RADMER & HAGENS
[2020] FCCA 1974
•21 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RADMER & HAGENS | [2020] FCCA 1974 |
| Catchwords: FAMILY LAW – Parenting – child aged 7 years – where final parenting orders were made in May 2015 - where the mother seeks that the father’s Initiating Application be dismissed for failure to comply with the filing of a certificate pursuant s 60I of the Family Law Act 1975 – where the mother alternatively seeks that the father’s Application be dismissed pursuant to the rule in Rice & Asplund – where material produced from the Department for Child Protection and the South Australian Police raises significant concerns about the safety and wellbeing of the child in the mother’s home – father permitted to proceed with his Application – Minister for the Department for Child Protection invited to intervene in the proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60I, 60I(7), 60I(9), 60I(9)(d) |
| Cases cited: Ellwood & Ravenhill [2019] FamCAFC 153 Rice & Asplund (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16 Valack & Valack [2020] FCCA 1354 |
| Applicant: | MR RADMER |
| Respondent: | MS HAGENS |
| File Number: | ADC 4691 of 2012 |
| Judgment of: | Judge Kari |
| Hearing date: | 14 May 2020 |
| Date of Last Submission: | 14 May 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 21 July 2020 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondent: | Mr Harley of Dixon Gallasch |
ORDERS
That pursuant to section 91B of the Family Law Act 1975 as amended the Minister for the Department for Child Protection be invited to intervene in these proceedings and to send a representative to the Court on the next occasion being 8 September 2020 at 2.30pm.
That pursuant to section 68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed as a matter of urgency to represent the interests of the child X who was born in 2012 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date.
The parties forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last twelve (12) months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the child may have seen or attended in the last twelve (12) months and provide to the Independent Children’s Lawyer authorities for the release of information concerning themselves and the child from such person or agency.
The Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
That no later than 4pm on 4 August 2020 the Mother do file and serve an Amended Response and any Affidavit in support with respect to the interim orders she proposes regarding the child’s living and time spending arrangements.
That the father be at liberty to file and serve any affidavit in reply no later than 4pm on 28 August 2020.
That the proceedings be listed for interim hearing at 2.30pm on 8 September 2020.
IT IS NOTED that publication of this judgment under the pseudonym Radmer & Hagens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4691 of 2012
| MR RADMER |
Applicant
And
| MS HAGENS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the parties’ child X who was born in 2012 and is currently 7 years old.
Since her birth, X has always lived primarily with the mother and she has spent time with the father as a consequence of orders made in this court.
The current proceedings are the third set of proceedings between the parties with respect to X. Given her young age, X’s parents appear to have been in dispute with each other over her arrangements for almost the entirety of X’s life.
At the conclusion of the second set of proceedings on 5 May 2015, a final parenting order was made which provided for the parties to have equal shared parental responsibility for X, and for X to live with the mother and spend time with the father each alternate weekend.
The proceedings have now come back before the Court four years later on the application of the father. He is asking the Court to revisit the living arrangements for X, such that X live with him and spend each alternate weekend with the mother.
The mother opposes the Court reconsidering the parenting proceedings on two bases:
a)Firstly, she argues that the father has not complied with the provisions set out in section 60I of the Family Law Act 1975 (Cth) (‘the Act’); namely that he did not file a certificate evidencing his efforts to undertake alternative dispute resolution prior to commencing proceedings, and nor was he not exempt from doing so within the specified exemptions provided for in the section; and
b)Secondly, she argues a threshold question that there has not been a significant change of circumstances since the making of the final order on 5 May 2015 to justify reopening the proceedings in relation to X, pursuant to what is known as “the rule” in Rice & Asplund.
Background
The brief history of the parties and their relationship is as follows:
a)The mother was born in 1979 and she is presently 42 years of age;
b)The father was born in 1981 and he is presently 38 years of age.
c)The parties were in a short relationship of approximately three months duration from approximately April to July 2012.
d)By the time X was born in 2012, the parties’ relationship had ended.
e)The mother has three older children from previous relationships, namely Mr B born in 2000, C born in 2004 and D born in 2005.
f)The father has three older children from previous relationships, namely E, F and G.
So far as the parties current circumstances are concerned:
a)The mother appears to be living with a person called Mr H. The mother does not identify Mr H as her partner, and rather she asserts that she is “not in a relationship”.
b)The father has remarried and lives with Ms J.
The first set of proceedings
The father commenced the first set of proceedings in relation to X on 7 December 2012, when X was only a couple of weeks old. In his Initiating Application, the father sought the following final order “that the father has 50% shared care of X.”
At the first return of the matter on 18 February 2013, the Court made orders for the parties to participate in a Child Dispute Conference with a family consultant of the Court, which the parties attended on 25 February 2013. During the conference, the parties reached agreement for the father to spend time with X under supervision on a regular basis.
The father’s time with X increased over the course of the proceedings and the proceedings were ultimately resolved by consent with final orders being made on 26 February 2014, at a time when X was 15 months’ of age. Those orders relevantly provided for:
a)X to live with the mother; and
b)X to spend time with the father:
i)On each alternate Sunday commencing on 9 March 2014 from 9am to 3pm on 6 occasions; and
ii)Thereafter, each alternate Sunday from 9am to 5pm.
The final orders also provided that the parties would attend Family Dispute Resolution in mid-November 2014 in relation to X’s time with the father and it was noted in the orders that in the event that the Family Dispute Resolution was unsuccessful, the father would not be prevented by Rice & Asplund from filing further proceedings with the Court seeking an increase in X’s time with him.
The second set of proceedings
On 23 June 2014, the father filed a Contravention Application with the Court, in which he alleged that the mother had contravened the orders made on 26 February 2014, by failing to provide X to spend time with him on three separate occasions and declining to allow him to have make-up time.
Following the filing of the Contravention Application, orders were made on 20 October 2014 for the parties to attend a Child Dispute Conference with a family consultant of the Court on 11 December 2014.
On 27 November 2014, prior to the Child Dispute Conference, the father filed an Initiating Application in which he sought orders varying the final orders that had been made on 26 February 2014. By that application the father agitated an equal shared care arrangement for X.
Both of the parties attended the Child Dispute Conference with Family Consultant Ms K on 11 December 2014 and Ms K prepared a Memorandum to Court which noted that:
a)Mr Radmer seemed focussed on achieving overnight time in the immediate future, and ultimately 50/50;
b)Ms Hagens did not agree with overnights at that point in time;
c)A Family Report could assist the Court to outline X’s best interests in the matter immediately and into the future.
A Family Report was ultimately ordered and prepared by Ms L on 22 April 2015.
The publication of that report led to an amicable resolution of the parenting proceedings with a final order made by consent on 5 May 2015, when X was 2 ½ years of age. Those orders were generally consistent with the recommendations of Ms L in the Family Report and provided in summary for:
a)The parties to have equal parental responsibility for X;
b)X to live with the mother; and
c)X to spend time with the father:
i)Until X commenced school, on each alternate weekend from 5pm on Friday to 5pm on Sunday.
ii)After X commenced school, on each alternate weekend from the conclusion of school on Friday until 6pm on Sunday, and for one half of all of the school holiday periods.
In addition, paragraph 8 of the orders made on 5 May 2015 required that in the event that either parent wished to vary the parenting arrangements for the child, then the parent seeking such change would first initiate Family Dispute Resolution at a Family Relationship Centre.
The present set of proceedings
The current proceedings were commenced by the father on 29 July 2019, with the father seeking that his Initiating Application be heard on an urgent basis and that an interim order be made for him to have “full time care” of X. By way of final orders, the father sought for him to “have X 50/50.”
