Reid and Hastings

[2017] FamCA 1019

FAMILY COURT OF AUSTRALIA

REID & HASTINGS [2017] FamCA 1019

FAMILY LAW – CHILDREN – REQUEST FOR INTERVENTION – Where the Department of Family and Community Services is requested to intervene in the proceedings – Where the eldest child is living in a youth refuge – Where there are concerns as to the child’s wellbeing – Where there are concerns as to whether either parent has the capacity to care for the child – Where urgent assistance is needed – Where the Department may be the only person or agency in a position to assist.   

Family Law Act 1975 (Cth) s 91B

Tallant & Kelsey (No. 3) [2016] FamCA 933

APPLICANT: Ms Reid

RESPONDENT: Mr Hastings  

INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

FILE NUMBER: PAC 138 of 2014

DATE DELIVERED: 11 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 11 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Gonzalez & Co

SELF-REPRESENTED RESPONDENT: In person via telephone link

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claremont Legal  

THE COURT NOTES

(A)On 25 January 2017 orders were made including that the child C (the child) born shall live with her mother and spend time with her father in accordance with her wishes. 

(B)Final hearing with respect to the child’s parenting arrangements is to commence on 29 January 2018.

(C)On approximately 2 November 2017 the child left her mother’s care and was subsequently provided accommodation in a youth refuge through B Services.  I understand that this placement is for a period of six weeks and that the case worker from the Department of Family and Community Services has reported that the aim is to restore the child to one of her parents.

(D)For the purposes of the final hearing appointments have been made for the child to meet with the expert appointed in these proceedings to prepare an updated report concerning a range of matters including the child’s current living circumstances.

(E)For the purposes of:

(a)       providing the court with up to date and accurate information in relation to Departmental involvement with the child,

(b)       providing assistance for the child to attend the appointment with the expert which both parents may currently be unable to do,

(c)       in relation to the proceedings generally where it may be found that neither parent is in a position to have the child live with them and maintain her living with them,

(d)       The Department is invited to intervene in the proceedings.

THE COURT ORDERS THAT

1. The proceedings are listed for further directions at 9.30am on 18 December 2017.

2. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

3. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention  by 18 December 2017.

4. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

5. The Court requests that an officer from the Department attend court on the adjourned date 18 December 2017.

THE COURT NOTES

(F)The parties can assume that leave will be granted to rely upon an additional affidavit (as well as their respective consolidated affidavits) relating only to matters which have arisen since the consolidated affidavit was filed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reid & Hastings has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 138  of 2014

Ms Reid

Applicant

And

Mr Hastings 

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This judgment relates to the second request made by this Court for the Secretary of the Department of Family and Community Services (“the Department”) to intervene in proceedings before this Court.

2. Orders making such request were made on 11 December 2017 and it was indicated that the request should be regarded as urgent for reasons set out in this judgment.

3. It is also requested that the Department treat the information provided in this judgment as new information which has come to light in recent months.

Background

1. Parenting proceedings before this court which were commenced in July 2016 relate to the two children of Ms Reid (“the mother”) and Mr Hastings (“the father”). The children are C (“the child”) born in 2005 who is currently 12 and D (“D”) born in 2007 who is currently 10.

2. The parents separated in March 2010 after a 10 year relationship which commenced when the parents were adolescents. Following their separation the child and D remained in the care of the father.

3. The mother commenced a new relationship in 2010 and has three children of that relationship who are six, four and three but are not the subject of these parenting proceedings. These children live with the mother who is separated from her new partner.

4. Following their separation the parents reached an informal arrangement whereby the children would spend each alternate Sunday with their mother for a few hours which then increased to overnight time with their mother on an irregular basis.

5. Orders were then made in this Court in 2014 that the children live with the father and have regular contact with the mother every second weekend including overnight on a Saturday and for block periods of time in the school holidays.

6. In late May 2016 the child left her father’s home and self-placed with her mother. the child made allegations of sexual abuse by her father which were investigated by Suburb E Joint Investigative Response Team (“JIRT”) but were not substantiated.

7. Shortly after the child self-placed with her mother, the mother commenced these parenting proceedings seeking orders that she have sole parental responsibility for both children, that they live with her and that the father spend no time with them.

