at [Suburb omitted] at the [omitted] park.
That the parties, the child and Mr Parker (if he is willing) attend such counselling and attend such parenting courses as may be recommended by the Independent Child’s Lawyer.
That all questions of costs in relation to the interim proceedings are reserved.
That the matter is otherwise adjourned for mention in Launceston at 2.00 p.m. on Friday 15 June 2012 with leave granted to the father’s lawyer and the Independent Child’s Lawyer to appear by telephone.
AND THE COURT NOTES:
That the parties have agreed that the child is to be returned to the mother at her brother’s house at [Suburb omitted] at 4.00 p.m. today.
That Mr Parker indicated his acceptance of the Order restraining him from using any form of corporal punishment in relation to the child.
That it is the intention of the Independent Child’s Lawyer to notify the Legal Services Unit of the Department of Education of the decision made today and that in due course the Department will be provided with a copy of the decision when it is transcribed.
IT IS NOTED that publication of this judgment under the pseudonym Parker & Grams is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNC 158 of 2012
| MS PARKER |
Applicant
And
| MR GRAMS |
Respondent
REASONS FOR JUDGMENT
Introduction
The matter before me relates only to the parties’ competing interim applications.
The applicant is MS PARKER (“the mother”). She is essentially seeking the return of the parties’ daughter, [X] born [in] 2002, so she is just 10 years old. I will refer to her generally as either “[X]” or “the child”.
The respondent is MR GRAMS (“the father”). He seeks orders that the child continue to live with him on an interim basis.
Evidence
The mother relied upon affidavits filed on 21 March 2012, and also 13 April 2012, and I will refer to them simply as her first and second affidavits. She also relied upon an affidavit from her husband, MR PARKER. I will either refer to him as “the mother’s husband” or “the step-father”.
The father relied upon his affidavit filed on 30 March and an affidavit from a general practitioner, Dr H, filed on the same day.
I have also had the benefit of a report from the Child Protection authorities of this State, as well as voluminous subpoenaed documents from the Education Department and from Child Protection. Those documents were referred to by all three counsel, and I have stickers of different colours all over them, as well as my own different coloured stickers. As I’ve said, the material is quite voluminous.
Background
The father is aged 31, as is the mother.
They agree that they started living together in 1999 but did not marry. They separated in early 2003. They do not agree about the month of separation, but not much turns on that.
The child was born [in] 2002, and the mother and her husband have another daughter, [Y], who was born [in] 2008.
The parties do not agree completely about the factual background to the matter, and in particular, about their relationship. However, I have no doubt they have been advised by their lawyers where there are disputes in relation to the facts and there has not been any testing of the evidence by cross-examination, I generally cannot make findings about the disputed facts.
It seems to me that the child has lived predominantly with her mother since late 2004, and for a time between 2006 and 2007, the father was living in Queensland.
The father has two other children, and by his own admission, he has no contact with one of those children.
Both the mother and the father now work full-time, and their work hours are clearly dictated by their employment. The mother works in a [omitted], and the father works in a [omitted] family business. The mother’s husband also works. However, from my reading of his affidavit, it would appear that he might be slightly more flexible in relation to his starting and finishing times than [omitted] or [omitted] allow.
It is common ground that the child has been seeing and communicating with her father over recent times, notwithstanding that the father and the mother live approximately three hours’ drive apart. It is clear that she recently spent a block of time with her father during the last long summer school holidays.
On 19 March 2012, the child had been left in the care of her stepfather, because the mother was interstate and, as I understand matters, the mother was expecting to return to Tasmania that evening. It appears the child caught the bus to school from the mother’s and stepfather’s home in the usual manner. It is now a matter of history that the father collected her from her school later in that day, and she has been in his care ever since. The mother has spent time and communicated with the child in accordance with orders of a short-term interim nature that I made on 22 March 2012.
Those orders were based upon very limited information available to me at that time, and in particular, upon a report by Dr H, which is now attached to her affidavit.
It is also now clear that employees of the Education Department, and a social worker in particular, considered it their duty to keep the mother in the dark about things that the child had been saying.
Paragraph 27 of the mother’s first affidavit says:
(The child) has not been abused in any shape, way or form by me or my husband …. At no time have I been approached by any person at (her) School, including the school counsellor, as to concerns as to (the child)’s safety in my home. To my knowledge, no person at (her) School has made any referral to any child protection service, as they would be obliged to do if they were concerned as to (the child)’s safety. At no time has (the father) ever advised me that he had any concerns as to (the child)’s welfare in my home.