The grounds for the father bringing the current proceedings as set out in his Affidavit filed in support of his Application on 29 July 2019 are that:
a)During the second week of the July school holidays in 2019, the father received the school report card for X which indicated that she had been absent for 30 days out of 100, and was late on 20 occasions. He had previously received her school report card for 2018, which indicated that she had a 60% attendance rate for that year.
b)After receiving the school report, the father arranged a meeting with two staff members from X’s school on 24 July 2019. During that meeting he was informed by the staff members that X’s learning was behind for her age and that the school had been informed by the mother that the reason for her poor attendance at school was due to her having medical conditions, including a brain injury, epilepsy, diabetes and heart issues.
c)Following the meeting at X’s school, the father did some “digging” to try to find out if there was any other information that the mother had not told him in relation to X.
d)The father deposed that during communications with various people he was told that:
i)The mother’s daughter C is required to do the housework and bathe X before she goes to bed;
ii)The mother’s children are absent from school as the mother has no food or money for them or does not want to take them;
iii)The Department for Child Protection have been involved with the mother’s family; and
iv)There have been multiple requests for the South Australian Police to conduct welfare checks at the mother’s home.
e)In addition, the father deposed that he has concerns with respect to:
i)The mother’s home being in a state of squalor;
ii)X coming into his care with head lice; and
iii)The mother’s son D, who has been physically violent towards the mother, C and X, remaining living with the mother when he is not in prison.
The mother’s position is that the father’s Initiating Application should be dismissed. She maintains that the father has continually failed to engage in Family Dispute Resolution prior to instituting proceedings, in accordance with the requirements in section 60I of the Act, and has displayed a determination to achieve an equal shared care arrangement for X.
In addition, the mother says that a number of the allegations raised by the father in the current proceedings were raised by him in the previous sets of proceedings. It is her case that there has not been a change in circumstances to warrant the Court revisiting the parenting arrangements for X in accordance with the principles in Rice & Asplund.
The father’s application has taken some time to be heard by the Court as a result of a combination of the pressures of an inadequately resourced high volume court such as this and delays resulting from the parties’ conduct of the proceedings and in particular:
a)The mother failed to comply with the orders for the filing of her responding documents and her documents were filed approximately 3 weeks late on 13 November 2019;
b)On 11 November 2019, the father caused a subpoena to be issued to the Department of Child Protection and the South Australian Police Department, which the mother objected to on 13 November 2019;
c)The documents produced pursuant to the subpoena to the Department for Child Protection and the South Australian Police were received by the Court on 9 December 2019;
d)The mother’s objections to the subpoena were dismissed by the Court by consent on 16 December 2019;
e)The matter was listed for argument on 2 April 2020 with respect to the two threshold issues raised by the mother;
f)On 2 April 2020, the matter was re-listed for interim argument to 6 May 2020;
g)The father’s solicitor was unable to attend the hearing on 6 May 2020, which was conducted online via Microsoft Teams, due to technical difficulties, and the matter was relisted for argument on 11 May 2020;
h)The argument was unable to proceed on 11 May 2020, as the father had recently filed two versions of an Affidavit which annexed to it a bundle of documents in excess of 140 pages, being records that were produced pursuant to the subpoena to the Department for Child Protection and the South Australian Police, which did not comply with Rule 15.28 of the Federal Circuit Court Rules 2001 for annexures to be paginated.
Importantly, the records produced pursuant to those subpoena featured heavily in the submissions of each the father (who appeared in person) and the mother’s counsel during the interim hearing. I shall return to those records in more detail later in these reasons.
Section 60I Certificate
The first ground of the mother’s objection to the father’s application is on the basis that he did not file a certificate from a family dispute resolution practitioner with respect to his attempts to engage the mother in and/or participate in dispute resolution prior to commencing proceedings.
Section 60I of the Act imposes a requirement for persons to attend family dispute resolution and make a genuine effort to resolve a dispute, before they make an application to the Court for parenting orders under Part VII of the Act.
In accordance with s 60I(7), the Court must not “hear” an application for a parenting order in relation to a child, unless the applicant files with their Initiating Application, a certificate from a family dispute resolution practitioner.
An application for a parenting order may only be “heard” by the court without a certificate from a family dispute resolution practitioner, if the matter falls within one of the exemptions contained in s 60I(9) of the Act, which are as follows:
(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
(a) the applicant is applying for the order:
(i) to be made with the consent of all the parties to the proceedings; or
(ii) in response to an application that another party to the proceedings has made for a Part VII order; or
(b) the court is satisfied that there are reasonable grounds to believe that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; or
(c) all the following conditions are satisfied:
(i) the application is made in relation to a particular issue;
(ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
(iii) the application is made in relation to a contravention of the order by a person;
(iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
(d) the application is made in circumstances of urgency; or
(e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
(f) other circumstances specified in the regulations are satisfied.
In the present proceedings, it is not in dispute between the parties that the father did not file a certificate from a family dispute resolution practitioner with his Initiating Application for parenting orders. Nor did the father formally request an exemption from the requirement to file a certificate.
In any event, because the father had not filed a certificate from a family dispute resolution practitioner when he filed his Initiating Application, his initiating documents (Initiating Application, Affidavit in support and Notice of Risk) were given to a Registrar for determination as to whether the documents would be accepted for filing.
A Registrar then made a determination to accept the documents for filing without the certificate from a dispute resolution practitioner being filed presumably pursuant to delegated authorities found in section 103(1) of the Federal Circuit Court Act 1999 (Cth) and Rule 20.00A of the Federal Circuit Court Rules 2001.
The determination as to whether or not to accept the documents for filing is generally made by a Registrar on an ex parte basis in chambers. No reasons are given by the Registrar, save that a determination sheet which has ‘tick a box’ options is completed by the Registrar and placed on the file.
The father’s application came before a Registrar on the same day that it was filed, namely 29 July 2019. The box that the Registrar ticked on the determination sheet indicates that the Registrar considered that the father was exempt from providing a certificate pursuant to 60I(9)(d), on the basis that the father’s application was “made in circumstances of urgency.”
Based on the Registrar’s determination, the father’s application was accepted for filing in the absence of a certificate of a family dispute resolution practitioner. It is not clear to me whether or not the father was provided with a copy of this determination, and if so whether or not a copy of this determination was served on the mother.
However, given the wording in section 60I(7) which relates to a court hearing an application, I do not consider that the procedural determination by the Registrar in chambers to accept the father’s application for filing is the correct application of the delegated authority to deal with whether or not the application should be “heard” by the Court.[1]
[1] Valack & Valack [2020] FCCA 1354.
The mother has not sought to review the Registrar’s determination, and nor did her solicitor make any submissions on this topic. However, in my view, there is no need to review the Registrar’s decision to accept the application for filing, because the focus of section 60I is directed to whether or not the court should “hear” the application, and not whether or not the court should accept the application for filing. It would however be a different issue entirely if the Registrar had refused to allow the filing of the father’s application. That however, is not an issue that arises in this matter and I do not propose to comment further on this topic.
For present purposes the mother’s position was explicit and set out in written submissions filed on her behalf which specified her objection as being on the basis that the court should not hear the father’s application because his “failure to comply with section 60I(7) is fatal to the father’s claim. The father’s application must be dismissed.”
The father is self-represented in these proceedings, and to be fair to him and without criticism, I suspect that the nuances of the legal argument put against him in relation to the section 60I issue was perhaps more complex than what he was capable of making coherent submissions about.
Be that as it may, and given my views about the exemption provided by the Registrar, it is incumbent on me to determine whether or not the father met any of the grounds for exemption set out in section 60I(9).
The provisions in s 60I of the Act were recently considered by the Full Court in Ellwood & Ravenhill [2019] FamCAFC 153 (‘Ellwood’). His Honour Justice Kent (sitting alone) considered the provisions set out in section 60I and commented at paragraph 21:
The object expressed in subsection (1) of s 60I is self-explanatory. That object finds reflection in the mandatory requirement in subsection (7) as to the filing of a certificate with the Initiating Application for a Part VII order, subject to the applicability of one of the exceptions in subsection (9). That is, subsection (7) is expressed in mandatory terms and cannot be construed as giving rise to some discretion, such as, the Court being entitled to consider the likelihood of family dispute resolution achieving a resolution. In short, the provisions emphasise the requirement for parties to a dispute about parenting orders to make a genuine effort to resolve that dispute with the assistance of family dispute resolution before application is made to the Court. Only if one of the exceptions contained in subsection (9) applies, can an application be filed without the parties having participated in family dispute resolution. Even then, it can be seen that subsection (10) requires the Court to consider an order for the parties to attend family dispute resolution with a family dispute resolution practitioner.
