Radley and Lester

[2009] FamCA 1329

FAMILY COURT OF AUSTRALIA

RADLEY & LESTER [2009] FamCA 1329

FAMILY LAW – CHILDREN – With Whom a Child Lives – Best Interests of the Child – Whether the Child could be released from the Department of Child Safety into the care of the Mother

Child Protection Act 1999 (Qld)
Family Law Act 1975 (Cth), s 69ZK

APPLICANT: Ms Radley

RESPONDENT: Mr Lester

FILE NUMBER: BRC 10938 of 2009

DATE DELIVERED: 14 December 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 December 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms S. Ryder of

Parker & Kissane

SOLICITOR FOR THE RESPONDENT: Mr Mackay

THE DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES): Ms Day (Appearing as Friend of the Court)

Orders
IT IS ORDERED THAT:

1. The matter is adjourned to 10.00am on 17 December 2009 before Principal Registrar Filippello for interim hearing.

2. The father is to file and serve any material on which he intends to rely at the interim hearing on 17 December 2009 by leave on the morning of 17 December 2009 and he is to provide unsworn copies of such material to the mother and to the Department of Communities by 5.00pm on 16 December 2009.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10938 of 2009

MS RADLEY

Applicant

And

MR LESTER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. It seems to me that this matter needs to be heard, and heard urgently, by reason of two primary facts.  The first is that the child is currently under the care of the Department of Child Safety pursuant to an order made pursuant to state legislation. 

2. That order would, in simple terms, normally permit the Department, pursuant to that legislation, to place the child in to the care of a party should the Department, having conducted the investigations required of it by state law, come to the conclusion that such a placement was in the best interests of the child.

3. In this particular case, by reference to the specific remedies available to the Department pursuant to the Child Protection Act 1999 (Qld), that cannot occur because the mother, who is the person whom the Department has determined after investigation is appropriate for the child to be placed with, resides in New South Wales.

4. In order for the child to be placed with the mother whilst the Department retains control, as it were, of the child would necessitate the Department applying for a particular form of order that cannot be made on an interim basis.

5. The Department indicates that, after its process of investigation, it has considerable concerns about the risk posed to the child in the care of the father and sufficient concerns so as to, in the interim, require control over the child to be retained by it. 

6. However, within the terms of section 69ZK of the Act, the Department indicates that, in the event that the court determined on an interim basis that the child should be placed with the mother, then the Department would take action in the State courts so as to ensure that the child ceased to be under the Department’s care.  That would enable a court to make an order in terms of section 69ZK(1)(a) of the Act. 

7. The Department indicates equally, however, that if orders were made by this court as the father would contend, then the Department would seek to continue orders under state legislation that removes this court’s power to make orders.

8. The consequence of those statutory requirements and the proposed actions by the Department mean that, if this court heard the interim application, and determined that the child should be placed with the mother on an interim basis, the child would spend Christmas with one of her parents.  However, if the application is not determined, and the state order continues, the child would be in foster care over the Christmas period. 

9. Given that the child was born in September 2007 and is barely two, the latter is, it seems to me, a highly undesirable circumstance, at least prima facie, and ought be avoided if possible. 

10. The father contends through his solicitor this morning that the concerns he has about the mother’s care are such that he contends that the child is better off in foster care than being with her mother.  That is not a view that is shared by the Department, consequent upon the investigation carried out by it. 

11. All of those circumstances, however, point to an urgent interim determination of this matter being necessary. 

12. I am conscious of the fact that the matter was brought on in a relatively urgent way on behalf of the mother and, as a result, the father has had somewhat limited opportunity to respond to the material filed by the mother and will have a limited opportunity to respond to material intended to be filed by the department.  Nevertheless I consider that the facts and circumstances earlier referred to by me are such that this matter requires determination before Christmas.

13. Unfortunately, in that traditionally busy time urgent commitments in Townsville necessitate both myself and Principal Registrar Filippello being out of Brisbane in that pre-Christmas timeframe.  After consultation with the Registrar, and also reference to my own requirements and, incidentally, the other requirements of other judges of the court, the only date upon which the matter can be heard is on 17 December 2009 before Principal Registrar Filippello. 

14. It seems to me that the requirements to have the matter heard demand, on balance, that I have the matter listed on that date so that the interim issues can be determined.

15. I will simply note that the father in these proceeding has indicated his preparedness to permit the documents filed in the Children’s Court proceedings to be forwarded by Ms Day to his solicitor, Mr Mackay.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date:  10 February 2010