Clearly, when she said that on 21 March 2012, she believed all of that to be true, because she had been kept in the dark. That information about referral to child protection turned out to be incorrect, but the mother cannot be blamed for not knowing about it, because nobody at the child’s school or child protection had told her anything. In fact, the child started seeing the school’s social worker late last year.
There was a reference to the social worker back in 2008, but it clearly had nothing to do with the parents. It was apparently to do with a potential bullying situation involving a child called [Q]. That appeared to be resolved within what appears to have been less than a fortnight.
However, in November 2011, the child’s class teacher reported:
On Monday 14th November (the child) arrived in a distressed state. She was unable to tell me why until she had calmed down. This took about 10 minutes.
According to (the child), at home that morning, she was feeding and cleaning up after the cat. While doing this, she accidentally put a cat toy in the rubbish bin. Her mother reacted by yelling at her, calling her names and then punching her in the face. There was no apparent injury or trauma to (the child)’s face, but I had no reason not to believe her, as she was so distressed. (The child) then commented that “She [her mother] does it all the time”.
(The child) did not want to talk to anyone else concerning this.
(The child) was settled throughout the rest of the day, and when asked on Tuesday, said everything was okay.[1]
[1] I presume that is a reference to Tuesday, 15 November 2011.
The class teacher subsequently sent what I have quoted above by email to Ms D (“the social worker”), who had previously had some contact with the child back in 2008. The email was received by the social worker on 25 November 2011 and on 29 November 2011 the social worker had a discussion with the class teacher. On 1 December 2011 the social worker had an initial session with the child. She reported:
The initial session with (the child) did determine support needs. “If Mum found out I was seeing you, she’d be really angry… I don’t want her to know. No one really knows what it is like. Talk to my best friend (two named). Teachers know…it have got really bad since [Y]… nearly 3 was born. I have to do so many jobs. I have to wash up all the plates every night, and they just sit there watching television.[2] If there’s any food left on the plate, sometimes it’s hard to get it all off … I get into trouble … they say I cut corners … (the step-father)’s really mean to me … he calls me a ‘pig’ … Mum calls me names too sometimes.”
“He play fights with me and I don’t want him to. He sometimes is too hard, but sometimes he tickles me it is fun. I don’t want to do it. He said he used to play-fight with his brother but can’t do that any more, but I don’t want to.”
[2] I presume that “they” is probably her mother and stepfather.
The report of 1 December 2011 is very long and I will not repeat it all. Some of it appears to relate more to what she is made to eat[3] and her complaints about chores around the home. She said:
“They call me a spoilt brat, but (my little sister) is the spoilt brat …she even gets presents when it’s my birthday. (The step-father) tells me that I have to play with her sometimes, but I don’t want to. She’s so annoying. I just want to be on my own. I like being on my own. He was really nice in the beginning, but now I only like him four out of 10. He and Mum are all right sometimes, but I just don’t like it. He says that I’m stupid because I have a big imagination.”
“I like being with my dad in (Southern Tasmania). He is kind, and I just want to be with him.” Dad lives in a small cottage in (Southern Tasmania). Works at the (family business) with his father. Looking forward to spending holidays with Dad. Often stays with Nan while Dad is working in the (family business) although enjoys doing some jobs at the (family business) with Dad and Pop. “I want to be with my Dad.”
“Mum said I can’t go and live with Dad, and that it would be against the law.” Advised (the child) that this is not the case, and talked of different arrangements and Orders and that (the child)’s views would be considered in making decisions, given her age. Advised would attempt to get information for her to read.
[3] She does not like mushrooms and wants to put tomato sauce on them.
I pause there to express my concern about the social worker giving a 10‑year‑old legal advice. However, I have a lot more criticisms of the social worker.
The social worker went on:
Discussed implications of not gaining consent when seeing school social worker. (The child) advises she was very good at not saying anything, and that she doesn’t “want anyone to know”. She expressed concern that she would get into trouble if her mother and step-father sound out (sic) and might get a “flogging”. “Well, not a flogging, exactly, but ...”
I am really not quite sure what she meant by that. The report continued:
Confidentiality was discussed, agreed to weekly contact to discuss issues and support. (The child) advised that she wanted the support and opportunity to talk. Explained the school’s duty of care allows us to put this support in place.
I will comment about “the school’s duty of care” below.