In Ellwood, the mother had appealed a decision made on the first return of the father’s Initiating Application for a parenting order, wherein the primary judge had made orders referring the parties to section 11F counselling to address the practical problems that had arisen in compliance with previous orders of the Court; namely that they were no longer being complied with. The mother had objected to the Court hearing the application at the first return of the matter on the basis that the father had failed to comply with the dispute resolution provisions contained in section 60I.
Justice Kent allowed the mother’s appeal and dismissed the proceedings before the Court. In doing so, his Honour determined that the primary judge had erred in hearing the father’s application without considering the mother’s objection to the court doing so based on the father’s non-compliance with section 60I.
At paragraph 28, his Honour commented:
It follows that the primary judge was in error in proceeding to hear the father’s application not having made any finding to the effect that any of the exceptions in subsection (9) applied. In other words, the mandatory requirement of subsection (7) applied, and the primary judge was in error in proceeding to hear the application not withstanding that that mandatory requirement had not been complied with.
The mother’s solicitor has relied on the decision in Ellwood and contends that as a result of the non-filing of the certificate, the mandatory requirement in s 60I(7) of the Act applies and the Court should not hear the father’s application and accordingly it should be dismissed.
I do not agree with the submissions advanced on behalf of the mother in this regard. Rather I am satisfied that the father’s Affidavit filed in support of his Initiating Application on 29 July 2019, contained a sufficient factual basis to establish an exemption grounded in the urgency exemption set out in section 60I(9)(d) of the Act.
As previously identified, the father’s Affidavit filed on 29 July 2019 in support of his Initiating Application raises a number of significant concerns in relation to X’s health, safety and well-being in the mother’s home. Those allegations include matters which are quite serious in nature:
a)That X has missed a significantly high proportion of school and is lagging in her educational progress;
b)That there have been “multiple occasions” where X has not been provided recess and lunch and the school has had to make arrangements to provide her with “emergency food”;
c)That the school has been advised by the mother that the reason for X’s poor school attendance is because she has a “brain injury, epilepsy, dyabilities (sic), heart issues,” all of which came as a complete shock to the father;
d)That the mother is failing to adequately protect X from the disruption, verbal and physical abuse experienced in her household as a result of the child D’s violent behaviour;
e)That there have been multiple attendances upon the mother by the Department for Child Protection, together with welfare checks conducted by SAPOL.
In my view these are allegations of a serious nature which certainly fall within the urgent situations contemplated by section 60I(9)(d), noting as I do that the father filed his Initiating Affidavit immediately after receiving X’s Term 1 and 2 school report in July 2019 and meeting with X’s teachers to discuss his concerns shortly thereafter.
In addition, I also consider that the circumstances described by the father in his affidavit, if ultimately made out may well give rise to the Court making findings that X has either been abused or is at risk of abuse, thus putting the matter within the exemptions provided for in section 60I(9)(b)(i) or 60I(9)(b)(ii).
In making that decision, I have also had regard to the content of the Notice of Risk that was filed by the father on 29 July 2019, in which he specifically identified his concern that X has been abused by her sibling D and that she was at risk of abuse (physical assault, serious psychological harm and serious neglect).
Moreover, as will become clear from my consideration of the documents produced pursuant to subpoena to each the Department of Child Protection and SAPOL, the father’s concerns now appear to be corroborated.
For all of these reasons, I am satisfied that the father is exempt from the need to file a certificate from a family dispute resolution practitioner and that the Court should hear his application.
In addition and given the nature of the concerns that have been raised by the father and the contents of the documents produced pursuant to subpoena, I am not of the view that it would appropriate at this stage to refer the parties to a family dispute resolution practitioner; something I am required to consider making pursuant to section 60I(10).
The “Rice & Asplund” objection
The second limb of the mother’s objection to the father’s Initiating Application being heard by the court is on the basis of the rule in Rice & Asplund. The effect of the mother raising this issue at this early stage, is that she is asking the proceedings to effectively be dismissed summarily.
The Law
The rule in Rice & Asplund, as it has become known, is succinctly put by Evatt CJ at 78,905 as follows:
“… the court… should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstances which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material… It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.”[2]
[2] Rice & Asplund (1979) FLC 90-725.
As identified by Warnick J in SPS & PLS [2008] FamCAFC 16 at 48:
“at whatever stage of hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle.”
In order to determine what is in a child’s best interests, the Court is guided by those factors set out in section 60CC of the Act, as follows:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The position of the parties
It is the father’s position that X has been, and is at ongoing risk of physical and emotional abuse and/or neglect, in the mother’s home.
In particular and as a result of information contained in the documents produced pursuant to the subpoena he now asserts that:
a)The Department for Child Protection (‘DCP’) have had ongoing involvement with respect to the mother’s care of X and her siblings.
b)The mother has lied to X’s school about the reason for her poor school attendance, being that X has suffered from a number of serious medical conditions, including a brain tumour.
c)X’s half-sibling D has engaged in acts of violence towards X and other members of her family.
d)The mother’s home is in a state of squalor and X regularly comes to his home with head lice.
The father acknowledges that some of these issues were raised by him in the previous proceedings, however he says that they have now escalated to a crisis point such that the court is required to intervene.
It is the mother’s position that while there have been some difficulties within her household, particularly with respect to D, they are being appropriately addressed and managed. She asserts that the issues now raised by the father are not new and that this is simply another attempt by him to obtain shared care of X.
From my perspective and given the nature of the argument advanced on behalf of the father that the previous concerns have now reached crisis point, it is important for me to consider the nature of the concerns that the father holds alongside the material produced pursuant to subpoena to each SAPOL and the DCP.
Unfortunately, the Court has not been assisted by the father nor the mother (presumably because it was not in her interest to do so) in the presentation to the Court of the documents and the information contained in the documents produced pursuant to subpoena.
In particular, the records have not been provided in a chronological order, and nor were they initially provided to the Court by the father in a paginated and indexed fashion as prescribed by Rule 15.28 of the Federal Circuit Court Rules 2001.
Additionally, while the father attempted to synthesize the records in his submissions, given he was self-represented, it was frankly impossible to understand the father’s submissions and the gravamen of his concerns without carefully considering each and every record he produced.
Unhelpfully, it does not appear that DCP have ever provided a summary of the intakes they have received and the outcome in relation to each of them. Accordingly, I have been left to try to make sense of the records and try to understand for myself what case note records relate to the various notifications received. I accept that some of my assumptions in this regard may well be inaccurate, however it is my view that any errors in that regard do not detract from what is ultimately discernible from the records as a whole.
I am mindful that the Response to the Notice of Risk provided by the DCP to the Court dated 27 August 2019 states as follows:
The Department for Child Protection (DCP) has had no investigative involvement with this family.
X has three older siblings (aged 18, 14 and 13) who are recorded as living with X and X’s mother. The three older half siblings share the same mother as X. The history in regards to the three older half siblings dates back to the year 2000. The 13 year old half sibling is currently incarcerated at M Youth Training Centre.
Departmental records indicate the eldest half-sibling spend several years in care from about two weeks of age.
There have been 13 notifications in relation to X dating back to 2012. Nearly all 13 notifications have reported concerns the home environment is in “squalor”. There have been concerns regarding unknown liquid stained floors, dirty mattresses, and clothing strewn through the home, 13-14 cats occupying the premises with a strong stench of cat urine. There have been concerns regarding an older child breaching bail, offending regularly and alleged violent behaviour towards X and breaking windows in the home. There are concerns that X has fallen behind in her education because she is regularly (approximately 50% in 2018) being kept home from school due to the mother having no food to give her. The most recent intake when read in conjunction with the child protection history indicates both risk and cumulative harm impacting on X’s safety and well-being.
Involvement by the Department of Child Protection and SAPOL and other departments
In his affidavit filed 29 July 2019, the father made specific allegations (which he hoped would be supported by documents he intended to subpoena) that:
a)“family Sa has been involved in the past and reports are still going in” (sic);[3] and
b)“I have also been informed that SA pol has had multiple request for wealth fair checks” (sic).[4]
[3] Father’s affidavit filed 29 July 2019, paragraph 26.
[4] Father’s affidavit filed 29 July 2019, paragraph 27.
