S and R
[2005] FMCAfam 425
•13 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & R | [2005] FMCAfam 425 |
| FAMILY LAW – Contact – interim orders – intellectually disabled children – sexual abuse – children to be placed together. |
| Family Law Act 1975 (Cth) |
| Cowling v Cowling (1998) 22 FamLR 776; FLC 92-801 |
| Applicant: | SAS |
| Respondent: | GER |
| File Number: | MLM 3969 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 13 May 2005 |
| Delivered at: | Bendigo |
| Delivered on: | 13 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms A.M. Boymal |
| Solicitors for the Applicant: | Stella Stuthridge & Associates |
| Counsel for the Respondent: | Mr D.J. McLeod |
| Solicitors for the Respondent: | Palmer Stevens & Rennick |
| Appearance on behalf of the Department of Human Services: | Ms Daikin |
ORDERS
SECTION 91B
Pursuant to section 91B of the Family Law Act 1975, the Department of Human Services Victoria intervene in these proceedings.
Upon request, the Court do provide to the said Department copies of all documentation relevant to the proceedings before the Court to enable the said Department to consider the request to intervene in the proceedings.
INTERIM ORDERS
Until further order the children RAR and TLR live with the mother.
Until further order the father have contact with the children as follows:
(a)each alternate weekend from after school Friday until the commencement of school Monday commencing 27 May 2005;
(b)for one half of the school term holidays commencing the last day of the school term until the middle Sunday of the school holidays;
(c)by telephone each Tuesday, Thursday and Saturday; and
(d)at such other times as my be agreed.
Until the order the mother have telephone contact each Tuesday, Thursday and Saturday when the children are next residing with her.
The child TLR be returned to the mother at the commencement of school on 16 May 2005 by arranging for the delivery of the child to K School.
That for the purpose of alternate weekend contact and the commencement of term school holiday contact the children travel to the father at the commencement of contact and return to the mother at the conclusion of contact by the K School Bus.
That for the purpose of change over at the conclusion of school term holiday contact the father to arrange delivery of the children to the mother.
DIRECTIONS
Liberty to apply be reserved to each of the parents, Department of Human Services and the child representative.
Certify for advocacy.
This matter be adjourned to the sittings of the Federal Magistrates Court of Australia at Bendigo commencing on 15 August 2005 in the duty list and 7 November 2005 for final hearing.
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that part in accordance with, within the time specified, the Federal Magistrates Court Regulations.
The applicant do file and serve all further affidavits and other material to be relied upon by them not later than 28 days prior to the trial.
The respondent do file and serve all further affidavit and other material to be relied upon by them not later than 14 days prior to the trial.
The child representative do file and serve all further affidavits and other material to be relied upon by them not later than 7 days prior to trial.
Not later than 48 hours prior to the trial all parties do file and serve an Outline of Case Document including the following:
(i) A list of the material relied upon;
(ii) A brief chronology listing significant events;
(iii) List of main contentions with respect to the considerations relevant to determining the best interests of the children in this case;
(iv) List of other contentions relevant to the decision; and
(v) Actual orders sought.
The solicitor for the applicant do engross these Orders and Directions within 7 days, provided that if the respondent is unrepresented then the solicitors for the respondent do engross the orders within 7 days.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and or
(c)any other procedural issues, the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
Pursuant to s68L(2) of the Family Law Act 1975 the said children be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Child Representative do file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Child Representative copies of all relevant documents relied upon.
The Child Representative fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
INJUNCTIONS
Until further order, the husband, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the wife to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
Until further order, the wife, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the husband to or in the presence or hearing of the said child/ren or any of them, and from permitting any other person so to do.
That the parents comply with all reasonable requests of the Child Representative for them and/or the children to attend upon any psychiatrist, psychologist or counsellor and community support services, including any such professionals for the purpose of obtaining a family report for these proceedings pursuant to S62G(2).
That the mother and father equally bear the costs of the preparation of the family report and of other reports and it is requested that Victoria Legal Aid find each of the mother and father’s share of the cost of the reports.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BENDIGO |
MLM 3969 of 2005
| SAS |
Applicant
And
| GER |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for interim orders with respect to two children, R and T.
The parents were in a relationship from 1992 to 1999 and have been separated since then. Each parent has repartnered and comes today with the support of their current partner.
The mother lives in the B area and the father in the K area.
Sadly, both the parties and the children suffer varying degrees of intellectual impairment.
The history of the matter, as demonstrated through the departmental reports that have been tendered for these proceedings and the brief affidavits, leaves one with the impression that neither parent has the skills and capacity to be able to care for these two children without external assistance. The department has been involved on various occasions for some time and the family must now be very well known to the department.
