Ross and Potter

[2011] FamCA 882

FAMILY COURT OF AUSTRALIA

ROSS & POTTER [2011] FamCA 882

FAMILY LAW – CHILDREN – Child spend time with a parent

Family Law Act 1975 (Cth)

APPLICANT: Ms Ross

RESPONDENT: Mr Potter

FILE NUMBER: BRC 48 of 2007

DATE DELIVERED: 9 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 November 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The matter be adjourned for the hearing of interim parenting applications to commence at 11.00am on Wednesday 25 January 2012 in the Brisbane Registry of the Family Court of Australia.

2. The child Y born … 2005 (“Y”) be returned to the mother’s care by the father facilitating Y’s attendance at school tomorrow morning (being Thursday 10 November 2011) and the mother collecting Y from school tomorrow afternoon.

IT IS DIRECTED THAT

1. Within 7 days of today, the father file and serve an application for parenting orders setting out all such orders with respect to the child Y and any such application be listed for hearing on 25 January 2012.

2. Within 7 days thereafter the mother file and serve any response to such application.

3. By not later than 4.00pm on 11 January 2012 the parties shall file and serve any affidavit said to be required for the hearing of any interim parenting application.

IT IS RESPECTFULLY REQUESTED THAT

1. The Director-General of the Department of Communities (Child Safety Services) regard these orders as notification by the court with respect to the child Y born … 2005 and that such investigation as is considered by the Department to be appropriate be undertaken with respect to Y and in particular the circumstances pertaining to the mother’s household.

2. The Director-General of the Department of Child Safety prepare a report pursuant to section 69ZW of the Family Law Act 1975 (“the Act”) or under the Protocol as to the investigations or enquiries pertaining to the allegations of abuse of the child Y born … 2005 contained in the Form 4 filed by the father on 8 November 2011 or any other information relating to the family and that such Report be filed within 28 days.

IT IS FURTHER ORDERED THAT

1. The interests, in these proceedings, of the child Y born … 2005, be independently represented by a lawyer and it is requested that Legal Aid Queensland arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

2. To the extent that the exception provided for in section 121(9)(g) of the Act or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish an account of these proceedings, namely the Form 4 filed 8 November 2011, these orders and reasons and the transcript of today to:

   (a)The Director-General, Department of Communities (Child Safety Services) or such person as she might authorise;

   (b)The Commissioner for the Queensland Police Service and any police officer conducting any investigation in respect of a complaint made in respect of the alleged assault of Y.

IT IS FURTHER DIRECTED THAT

1. The Independent Children's Lawyer shall attempt to ascertain from the Queensland Department of Education and/or any employees thereof, any details of anything allegedly said by Y to any teacher or any adult within the school, prior to the matter next coming before the court.

IT IS FURTHER ORDERED THAT

1. A transcript of today be provided to the parties and to the Independent Children's Lawyer free of charge.

2. Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 48 of 2007

Ms Ross

Applicant

And

Mr Potter

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Yet further litigation emerges in this matter despite the fact that the Byzantine operations of these family groupings was the subject of lengthy proceedings in this court now some three years ago. 

2. The nature and extent of the internecine disputes within these parental groupings can be seen exemplified in a comprehensive report prepared by Ms M exhibited to an affidavit filed 7 May 2008 and with a more narrow focus, the report from Dr C, psychiatrist, exhibited to an affidavit of 27 August 2008.

3. To give some example of the sorts of internecine disputes that were involved in those proceedings, they involved two mothers, Ms Wilson and Ms Ross, and three children, N, Y and J.  Mr Potter is the father of N with Ms Wilson.  Mr Potter is the father of Y with Ms Ross.  J is a child of Ms Ross by another relationship. The parties to the proceedings in 2008 were Ms Wilson, Mr Potter, Ms Ross, Mr Olsen (who is the father of J), and Mr and Mrs Olsen, who are Mr Olsen’s parents and J’s grandparents.

4. As might be expected, the issues live in those proceedings included a number of matters that went to the heart of matters that must be considered pursuant to section 60CC of the Act. Not the least of those matters is the capacity for each of the parents to provide for all of the needs of the relevant children, including importantly their emotional and psychological needs.