In her Affidavit filed on 13 November 2019 (curiously sworn two months earlier on 12 September 2019 but not filed), the mother denied these allegations in explicit and emphatic terms, deposing that:
a) “I deny paragraph 26 of the father’s affidavit. I have never had any contact from the Department of Child Protection. I ask that the father be ordered to identify the people who have allegedly informed him of this information.” [5]; and
b)“I deny paragraph 27 of the father’s affidavit save that SA Police attended my home once in about July 2019 for a welfare check. I believe that check was requested by the father.”[6]
[5] Mother’s affidavit filed 13 November 2019, paragraph 70.
[6] Mother’s affidavit filed 13 November 2019, paragraph 71.
On 11 May 2020, the father filed an Affidavit which annexed a voluminous tranche of documents that had been produced pursuant to the subpoena he issued to DCP and SAPOL in relation to X. It is not clear to me whether the father has filed a copy of all of the documents produced pursuant to those subpoena or not.
The documents provided by the father to the court give rise to concerns that the mother has been economical in the information that she has conveyed to the court regarding her involvement with various services, including but not limited SAPOL, DCP the Education Department and Housing SA.
It is clear from the vast number of documents annexed to the father’s affidavit (of no less than 127 pages) that there is a significant history of concerns and involvement with the family by SAPOL and a multitude of other organisations (including the Department of Education, Housing SA and NDIS workers) in relation to X and her siblings.
Given privacy issues, it is not possible to identify from the records the identity of a notifier when a notification is made to a government agency. Having said that, sometimes given the information conveyed by the notifier it is possible to deduce and make an educated guess as to the identity of the notifier. For example, if the notification contains an email chain of records between a school principal and DCP, then it is safe to assume that the notifier is the school principal. Similarly, if the notification contains information as to what a child is saying to the notifier when they are scheduled to return home to the other parent after spending weekend time, it is safe to assume that the notifier is the parent with whom they have just spent the weekend.
In the present circumstances, it would appear that the documents produced by DCP contain notifications from persons other than the father, together with notifications from the father. Where I have assumed that the notification has been made by the father (as a result of the contents of the notification), in my discussion of the records that follows, I have identified that to be the case.
In addition, it is not always the case that a parent is aware that a notification has been made to DCP. Often times a parent only becomes aware that a notification has been received by DCP if DCP determine that they are going to open an investigation. Accordingly, while some criticisms might be levelled at the mother for her lack of candour with the Court, I accept that there were times where she was totally unaware that a notification had been received by DCP. Where I have assumed this to have been the case, I have identified my assumption in my analysis of the record.
The first DCP Case Note provided to the Court by the father appears to have been made when the mother was pregnant with X, and as early as 7 November 2012, and reports as follows:
a)Under the heading “Details”:
i)“Mother is Ms Hagens and the father is believed to be a “Mr Radmer”. C3 lists the mother’s partner as Mr H and previous CP reports on the siblings refer to Mr H as being their step father…”
ii)“It is possible that this family reside at [information supressed] - as most recent NOC notification on child [name suppressed] indicates and this could be the family address …”
b)Under the heading “CP History”:
i)“There is a CP history 2002-2009 re concerns of physical abuse by the mother and the step father (believed to be Mr H), general neglect of the young child, D/V between the mother and step father, and the mother’s level of aggression. There are no confirmations.”
c)The records following up the initial child protection report record that the mother “declined SW intervention” on 29 November 2012, and that the file was ultimately closed by the Department on or about 17 December 2012 as the observations by CAFHS staff visiting the mother’s home appeared to be “positive”.
d)It is unclear to me from the records in relation to this report whether or not the mother was aware that the Department were actively monitoring the mother and child.
There is a DCP Case Note dated 30 August 2013:
a)The report records concerns in relation to one of X’s older siblings (it would appear to be the child D) having stolen items from another student at school (particularly food), smelling of urine, and having defecated on a teachers laptop computer and the mother failing to attend an appointment with CAMHS following the latter incident.
b)In addition the report records ongoing concerns in relation to the “cleanliness” of all of the children.
c)It is recorded that the “info was insufficient to screen in” and it appears that there was no investigation by the Department in relation to the report and accordingly I would have to assume that the mother was not aware of the report.
There are related DCP Case Notes dated 8 and 11 May 2015 (from two separate notifiers):
a)The report records numerous concerns including:
i)In relation to one of X’s siblings attending school “unkempt and smelly” and without food, there being poor school attendance and the parents being uncontactable;
ii)The mother’s home being unkempt with animal faeces on the floor and a strong stench of rotting garbage and cigarettes;
iii)X being left alone in the care of a sibling who has the “social/emotional functioning” of “approximately a 10 year old”.
b)It appears from the records produced that there was no investigation by the Department, and again I would have to assume that the mother was not aware that a report had been made.
There is a DCP Case Note dated 20 June 2018:
a)The notification relates to an incident at a sporting club oval in which one of X’s siblings had run away on the previous day and was found by police sometime during the night. It appears that this notification relates to D as it is recorded that the child has autism.
b)The notification records that the police separated the child from the family and the child disclosed that “the step father uses a rope to lock the door to [supressed] bedroom so he cannot leave”.
c)It is also recorded that the mother contacted Crisis Care in the presence of police to advise that she could not look after the child anymore, but assistance was refused.
d)It is clear from this record that the police took a significant role in this incident.
e)Ultimately, the Department did not take the notification further as the intake:
“did not meet the threshold for a DCP response even despite the history of concerns regarding hygiene within the home. The concerns related to the filthy home and possible lack of food do not met the NEG5 criteria. There is insufficient information regarding the rope to determine whether this act is an abusive one.”
There is a DCP Case Note dated 1 August 2018:
a)The notification on this occasion relates to Mr B, X and D (as their ages are identified) over the period 25 July 2018 to 1 August 2018.
b)The concerns recorded on this occasion relate to:
i)One of X’s siblings (presumably Mr B) being tired at school as a result of having supervised “his sick younger sibling alone whilst the mother was out with the step father/father”;
ii)Two of the children being absent from school for all of term 3;
iii)X “who is unwell” being absent from school and being left in the care of one of her siblings; and
iv)The house being unhygienic.
c)It appears that this notification was not investigated as it “lacked contextual information” and that the “school non-attendance is not yet at a level which requires a response by DCP.”
d)It would have to be assumed that the mother was not aware of this notification.
There is a Police Apprehension Report regarding an incident involving D on 6 August 2018.
a)That record sets out the D was charged with one count of “aggravated assault” and another of “throw a missile”.
b)It appears that the victim was the X, who was injured on the thumb when D is alleged to have thrown rocks at the mother’s car.
c)D is recorded to have stated that he got angry (after returning home from court) and that he had no intention of assaulting his sister but he didn’t care that he did.
There is a DCP Case Note dated 15 August 2018:
a)The concerns on this occasion relate to pungent faeces smells coming from the child Mr B.
b)The record identifies that “support” was “refused by the family” and that the house “presents as unhygienic”.
c)Again, it appears that there was no investigative involvement and that the mother was not aware of the notification.
There is a Police Apprehension Report regarding an incident which took place on 16 August 2018 in which it appears that one of D’s sisters was the victim of an assault by D which involved him kicking and punching her 3-4 times to the mid-thigh and stomach area respectively. It appears from the record that D admitted to having assaulted his sister and that he “stated he has hit his sister on a previous occasion, and that it was not acceptable to punch and kick her.”
There is a DCP Case Note entry dated 21 August 2018:
a)The report is in relation to X, D, C and Mr B.
b)The CP history is recorded as there being “significant CP history relating to this family with concerns relating to emotional and physical abuse, inadequate basic care and inadequate supervision”.
c)It is recorded that there have been “four previous investigations” by the Department in 2000, 2001, 2003 and 2008 in which abuse and neglect have not been substantiated.
d)The concerns on this occasion relate to:
i)School absenteeism for one of X’s male siblings together with attendance without adequate food, faeces and urine on the child’s clothing, inadequate clothing, and the school having washed the child’s uniform and given him breakfast.
ii)The child is recorded to be “embarrassed” about these matters and struggling to accept help from staff.
iii)School absenteeism for the other male sibling.
iv)The family living in “squalor”.
e)The decision records:
“Inadequate basic care – There is ongoing pattern that the children’s basic needs are not being met and the current allegations state [name suppressed] is presenting with faeces and urine on his clothing, and he lacks appropriate warm clothing for the colder weather. There is also a pattern of not having food. As the other children reside in the same home it is likely that they are having the same issues and given most of the children have a disability they are more vulnerable.”
f)It is not clear to me whether the report was investigated by the Department, however it would appear that it was not and that the mother was not made aware of the notification.
