Qualey & Shackford
[2022] FedCFamC1F 239
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Qualey & Shackford [2022] FedCFamC1F 239
File number(s): ADC 426 of 2017 Judgment of: KARI J Date of judgment: 18 March 2022 Catchwords: FAMILY LAW – PARENTING – final orders made on 14 January 2021 – sole parental responsibility to mother – child live with the mother – finding at trial that the father presented as an unacceptable risk – Department for Child Protection removes child from mother’s care – child placed into the care of the father – mother fails to engage in proceedings – all previous orders discharged – proceedings dismissed Legislation: Family Law Act 1975 (Cth) ss 69ZW, 91B Division: Division 1 First Instance Number of paragraphs: 110 Date of hearing: 18 March 2022 Place: Adelaide Counsel for the Applicant: Ms O’Connor SC Solicitor for the Applicant: Adelaide Family Lawyers Counsel for the Respondent: Mr Dillon Solicitor for the Respondent: Andrew Hill and Co Counsel for the Intervener: Mr Lewis Solicitor for the Intervener: J Richard Croft ORDERS
ADC 426 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS QUALEY
Applicant
AND: MR SHACKFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
Intervener
ORDER MADE BY:
KARI J
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.That all previous parenting orders in relation to the child X (born in 2010) be discharged.
2.That all extant applications (NOTING that no applications are presently being pressed by either party) be dismissed.
3.That the appointment of the Independent Children's Lawyer be discharged.
4.That the proceedings otherwise be dismissed as finalised.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J
These proceedings concern the child, X, born in 2010 who is currently aged eleven and a half years old.
Sadly, for X, he has been the subject of proceedings in this Court for an extended period of time. The proceedings commenced originally in this jurisdiction in February 2017 in circumstances where his parents had separated some time prior to that in 2016.
The proceedings took a long time to proceed to trial and I ultimately heard a trial in the matter over an extended period of time, commencing on 11 June 2019. The trial itself concluded on 31 July 2020, and I delivered judgment on 14 January 2021.
I do not propose at this juncture for the purpose of these reasons to repeat the history of the matter, or what occurred as part of the trial process, because I delivered a very lengthy judgment in the matter of some 97 pages. For the purpose of these reasons, I refer to, rely on and incorporate the matters set out in those reasons today.
To take the matter forward to where the proceedings were left when I delivered my reasons and made orders on 14 January 2021, I ultimately made orders changing X’s primary care arrangements, such that they moved from the primary care of the father to the primary care of the mother. I made orders on a final basis providing for the mother to have sole parental responsibility for X and for X to live with the mother. I also made an additional range of associated final orders.
I also made a range of interlocutory orders directed to the father’s time spending and the progression of his time with X. The reason that time spending was dealt with on an interlocutory basis, rather than final orders, was because of the matters and the findings I had made, as contained in my reasons, so far as concerns relating to the risk to X in the father’s care.
What I ultimately determined was that I was not in a position to finalise any time spending arrangements for the father at that juncture. Rather I considered it appropriate that the matter return to Court for me to hear further evidence with respect to the discrete topic of X’s time spending with the father.
The regime for that to occur did not ultimately pan out the way my original orders had intended, because of delays in the parties being able to take up time spending at a supervised contact service. Be that as it may, I, ultimately, did commence hearing the proceedings so far as the father’s time spending arrangements with X is concerned on 14 December 2021, and the matter proceeded to hearing over a period of two days.
That hearing process, however, was derailed as a consequence of evidence that I heard during the course of the hearing.
So far as that hearing is concerned, I had the benefit of the parties having filed affidavit material. The mother was dux litus for the hearing and to that end she was cross‑examined first. During the course of her cross‑examination, however, matters of some significant concern were disclosed by her.
I pause to record that the hearing itself took a somewhat unusual path over the two days that it was listed. That arose in circumstances where, during the middle of cross‑examination of the mother by the father’s counsel, and at a point where it must be said the mother’s evidence and her credit were being challenged, the mother indicated to the Court that she had issues in continuing to give evidence that day. The mother indicated to the court that she had recently undergone surgery for a hysterectomy, I think it was, in the weeks prior to the hearing, she went on to indicate that she was on strong pain medication and that she was concerned about the clarity of the evidence that she was giving.
