Rowe& Helbig

[2014] FamCA 1148

FAMILY COURT OF AUSTRALIA

ROWE& HELBIG [2014] FamCA 1148

FAMILY LAW – CHILDREN – Application in a case – adjournment of contravention proceedings sought by the father – application granted – contravention proceedings to be heard in conjunction with the final hearing – where it had been unclear if sexual abuse allegations against the father were substantiated by the Department of Family and Community Services

Family Law Act 1975 (Cth)

APPLICANT: Mr Rowe

RESPONDENT: Ms Helbig

INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

FILE NUMBER: PAC 5421 of 2010

DATE DELIVERED: 23 May 2014
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 23 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Family Law Legal
(Mr B O’Sullivan)

COUNSEL FOR THE RESPONDENT: Ms Horton

RESPONDENT: In person

Orders

1. That the Father’s Application in a Case filed 21 May 2014 for an adjournment of the Contravention proceedings is granted.

2. That the oral application by both parties for costs of today’s hearing is adjourned to the final hearing.

3. This matter is to be listed for final hearing on an expedited basis and is listed for trial dates and directions at 9.30 am on 29 May 2014 NOTING the parties have leave to appear by way of telephone link on this occasion.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rowe & Helbig (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  PAC 5421 of 2010

Mr Rowe

Applicant

And

Ms Helbig

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application to adjourn contravention proceedings which have been before the Court for some time.  They were previously adjourned and an amended application was filed.  They were adjourned again on 17 April 2014. 

2. Whether or not to adjourn a matter is for the discretion of the Judicial Officer who hears it. 

3. In this matter, the application to adjourn is opposed by the respondent mother on the basis that she has been ready to answer the contravention applications since the contravention was filed.  The Independent Children’s Lawyer is not engaged in this aspect of the proceedings.

Short history

1. On 21 May 2013, a Judge of the Federal Circuit Court made final parenting orders in respect of the parties’ two children by consent.  There was no appeal from the making of those final Orders. 

2. On 27 December 2013, the mother reports an allegation on behalf of the parties’ daughter Y, who is now aged five and a half, of a further allegation which would be, if established, consistent with sexual abuse. 

3. The mother says, and I have no reason to doubt, that Y was interviewed by the JIRT team on 31 December 2013. 

4. On 2 January 2014, the children spent time with the father until 6 January 2014 and the children have not spent time with their father since. 

5. On 24 January 2014, the mother sent an email, she says, to the father’s solicitor, alerting the solicitor to there having been a JIRT investigation.  The mother says she said this:

   In light of the serious allegations made and the current JIRT investigation, it is appropriate there be no further contact between your client and the children at this stage. 

6. The mother said she sent a similar text to the father himself.  She also said that thereafter she had twice offered the father supervised time with the children and he had refused. 

7. The children had been due to spend a further four day period with the father in January 2014. 

8. On 28 January 2014, the father filed his application for contravention. 

9. On 29 January 2014 the father wrote to the Department of Family and Community Services asking what was the extent of their knowledge about why his children were no longer going to be provided for time with him.  Included in that email letter was this statement:

   I have not been contacted by a case worker.  I have no knowledge of what I stand accused.  I maintain that there are no reasonable grounds to deny the children all contact and access to the father and what is taking place is abuse against them and me.

10. On 30 January, the following day, there was apparently a telephone call made to the father by Ms FF, Manager of Client Services (D-FaCS) at GG Community Services Centre.  It is referred to in a subsequent letter from Family and Community Services to the father.  In that telephone call Ms FF advised the father that his daughter Y’s case with JIRT, had not been substantiated, nor had he been identified as a person causing harm. 

11. On 7 February 2014, the father received a letter from the Department of Family and Community Services apparently confirming the content of that telephone call, to the effect that Y’s case with JIRT had not been substantiated, nor had he been identified as a person causing harm. 

12. On 11 February 2014, a Judge of the Federal Circuit Court made orders transferring the mother’s application filed on 31 January 2014, and the father’s contravention application filed on 28 January 2014, to this Court.  Directions were made on 14 February 2014.

13. On 27 February 2014, the father filed his response to the mother’s initiating application. 

14. The matter came before a Registrar on 5 March 2014 and notations to the Registrar’s orders were made: 

    The form 4 filed by the mother on 31 January 2014 does not meet the statutory threshold of risk of significant harm. 

    The letter to the father from the Department was marked with the letter A and placed in the file. 

15. On 24 March 2014, the mother wrote herself to the District Director of HH District Community Services and raised the father’s understanding that the information provided on 7 February 2014 had been inconsistent with other information that she had received.  Namely, that risk of sexual harm to Y had been substantiated, and that the father was listed as the person associated with causing risk.  She asked for confirmation that the letter to the father had been sent in error.

16. On 26 March 2014, the Department of Family and Community Services wrote to the Registrar of this Court and, amongst other things, said this:

    Having referred to the fact that the mother had contacted them and supplying a copy of that letter, the Department said it had considered whether to intervene, but did not do so.  Rather, the letter was sent to clarify any inconsistency. 