There is a DCP Case Note dated 4 September 2018 in relation to X:
a)The concern is recorded about X having head lice which took “6 hours to pull out”, her school attendance having “dropped” and having not been present most of the last term, X reporting that her clothes had been thrown in the bin due to being eaten by rats at her home.
b)The notification does not appear to have been investigated as there was “insufficient information” to give reasonable grounds to suspect abuse neglect.
c)There is however a further Child Wellbeing Case Note made by the Education Department on 20 September 2018 adding to the notification. This note records that the Department for Education had unsuccessfully attempted to conduct a home visit with the mother on three separate days.
d)Accordingly, I would have to assume that on the face of the records the mother was aware that there were attempts being made to engage her for a home visit.
There is a Police Apprehension Report relating to D being charged with three specific offences arising out of events which took place on 12 and 23 September 2018.
a)The victim of the offending is recorded to be the mother.
b)D was charged with one count of causing property damage to the mother’s vehicle by scratching it with a piece of glass, one count of aggravated assault of the mother by whipping her with a garden hose and punching her once to the hand with a closed fist, and one count of breaching a bail condition that required him to be in the company of the mother between the hours of 7pm and 7am outside of his bailed address.
c)The record identifies that D admitted to the property damage and aggravated assault charge as “he was feeling angry at the time”.
There is a Child Wellbeing Case Note made by the Education Department dated 27 September 20018 in relation to X:
a)The concerns recorded relate to her absenteeism and medical conditions in which it is alleged that the mother has given various “health related explanations” for X’s poor attendance, including investigation for a “brain tumour” and “diabetic symptoms” and at risk of “going into a coma” with the mother failing to provide a medical certificate or further information.
b)There are also concerns in relation to her hygiene and being malnourished.
c)The report records a meeting between the Education Department and the Wellbeing Leader from X’s school.
d)The report also records concerns regarding the mother showing little interest in D being in and out of M Youth Training Centre and his disengagement from school and family.
e)The report also records a concern that the mother may possibly have Munchausen’s By Proxy, however there was said to be “nil evidence to support this at this time”.
f)It is recorded that the Education Department were to meet with the mother to discuss concerns and that documents were to be obtained from the school file.
g)There is an additional record of the same date attaching screen shots of text communications between the X’s teacher and the mother in which the mother among other things responds:
“hi X if all goes well today should be back to school Monday. She is ok, however really needs to have an mri they are checking for brain tumors. Hopefully all clear so she can go back to school she really misses it.” (sic).
h)There is also another text to X’s teacher from the mother in which the mother has said:
“Hi [name suppressed], X as you know has been sick it is a little bit more serious now as her glucose levels are very low to the point if they drop any lower she could potentially go into a coma. last thing i want and you need is for her to collapse in class it would be very distressing for her class mates. we only got her results bk about 1 hr ago and she needs to have her insulin levels tested tomorrow.”
i)There is a follow up record dated 28 September 2018 in which it is recorded that a home visit had been arranged with the mother on 3 October 2018 and a worker from another unidentified service, but that the Education Department were not to separately advise the mother as she was becoming suspicious of the amount of services being put in place.
There is a record of a DCP Notification made on 3 October 2018 which identifies that one of the children (presumably D) had been out of custody for a week and that the mother was working on “his bike as a calming method.” The note records that there was not “reasonable grounds to suspect abuse/neglect or that the children are at significant risk of serious harm.” Presumably the file was closed with no investigation having been undertaken and the mother was unaware of the report.
There is a further related Child Wellbeing Case Note made by the Education Department dated 4 October 2018 with a subject heading “Email to services re SAPOL squalor assess if Ms Hagens doesn’t allow home visits”.
a)This entry would appear to be a follow up on the earlier Case Note made by the Education Department on 27 September 2018.
b)The email chain attached to the record appears to be between various workers within the Department for Education, the school, and a Justice Education Officer from the Youth Court.
c)The email thread identifies concerns regarding the mother cancelling and avoiding scheduled home visits and a request that if this avoidance continued that SAPOL be requested to conduct a “squalor assessment”.
There is a further Child Wellbeing Case Note made by the Education Department on 4 October 2018, which presumably was following up on concerns raised by the entry of 28 September 2018.
a)The Child Wellbeing Practitioner from the Education Department appears to have contacted the N Hospital to make enquiries about X’s alleged medical concerns. As a result of that enquiry the department worker was advised that:
“X has no outstanding appointments in Neurology, in fact has not attended the clinic since birth. At birth X had a lesion on the brain which was investigated but nil concerns were raised and nil further action. X has had only 2 emergency presentations in the past 12 months, other than this there are nil concerns from N Hospital regarding medical follow up or missed outpatient appointments.”
b)There is a further follow up record dated 13 October 2018 in which it is recorded that SAPOL have not previously entered the mother’s home and made observations.
c)There is a further follow up record dated 16 October 2018 relating to a Case Conference that was conducted between various workers from the Education Department, a Justice Officer from the Youth Court, NDIS, and staff from X’s school.
i)It is recorded that the mother did not attend the meeting, although it is not clear from this record if she was invited to do so (having said that it is apparent from a record later referred to on 9 November 2018 that the mother was invited to this meeting and that she failed to attend).
ii)It is recorded that following enquires with the Women’s and Children’s Hospital and N Hospital there were no records to confirm the alleged brain tumour and diabetes and that the mother had not provided any medical certificates.
iii)It is also recorded that all home visits to the home have been cancelled.
There is a further related DCP Case Note dated 16 October 2018:
a)That record relates to X, C and Mr B.
b)The mother is reported to have stated that D had been diagnosed with autism and had recently been released from the Adelaide Youth Training Centre, Mr B had been diagnosed with Neuroblastoma in his stomach when he was 5 and also diagnosed with “2 brain tumour’s after aggressive Chemotherapy he is now in remission.”
c)The state of the home is recorded to have been inspected and it appeared that it had recently been cleaned, however:
“the lounge room walls were very dirty, all the way to the ceiling, and the mother and Mr H advised they have been trying to scrub the walls but they wouldn’t come out. It did not appear that walls had been scrubbed. The lounge suite appeared dirty with lots of cat hair.”
d)Inspection of other rooms of the home was also detailed with comments that:
“the walls and ceilings throughout the bedrooms were all very dirty and marked with food stains, possible faeces rubbed on the walls along with cobwebs and black dots which were insect droppings…”
e)It was recorded that the beds in the bedrooms appeared dirty.
f)It was recorded that the walls and ceiling in the bathroom and toilet were also dirty.
g)It was recorded that the rear yard was “very overgrown, hard rubbish, and kids toys could just be seen as the grass had grown over them.”
h)The record ultimately sets out that the intake was assessed as:
“no change, while the information suggests that the home environment is unclean and there are some hygiene concerns, there is no indications that the conditions of the home presents a significant hazard for the safety and wellbeing of the children. The children are aged between 5 and 17 years of age, and there is no additional information to suggest that the children’s functioning is impaired as a direct result of the condition of the home, or that the children’s basic needs for clothing and hygiene are not met.”
i)There is a further related record dated 31 October 2018 which appears to be a record of an email thread between the Deputy Principal from the children’s school and the Education Department, identifying that the school had arranged food for the family after being contacted by the mother several times as a result of her inability to feed the children.
There is what appears to be a new DCP intake Case Note for all children dated 1 November 2018:
a)The note records that there have been “36 individual CP intakes for the family” with the first made on 20 August 2010, and there having been “no substantiations”.
b)This record sets out that an intake dated 9 August 2018 had been assessed as Tier 2 requiring a 5 day response. It is not clear to me what this report is, as it does not appear to be a report that the parties have provided to the Court in these proceedings as it appears to relate specifically to either Mr B or D alleging that his father “hits him and drags him around the house when he does something wrong”. The note goes on to state that the matter had been “referred to other agency, case allocated to CWP, and an EXF forwarded to Police.”
c)The allegations in relation to the case note on 1 November 2018 are in relation to physical abuse, and it would appear to be the child Mr B having bruising which he asserted he sustained when he “fell into the bath bathing his younger sister last night” which appeared to be inconsistent with the observed injuries.
d)The note also records concerns about the mother being unable to feed the children.
e)On this occasion the notification was assessed as requiring a 10 day response.
