Prior and Reberti

[2008] FamCA 938

FAMILY COURT OF AUSTRALIA

PRIOR & REBERTI [2008] FamCA 938

FAMILY LAW – CHILDREN – where parties withdraw proceedings – where family report and subpoenaed documents raise serious risk issues – where child welfare department declines the Court’s request to intervene in proceedings – report and papers referred directly to Director-General in the hope it will conduct assessment of the child’s situation

APPLICANT: Ms Prior

RESPONDENT: Mr Reberti

FILE NUMBER: NCC 1549 of 2007

DATE DELIVERED: 9 September 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 9 September 2008

REPRESENTATION

APPLICANT: No appearance

RESPONDENT: No appearance

INDEPENDENT CHILDREN’S LAWYER: Mr Foat

Orders

1. That the Father’s Response filed on 21 September 2007 is dismissed for want of prosecution.

2. That a copy of these Reasons are to be forwarded by the Registry Manager to the Director-General of the Department of Community Services.

3. That the Independent Children’s Lawyer application for costs is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Prior & Reberti is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1549 of 2007

MS PRIOR

Applicant

And

MR REBERTI

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. On 17 May 2007 Ms Prior (“the mother”) commenced these parenting proceedings.  In essence she sought to discharge contact orders made on 19 February 2007 at D Local Court and in lieu obtain orders that the parties' son live with her and spend time with his father at a contact centre.   The proceedings relate to the parties’ son born in July 2005. 

3. The respondent, who then called himself …, but now calls himself Mr Reberti (“the father”), filed a Response on 21 September 2007.  In essence he agreed that the child would live with the mother and proposed that he spends time with him unsupervised and with arrangements being made for changeover at D rather than Y Railway Station.

4. The proceedings came before a Judicial Registrar who, having heard from the parties, made orders suspending the father's time with the child as provided for in the D Local Court orders and made provision for the father to have weekly supervised visits.  The interim orders anticipated that the parties would agree on the identity of the supervisor.  At the same time the Judicial Registrar ordered a family report. It is noteworthy that at the mother’s request the Court devised a safety plan to ensure her protection from the father while she was at court.

5. The family report was duly completed and released on 19 December 2007.  The report recommends that the child lives with the mother and that she has sole parental responsibility.  Concerning the child’s relationship with the father, the family consultant says this should be supervised at a secure and neutral venue by a person independent of the parties.  The family consultant recommends that the mother attends counselling specifically for victims of family violence.

6. The family report summarises well the parties and child's circumstances.  From this report it is apparent that the father has a history of violence, crime and drug use.  This is consistent with the mother's evidence and underpins, I infer, the rationale for the earlier orders restricting the father’s contact with the child to a supervised setting.  The family report also identifies significant risk issues for the child concerning the mother.  There is evidence of homelessness, violence and an inability to protect the child from exposure to violence and an antisocial milieu. 

7. After the family report was released the proceedings were placed into the queue of cases awaiting the allocation to a Division 12A first day hearing.  In anticipation of this and no doubt as a consequence of the information contained in the family report and the subpoenaed material, on 20 August 2008 Registrar Kearney, with the support of the Independent Children's Lawyer, requested that the Department of Community Services intervene in these proceedings.  Yesterday the Department of Community Services informed the Court it would not be intervening. 

8. It is the Court’s and Independent Children’s Lawyer understanding that the parties have come to an agreement whereby the child now lives with the father and spends time with the mother on weekends and at other time by arrangement.  In a recent telephone call the mother advised the Court she was content with the child continuing in the father's care as "he is now on home detention and not taking drugs any more".  Following this telephone call the Court unsuccessfully attempted to encourage both parties to attend this hearing.  We have been unsuccessful. 

9. On 5 September 2008 the mother filed a Notice of Discontinuance in which she stated that the child is living with his father. 

10. There is a large volume of subpoenaed material produced from agencies such as the NSW Police, Corrective Services, Probation and Parole, and the like.  The information contained therein from a child protection perspective is highly concerning. 

11. The Independent Children's Lawyer made the point today that these are proceedings inter partes and in circumstances where the parties have abandoned the proceedings, there is nothing further the federal jurisdiction can do particularly in a case such as this where, having invited the Department of Community Services to intervene, it has decided not to.  No argument can be taken with the submission, and it is plain there is nothing more that the Court can do in order to be satisfied that the child’s parents have made appropriate decisions for his care.  It is sufficient to observe that relatively recently a Judicial Registrar was satisfied that the child’s time with the father should be limited and supervised.

12. Faced with the parties’ abandonment of the proceedings, I have reluctantly accepted there is nothing further the Court can do to promote the child’s welfare.  Because I am very concerned about this child I will order that these reasons are sent to the Director‑General of the Department of Community Services together with the family report.  It is my sincere hope that although these proceedings are ended the Department of Community Services will, on the community's behalf, conduct its own assessment of the child’s situation and if he is at risk, take action in the state system to make him safe.

13. For these reasons I make the orders and notations identified at the start of this judgment.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  5 November 2008