5. In the context of the dispute then live, Ms M said at paragraph 110 of her report:

   Although there have been significant twists and turns in this complicated matter, some essential facts remain clear.  Firstly, these children have continued to be exposed to conflict, turmoil and disruption.  The children have also been exposed to domestic violence, particularly to the emotional abuse of this violence.  There seems to have been little peace for these three children since the last report.  Secondly, the shifting allegiances amongst the adults and the dynamics of the adult relationships remains a significant factor.  Thirdly, the adults have demonstrated an inability to work together and an inability to effectively share parental responsibility.

6. That these words were the portent of things to come can be seen reflected in the fact that now, more than three and a half years later, Mr Potter finds himself as the applicant in an application for contravention in relation to another child and appears before me today as the respondent to an application for a recovery order with respect to Y.

7. In that context I repeat the words of Ms M which seem to me to be tellingly important, “There seems to have been little peace for these three children since the last report.” 

8. Ultimately, in the midst of the matters to which I have just referred, comprehensive orders were made by me by consent in 2008.  Thus, it should be observed, orders with respect to all children relevant to those proceedings, including specifically Y, have been in place for well over three years.

9. Those orders provide in respect of Y that he live with the mother and spend time with his father at times that might be agreed, and failing agreement, in a regime specified in the orders.  Essentially that time provides for regular week-to-week time on alternate weekends and a night during the other week.

10. A number of specific issues orders were made at that time that might also be seen to be reflective of the context in which they were made, to which I have earlier referred.  In particular, it was agreed between the parties that they use a communication book to be exchanged at changeovers; there were orders made for information from treating doctors and the like to be provided to both parents.  There were orders that neither party denigrate the other or their family to or within the hearing of Y and ensure that no other person denigrates the other parent or their family to, or within the hearing of Y.  Orders were also made with respect to the parents undertaking parenting orders programs and the like.

11. It is an uncontroversial fact that, on 22 October 2011 Y came into the care of the father and, contrary to the orders to which I have just referred, the father has failed or refused to return Y to the mother in accordance with those earlier orders. 

12. I observe that this event took place on 22 October 2011 and thereafter Mr Potter took it upon himself to remove Y from his school for a period of about two weeks, only returning him on Monday of this week.

13. He says the reason for Y not being taken to school is because of his concern that if the child were returned to the school then his mother would take possession of him.  It might be observed that Y has a number of specific needs that need to be addressed.

14. Of course, it should be observed that if she did so she would be doing nothing other than complying with the terms of the order that had been in place for some three and a half years.

15. The reason for the withholding of Y by the father and, apparently, his failure to facilitate his attendance at school is said to be what Mr Potter regards as the significant risk of harm to Y if he is to remain in his mother’s household.  It is said that the risk is in two parts:  first, that the mother’s current partner, Mr S, represents a significant risk of causing Y physical harm;  and secondly, and as a necessary corollary, that the mother has failed, and would continue to fail, to protect Y from that harm at the hands of Mr S.

16. I am cognisant of the provisions of Division 12A of the Act, and, in particular, the principles for conducting child-related proceedings outlined in section 69ZN of the Act. The section imposes upon me mandatory principles for the conduct of parenting proceedings. In particular, I make mention of the second principle mandatorily binding upon me which is that I am to actively direct, control and manage the conduct of those proceedings. I also should mention in that respect that I am bound to conduct the proceedings “without undue delay and with as little formality and legal technicality and form as possible.”

17. The application by the mother seeks a recovery order. In his response, the father applies for an order in these terms, “That the applicant and respondent agrees not to bring the child Y contact with Mr S.” Otherwise it is sought by way of final order that the, “Orders of 3 September 2008 remain.” That response, filed 8 November 2011 also seeks a number of interim orders, including that the parents have “equal shared parental responsibility” in respect of the child and that they attend upon a “court expert” and that a report be prepared pursuant to section 62G of the Act.

18. At the outset of the proceedings (which Mr S attended), I asked the mother what the position was with respect to Mr S.  The mother confirmed that Mr S was a part of her life, that she lived with him, and that she intended to maintain a relationship with him in all respects.

19. That being the case, it might be seen that the father’s application for interim orders, as contained in his response, was, in terms, meaningless.  The only order sought by him is an order that there be no contact.  In circumstances where I was not persuaded that should be the case, no other order was sought in respect of the living arrangements for Y. 

20. In those circumstances, and bearing in mind the provisions of Division 12A, to which I have, in specific respects referred, I afforded Mr Potter the opportunity to make an oral application for interim orders in circumstances where the mother has made it clear that she does not propose to cease her relationship with Mr S and where she made it clear that he continues to live with her.