There was a further incident on 5 November 2018 resulting in the involvement of SAPOL and the Care worker from the Education Department as evidenced by subsequent records from both SAPOL and the Education Department.
a)On this occasion D is alleged to have assaulted the mother by punching her to her right forearm.
b)In addition, D is alleged to have caused property damage to the homes and property of two other residents who reside in the same street as the family, including tipping bins over, pulling a letterbox out of the ground, throwing stones at one of the residents, charging at one of the residents with a piece of wood as if he was holding a javelin and smashing the window of one of the residents home.
c)D was not interviewed by SAPOL regarding the incident due to his “aggressive, argumentative and hostile demeanour when interacting with police.”
d)D was arrested and refused bail.
e)The mother is reported to have indicated that she was not prepared to have D return home as she was worried about D’s “verbal and physical aggression, property damage, and the impact on the other children in the house.”
f)As a consequence the Education Department note sets out that D is considered “abandoned in custody as the mother is unwilling to have him home and has not been able to nominate another appropriate carer.”
There is further DCP Case Note dated 9 November 2018 which has attached to it email communication between an Acting Supervisor with DCP and a worker from the Department for Education. Given the timing of this record, I would have to assume that it was as a consequence of the notification made to DCP on 1 November 2018.
a)The record indicates that on 5 November 2018 the DCP Acting Supervisor asked various workers from the Education Department to accept a notification in relation to the children.
b)The email exchange culminated in an enquiry by the DCP Acting Supervisor on 8 November enquiring as to:
“how many times have you tried to visit and discuss concerns with the mother? From looking on c3 I wasn’t able to ascertain this information. We have extremely limited capacity therefore I will be looking at closing this. Were you planning on keeping the case open or closing also?”
c)The worker from the Department for Education responded:
“I attempted a HV on the following dates:
Tuesday 18.9.2018
Wednesday 19.9.2018
Thursday 20.9.2018
Additionally, I coordinated a case conference at the school on 16.10.2018, Ms Hagens and all services were invited, Ms Hagens did not attend. The meeting went ahead without her.
I have updated my case notes on CS as a couple of these entries were missing.”
d)It would appear from this record that the worker from the Department was referring to those matters I have summarised from the records from the entry on 16 October 2018.
e)Ultimately the worker form the Department for Education refused to take up the invitation from the Acting Supervisor from DCP.
f)Given there are no further entries, I would have to assume that the worker from DCP did exactly as she had foreshadowed in her email and closed the file without investigating the matter further.
There is a further Child Wellbeing Case Note made by the Education Department dated 12 November 2018 in relation to a joint home visit conducted by DCP and a Housing SA Officer.
a)It appears from the record that the worker from the Education Department was the same worker who had inspected the home on 16 October 2018.
b)The record sets out that the tasks asked of the mother at the end of the last inspection had been “superficially completed”.
c)In addition the record sets out that:
“the home smelt strongly of animal urine and there were a number of cats in the home, CWP noted at least 4 on this day. The walls and ceiling appeared dirty with splatters and grime and Ms Hagens advised that these had been difficult to get clean. Once the inspection was completed [name supressed] briefly discussed the current financial situation and enquired as to why the family had fallen behind in rent, Ms Hagens was unable to give an explanation.”
d)The mother is recorded as having indicated that she can no longer manage D and that she wanted to “sign him over to DCP”. The mother and Mr H were referred to DCP at Suburb O in relation to these concerns.
e)It appears from the record that the mother and Mr H were concerned over the impact of D’s behaviour on the other family members and the need to protect them from D and the risks associated with his behaviour.
f)Ultimately, the mother and Mr H were asked to reflect on how the Education Department could assist the family and they were given the worker’s contact details.
g)It is not clear from the record if this contact was ever made by the mother or Mr H, nor whether any follow up by DCP was undertaken.
There is a SAPOL Report relating to an incident which occurred on 15 December 2018 involving the mother and D, in which he is alleged to have thrown a stick at the mother hitting her back in breach of a current Intervention Order.
There is a Child Wellbeing Case Note made by the Education Department dated 1 February 2019, which attaches an email chain between the Department for Education and X’s school. X is recorded to have been attending school every day at that stage.
There are SAPOL and DCP records in relation to an incident which took place on 23 February 2019, which records an assault by D on X. In that incident D is alleged to have thrown a shoe at X multiple times striking her in the stomach and causing redness. This incident was not further investigated by DCP on the basis that they assessed that it was more likely to have been “sibling conflict” and there was “insufficient detail to indicate the mother was not providing adequate supervision at the time or that she failed to protect X.”
There is a DCP Case Note dated 25 February 2019.
a)That report appears to have been made by the father in relation to his concerns over “multiple bumps and sores on X’s head,” head lice, and the mother sending X to school with “no socks on with her sneakers”.
b)This notification does not appear to have been investigated by DCP and it is not apparent that the mother was made aware of the same.
There is a DCP Case Note dated 28 February 2019 regarding allegations that presumably D had hit the mother twice and also a sibling whilst in the car. The mother is recorded to have said that she would be making a report to SAPOL regarding the incident, but there does not appear to be a record produced to the court from SAPOL in relation to her having done so.
There is a SAPOL record in relation to an incident on 6 March 2019 in which the mother was assaulted by D.
a)D is alleged to have pushed the mother into the side of her car with both palms open and to have also grabbed her left arm tightly. The mother is alleged to have suffered a scratch to her arm during the incident which did not require medical attention.
b)D was arrested as a result of this incident.
There is a further SAPOL record in relation to another incident between the mother and D on 5 April 2019.
a)D is alleged on that occasion to have punched the mother multiple times to the left shoulder, and subsequently smashed three windows with a rock.
b)D was arrested and charged in relation to this incident and he was refused bail.
There is a Child Wellbeing Case Note made by the Education Department dated 1 April 2019.
a)This record relates to communications instigated by the Child Wellbeing Practitioner (CWP) with the mother by telephone that day regarding the welfare of all children and in particular Mr B, C and X.
b)At the time of the call the mother advised that she was at the Adelaide Youth Court in relation to D for previous offences and a new offence of “break and enter at a petrol station”, assaults at a train station and theft from a bus.
c)A specific enquiry was made by the worker about X’s health due to “confusion historically regarding current diagnosis.” The mother is recorded as having responded to that enquiry by indicating that X is “healthy and there are no longer concerns about a brain tumour, however she recently has had some respiratory issues and the GP has given her ventilin to help her settle at night, this will continue to be monitored by the GP.”
d)The mother was asked whether she saw a need for a worker to stay in contact with the family. The mother is recorded to have responded that there were a significant number of services in place and that she feels well supported.
There is a related DCP Case Note dated 1 April 2019:
a)This notification relates to concerns that:
“SAPOL attended and conducted a search of the home address because of [presumably D’s] offending behaviours. The home was in disarray with unknown liquid staining the floor, dirty mattresses and clothing strewn through home. There were cats occupying the premises which were described as very unhygienic. Ms Hagens was very embarrassed that SAPOL officers saw her house in this state and stated they were in the process of organising bins to clean up.”
b)This report was assessed as requiring a 10 day response.
c)There is a second notification to DCP on 3 April 2019. It appears that this notification was made by the father after X spent time with him. The father’s reported concerns relate to X’s poor school attendance, poor hygiene, lack of food, head lice, and D’s behaviour.
d)This second notification was added to that made on 1 April 2019 and no change was made to the decision that a 10 day response was required by DCP.
e)There is a third notification added to the notification made 1 April 2019. This notification was is dated 5 April 2019 following an incident in which the mother is recorded to have been heard complaining about presumably D’s behaviour stating she was “done” and that he could not be at her house anymore.
f)There is a fourth DCP Case Note dated 18 April 2019 recorded “verbatim” as follows:
“House was in an unhygienic state. Bathroom, toilet and laundry dirty. House has bad odour. Smells of cat, litter tray over flowing, multiple kittens. Concerns re unhygienic state of house on child. History of poor property condition.”
g)This notification was added to the notification made on 1 April 2019 and no change was made to the assessment that a 10 day response was required (which by then had already lapsed).
h)Ultimately it appears that no further investigations were conducted by DCP as no records have been produced other than a DCP “supervision” Case Note dated 28 April 2019, which records a meeting between the Team Leader and the Case Worker. The note records that the case was to be closed.