The department's intervention with the family is made more difficult by the fact that the children have either learned or been taught to withhold information from the department so that the department has difficulty finding out exactly what is going on.
There have been numerous allegations and counter-allegations over a lengthy period. It is almost impossible to identify with any reliability at this stage what allegations or counter-allegations even seem more likely. It does appear to be generally accepted that the children have in the past been sexually abused and that the children have from time to time, even very recently, been placed in inappropriate alternative care arrangements by one or other of the parents. Attempts are in place to have disability support services put in place for these parents and to provide them with respite care or alternative carers so as to avoid some of these difficulties in the future.
There is no material before me at this stage as to the extent to which services are available to the family, the extent to which either or both of the parents are welcoming of the services or rejecting the services, or the extent to which either of the parents are compliant and facilitative in a practical sense of alternative services that may be made available.
The child protection orders that have been in place from time to time are now entirely discharged, leaving it for this court to determine what arrangement should be put in place for the children.
The children are presently living one with each of the parents. The father did not return the child T after contact on 3 May. Whilst the father has had extensive and ongoing involvement with the children, it appears, at this stage at least, that the mother has been the primary carer for a significant period.
It appears from the father's material that the child T wants to live with him. He has concerns about the children having been left with inappropriate carers by the mother. The father says that he has the support of some of the appropriate carers that have been involved in this case, although there is no affidavit material from any of them at this stage.
There is no doubt that the father has been dedicated in his desire to be involved with and to parent the children to the best of his ability. On a preliminary view it appears to me that it can be said for both parents that the trials and tribulations that have befallen these children and the inappropriate situations they have been left in are probably less through recklessness by the parents than a consequence of the impairments that the parents themselves face.
I must consider the matter in terms of Cowling v Cowling (1998)
22 FamLR 776; FLC 92-801, that is, that the best interests of the children are paramount. Usually, the best interests of the children are served by preserving any settled or stable arrangement unless there are strong considerations to the contrary. If a stable arrangement is not able to be identified, then some preliminary consideration of factors listed in the definition of "best interests of the children" should be undertaken, along with the other relevant factors, in determining care arrangements.
Given the lack of ability of either parent to provide a safe and nurturing environment that meets the children's day-to-day physical needs as well as their emotional and other needs, I have formed the view that one matter which ought to be implemented is that the children should be together. At least if they are together they have each other in whatever circumstances they may find themselves. Whilst they are only 10 and 8, even at that age they can provide some support for each other if in difficult circumstances. It would be far worse, particularly for an eight‑year‑old, to be on her own in some of the circumstances recounted in this case than at least to have a 10‑year‑old sister with her, (albeit a 10‑year‑old who is clearly not nearly old enough to take any responsibility for her sister, and nor should be she expected to do so).
For that reason I have formed the view that the children must be the subject of orders that reunite them.
The question then arises as to which household that should occur in, and alternatively, whether that should occur in some form of weekabout arrangement. It seems to me to be unlikely that the parents (on the material before me at this stage) would be able to make sufficient arrangements to enable a shared parenting arrangement to work in the interim. It may be that with appropriate supports in place there will ultimately be an innovative method of enabling both parents to participate in parenting their children in a way that they do not have the week-to-week pressure of caring for children day after day because there will be some movement of the children back and forth between the households. However, given the children's particular needs, there is also the potential for this to be disastrous for them in the longer term with respect to their potential need for stability in their day-to-day care. I am simply not able to form any firm preliminary view or even any sufficient preliminary view from which to gain guidance on these issues today.
I do note that the travel arrangements for the children from the father's residence to school involve quite lengthy travel, which would not, in my view, be a matter that one would encourage unless there were other reasons in the case to require it.
The suggested contact arrangements being via the school bus after school Friday and return to school Monday appear to provide a very practical solution to ensuring the children can, if they spend the weeks with their mother, have a regular block of good quality time with their father which would not interfere with the regularity of their schooling arrangements. Equally, however, it could be said that if they are with the father the same bus would be available, although a lengthier bus trip, and each alternate weekend they could remain at their mother's.