In circumstances where the mother raised those matters with the Court, I ultimately stood the matter down to enable the mother’s solicitor and counsel to take instructions. Ultimately an application was made to adjourn the matter to the following morning, to enable the mother to deal with her health issues.
The matter proceeded the following day and the mother continued to give evidence.
Ultimately the mother’s evidence was such where concerns arose that there had been reports made to the Department for Child Protection in recent times in relation to X’s care in the mother’s home. Understanding that the mother had the primary care of X and pursuant to the orders that I had made in January 2021, the father was only, at that stage, having supervised time with the child.
The disclosures made by the mother during the course of her cross‑examination were very concerning and it appeared that at least one, possibly more, mandatory reports had been made by others to the Department for Child Protection. During the course of her evidence, it appeared that a mandatory report may have been made by the child’s school.
In any event, I ultimately stood the matter down to enable urgent inquiries to be made of both the co‑located worker from South Australia Police and the co‑located worker from the Department for Child Protection. Those inquiries to the credit of both the Department and the South Australia Police were responded to very quickly. The Court is indebted to both for the speed with which they were able to respond to the Court’s communications and inquiries.
Ultimately as a consequence of those inquiries, the Court became aware that there had been more than one report made to the Department for Child Protection in relation to X, in the lead up to the hearing that took place in December 2021.
As a consequence of the events which transpired during the hearing, all parties agreed that it would not be appropriate for the matter to proceed to a conclusion at that juncture. Ultimately, I made orders adjourning the matter and I also made orders pursuant to section 69ZW of the Family Law Act 1975 (Cth), to obtain detailed information from both the Department for Child Protection and South Australia Police.
After I adjourned the proceedings, I also determined and made an order in Chambers, pursuant to section 91B of the Family Law Act 1975 (Cth) inviting the Minister for the Department for Child Protection to intervene in the proceedings. That order directed to the Minister for the Department for Child Protection and the consequences of the making of that order, made these proceedings take on an entirely different course.
As a consequence of the order inviting the Minister to intervene in the proceedings, the Department for Child Protection conducted an investigation. That investigation took place across early February 2022. In the course of that process, the Department themselves became immediately very concerned about the safety of X in the mother’s care. I have the benefit of several reports that were produced to the Court by the Department for Child Protection, as part of their investigative process.
The first report is dated 4 February 2022, the second report is dated 10 February 2022, the third report is dated 21 February 2022 and the fourth report is a much lengthier made available yesterday for the purposes of today’s hearing, and bears the date 17 March 2022.
The matter next came before the court after the adjournment of the trial process in December 2021 at a hearing on 11 February 2022. As a consequence of the reports produced at that stage, the court became aware that during the course of the Department’s investigation process, the child, X, was removed from the mother’s primary care.
X’s removal from the mother’s primary care by the Department occurred in or about early February 2022. It occurred in circumstances where in the process of interviewing the mother, the Department held concerns about X’s safety.
The court understands that after interviewing the mother, the Department attended unannounced to X’s school and conducted an interview with him. During that interview, X made what can only be described as “concerning allegations” in relation to the mother’s treatment of him and the treatment of him by the mother’s partner, Mr H. Mr H had given evidence in the trial that I had heard.
The disclosures that X made in early February 2022, included allegations of physical abuse perpetrated by each, the mother and Mr H towards him. They included allegations that:
(a)Mr H had picked X up off the ground by the throat.
(b)The mother had pulled X’s hair, kicked him on his back and stomach and pushed his eyes.
(c)Mr H had hit X repeatedly with a very hard pillow 16 times and that Ms Qualey had intervened when that incident occurred and had pulled Mr H back.
(d)X also disclosed that when Mr H is in that mood, things like this happen.
(e)X knew when Mr H was in that kind of mood “because his face goes white”.
(f)Mr H had hit him with a pillow repeatedly because he believed X should not treat the mother like he does.
(g)Mr H had restrained him by holding his arms back and pulling on his arms hard, which X described as “hurting so much I can’t really talk”.
(h)Mr H on other occasions would hold his arms down while the mother held his legs and he described being restrained by both the mother and Mr H on “most days”.
In the Department’s report to the court of 10 February 2022, the Department recorded that they were concerned by X’s disclosures and as a consequence they formed the view that X had described “significant emotional and verbal abuse” which appeared to have also been perpetrated by the mother.
The Department recorded that X disclosed:
“The mother records him on most days on her phone during episodes and at times she is smiling and it has stated “You’re fucked”.