On 5 December 2011, there was a follow-up session. The child completed what would appear to be a self-assessment of her mood by ticking boxes from 1 to 5. The social worker reported:
Advised very worried, and this relates to living with (the step-father). Whenever he is near me, I “(showed this by putting her hand against her head and physically cowered) .. I always think that he is going to do something to me.” He “will flick water at me if I’m washing up”, for example. He always wants to play-fight, and I don’t like it.” He has “left bruises a couple of times on my legs because he play-fights too hard”. It’s not school I am worried about, just at home.
“I really want to live with Dad. I think that I might talk to him when I am on holidays. My confidence should be at a 5,[4] but is at a 2 because of things at home. (Little sister) gets her own way all the time. They say that I read too much, but I like reading about animals.”
[4] Presumably on the 1 to 5 scale.
Also on 5 December 2011 the social worker noted her phone call to the Family Relationship Centre to obtain “age appropriate information re family and parenting orders etc”.
I now backtrack bit, so I’m a bit out of chronological order here, but on 2 December 2011 the social worker had sent an email to three staff members at the child’s school. It is the second paragraph, the one I have already referred to (earlier in discussion with counsel) about the advice from the Solicitor General that I find interesting. What the social worker says is:
As there are safety issues for (the child) and she has been distressed at school about what is happening at home, the Legal Services Unit would support my involvement, even if Mum found out and said I couldn’t see (the child). I have attached a copy [a little dated but now still relevant] from the Solicitor General which would support my involvement also. Given our Duty of Care to (the child), I can and will continue to see her provided we think that it is in (the child)’s best interest for me to do so. If my involvement was likely to place her at risk of harm we would need to reconsider. If Mum angrily rings you and says I am not to see (the child) it can be reasonably argued that I have a Duty of Care to see (the child) where she has requested my support. (A named person) from the Legal Services Unit advises that parents are welcome to ring them if they have concern around parental consent and Social Workers seeing students. The number of legal services is (number provided).
I have absolutely no idea how the mother could do anything about that, because she was being kept in the dark. I am afraid that I have a very different view of the social worker’s “Duty of Care” from that which she holds.
In my view, it is clear that the Family Law Act 1975 (“the Family Law Act”) contains a complete code relating to parental responsibility for children of a marriage. The Full Court of the Family Court made a statement to that effect in Waters and Waters and Townsend,[5] when it said:
Looking at the Family Law Act as a whole, it is obvious that as far as constitutionally possible the Act is intended to cover the field in relation to the welfare of nuptial children.
[5] (1978) FLC 90-428 at page 77,168
However, since amendments to the Family Law Act in 1988, it also covers parental responsibility for ex-nuptial children in those States that have referred their powers over these matters to the Commonwealth. In this regard, the Tasmanian Act referring those powers to the Commonwealth is the Commonwealth Powers (Family Law) Act 1987 (Tas). Inter alia, section 3 of that Tasmanian Act referred to the Commonwealth its powers in relation to “the custody and guardianship of, and access to, children”. It is clear therefore that the Family Law Act is a complete code relating to guardianship of children in Tasmania who are not the subject of orders under the Children, Young Persons and Their Families Act 1997 (Tas) (“the State Act”).
It is clear that since 1987 the term “guardianship” has been replaced by the term “parental responsibility”. Section 61B of the Act states that “parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”[6] and section 61C(1) states that “each of the parents of a child who is not 18 has parental responsibility for the child”.
[6] My emphasis
I know of nothing in the Family Law Act or the State Act that states that a teacher’s or social worker’s “duty of care” overrides the parental responsibility that by law is vested in the hands of the particular child’s parents.
I continue with the social worker’s case notes. On 12 December 2011 the social worker saw the child again and noted:
(The child) advised that she had many jobs to do tonight, “water for dogs …clean the bathroom, toilet and shower … wash up and tidy and fold and put the clothes away.” When discussed potential to talk with parents about this (the child) advised that “I don’t say anything because I will get into trouble”. “Mum is really strict and (the step-father) is getting to be just like her”. Advised was difficult to always get folding clothes right and Mother always says that I “cut corners”.
Interestingly she then added:
“I wanted an ice cream yesterday and Mum wouldn’t let me have one. They don’t care that I had spent all afternoon playing with (little sister)” “it is just not fair … I shouldn’t have to go and get (step-father)’s beer from the fridge, he can get it himself.” They said “I had to go Christmas shopping yesterday but they never listen to what I want to buy so I don’t see the point in going”.