8. The child initially spent no time with the father after self-placing with the mother and for some time the father did not allow D to spend time with the mother as a result.

9. The proceedings were allocated to the Magellan Protocol and a Magellan Report was requested. That report (which is undated) appears to have been received by the court in October 2016.

The Magellan Report

1. The Magellan Report records that between 2010 and 2016 both children have come to the attention of the Department as a result of three risk of serious harm reports. It is also noted that a further 11 reports were made which did not meet the threshold of risk of significant harm.

2. According to the report JIRT and the Department conducted two separate safety assessments for the child and concluded that she was “safe in her mother’s care”. A number of concerns about the safety, welfare and wellbeing of both children were noted but each child was assessed as safe in their current households.

Events following the Magellan Report

1. On 13 April 2017 orders in relation to the parenting arrangements for the children were made. Pursuant to those orders the child was to live with the mother and D was to live with the father.

2. The April 2017 orders also provided for D to spend defined time with her mother including each alternate weekend and one overnight in the intervening week and half of the school holidays. The mother was restrained from leaving either child in the unsupervised care of her partner, even though as I understand it she is now separated from him.

3. The child was to spend time and to have telephone contact with the father in accordance with her wishes.

4. An expert psychological report was also obtained from a forensic psychologist. This report is dated 9 January 2017 and is now out of date as there have been significant changes in the children’s circumstances.

5. The mother alleges in the proceedings generally and reported to the expert psychologist that she separated from the father due to chronic domestic violence. The father denies allegations of violence made against him though he concedes that he has agreed to the making of two Apprehended Violence Orders (“AVOs”) against him for the protection of the mother.

6. The mother also raises particular concerns in relation to inappropriate sexualised behaviour from the father and concerning behaviour of a sexual nature in the child. She alleged to the Family Consultant that the child seeks pornography on a site called “father hub” and is aware that the child has been looking for videos of “daughters forced to have sex with their father”. She claims that when she discussed this with the child, the child said that she wanted to know “how they felt and how they dealt with it”. The mother also expressed concern that the child has been talking to people on chat sites such as “flirt” and “zoosk” and said she understands the child has attempted to join online dating services.

7. Much of the expert’s report concerns an assessment of the risk allegedly posed by the father with respect to sexual abuse. The expert concludes that the father represents a low risk to sexually reoffend.

8. The father raised concerns with the expert about the child’s awareness and discussion of sexual matters beyond her understanding. This is consistent with concerns raised in the Magellan Report. The father is concerned that the mother has been talking to the child about such matters including her own sexual abuse as a child, issues about the child’s sexuality and informing the child that the father had sex with a maternal aunt and is the father of that aunt’s child which the father denies.

9. The father also raises concerns about the mother’s parenting capacity including that the child’s school attendance and concerns about the child’s current emotional state.

10. In her report the expert psychologist expressed the view that both children were at risk of psychological abuse for various reasons including being exposed to the negative effects of the parents conflicted relationship. This psychologist also noted that the child had been engaging in risk taking behaviours including sexual and self-harming behaviours and recommended that the child have a mental health assessment.

The upcoming hearing and recent events

1. As the parents remain unable to resolve their parenting dispute the matter has been listed for final hearing on 29 January 2018. Final hearing dates are difficult to obtain in this Court and particularly in this Registry and it is important that the final determination of the matter is not placed in jeopardy.

2. The independent children’s lawyer recently contacted the court and sought that the proceedings be relisted as there had been a significant recent change in the circumstances relating to the child.

3. On 11 December 2017 the court was informed that on about 2 November 2017 the child left her mother’s care and was subsequently provided accommodation in a Youth Refuge through B Services. It appears that the Department were involved in this placement, and in particular Ms F, a caseworker from G Town CSC, is engaged with the child and her family. The Court was also informed that this “placement” is for a period of approximately six weeks and that the caseworker had reported that the aim is to restore the child to one of her parents.

4. This court will soon be (at the January 2018 hearing) considering all of the circumstances in relation to the children and is soon to make a decision based upon all of the evidence including an expert’s report about long term orders which are in the best interests of the children. In these circumstances it would be of great assistance if the Department could bring its resources and information to the court in resolution of this dispute. Further, the court would be greatly assisted by being provided with up to date and accurate information in relation to Departmental involvement with the child.