Separate to these notifications and running alongside the DCP investigation which was at that stage open for the four notifications referred to in the previous paragraph, a worker from the Education Department met with the student wellbeing leader at X’s school on 9 April 2019 and there is a Case Note relating to that meeting.
a)X’s school was advised to be “vigilant in monitoring” a “log of concerns” regarding ongoing hygiene, head lice and lack of food concerns.
b)The record sets out that the mother “is at the school almost daily and is given food hampers and sometimes takes lunch herself from the canteen.”
c)The record also sets out that one of the children was suspended and that:
“the school had concerns he was going to take X from the school so each day the school was in lock down for a week. During break times the gates were locked and the door to X’s class remained locked during lessons.”
d)The worker asked the school to notify the worker if this occurred again as they had been unaware of the same.
e)There is a further related record dated 10 April attaching an email chain on 10 April 2019 between Housing SA and the Education Department worker who was following up on the joint visit that had been conducted in 2018 and enquiring whether Housing SA had conducted any further home visits. It is not clear whether there was ever a response to that email enquiry.
There is a further SAPOL record regarding yet another incident between the mother and D on 9 May 2019.
a)It appears that the mother was the victim yet again of an assault by D when he is alleged to have punched her multiple times to the arm and face while she was driving with D and Mr B in the car. A neighbour is also reported to have witnessed D “smashing the back bedroom window and trying to break in.”
b)D was arrested and charged in relation to this incident.
c)The mother is recorded to have spoken to D following the incident while he was detained at M Youth Training Centre, and she is alleged to have said that “she is not bothered about the suspect returning to live with her, however her other son Mr B has an IO where the suspect is not to be within 50 metres of Mr B, meaning suspect will not be returning to live with them.”
d)The mother is recorded as having indicated that Mr B was “fearful” of D, but that there was no need for the police to separately speak with him.
There is a DCP Case Note dated 27 May 2019.
a)The concerns on this occasion are recorded as relating to X and C, the number of cats in the home, and the smell of urine in the home.
b)This notification was not investigated and it would appear that the mother was unaware of it.
There is a Child Wellbeing Case Note made by the Education Department dated 28 May 2019.
a)This record attaches an email chain between X’s school and a worker from the Department for Education regarding a request made of the school by the mother for assistance with purchasing new uniforms.
b)The worker identified that assistance could not be provided by them but if the family were registered with the Smith Family Program assistance could be given.
There is a further DCP Case Note dated 18 June 2019 reopening an earlier intake (the date of which is not specified) which is recorded as having been closed on 27 May 2019, to allow additional information to be recorded.
a)The note records the CP history as having “20 intakes regarding neglect, squalor conditions of the house, physical abuse, emotional abuse, Domestic Violence and sibling violent behaviours.”
b)The record sets out the concerns as:
i)The ongoing squalid conditions of the home.
ii)X not having a school bag for at least two weeks and when asked about it she replied that it was “somewhere on the floor in all the rubbish” and that the “rubbish is not picked up, instead it is walked over.”
iii)The numerous cats living on the property and X’s clothes smelling like “kitty litter”.
iv)X’s constant head lice.
v)X being in tears and refusing to return to the mother’s home after time with the father.
vi)X’s poor school attendance.
vii)The mother refusing any help.
c)As a result of this notification the earlier notification was re-opened and upgraded to requiring a 10 day response due to the child protection history and the “risk and cumulative harm impacting the children’s safety and well-being.”
d)It is not clear that there was a response by DCP within the 10 day period that had been assessed.
e)There is however an email from a worker at the Department of Human Services to Housing SA dated 3 July 2019 following a phone call between workers from the two Departments earlier that day.
i)That email records that a request had been made of Housing SA for a co-working approach and for a “more intensive approach in order to make significant changes to the current housing and social situation” for the family.
ii)The email records that the file had been closed in relation to presumably D given the number of state authorities involved with him, however there was an open file regarding the other siblings.
f)There is a further email chain dated 4 July 2019 from the DCP, to the Department of Education which was responded to by a worker from the Department of Human Services (presumably the same worker who had sent the email on 3 July 2019).
i)It is clear from those emails that the DCP worker had asked the Department for Education to accept a referral for X.
ii)The worker from the Department of Human Services then wrote to the worker from the Department for Education suggesting that the referral be declined as she was trying to get Housing SA to escalate the family.
iii)The worker from the Department of Human Services then wrote to DCP declining the request for assistance and referring the worker to Housing SA.
There is a Child Wellbeing Case Note made by the Education Department on 16 July 2019.
a)This note relates to a phone call between the CWP worker from the Education Department and a worker from Housing SA who had rung the CWP to ask for advice as to whether or not a home visit scheduled for 18 July 2019 should be rescheduled at the mother’s request.
b)The record sets out that the CWP recommended that the home visit should proceed rather than allowing time for a superficial clean of the home to be undertaken.
c)The record indicates that the Housing SA worker enquired as to why DCP were not involved with the family, and was told that the threshold for statutory intervention had not been reached, however “if more information can be provided to DCP this would be reassessed.”
d)The record sets out that the CWP told the worker from Housing SA that they had advised the Education Department in April 2019 that home visits to the family would be conducted every three weeks (that information however does not appear anywhere in the records that have been filed by the father).
e)The follow up to this email is recorded in a Child Wellbeing Case Note made by the Education Department on 19 July 2019, following a phone call by the Housing SA worker after the home visit had been conducted on 18 July 2019. That record indicates that “the house had a strong smell of urine but that Ms Hagens had re-homed many of the cats (some still remain). Ms Hagens had attempted to clean up and stated that although it was not to the standard she expects the tenancy to be in [balance of record suppressed].” The record goes on to identify that a referral for escalation within Housing SA was to be made.
There is a further Child Wellbeing Case Note made by the Education Department on 11 September 2019 closing the file.
a)That record sets out that there are a number of supports in place for the family.
b)That Mr B has moved out of the home and is living with his grandmother.
c)That there were ongoing concerns regarding the squalid conditions of the home but Housing SA had advised that “they were unable to action this currently due to capacity, however the current Housing Officer…”
d)The balance of the record appears to be incomplete.
The final DCP Case Note produced to the Court is dated 3 October 2019.
a)That record sets out that a report had been made on 27 September 2019, recorded on 3 October 2019 in relation to X and her siblings.
b)It appears that this notification was made by the father as it relates to X’s ongoing presentation with head lice “to the point that they are crawling on her back and chest” and X having “sores on her head that are weeping”.
c)In addition concerns were reported about D now being released from “prison again” and X being unable to “defend herself”.
d)This notification was assessed as requiring a 10 day response.
e)However as no further records have been produced, it is not clear to me what action was taken in relation to this report.
What can be discerned by the records provided to the Court?
As identified earlier in these reasons, it is clear from the records to which I have now referred in detail, that this is a family unit who were coming to the attention of numerous government departments.
There also appears to be a thread of consistency in the nature of concerns that were being reported in all of the information to which I have referred, particularly from about 2018. Of particular prominence is the reportedly “squalid” conditions of the home environment, a lack of adequate food, inconsistent school attendance for all of the children and the impact of D’s violent and erratic behaviour on the household.
What is also apparent however, is that there appears to have been little effective communication and co-departmental coordination in relation to the significant concerns being raised in relation to this family, their living conditions, allegations of risk and neglect and the impacts of the very serious family violence being inflicted on the members of the household by the child D.
It is clear that this is a family that has been in desperate need of more meaningful intervention, and in particular proper investigation by DCP.
Unfortunately this does not appear to have ever been undertaken, despite numerous notifications in relation to X and her siblings, which became more frequent from 2018; several of which have been assessed as requiring a 10 day response, but have not ever been properly investigated.
In all of the circumstances it is difficult to comprehend how this family (not just X who is the subject of these proceedings) has fallen between the cracks for so very long. I can only assume that this has occurred due to a combination of a lack of appropriate resourcing to DCP in particular, combined with what appears to be a complete failure by DCP, the Department of Education and Housing SA to have implemented a meaningful discussion, exchange of information and a co-ordinated strategic plan between the various government departments working with the family.