Between 12 December 2011 and the next term the child spent an extended period of time with her father during the Christmas holidays.
On 16 February 2012 the social worker spoke again with the child. The report reads:
(The child) advised that she had spent a number of weeks with her father throughout the holidays. She had a conversation with her father about what was happening whilst in her mother’s care, had talked about “Sept” as a possible time to go and live with her father.[7] No Family Court, nor Parenting Orders in place as she understands.
(The child) talked of spending time with father’s children, particularly son, as now separated. (The child) advised that perhaps she didn’t want to go and live with the father until after (step-father) and Mum built their new house. Advised that she had also ridden a horse over the holidays although she “hates and is scared of horses”. (The child) impressed with herself on having done this as well as having spoken to her father re how she was feeling.
(The child) advised mother working in [location omitted] and leaves early Monday morning and returns Friday night. That is OK, “she’s nastier than (step-father). He is the disciplinarian, is that the right word?”
[7] I presume that is a reference to September
Was looking forward to the school year and happy with the teachers for the year.
On 21 February the social worker spoke again to the child. She reported:
(The child) appeared upset and advised “(Step-father) hit me 5 times in the head last night. (Little sister) was hitting me with a brush and it hurt … the bristles hurt … and she wouldn’t stop …and she was saying things to me … I told (step-father) because I wanted her to stop … he told me to shut up and hit me on the head with his hand. I have a headache and my head is sore. I am sick of it. I went to my room and cried. I am their slave…”
(Step-father) was shooting me with a water pistol, he just kept doing it … I told him I didn’t like it ..but he kept going .. I hated it. I think that is why I can’t hear properly...”
Then the social worker added:
Potential hearing issue? Noted (the child)’s concern. Follow up with parent/s when possible.
That is not the only mention about (the child)’s hearing difficulty.
Further down in that report on 21 February the social worker:
Showed (the child) the ‘Rights of the Child’ list and talked of her Right to be Safe from Harm. (The child) advised that most of her Rights were not allowed, eg, Right to make Mistakes “they just call me stupid.”
Further down the social worker notes:
(The child) talked of how (her step-father) used to be fun before (her little sister) was born but now that had all changed.
On 22 February 2012 the social worker spoke to a named child protection officer and noted:
Spoke with (named officer). Advised will undertake a file review and Domestic Violence Check. No further action will be taken at this stage given (the child)’s reluctance for [name omitted] to have any knowledge of her concerns. Agreed, unless further indications of contact become warranted.
I am not quite sure what that last sentence means.
On 22 February2012 the social worker had a very lengthy conversation with the father and she reported:
(The father) hoped that (the mother) is open “to discussing matter. (The father) advised that “(the mother) and I tend to disagree and is hard to sort things out over the phone. Expressed “worried … about how to sort out the matter, particularly without exposing (the child) to conflict as the matter…” Advised legal advice regarding this issue should be sought and that I could provide contact numbers could be provided if needed (sic).
At that time the social worker seemed to be in the business of advising the father about his legal entitlements while still keeping the mother in the dark.
On 22 February 2012 the social worker sent an email to two of the staff at the school. Some of it is crossed out because of child protection matters, but in that email she said:
I also had a long conversation with (the child)’s father and I think he now has a good understanding of what is occurring for (the child). He is going to have a conversation with (the child)’s mother and advised he will support (the child) in whatever decision it is that she makes, including if she wants to move into his care. It appears that the attachment between (the child) and her father is very strong.
It is also referred to in the social worker’s long report of her conversation with the father that he was going to speak to the mother. Unfortunately, it did not happen.
On 27 February 2012, the social worker reported:
(The child) advised that she hadn’t talked to her Mother about what she wanted to do. Stated she was … “too frightened” to do so. Reassured (the child) that her Mother and Father would, as adults, sort it out for her and that it wasn’t up to her to tell if she didn’t feel OK to do so.
I just pause to reflect upon that how the social worker could reassure the child that her mother and father would “sort it out”, if her mother was being kept completely in the dark.
The social worker finished her note of 27 February 2012 as follows:
Talked of strategies and protective behaviours, how to feel safe and look after herself. In discussion (the child) identified a love of reading, particularly Emily Rodda’s Deltora Quest series and TV program based on the books. Watched an episode of the series before (the child) returned to class.
That’s not the only reference to her watching DVD of the Deltora Quest. I do not know what it is, but it is obviously something she liked. I gained the impression, and it is only an impression, that she has been given a reward for having discussions with this particular social worker, and there is another reference to watching yet another episode of the Deltora Quest on 15 March 2012.