“The mother had told him that she recorded him to show people “Who you really are” and that this occurs even when he’s not upset about anything.”
“The mother had told him that he would never see the father, [Mr Shackford], again and that “No one will believe you”.
“He was afraid of the mother as she is going to keep lying so that he cannot see the father.”
Throughout his interview process with the Department in February 2022, X is described by the Departmental worker as being:
“…emotional, crying at times – specifically when discussing the father, verbalising repeatedly throughout his disclosures that he wished to live with the father, and asked the allocated worker twice “Can you help me see my Dad, and can you help me to live with my Dad”.
X is also reported to have become emotional and cried when he discussed that he missed his stepbrother, G, and his dog, and the father’s new partner, Ms QQ.
The Departmental worker recorded at the conclusion of that interview process that X appeared to be:
“...exhausted at the conclusion of the meeting, hanging his head and rubbing his eyes. [X] was reluctant to end the conversation with the Department, and continued to engage with the allocated worker to express his feelings and wishes.”
It was as a consequence of this interview process with X in February 2022 during the unannounced visit to X at the school that the Department became extremely concerned about X’s presentation and they determined that it would not be appropriate for X to return to the primary care of the mother.
The Department at that juncture, determined that it was appropriate for X to be returned to the primary care of the father, and, indeed, that occurred that day, when X was collected from school by the father.
X has remained in the father’s primary care with no time spending with the mother since early February 2022.
When the proceedings came before me on 11 February 2022 when I had the benefit of the first two reports, I expressed serious concerns about the events that had transpired.
Understandably since learning of these events, I have been concerned and I have repeatedly expressed concerns about the state of affairs that the parties, and in particular, X, now find themselves in.
There are concerns about the disclosures that have been made by X.
Equally, however, there are concerns in relation to the decision of the Department to place X in the father’s primary care in a pre-emptory fashion in circumstances where as a consequence of the trial that I had heard and the judgment that I delivered, I had made findings that the father presented at that stage, an unacceptable risk of harm to X. In addition I made findings that I was not satisfied that X at that juncture, should be spending anything other than supervised time with the father.
The Court is very concerned that the actions taken by the Department, effectively make any process in this Court nugatory.
When the matter was before the court on 11 February 2022, the Department requested further time to investigate the matter, because at that stage, the situation had only just unravelled, and the mother had not engaged whatsoever with the Department from the time that X was removed in early February 2022.
At the hearing on 11 February 2022, the mother’s solicitor and counsel were present. The Court was provided with a medical certificate indicating that the mother was not medically fit to participate in the hearing that day. That certificate has now been filed and is annexed to an affidavit sworn by the mother’s solicitor on 17 March 2022.
The certificate is dated 10 February 2022 and it sets out the following:
“[Ms Qualey] has a medical condition and will be unfit for work from 10 February 2022 to 11 March 2022 inclusive. She is psychologically and mentally unstable at this stage and incapable of making a sound decision.”
What I was told for the purposes of the hearing on 11 February 2022 is that while there had been some communications between the mother and her legal representatives, they were effectively without instructions.
To the credit of the mother’s legal representatives, they did not consider in light of the medical certificate that had been provided by the mother, that it was appropriate for them to withdraw and to cease acting for the mother.
Their concern was that in circumstances where the mother appeared to have been suffering, on their instructions, from some mental health issues, they did not feel that they were in a position to withdraw as they did not know and could not be satisfied whether the mother had the capacity to give that kind of instruction to them.
I am grateful that the mother’s legal representatives took that path. In doing so until today, they have remained as the solicitors on the Court record for the mother and they have continued to provide the mother with the information and documents filed in these proceedings, and, they have appeared today.
At the hearing on 11 February 2022 in circumstances where I determined it was appropriate to give the mother a chance to participate in this process and to give the mother’s solicitors and counsel a chance to determine whether they were prepared to continue to represent the mother, or whether they would withdraw, I determined that it was appropriate for the proceedings to be adjourned for a further period of time.
I also adjourned the proceedings because I was cognisant the Department wanted to continue their investigative process. While the Department had asked for a longer period of adjournment to enable their investigation to take place, because of my concerns as to what had occurred, I ultimately determined that I would adjourn the matter to 22 February 2022.