It is also clear to me from the records that:
a)The mother was not aware of the majority of notifications that had been made to DCP, as they were not investigated.
b)The mother appears to have been given limited information about the concerns under consideration and investigation by the Department of Education.
c)The mother was however well aware of the longstanding and apparently ongoing concerns being raised in relation to the unhygienic and “squalid” living conditions at the home. Indeed, the records would indicate that the mother has on several occasions cancelled home visits and or attempted to reschedule at least one more recent visit to avoid the proper assessment of this significant concern.
d)Other than the notifications which appear to have been made by the father, it is apparent that he has not been engaged whatsoever in relation to the concerns being raised about X, her poor school attendance, her living conditions and the assertions the mother had made to the school in text messages regarding her health.
e)The mother appears to have been reaching out and receiving assistance in relation to the basic care needs of the children, and in particular providing enough food for the children.
f)The mother has struggled to manage D’s behaviour and in particular his violence and aggression and as a consequence she not only appears to have been the victim of his outbursts (together with X and her siblings), but she appears to have also understandably struggled balancing what might best be described as her moral obligation to continue housing and parenting D with the need to protect herself, X and her siblings from his outbursts. It is not clear to me what supports have been offered to the mother and whether or not she has taken up or declined any offers of assistance.
While it ultimately remains an issue for cross examination of the mother, the records produced must raise some significant concerns as to the credit of the mother, particularly with respect to her assertions and her denials in her affidavit, including but not limited to:
a)The mother’s denial of the father’s allegation that she has lied to X’s school about X having serious medical conditions to justify her non-attendance at school, and in particular her assertion that she has not ever informed X’s school, or anyone else, that X suffers from a brain injury, epilepsy, diabetes or heart issues.[7]
b)The mother’s denial that there have ever been any concerns expressed by Housing SA as to the state of her home.[8]
c)The mother’s denial that there are any issues in relation to the lack of adequate food for X at school.[9]
[7] Mother’s affidavit filed 13 November 2019, paragraph 53.
[8] Mother’s Affidavit filed 13 November 2019, paragraph 37.
[9] Mother’s Affidavit filed 13 November 2019, paragraph 52.
In addition, the court must on the face of the records have some significant concerns about the mother’s ability to adequately protect the children from the serious incidences of family violence that are alleged to have been perpetrated by D towards not only the mother and X, but also the other siblings.
It is not in dispute that the child D has engaged in criminal behaviour and has recently spent time in and out of M Youth Training Centre. However, the parties are in dispute about the extent that D’s behaviour has and will continue to have an effect on X and the other members of her family.
In relation to D’s behaviour, the father alleges that:
a)D “has been violent in the house” and “smashed a front window when X was in the home”;
b)He was told that D had “bashed” the mother; and
c)X had told him that D “had hit her in the stomach with a shoe” but he does not hit her anymore because C protects her.[10]
[10] Father’s affidavit filed 29 July 2019, paragraph 19.
The mother acknowledges that D has engaged in the following behaviour:
a)In November 2018, D smashed the mother’s bedroom window;
b)In August 2018, D scratched the mother’s car; and
c)In November 2018, D threw a rock which hit X on the leg. [11]
[11] Mother’s affidavit filed 13 November 2019, paragraphs 22-24.
In relation to the first two incidents, the mother says that X was not home at the time of the incidents. In relation to third incident, the mother says that X did not suffer any injury and both D and X agreed that it was an accident.
The documents produced pursuant to subpoena to SAPOL previously referred to in these reasons indicate that the Police have charged and/or investigated D in relation to multiple incidents of physical violence and property damage. These incidents include:
a)On 6 August 2018, D was charged with one count of aggravated assault and one count of throwing a missile for throwing rocks, which hit X’s thumb and the mother’s car.
b)On 23 September 2018, D was charged with one count of property damage, one count of aggravated assault and one count of breach of bail in relation to an incident in which he scratched the word “sucker” into the bonnet of his mother’s car using a shard of glass, and then hit the mother with a garden hose to the arm and punched her to the hand.
c)On 25 September 2018, an intervention order was issued against D in protection of the mother, with the condition that he must not assault, threaten, harass or intimidate her.
d)On 5 November 2018, D was charged with multiple offences in relation to an incident in which he knocked over the rubbish bins in the mother’s street, threw a piece of wood through a neighbour’s window and punched his mother on her right arm.
e)On 15 December 2018, D was charged with aggravated assault and breaching a condition of his intervention order for throwing a stick at the mother out the front of her home.
f)On 23 February 2019, the Police attended at the mother’s home due to a report that D threw a shoe at X which struck her several times in the stomach causing redness. The Police did not take any further action against D.
g)On 6 March 2019, D pushed the Mother into the side of her car with both of his open palms. He then grabbed her left arm and gripped it tightly. The mother pulled away, causing a 2cm scratch to her arm.
h)On 9 May 2019, D punched the Mother several times to the arm and the face while the mother was driving. D also punched his brother Mr B approximately 5 times while he was also in the car. Later the same day, D smashed the back bedroom window of the mother’s home trying to break in. An intervention order was granted against D naming Mr B as a protected person.
In her affidavit filed 13 November 2019:
a)The mother does not acknowledge or identify the existence of the intervention orders against D which name the mother and Mr B as protected persons.
b)The mother failed to detail the incidents of criminal behaviour by D which has the effect of downplaying the seriousness of his behaviour and the impact that this has had on the members of the family including X.
In addition, it is not entirely clear to the court the extent to which X has witnessed and or been impacted by the family violence occurring in her home as perpetrated by D.
Has the there been a significant change of circumstances since the Final Orders were made on 5 May 2015?
I am satisfied that the concerns raised by the father, which are at this stage amplified by the documents produced pursuant to subpoena as summarised in these reasons, well and truly make out that whatever concerns existed when the final orders were made on 5 May 2015, they have now well and truly escalated beyond the point of crisis requiring the intervention of this court.
Of significance, X was only 2½ when the final orders were made on 5 May 2015 and she had not yet commenced school and accordingly, much has changed in her short life since that time. Importantly however X is now also of an age where she is presumably able to express some views which the Court would benefit from understanding.
In addition, it is clear from the records that at the time the final orders were made, the difficulties in relation to D had not yet erupted to the surface; he was only 9 years of age at the time, he had not yet been diagnosed with Autism Spectrum Disorder (which occurred on 8 September 2015), and significantly he had not at that stage engaged in any known acts of family violence, nor the other indiscriminate acts of violence, theft and destruction, which appears to have escalated well beyond the point of control across 2018 and 2019.
It is also not lost on me that the DCP records indicate that at the time the subpoena material was produced to the court on 9 December 2019, it appears that there was an open investigation regarding the ongoing concerns for the children and for present purposes X.
When turning my mind to those factors set out in section 60CC, and in particular the primary considerations set out in section 60CC(2), I am abundantly satisfied that on the face of the material the court must have some significant concerns about the need to protect X from harm.
At this juncture, the focus of the interim hearing was to determine the threshold questions raised by the mother, and not what orders should be made if the mother’s arguments were rejected. Indeed, the mother’s Response filed 13 November 2019 only asks that the court dismiss the father’s application and that he pay indemnity costs. As a consequence it is not clear to the court what orders the mother seeks if her position was rejected.
In light of the material now before the court, I am most concerned that it has taken so long for the matter to be heard.
In addition, I do not know what has happened to the most recent notification received by DCP in September last year, and nor do I know whether the DCP, Housing SA and/or the Education Department have had any further involvement with the family.
For all of these reasons, and given the serious nature of the concerns being raised about this family unit, their living conditions, the poor school attendance of X and the impact of D’s behaviour not just on X (who is the subject of these proceedings), I have determined that not only is it appropriate to reject the threshold arguments advanced by the mother, but that in addition that the Minister be invited to intervene in the proceedings.
In making the orders set out at the commencement of these reasons, it is my intention that the proceedings will come back before the court within very short compass so that I am in a position to hear submissions as to the interim application of the father that X live with him.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of Judge Kari
Associate:
Date: 21 July 2020
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