On 28 February 2012, the social worker had another telephone call with the father. She noted:
(The father) advised that he had called (the child) and spoken to her. He told her telling Mum “isn’t something she has to do by herself … I can speak to Mum first … or together … want the best thing for (the child).[8]
(The father) expressed concern about how to communicate with (the mother) about what (the child) wants to happen. Expressed uncertainty about whether to tell her in person or by phone or “how can we negotiate … If I have to tell her she won’t like that … not going to be an easy communication. It is not going to be an easy conversation but must put (the child)’s interests first … I don’t want it to be (the child) that gets the brunt of that”.
Expressed concern the “I don’t know where I stand”. Have no Legal document about care. Advised changes can be made in parenting arrangements. Orders can be changed or renegotiated, negotiated but useful to have if there are any issues around care. Advised that given (the child)’s age her views would be considered but legal advice should be sought.
(The father) discussed having an understanding of children leaving the care of their parents and accusations about protective issues. (He) stated that he wanted (the child) to have a relationship with her Mother and that it was important to sort this matter out so that the relationship was not damaged.
[8] That conversation between the father and the mother did not ever take place.
Advised (him) that he should contact child protection if he sought to and gave contact numbers.
As counsel are aware, I am skipping over quite a bit of the social worker’s notes. On 5 March 2012 she reported:
(The child) advised that she has had a reasonable weekend. Yesterday was quite relaxed and had a chance to read. On Sat she had been to a pet store and had her ears pierced as belated birthday present. Was anxious however that she had lost the disinfectant spray and that her Mother would be upset. Alternate and non cost incurring treatments were explored in case the spray not found.
The social worker was now giving medical advice, in addition to legal advice.
Further down, on 15 March 2012 she noted that the child was relieved because she had found the spray.
Also on 15 March 2012, in discussion with the social worker, the child:
Mentioned that (the step-father) had hurt wrist at work “not sure if broken …hit with a sort of heavy hammer.
And then the child watched another episode of Deltora Quest.
On the very next day, 16 March 2012, it appears the social worker attended a concert to farewell the school principal and the child approached her. The report reads follow:
(The child) approached me after concert to farewell school Prin. Advised “I don’t want to go home. (The step-father) said he will break my wrist last night.”
So, within a day, it has move from the step-father having a possible broken wrist to him threatening to break the child’s wrist. The report then says:
“I want Dad to come and get me.” Talked to (the child) of difficulty in Dad being able to immediately come and get her. The travel time, whether he was able to do it and that he would need to sort out the move with Mum.
On 16 March 2012, the social worker reported the alleged threat to break the child’s wrist to Child Protection (as the social worker is required to do). On the same day, she made a telephone call to the father and told him about a threat to break the child’s wrist.
We then move to the day in question, 19 March 2011. The social worker wrote this:
Advised upon attending (the school) (the child) very distressed. Upon meeting with (the child) she stated, “I really don’t want to go home …they are so mean”. Did not explore further at this stage. Was advised (the child) hadn’t had breakfast. Cooked breakfast together, toasted cheese and milo. (The child) appeared more settled.
When inquiring about weekend (the child) advised, “I ran away from home on Friday night. I got to the bridge and turned back … I had $136 I had taken from (step-father)’s wallet [know when he was asleep from the way he snores]. [(The child) demonstrated.]…I thought I might be able to get a taxi to Hobart”. [Upon return “put it back so he didn’t know it was missing] took my teddy, a torch and blanket in case I found somewhere to stay. I walked to the bridge, turned back because I thought all those people who could help me would be asleep.” When inquired about time this occurred, (the child) advised …left about midnight and got, back about 1.30 am. “Don’t tell (step-father). He hits me all the time. He hit me again at the weekend.”
Talked further about running away and (the child) advised that “I’ve run away before – got to near [location omitted] and the police found me and took me home. I told them why I was doing it and they dropped me off quietly so that I didn’t get a hiding. I was going to (a friend’s) house. Have tried a couple of other times but got caught.”
As I understand it, the advice from the bar table from the Independent Child’s Lawyer was that the child has completely withdrawn that allegation. As I understand it too, the broken wrist allegation has been withdrawn. Further, I understand that the child has also said she is not so sure that the step-father caused bruising with rough play.