    The letter went on to say this. 

    The letter correctly identified that the allegations that [Mr Rowe] has actually harmed [Y] were not substantiated, and therefore no conclusion could be made that he was a person causing harm.  Unfortunately the letter did not then go on to say that those investigations did conclude that a risk of abuse for [Y] has been identified, and that he has been identified as a person associated with causing risk.  Whilst the omission of this additional information is regrettable, the Department did expect that its complete records would be subpoenaed to the Court and that the letter would not be viewed in isolation if it happened to be produced to the Court by [Mr Rowe]. 

17. On 27 March 2014 the matter came before me.  An Independent Children’s Lawyer was appointed and the Contravention application filed by the father on 28 January was adjourned to a date to be advised.  

18. At that time there was clearly considerable confusion about the position taken by the Department, if not by the Department itself, at least by one or both of the parties. 

19. On 16 April 2014 the father filed an Amended Contravention application, expanding the number of allegations to be dealt with. 

20. On 17 April 2014 that amended contravention application was listed for hearing today, noting three hours were allowed.   A Children and Parents’ Issues Assessment (CAPIA) was rescheduled for 5 May 2014.

21. On 5 May 2014, those interviews did take place. 

22. On 6 May 2014, the CAPIA was issued.  It included, under the heading Evaluation:[1]

    42.The identified safety issues for the children in the father’s household are that he has been assessed by the Department of Family and Community Services as posing a risk of sexual harm to the children.

    43.It is evident that JIRT are of the view the allegations of sexual abuse could be substantiated, and the father was the one posed a risk of harm to the children. 

    [1]CAPIA dated 06/05/2014, par 42-43 p 7

23. The CAPIA also referred to the fact that the mother had with her a letter from the acting manager from the Department, apologising for their mistake and reconfirming that the matter was substantiated.[2]  The CAPIA was sent out to both parties. 

    [2]CAPIA dated 06/05/2014, par 34, p 6

24. On 16 May 2014, the solicitor for the father wrote to the mother directly, as she self-represents on some occasions, and referred to the CAPIA and the reference to a letter in the possession of the mother.  A request was made for a copy of that letter.  There was also a request for consent to an adjournment of the father’s contravention application. 

25. On 19 May 2014, the mother responded herself to the solicitor for the father, and declined to consent to any further adjournment.  She did propose that in the event the father withdrew his contravention application and paid her costs to date, that that would be acceptable.  There was no reference to supplying a copy of the letter that had been taken to the family consultant. 

26. On 20 May 2014 there was correspondence between the Independent Children’s Lawyer and the Department, the Independent Children’s Lawyer having asked what the state of play was in the Department, in order to be able to advise the Court.  The response from Jane Gallagher, solicitor for North and West Care Legal Support, was as follows:

    I have now obtained instructions from the relevant manager/case worker at JIRT who has advised me of the following.  There are no open plans for these children.  The JIRT matter was closed in February 2014, the sexual assault allegations regarding acts towards [Y] not being substantiated.  Both [Y] and [X] were interviewed during this investigation.  JIRT, as at today’s date, has no intention of reopening the matter.  There has been one report received since February 2014, which was transferred to [GG] CSC and closed on 15 April 2014, given the matter had already been investigated.  The file has been sent to [GG] CSC for filing.

27. On 21 May 2014, the father filed an application in a case for an adjournment and given the time involved, it was listed today, the day the contraventions were to be heard. 

28. In considering this application for adjournment, it is apparent to me that it would only be in the context of a fully defended hearing that I could understand the state of knowledge of each of the parties at relevant times, and more significantly, the basis or the substance of the allegations that have been raised since December 2013. 

The contravention application

1. Whilst the mother might say it has been obvious from the beginning that she was relying on reasonable excuse; that may be so.  Whether or not the excuse was reasonable is a matter that could only properly be determined in a fully contested hearing.  On that basis, I propose to grant the application for adjournment. 

2. It seems to me that the proceedings should be adjourned to the date when the matter is finally heard, on this basis.  I am told this morning, although there is as yet no evidence before me of it, that there has been a further notification in respect of one of the children. 

3. It is apparent that the children are not spending time with their father and their relationship is at risk.  It is a possibility also that the children, or one of them, are at risk in the care of the father. 

4. It seems to me that this is a matter that could be contained in a reasonable period of time, given that there were consent orders in May 2013 and evidence would be directed exclusively at events since that date.  I have therefore proposed to set the matter down for hearing as soon as I can, on an expedited basis. 

5. In the event that all of the issues that are raised by the contravention application are included in the documents in the father’s case, I would anticipate that on a formal basis, the contravention applications would be dismissed on the date of final hearing, but I certainly do not propose to establish another date for them in the context which I have just outlined. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex-tempore on 23 May 2014.

Associate: 

Date:  23 June 2014