21. Mr Potter, in response to my invitation, sought an order that Y live with him on an interim basis and that he spend time with his mother according to the same arrangements as were applicable to him when Y lived with the mother pursuant to the orders made in 2008.

22. The issue then is this:  should the orders made in 2008 be given full force and effect, the intention of them of course being (among others) that they would, to the extent that orders can do so, bring to an end the remorseless conflict that Y has experienced in his young life.  The answer to that question, according to Mr Potter, is that there should be a change because of the risk to Y posed by Mr S.

23. It is, of course, trite that on applications of this type where there are allegations and counter-allegations, the veracity of those allegations cannot be tested when there has not been the opportunity for cross-examination and for the testing of those propositions.  In the usual circumstances then, the court is left to attempt to decide these issues on the basis of uncontroversial facts, admissions and the like. The obvious unsatisfactory nature of such a process brought about by the volume of cases with which this court must deal, will be obvious. 

24. In light of Mr Potter’s self-representation (and I should add that Ms Ross too appears self-represented) I determine to take the unusual course of taking oral evidence in respect of the specific allegations from the relevant witnesses and permitting Mr Potter to cross-examine those witnesses (namely the mother and Mr S). I, too, asked questions of them.

25. First, it is necessary for me to detail precisely what allegations are made by Mr Potter. 

26. I preface my review of those allegations (contained in an affidavit filed by him on 8 November 2011), by saying that the allegations are wholly dependent upon the hearsay report of comments made by a child who is six. 

27. Secondly, there is no evidence whatsoever offered by the father of an independent nature. To the extent that he might say that there is, he refers to hearsay statements made by the child to a psychologist, Ms Z.  In that respect it should be noted that those consultations with Ms Z occurred when Y had come into the father’s care in the circumstances to which I have earlier referred. 

28. About two weeks subsequent to that event, and only last week, Y had his first appointment with Ms Z.  The father deposes to the fact that Y made allegations similar to that which are otherwise contained in his affidavit to Ms Z.

29. It is necessary then to examine with some precision what it is that is said by the father, said to be the evidentiary foundation for his assertion that Y is “at significant risk” of harm at the hands of Mr S. 

30. First, it is said that, in August last year, the child said to him, “[Mr S] gets angry with mum too, and I’m scared of [Mr S], dad.  He’s not my dad.”  It might be observed that whilst the child refers to alleged fear of Mr S (ie Mr S), no allegation of physical harm is there contained.

31. The father then deposes to events occurring about a week before Christmas last year.  He says that the mother texted him that, “I’ve got some personal shit going on in my life at the moment”, as a result of which she requested that the father take Y into his care.  The father says that when he arrived at the mother’s home, he noticed that the, “Mother’s eyes were bloodshot and clearly she had been crying.”  He then deposes to the mother’s father arriving, and to him putting Y into the car. As he was driving, Y told him that mum and Mr S had a huge fight.  He then puts in quotes these words from the child, “Dad, [Mr S] threw sushi in the bin and shoved mum across the floor and made mum cry.  Mum pulled the Christmas tree over and everything went everywhere, dad.”

32. The next matter upon which Mr Potter relies is that in March of 2011 when Y was in his care, Y started crying and said Mr S smacked him on the bum and hit him in the back of his head.  It is said that Y went on to say that, “Mum and [Mr S] had a big fight again and punched two holes in the wall next to the toilet at home.”  Mr Potter then again puts in quotation marks the following words attributed to Y, “I’m scared that [Mr S] is going to hurt my mum and he always makes her cry.” Again, it might be observed that the words quoted speak of fear on the part of Y but do not make any specific allegations of behaviour by Mr S towards him. 

33. I should add that Mr Potter deposes that, on the following day, he met with the mother and at that time the mother denied both Y being assaulted and/or domestic violence occurring.

34. The next matter to which Mr Potter specifically refers is an event on 20 March 2011 where he says he and Y “bumped into” the father of J (a child who was also the subject of the earlier 2008 proceedings to which I have referred).  He says that the two spoke and that J’s father, “Spoke about the incident at Christmas and how [Ms Ross] pulled a kitchen knife on [Mr S] while they were fighting.  [J] said he witnessed the whole fight and told his dad.  He said he and [Y] were very frightened their mum was going to get hurt.”