It is quite clear then that the social worker then assisted the child to make a phone call to her father. The social worker noted:
“(The father) advised that he was going to leave work immediately and come and collect (the child) from school today.”
The social worker then encouraged the child to return to her class.
Her report continued:
Following the call the child talked of having knots in her stomach “the size of Russia – no, Russia and Japan combined.”[9] Was fearful of the prospect of leaving school with her father. Exressed concern that her mother might come “you don’t’ know Mum ... you haven’t seen Mum or (the step-father) when they’re really mad.”
[9] I am not sure that I would have known how big Russia or Japan were when I was ten years old. The child is obviously a bright young lady.
Reassured (the child) that adults would keep her safe and protected.
The social worker made a phone call on 19 March 2012 to the Legal Services Unit of the Education Department. Her note reads:
Advised that as there are no Orders in place and have a Duty of Care to (the child), School cannot stop Dad from taking (the child) into his care. Once safely in her Father’s care, contact the Mother and/or Stepfather, given safety issues.
Her note continues:
Advised this is a Family Court matter that needs to be sorted out by them.[10] School is to remain impartial in determining the outcome of Family Court matters.
[10] I presume that “them” refers to the parents.
That is the first time any impartiality is mentioned at all. I have already made my comments and stated what I think about that. It appears that the social worker thinks that the law provides that her “duty of care” somehow overrides parental responsibility. I do not need to repeat what I have said about that.
It is clear to me from reading through the Education Department documents that, with the telling, the child’s story gets better and bigger each time. This child is said, not only by her mother but also by others, to be imaginative. I have already made comment about having butterflies in her stomach as big as Russia. She clearly is imaginative. What concerns me is that the Education Department generally, and the social worker in particular, have put all the power into the hands of a ten year old. The Education Department would not tell her mother what the problem was, when the mother and her husband were perceived to be the problem.
The mother has been denied procedural fairness from the start. It is almost laughable that it is only at the very end of the process (i.e. after the child has been allowed to be taken away by the father with the assistance of the school authorities) that the legal officer at the Education Department says: “We’ve got to remain impartial.” From November 2011 to March 2012, the Department did not remain impartial. It kept the mother in the dark, and did so quite inappropriately.
Under the Family Law Act and under the State Act – two Acts that are concerned about the welfare of children - there is no reference to a “duty of care” overriding “parental responsibility”. Indeed, section 8 of the State Act sets out the principles to be observed in dealing with children Subsection (1) reads:
(1) The administration of this Act is to be founded on the following principles:
(a) the primary responsibility for a child's care and protection lies with the child's family;
(b) a high priority is to be given to supporting and assisting the family to carry out that primary responsibility in preference to commencing proceedings under Division 2 of Part 5;
(c) if a family is not able to meet its responsibilities to the child and the child is at risk, the Secretary may accept those responsibilities.
Subsection (2) reads in part:
(2) In any exercise of powers under this Act in relation to a child –
(a) the best interests of the child must be the paramount consideration; and
(b) serious consideration must be given to the desirability of –
(i) keeping the child within his or her family; and
(ii) preserving and strengthening family relationships between the child and the child's guardians and other family members, whether or not the child is to reside within his or her family; and
(iii) not withdrawing the child unnecessarily from the child's familiar environment, culture or neighbourhood….
It seems to me that those guarding principles were certainly not observed by the Education Department.
Now, as I have indicated, the State Act provides for certain powers in relation to children. The State of Tasmania is not exercising its powers under that Act in this particular matter – they have left it to this Court. While I certainly have been given the power to override parental responsibility,[11] it is my opinion that school social workers do not have that power, and it makes not a blind bit of difference to refer to a “duty of care”.
[11] By virtue of my appointment and jurisdiction under Part VII of the Family Law Act
Relevant law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act. The court must consider the best interests of the child as the paramount consideration[12].
[12] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [13]
[13] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children[14].
[14] See subsection 60B(2)
Discussion
I do not want the father to go away thinking that I am being critical of him in relation to this matter – I am not. Perhaps, the only criticism that one could possibly level is that he did promise to talk to the mother to help the child but did not follow through. However, I presume that circumstances overtook that desire, and no doubt the phone call on 19 March 2012 was sufficient to galvanise him into action and get him into his car to drive north to pick her up. I am not being critical of the father at all. I think he has the child’s best interests at heart.