However, significantly on 11 February 2022, I took a course of action to try and bring focus to the process moving forward. In particular, with the agreement of all of the parties, a determination was made to conclude the trial process that had begun on 14 December 2021. One of the reasons that this was done was because the mother remained under cross‑examination and her legal representatives considered that she needed to be released from cross‑examination in order to take instructions in these proceedings, given the events that had unfolded.
In addition, it was agreed that it was appropriate to finalise that hearing process because events had superseded what the court had intended to occur in December 2021, namely a determination of the father’s time spending with the child. Whereas, as a consequence of what occurred on 8 February 2022 that process, was rendered nugatory because X had been placed in the father’s primary care.
Thereafter I also made orders suspending all previous parenting orders in relation to X.
The matter came back before the Court again on 22 February 2022. At that time, the Court had the benefit of the further report prepared by the Department dated 21 February 2022, in which the Department provided the Court with an update as to their investigative process.
On that day, the mother’s legal representatives appeared. They indicated to the Court that they remained without instructions from the mother, despite the orders that had been made on 11 February 2022.
Significantly on 22 February 2022 I made an order joining the Department for Child Protection as a party to the proceedings. I made that order in circumstances where the Department formally determined in response to the order made in December 2021 pursuant to section 91B of the Family Law Act 1975 (Cth), that they would take up the Court’s invitation to intervene in the proceedings.
At the hearing on 22 February 2022 I otherwise made a range of orders to channel the matter towards today’s hearing, understanding that the Department were continuing their investigative process.
Significantly, I made an order on the application of the father and supported by the independent children’s lawyer and the Department for Child Protection restraining the mother, during the period of the adjournment, from attending at the child’s school and/or the father’s residence at Suburb GG. I made that order because the mother at that juncture had not engaged with the Department for Child Protection, and the Department held a strong view that while the investigative process was open and given the disclosures made by X, there should be no time spending between the mother and X. I considered it appropriate in the circumstances for that injunction to be made.
I otherwise made orders, listing the matter to today’s hearing. I also made an order directing the mother to personally attend the adjourned hearing and noted that in the event that she failed to attend, then the Court would give consideration to finalising the proceedings at the adjourned hearing.
At the hearing on 22 February 2022, I again raised with the parties my concerns as to what had occurred and how the process in this Court might continue in all of the circumstances.
At that hearing, I had the benefit of the further report from the Department dated 21 February 2022. In that report, I learnt that the Department had engaged with X, not only on 8 February 2022, but also on 10 February 2022 and 15 February 2022, including home visits to the father’s home where X is residing.
In addition, the Department had engaged with X’s school.
What I also learnt from that report is that X’s school had changed from the school that the mother had enrolled the child in last year, being XX School, and that he had returned to the school that he had been attending previously when in the primary care of the father.
In addition, the Department had liaised with X’s paediatrician, Dr RR, and Child and Adolescent Health Service, and they had begun to wade through what can only be described as “a significant volume of material”, particularly material received from South Australia Police and to a much lesser extent, previous Departmental involvement with this family. The Department, however, had regard to previous Departmental records and South Australia Police records in relation to both of the parents.
There are matters contained in that report which were not known to the Court when the trial was heard. In particular, records in relation to the mother’s own child protection history were matters that were raised in that report which were not previously known to the Court.
Having said that there are matters that are discussed by the Department and reviewed by the Department in that report which were certainly matters before the Court during the trial, and about which I made different findings to the interpretation taken by the Department for Child Protection.
The court now has the benefit of a very lengthy report prepared by the Department and annexed to the affidavit of Ms SS, dated 17 March 2022. What I learned from that report significantly is the following:
(a)X has remained in the father’s primary care and that he has not spent any time with the mother since 8 February 2022.
(b)X is attending his previous school which is ZZ School. Interviews have been conducted with various staff at X’s school.
(c)Significantly, the mother has continued to fail to engage with any attempts made by the Department to engage her in their investigative process.
(d)The Department attempted to engage the mother without success on 21 February 2022, 4 March 2022 and 8 March 2022.
(e)The Department record that they are aware that the mother has engaged with the South Australia Police investigation which was commenced as a consequence of X’s disclosures.
(f)The Department have had engagement with the investigative officer TT that a forensic interview was conducted with X in February 2022, and that the mother and Mr H were also interviewed in March 2022.