35. Again, it might be observed that, even if substantiated, whatever else might be said about the wholly unsatisfactory and troubling nature of any such event, there is there no specific allegation that Mr S has done anything towards Y.

36. Mr Potter deposes that on 19 April 2011 he attended an appointment with Y with Dr C.  He then says, “[Dr C] raised concerns I believe were directly related to [Y] being assaulted and witnessing domestic violence.”  I attach no evidentiary weight to that statement; there is no particularity by which any finding could remotely be made.

37. The incident referred to is said to have occurred in March 2011; the appointment with Dr C was in April 2011. No reference is made to any event in Mr Potter’s affidavit until an event which he says occurred on 21 October 2011 (ie, about six months later).  Mr Potter deposes to having been overseas, I gather, during the course of his employment during at least some of that time.

38. The events deposed to by Mr Potter, said to have occurred on 21 October 2011, might be seen to be the catalyst for his holding over of Y, given that that event occurred the very next day.  Mr Potter deposes:

    On 21/10/2011 after picking [Y] from school he said [Mr S] had hit him again.  [Y] said he was naughty and [Mr S] smacked him hard on the bottom and then started shouting at him.  He then grabbed his head and shoved him to the ground, hurting his right shoulder and side.  [Y] started crying in the car and I became very upset.  I then returned home and called the Department of Child Safety and spoke with a lady named [Ms D].  [Ms D] recommended [Y] see a psychologist.

39. In the time between March/April 2011 and October 2011, Mr Potter deposes to an attempt to have the mother attend at mediation so as to deal with the issues the subject of the affidavit. 

40. The affidavit also reveals, as well as contacting the Department of Child Safety on 21 October 2011, Mr Potter made a “formal assault complaint to [E Town] police” on 28 October 2011 and says that a “statement [was] taken.”  I assume that that is a complaint that Mr S has assaulted the child.  It’s not clear from any material in the affidavit whether a statement was taken from Mr Potter, from Y or from both.

41. The allegations made in the father’s material stretch over a period from August 2010 to November 2011. They are said to form the foundation for the “significant risk” posed to Y by Mr S. At the commencement of these proceedings Mr Potter challenged me on this basis, that the significant risk posed by Mr S to the child was such that in effect I should feel concerned or otherwise troubled by the fact that, if I was to return Y to the mother’s care, then I would be returning him to an environment where he was very significantly at risk of physical harm.

42. Against the broad considerations earlier outlined, these things might be observed:  that despite the specific occasions to which I have earlier referred being deposed to in some detail, including Mr Potter recording words in direct quotes that Y is alleged to have said, the sum total of the evidence with respect to allegations that Y makes that Mr S has perpetrated acts of physical violence upon him occurs on 9 March 2011. 

1. The allegation on that occasion is that Y reported, whilst crying, that, “[Mr S] smacked him on the bum and hit him on the back of his head.”  I have put those words in quotation marks to indicate that they appear in that form in Mr Potter’s affidavit. 

2. However, those words are not attributed to Y in quotation marks at that paragraph. Later in the same paragraph, however, other words of Y are put in quotation marks. But, those words do not reveal statements about any physical harm alleged to have been perpetrated on him by Mr S. 

3. The second specific reference to Mr S perpetrating harm on Y is the reference is to what is said to have occurred on 21 October 2011, in which it said that Y had said that when he was naughty, “[Mr S] smacked him hard on the bottom and then started shouting at him” and “grabbed his head and shoved him to the ground, hurting his right shoulder and side”.

4. Again, the use of quotation marks by me, indicates that the words that appear in the affidavit.  But, again, there is no direct speech attributed to Y in that paragraph. 

5. Those two statements to which I have just made reference, represent the totality of the evidence adduced by Mr Potter of reported physical harm to Y. The general tenor of the affidavit clearly reveals vigilance on his part with respect to any concerns he has about harm to Y. 

6. That is in no way, shape or form to suggest that if, as Mr Potter would assert, there was significant family violence occurring in the home of the mother, that this should be seen as anything other than emotionally and psychologically harmful to Y and, of course, to appropriately attract the concerns (and approbation) of this Court.

7. I make the point, however, to distinguish between allegations of that type and allegations of direct harm because of the significance of the risk that Mr Potter says is posed by Mr S to Y. 