Unfortunately, I find it very hard to know what the truth is in this matter. The child has made numerous allegations about excessive corporal punishment. She has made some exceedingly detailed comments about running away, taking money out of her stepfather’s wallet and then sneaking back again and putting it back in his wallet. I note that $136 is an interesting sum, because that would have needed at least one coin. However, the child went into quite a lot of detail about that, but then withdrew her allegation. She also withdrew what she said about a threat to break her wrists and she withdrew her allegation about responsibility for bruising.
I commented during the hearing of this matter that I do not have what one normally has in cases of excessive discipline or corporal punishment - I do not have any photographs of bruising.
One example is – I cannot remember the exact date, but I think it was right at the start of the allegations in November last year - where the child went to school, claimed to have been punched in the face by her mother, yet there was no mark. Had she been “punched” in the face by her mother, I would normally have expected that there would have been some sort of mark still visible when she got to school, but it was not.
It is clear from reports by the child that a number of things concern her:
·one is that her little sister is getting a lot more attention than she is; and
·another is that her step-father is not quite the nice guy he used to be, now that has two children to worry about rather than just one.
When I give consideration to those matters that I need to consider under section 60CC of the Family Law Act, I find that the two “primary considerations” are clearly in tension with one another in this particular matter, as they so often are. The first “primary consideration” is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[15].
[15] Subsection 60CC(2)
Dealing with the second of those first, it is clear that the High Court and the Family Court have often stated that courts should not make orders that expose children to an unacceptable risk of abuse. Most of those cases relate to risks of sexual abuse, and quite clearly that is not a factor in this matter. There are suggestions of physical abuse and of emotional abuse (in terms of name calling). However, it’s clear that the resolution of any allegation of abuse is subservient and ancillary to the Court’s determination of what is in the best interests of the child.
Now, I will not quote the well known long paragraph from M & M,[16] but it seems that “serious risk of harm”, “an element of risk”, “an appreciable risk”, and other phrases like that have now all been crystallised into the term “unacceptable risk” and courts should not make orders that will expose a child to an unacceptable risk.
[16] See In the marriage of M and M (1988) FLC 91-979 at page 77,081
In Lindsay and Baker,[17] Bryant CJ said the following that was clearly intended to give guidance in relation to the application of a test of “unacceptable risk”:[18]
The trial Judge discussed at some length, without apparent error, the standard of proof applicable to the allegations by the mother that the father had sexually abused the child and the unacceptable risk question (para 76 - 106). I agree with Finn J that it seems unnecessary for anything to be said beyond the broad general guidance given by the High Court in M and M (1988) FLC 91-979. That said however, the concept still frequently proves to be a difficult one to apply and the description by his Honour in paragraphs 78, 79 and 80 which are repeated below, in my view, provide a useful summary of what is required:
“78. The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of unrestricted contact. Under the High Court's formulation in M v M [(1988) FLC 91-979; (1988) 166 CLR 69], where a court makes a finding of unacceptable risk it is a finding that continued contact might do more harm than good or a conclusion that its perceived advantages are outweighed by the potential disadvantages. However, a finding of unacceptable risk in respect of unsupervised contact does not preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered.
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.”
[17] (2007) FLC 93-347
[18] Commencing at paragraph 3
Now, it seems to me that it is almost impossible at this point to say whether the child has been inappropriately physically chastised by her mother and/or stepfather.
What I can say is that I get the impression that the child has an imagination - an imagination that would go so far as to making up a story that, in the middle of the night one night, she not only took $136 out of her stepfather’s wallet, she went wandering off on her way to Hobart and got as far as “the bridge”. I do not know which bridge it was, but she got to that bridge, turned around, went back, put the money back in her stepfather’s wallet and went back to bed at about 1.30 in the morning. Her story gives the impression that during all that time, her step-father was sleeping and snoring. However, she has now completely withdrawn that story.
Her story went further. She said that there were a number of other occasions when nice, friendly police officers picked her up and took her back home but did not actually report it to anybody because they did not want her to get into trouble. That does not add up, and I note that she has withdrawn all of that.
She made an allegation that her stepfather was going to break her wrists, or threatened to break her wrists. She has withdrawn that allegation, and the allegation that I have already mentioned about the bruising.
It seems clear to me that the child has some concerns about living at home with her mother. They include:
·her little sister getting some sort of preferential treatment;
·her stepfather being not quite the “nice guy” he used to be before her little sister came onto the scene; and
·having to do chores.[19]
[19] She clearly does not like doing chores, but to be perfectly frank, I have not met a child who does like doing chores. I didn’t like doing them when I was a child.