(g)South Australia Police formed the view that significant concerns were raised by both the mother and Mr H’s interview and explanations for the various allegations that had been made by X. Ultimately, however, South Australia Police determined that there was insufficient evidence to prosecute the mother or Mr H, and that the information they provided during their record of interviews provided reasonable explanations to rebut the allegations, or provided them with a lawful defence to the allegations.
The court understands that the mother has not engaged with any Departmental investigation, nor has she engaged in these proceedings.
The Department have, however, it appears, conducted an extensive review of various sources of information available to the Department, including not just ongoing interviews with the father and his partner and X, but also, interviews with various staff at X’s school.
The sources of information which the Department have accessed include:
(a)Material from Child and Adolescent Mental Health Services (CAMHS) in circumstances where X had engaged with CAMHS previously.
(b)Material from UU Medical Centre.
(c)Material from the YY Services.
(d)Material from paediatrician Dr VV who had been engaged by the mother when X came into her primary care.
(e)Material from Ms WW, clinical psychologist, to whom X had been referred while he was in the mother’s care.
(f)Information from paediatrician, Dr RR, who had been X’s paediatrician for some significant time, and certainly was his treating paediatrician at the time that I heard the trial in these proceedings.
In addition, it appears that the Department have continued to wade through the significant South Australia Police records that were available to them, but, significantly, had been available to the Court and parties as part of the trial process that was undertaken, which formed the basis of my reasons on 14 January 2021.
Again, it appears again from my reading of the report that in undertaking their review of material, the Department have taken a different view in relation to particularly the South Australia Police records to the findings that I ultimately made in my reasons of 14 January 2021.
It is not lost on me that the findings that I made at trial were such that the mother was the victim of family violence, and serious family violence perpetrated against her by the father. I came to that view because the parties were cross‑examined extensively at trial. The South Australia Police material was put to each of them, and as I record in my reasons delivered on 14 March 2021, the father to some degree, accepted the allegations and acknowledged his past conduct. Otherwise in relation to some of the allegations I made findings that I did not accept the father’s version of events and where it conflicted with the mother’s I preferred her evidence.
As a consequence I made very firm findings as to the extent of family violence perpetrated by the father towards the mother in my reasons on 14 January 2021.
I did not make those findings lightly.
I made those findings having considered the documents, having had the benefit of both parties being cross‑examined over an extensive period of time during their trial. As I commented in my reasons of 14 January 2021, I was able to make findings, having heard the matter over 14 sitting days and having had the benefit of seeing the parties each in the witness box, over an extensive period of time. In all of those circumstances, I considered that I was in a position to assess the evidence, assess the allegations, and make findings and indeed, I made those findings.
It now appears, however, that as a consequence of the Departmental investigation which I am conscious the mother has not engaged in, the Department appear to have formed the view that the father was the victim of family violence perpetrated by the mother.
The Department appear to have also placed very significant weight on X’s desire to remain in the father’s primary care. That appears to me to have been a motivating factor in the removal of the child from the mother’s care on 8 February 2021 and a significant factor in placing the child in the father’s care on that day.
I remain as concerned today as I did when the events of 8 February 2022 first came to my attention, as to the Department’s pre-emptive steps in placing X into the father’s care before having conducted a full investigation, given the findings made by this Court as to family violence and the risk the father presented to X.
While I have already touched briefly in these reasons on the findings that I made about family violence perpetrated by the father, I have not turned discussion to the balance of matters that I raised in my reasons on 14 January 2021, which led me to have concerns and make findings that at that juncture the father presented an unacceptable risk of harm to X.
The findings that I made included concerns in relation to the father’s mental health, his capacity to meet X’s needs, all of which culminated in the orders that I made placing the child in the mother’s primary care.
While I accept that the disclosures made by X are indeed serious and that they require investigation, I remain concerned that the first port of call was to immediately remove X from the mother’s primary care and to place him in the primary care of the father.
This action by the Department is all the more confounding in circumstances where as a result of the orders made on 14 January 2021, X had only spent a limited amount of supervised time with the father by 8 February 2022.
The court understands that X continues to express a desire that he wishes to live in the father’s primary care.
The Department records that X appears at this juncture to be doing well and appears settled in the father’s care. The Department and South Australia Police are of the view that X should continue to reside in the father’s primary care.
It is unfortunate that the mother has determined that she does not wish to engage in these proceedings.