I also take into account that the departmental worker has taken the time to attend today and speak to the department's views that are set out in the reports that they have prepared for the court dealing with the child protection matters. The Department remains concerned that the current partner of the father has previously been known to the department with respect to issues about domestic violence and neglect and whose children are now in the care of the department. They list in the most recent addendum report a number of matters coming from discussions with the parents in the following terms:
Further discussions with parents provided the following information:
- Mrs S will be ceasing work prior to the 18 April 2005 therefore babysitters will no longer be required for the children
- Mr S may also be ceasing work, but he was not sure at the time of discussions
- Mr and Mrs S acknowledge that they should not leave the children with inappropriate babysitters
- Mr and Mrs S want the children to reside with them long term
- Mr R stated that his relationship with Ms F is on-going and she is residing in his home
- Mr R would need constant support with the children to care for them long term, he acknowledged this to Child Protection. Child Protection have also spoken to a number of professionals in K who are familiar with Mr R and also share the opinion that Mr R would need on-going constant support to care for the children.
- Mr R has the children’s best interests at heart and has been upset that they have been placed with inappropriate babysitters.
- Mr R did appear to understand the children’s needs, but had made comments to the current carer such as, How do you get them to eat all that for tea?, they wont do that for me”. This may be an indication that Mr R has difficulties setting boundaries for the children.
- children are progressing well in the care of Ms SG at SS,
- Children have had almost daily contact with their father and phone and physical contact with their mother and stepfather when this can occur
- Children are reporting that they want to live with their father in K
- The children have been exposed to violence and inappropriate people while having contact with Mr R. On these occasions, Mr R has not been the instigator of this.
- Mr R has been spoken to by Protective workers and the carer (who has known Mr R for many years) about leaving the children with other people. Mr R has indicated that he will not do this, but has proceeded to during his contact with them over the past 2 weeks.
- The children both attend K S School in B where they receive on-going support from staff regarding their behaviour and education. R is having regular contact with Mr MM from Child and Adolescent Mental Health Service to assist in addressing her emotional and behavioural needs. These appointments occur at school. R has an appointment with the Psych Services Child Psychiatrist in May 2005.
4. CONCLUSION REGARDING CURRENT APPLICATION
In response to further investigations conducted regarding the current family situation, it is Child Protection’s belief that the children should be returned to the care of Mr and Mrs S in B and have regular contact with their father, Mr R.
Mr and Mrs S have now ceased employment and will be home on a daily basis to care for and support the children with their physical, emotional and educational needs. They will no longer require babysitters and Child Protection can assist them to arrange respite if this is required.
The children attend school in B and have their support networks set up to assist them in meeting their needs.
Mr R has the children’s best interests at heart and is willing to care for them on a long- term ongoing basis. It is Child Protections’ belief and other professionals who know Mr R that he would require constant support to care for his children. Mr R is in a new relationship with Ms F who has previously had her children removed from her care due to domestic violence and neglect issues.
5. RECOMMENDATION
It is Child Protection’s recommendation that RR be placed on a Supervision Order in the care of her mother and stepfather, Mr and Mrs S and T S with the following conditions:
1. The parents must accept visits and co-operate with DoHS.
2. The parents must accept support services as directed by DoHS.
3. The child must go to a psychologist or psychiatrist as directed by DoHS and for assessment and treatment and must allow reports to be given to DoHS.
4 The parents must allow the child to be taken to a paediatrician for assessment, must allow any recommended treatment to be carried out and must allow reports to be given to DoHS.
5. The parents must not expose the child to physical or verbal violence.
6. The father may have access with the children at times and places as agreed between Mr and Mrs S, Mr R and DHS.
Having regard to all of the factors in this case, I have come to the conclusion that the appropriate order at this stage as an interim order until such time as a child representative can be appointed and the enormous amount of material that will be relevant to this case can be marshalled and placed before the court, that the children ought to reside with the mother during the school weeks and reside with the father each second weekend from Friday to Monday and for one half of the school holidays. It is appropriate that there be regular telephone contact, at least each Tuesday, Thursday and Saturday and at such other times as the parties may agree.
It is also appropriate that there be orders that the parties comply with all reasonable requests of the child representative once appointed with respect to preparation for trial and any assessment or report with respect to themselves or the children. It also seems appropriate to me that they ought to comply with any reasonable request of the child representative with respect to participating in or complying with any service provider that may provide them with assistance in caring for the children.
At the request of the parties I will allow the matter to remain in this court at this stage. I will list the matter for a mention in the August sittings of this court and give leave to the child representative to request an earlier mention date, if that is appropriate. I will leave the order for a family report at this stage until the relevant material can be identified and marshalled, otherwise there is a risk that a family report might be prepared before all of the relevant material is available to the report writer. It seems that it is the type of case where the child representative may have some need to have some input in identifying an appropriate report writer as it is likely that a report writer with some expertise in disability services may be more appropriate in this case.
I also make a section 91B order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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