I can only wonder whether she was she making mountains out of molehills.
My concern in reading the social worker’s reports is that when she makes some sort of disclosure, she gets some sort of reward. She gets to watch her favourite television program. She gets breakfast. She quite clearly got upset because she wasn’t given an ice-cream by her mother at some point.
We all need to keep in mind that this child is 10 years old. She is not an adult, and the trouble is that the social worker, who has come under some fairly heavy criticism from me, has treated her exactly like an adult. She has even tried to access some legal advice for her, which was in my opinion quite inappropriate. In my view, all it has achieved is to muddy up the water.
Further, it is my opinion that one of the biggest mistakes in this whole matter is that the Education Department [20] decided to tell the mother nothing. I have absolutely no idea how the problem could be resolved without confronting the mother about what the problem was thought to be.
[20] The social worker, in particular, but it included others as well
I think I can be confident that if the child goes back to live with her mother, then her mother and the stepfather are going to be “walking on eggshells” for quite a while. They will know that if they step out of line, the child will run off and report it to somebody, because she has been doing that since November last year, and it seems to me, almost being rewarded for it.
As I have said, I do not criticise the father at all about this, but what has happened is that the child has been removed from the company of her mother in circumstances when the mother could do very little about it,[21] and the Department of Education have had a large hand in it.
[21] She was on an aeroplane with her phone turned off.
I turn now to other factors under section 60CC.
Probably the factor that will loom large in relation to this whole matter is the wishes or the views of the child. It seems clear that, at least for some time, she has been saying she would prefer to live with her father. However, a child’s views are not totally determinative of the whole issue; it is but one of the section 60CC factors that I need to take into account. I am not trying to belittle its importance at all, but we do have to remember that the child only turned 10 years old this year. She does not have an adult head on her shoulders; that much can be seen from her getting upset because she did not get an ice cream or get to watch a particular television program.
It is quite clear that she is an imaginative child and, in my view, a child’s wishes, at age 10, should not be the determining factor in relation to an interim order, even if they are expressed reasonably strongly.
The practical difficulty and expense of child spending time or communicating with a parent will always exist if one parent continues to live in the north of the state and the other continues to live in the south. That three-hour drive will always be there.
There has been a significant change in the child’s circumstances. Until 19 March this year, the child had been living with her mother and her stepfather for a number of years, while spending regular time with her father (which she obviously enjoys). However, she has been living predominantly with her mother, and that is what should continue until this matter can be properly investigated, and I will talk a bit later about the investigations that may need to be done.
As counsel are aware, there are other factors to consider under section 60CC, but I just do not have enough information to make any comment about many of the other factors under section 60CC.
However, what does concern me about this matter is that the child has made various statements and later retracted a number of them. Some of her statements that she subsequently withdrew were exceedingly detailed. According to the mother, the child wrote an unsolicited letter to the mother about her lying. In their useful report to this Court, Child Protection refer in a couple of places to the child admitting to lying. One was in relation to the alleged threat to break her bones; that is referred to on page 8.[22]
[22] It says: “(The child”) says she lied about this and her step-father has never threatened to break her bones and she does not know why she said this.”
Child Protection are clearly not sufficiently concerned to stay involved in the matter, and they say at page 14:
At this stage the risk to (the child) in the care of her mother and stepfather has not been assessed as requiring statutory intervention by Child Protection. If it is decided by the Family Law Court that it is in (the child)’s best interests to return to her mother and stepfather’s care, it is recommended that family counselling is arranged…
Now, it seems to me that all parties, including the Independent Child’s Lawyer, are in favour of some counselling for the family. It will provide all family members with a safe place to discuss any issues that arise and help them come up with solutions or strategies to address those issues. (The Child Protection report noted that Relationships Australia would be able to assist with this).
DISCUSSION ABOUT THE FORM OF ORDERS AND PROCEDURAL MATTERS WAS RECORDED, BUT NOT TRANSCRIBED
I can say that I considered the question of specifically restraining the social worker from continuing discussions with the child, but I decided against it. However, I will prevail upon the Independent Child’s Lawyer to let the legal officer in the Legal Services Unit of the Education Department know of my significant disapproval at the way in which this matter has been handled. I think they were wrong, and you have heard what I have said about what they think is a “duty of care” that overrides “parental responsibility”. I confirm that I gave serious consideration to making an order restraining the social worker, but in the end I chose not to. One hopes that some good sense can prevail.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Roberts FM
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