The mother’s counsel appeared at the commencement of today’s hearing and indicated that while her instructor had filed an affidavit late yesterday indicating that she continued to be without instructions from the mother, the mother’s counsel today advised the Court that the mother had made some contact with her solicitors overnight.
That contact with the mother has culminated in a repetition of a request set out by the mother’s solicitor in her affidavit filed 17 March 2022, that they be permitted to withdraw from acting for the mother in these proceedings. That is a request that I acceded to and I excused the mother’s counsel from further participation in today’s hearing.
I note, however, that the mother’s solicitor has remained in the precincts of the Courtroom and has indicated through counsel that she would communicate the outcome of today’s hearing to the mother.
Significantly, however, the mother’s counsel informed the Court that the mother had advised her solicitor that she did not wish to participate in these proceedings, and that she did not wish for either her counsel or her solicitor to continue to represent her. That is why I ultimately acceded to the request that they withdraw from these proceedings.
In withdrawing, the mother’s counsel made it clear to the Court that both she and the mother’s solicitor, Ms Hurst, who have been representing the mother for some significant time now, remain concerned as to the mother’s mental health, given the tenor of the communication received by them overnight.
Be that as it may, in circumstances where the mother at this juncture has decided that she is not prepared to engage in this process and nor has she engaged in the process conducted by the Department for Child Protection, the Court is left in a position where the utility of continuing these proceedings becomes questionable.
Equally a decision has been made today, particularly at the father’s end, with the support of the Department for Child Protection and the Independent Children’s Lawyer, as to how these proceedings should be resolved.
While everybody present today has acknowledged that one option would have been for the father to file a fresh application for final orders in relation to X, that is not the path that the father wishes to take up at this juncture.
The Independent Children’s Lawyer, in particular, acknowledges the invidious position the Court is in if it were to continue hearing these proceedings at the current time, given the findings made in the reasons delivered on 14 January 2021.
The ultimate decision taken at the father’s end and supported by both the Department for Child Protection and the Independent Children’s Lawyer, is that it would be in X’s best interests at this juncture, for the proceedings to come to a conclusion, and that there be no parenting orders made in relation to X at this stage.
That is the effect of the orders that I made, back on 11 February 2022, when I suspended all previous parenting orders.
The Court is now being invited mutually across the bar table to make an order on a final basis that all previous parenting orders in relation to X be discharged.
If I was to make that order, it would leave X in a position where the presumption of shared parental responsibility would apply. However, in circumstances where X is in the primary care of the father, the effective day‑to‑day parental responsibility for X would vest in the father.
Even with that as the position, the father will still be required to seek the mother’s consent in relation to significant parenting decisions about X, including for example, medical issues, schooling arrangements, and passport issues.
In all of the circumstances, making no order for parental responsibility is the appropriate course of action, given the final orders that were made on 14 January 2021.
While it leaves the parties in a position where they effectively share parental responsibility in circumstances where there is in reality no other option for the Court, it seems the most appropriate option at this stage.
I make it clear however that in declining to make an order for parental responsibility the Court is not endorsing the current state of affairs.
In addition, in all of the circumstances and given all that has transpired, it continues to be appropriate that all previous parenting orders made in these proceedings be discharged.
Again, that should not be seen by the parties or the Department as an endorsement of what has occurred, but it is a natural consequence of the circumstances in which everyone now finds themselves in.
The Court takes this view, because in light of all of the evidence before the Court, both as part of the first trial process and that which has come to light since that first trial process concluded, the Court is not in a position to make any orders that it considers to be in X’s best interests at this juncture.
It is the case that events have high jacked the Court process.
In saying that, the court acknowledges that the Department for Child Protection were required to take a difficult decision in urgent circumstances on 8 February 2022, and it may well be that they saw that they had little alternative or option as to where X was to be placed in the short term. That state of affairs may well be an indictment on the options available to the Department.
In all of the circumstances, the Court is not prepared to make any positive orders confirming any parenting arrangements for X at this stage.
That position may change in the future and it will be a matter entirely for the parties, if indeed they wish to pursue any further orders in this Court.
The effect of making no orders at this stage will mean that neither party is prevented from at some point in the future bringing the parenting arrangements for X back before the Court to address any issues that might arise in the future.
It is for all of those reasons and, with respect, with a heavy heart that I make the following orders.
NOTE: These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to make the orally delivered reasons easy to read.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 12 April 2022
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