8. As I have earlier said, I required each of the mother and Mr S to give sworn evidence in these proceedings.  I put each and all of the allegations to which I have just made reference to each of Mr S and Ms Ross.  Each and all of those allegations are denied in the sense that it is said by each of Ms Ross and Mr S, that there has never been any occasion at all upon which Mr S has perpetrated any form of physical assault on Y. 

9. More particularly, Mr S swears that he has never, on any occasion, in any way, shape or form, hit or smacked Y even as a form of punishment.  Mr S swears that he discusses any behavioural issues with Y and it is not uncommon for Y to cry when he “gets in to trouble” for things, but he has never on any occasion whatsoever, imposed any form of physical discipline or other contact between he and Y with one exception and one exception alone. 

10. The exception to which he refers is that he says that he, J and F engage in fun wrestling activities.  He says, and Ms Ross confirms that, even in that context, he can recall no occasion at all upon which Y has ever commented to him about having his head shoved in the floor and can recall no occasion whatsoever upon which Y has complained of being hurt during those sort of activities.  The mother too, says she can recall no occasion upon which Y has complained that he has been hurt in any of those incidents. 

11. She, too, swears that Mr S has never engaged in any form of physical punishment or other assault on Y. 

12. Mr S did say that Y and his brother J also engage in wrestling activities and it is, I gather, by no means uncommon that the brothers might, during that activity, hurt themselves and indeed Mr S says that there have been occasions when both children have ended up crying in that context.

13. Not only do Mr S and the mother each deny, categorically, any form of physical harm being perpetrated upon Y at any time, in any form, but they each deny that there has been any form of physical violence as between them. 

14. Ms Ross specifically denies, as does Mr S, any incident that might fit the description of that which is contained at paragraph 36 of the affidavit of Mr Potter, where he deposes to the hearsay comments of J (although again, not in direct speech).  No such incident of any type or description, both Mr S and the mother say, has occurred. 

15. The questions which are familiar to this jurisdiction were asked by Mr Potter when I afforded him the opportunity of cross-examining each of Mr S: why would Y (and/or J) say these things, if they were not true. 

16. The mother offered, effectively, two explanations.  First, she said that she believed that Y was “concerned about what you (i.e. the father) was saying to him and how he feels about that,” in that respect, in her affidavit the mother says:

    Throughout this year, [Y] has been making what I consider to be strange comments such as “[Mr S] is not allowed to smack me.  My dad says so,” “my dad is stronger than [Mr S]” and “my dad will get him [Mr S].”

17. The mother also refers to a similar incident when she collected Y from school after a weekend spent with his father, during which Y had wet the bed.  She said that Y made comments to similar effect on that occasion and she offers that as an explanation for why Y might have said the things that he has said. 

18. When Mr Potter asked her what her explanation was for the things that Y has said to Ms Z (which, it might be noted, are not deposed to) the mother asserted that the father had been “coaching” Y and had effectively told him the things to say to the psychologist.

19. It is not the task of the Court, at this time, to make findings during these truncated proceedings (albeit that some cross-examination was permitted) as to what might be described as broader questions.  What is incumbent upon the Court, in an application of the type under consideration, is to consider conservatively, the evidence with respect to risk and to decide whether the risk might be considered unacceptable so as to, as it were, justify Y remaining in his father’s care, despite the orders being made in 2008 and the process of testing the evidence associated with the making of those orders. 

20. I do not propose to make specific findings relating to the credibility of the mother or Mr S.  I decline to do so, first because the proceedings are truncated in the manner to which I have described. Secondly, I did not require Mr Potter to give sworn evidence and afford to the mother, the opportunity to cross-examine him. Thirdly, it seems to me that findings within the context of these proceedings, can be made by reference to the evidence looked at as a whole in the absence of those specific findings as to credit. 

21. It is, in my view, significant to note in the context of arriving at a decision as to whether the evidence justifies a finding of unacceptable risk in these proceedings, to note the specific and categorical denials of, not only conduct towards Y which is alleged against Mr S, but also conduct that might be more generally described as family violence occurring within the mother’s household. 

22. It seems to me that the evidence falls a long way short of that which would be needed to arrive at a conclusion, on an interim basis, that there in an unacceptable risk of harm in the mothers care in circumstances where a decision has been made about that (by consent), and has been in place for a considerable period of time.

23. In addition, it is plain on any view of the evidence that the mother has been Y’s primary carer effectively since his birth. 