5. I would also be concerned about any decision to “restore” the child to one of her parents at this critical time when all of the matters relating to the best interests of the child will shortly be considered by this Court.

6. Further, for the purposes of the final hearing an appointment has been made for the child to meet with the expert to enable the expert to prepare an updated report on a range of matters including the child’s current circumstances.

7. Neither of the parents at this stage appear to have the capacity to ensure that the child attends this appointment and the court would be grateful for any assistance that the caseworker or the Department is able to provide.

8. It may also be the case that the court may find that neither of the parents has the capacity to adequately parent the child given her current circumstances. Assistance which Department alone may be able to provide could be required to ensure the safety and wellbeing of the child.

9. In these circumstances the Department is once again invited to intervene in the proceedings.

Matters to consider regarding intervention

1. When considering this request the Secretary’s attention is brought to paragraphs [264] and [270] – [276] in Tallant & Kelsey (No. 3)[1] which are in my opinion equally applicable in this case. These paragraphs are extracted as follows:

   [1] [2016] FamCA 933.

   As noted earlier in these Reasons the Department of Family and Community Services have been invited twice to intervene in these proceedings under section 91B of the Act. That section is set out as follows:

   91B Intervention by child welfare officer

   (1)In any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare.

   (2)Where the court has, under subsection (1), requested an officer to intervene in proceedings:

   (a)the officer may intervene in those proceedings; and

   (b)where the officer so intervenes, the officer shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

   …

   Against this background it was noted in the November 2016 judgment that when the proceedings resumed on 5 December 2016 the court may be asked to make a finding that there is an unacceptable risk of harm to the children in both of the parent’s households and in these circumstances the Department was invited to intervene in the proceedings. 

   The Department declined the court’s invitation to intervene and gave the following reasons:

   ·The information reported is not such as would warrant the prioritisation of these children over other children who have already been assessed as at risk of significant harm.

   ·The reported information does not raise any new risk of significant harm concerns for the children which has not already been reported to the Department.  The last risk of significant harm report for the children was received by the Department in 2014, and as such there is no capacity to allocate this matter compared against other priority work requiring casework intervention.

   In my view the manner in which the Department appears to have considered this invitation to intervene in proceedings gives rise to some issues of concern. 

   Although I have been unable to identify any authority in relation to appropriate matters to which the Department may have consideration in deciding whether to intervene, the reasons given by the Department in this case are difficult to understand in light of the reasons for the invitation.  In circumstances where both parents may be found to pose a risk of significant harm to the children, a judicial officer in the Family Court or any other person associated with the Family Court is of course unable to investigate alternate options for care of the children beyond the parties or provide any intervention itself. 

   I am concerned that the judgment delivered on 4 November 2016 setting out the reasons for the invitation to intervene may not have been given appropriate consideration by a relevant officer in the Department, and that appropriate weight may not have been given to the view of a judge of a superior court with expertise relating to matters concerning the welfare of children. 

   I am also concerned that the response from the Department includes that the “reported information” raised no “new risk of significant harm concerns”. According to the Department’s response no risk of significant harm concerns in relation to these children had been raised since 2014. In writing this the author of the response appears to miss the point that the judgment itself included new risk of significant harm matters. That this judgment was not considered to raise new risk of significant harm concerns raises serious questions about whether it was actually read by someone of appropriate authority in the Department and the process generally within the Department for consideration of invitations to intervene made by this court under section 91B.

   It does not follow that intervention in the proceedings by the Department should only occur where the circumstances are such that the Secretary of the Department may seek an order that parental responsibility for the children be allocated to the Minister.  There are many other ways in which the Department could become involved, in particular in investigating alternate options for the care of the children other than those proposed by the parties and in providing other forms of intervention. 

2. As can be seen from the orders of 11 December 2017 the request for intervention is regarded as urgent especially where assistance is needed to ensure that the child is taken to the appointment for further assessment by the expert. A legal representative for the Department has also been requested to attend on the next occasion the matter is before the court on 18 December 2017.  

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 December 2017.

Legal Associate:

Date:  13 December 2017