24. Thirdly, the nature of the application originally brought by Mr Potter, effectively concedes that Y should remain in his mother’s day-to-day care, but in circumstances where Mr S no longer forms part of her household and she would be prepared to give an undertaking to not bring Y in to contact with him. 

25. Those matters combine to produce, in my view, a requirement for there to be cogent evidence before long-standing, existing care arrangements would be upset. As I have said, I do not consider the evidence comes remotely close to establishing such a risk. Nor do I consider that it meets the requirements that would be necessary for me to decide on the balance of probabilities, that any such standard had been reached with respect to that central issue. 

26. Ms Ross who appears for herself, but whose material had been prepared for her by solicitors, has not sought any specific orders with respect to time that the father should spend with Y in the even that a recovery order was issued as she would request.  The order sought by the mother, in that respect is that “Until further order, the child spend time with the respondent, as determined by this honourable Court.”

27. At the conclusion of the proceedings and after Mr Potter had made his submissions, the mother sought an order for supervised time. It seems that the only basis for any such application, was a concern that she had about the father acting unilaterally in the way that he did on 22 October 2011. 

28. I refuse to accept that application, notwithstanding the fact that I permitted Mr Potter to make an oral application in respect of time.  I permitted Mr Potter to do so because it seemed to me that the tenor of the orders which he sought, premised on Mr S no longer having any contact with Y, was that if Mr S was to have contact with Y, then an order that Y live with him was implicit. 

29. In the event that the mother makes a case, or seeks to make a case, that time between the father and Y should be supervised, it seems to me that it should be done on application, supported by an affidavit deposing to all such matters that the mother says are relevant in respect of such an application. 

30. I again make reference to the fact that these parenting arrangements have been in place as a result of a consent order for some three years or more. I would not be inclined to upset those arrangements insofar as time between the father and Y is concerned, unless I was persuaded by cogent evidence, that it was in Y’s best interests to do so. 

31. Notwithstanding the unilateral actions on the part of the father on 22 October 2011, it seems to me, on all of the evidence that I have before me, that Y enjoys a close and appropriate relationship with his father. Save for the specific concern that the mother raises, she does not, in any material before me, seek to gainsay that.

32. Accordingly, I did not permit the mother to make an oral application for supervised time.

33. The material before me also reveals, as I have indicated, that the father has made contact with the Department of Communities (Child Safety Services) and the Queensland Police.  The mother says to me that neither any representative of the Department, nor any representative of the Queensland Police have made contact with her, or to her knowledge, Mr S. 

34. The concerns raised by the father have, insofar as the Department is concerned, a very significant historical context.  The material before me at the time of the trial in 2008, reveals very significant contact between the department and various persons involved in the litigation at that time.  It seems to me appropriate, notwithstanding my conclusions with respect to the state and standard of the evidence before me, that I should include in the orders a respectful request to the Director-General of the Department of Communities (Child Safety Services) to regard these orders as a notification by the Court with respect to Y and to respectfully request that such investigation as is considered by the Department to be appropriate, be undertaken with respect to Y and in particular, the circumstances pertaining in the mother’s household.

35. I will also include in the order, an order pursuant to 69ZW of the Act requesting of the Department, a report in the form of the report usually provided to the Court in respect of proceedings within its Magellan list in respect of this matter.

36. Although I have made no specific findings with respect to the evidence of the mother and Mr S, I want to make it abundantly clear to each of them that the Court treats allegations of family violence generally and in particular, violence towards children, very seriously. I propose to order that an Independent Children’s Lawyer be appointed on the usual terms. 

37. The father makes reference to the fact that Y may have said things to Ms Z, although no specific matters are referred to in the affidavit (although he did put some of those matters to the mother when she was in the witness box).

38. Also, apparently, comments have allegedly been made to Y’s teacher (again, not specified within the affidavit, but referred to in cross-examination of the mother).  In respect of the latter, the mother asserts that in her conversations with Y’s teacher, that she has never reported any concerns, nor has anything been said to her by the teacher, as to the teacher having any concerns about Y being harmed or Y saying things about being harmed prior to 22 October 2011.

39. I have no doubt that the Department and/or the Independent Children's Lawyer will follow up these matters.

40. I consider that, to the extent that the father’s concerns have a basis in behaviour that may have caused Y concerns, the involvement of the Department and the Independent Children's Lawyer assist will in providing a measure of “supervision” pending any further proceedings.

41. I will make procedural orders in respect of the latter.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 November 2011.

Associate:

Date:  22 November 2011