Speltis and Roland

[2010] FamCA 343

FAMILY COURT OF AUSTRALIA

SPELTIS & ROLAND [2010] FamCA 343

FAMILY LAW – CHILDREN – Intervention and significant involvement of the Department of Human Services NSW – Consent Orders – Appropriate consideration of abuse and family violence allegations – Minutes of Consent reflect and embody the unanimous expert opinions – Orders made by consent

Family Law Act 1975 (Cth) s 69ZK
Family Law Rules 2004 (Cth) Rule 10.15A

APPLICANT: Mr Speltis

RESPONDENT: Ms Roland

INTERVENOR: Department of Human Services NSW

INDEPENDENT CHILDREN’S LAWYER: GJ Legal Solicitors

FILE NUMBER: LEC 588 of 2007

DATE DELIVERED: 28 April 2010

PLACE DELIVERED: Lismore

PLACE HEARD: Lismore

JUDGMENT OF: Justice Murphy

HEARING DATE: 27 – 28 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smart

SOLICITOR FOR THE APPLICANT: Paul Denmeade and Co

COUNSEL FOR THE RESPONDENT: Ms Smith

SOLICITOR FOR THE RESPONDENT: Sommerville Laundry Lomax

COUNSEL FOR THE INTERVENOR Ms England

SOLICITOR FOR THE INTERVENOR Crown Solicitor’s Office NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Theobald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER GJ Legal Solicitors

Orders

IT IS ORDERED THAT

1. Pursuant to section 62(B)(2)(b) of the Act, the Court declares that it is satisfied that there are circumstances which make it appropriate to make the following orders by consent, despite the condition contained in section 62G(2)(a) not being satisfied.

2. Pursuant to Rule 10.15A(2)(b) of the Family Law Rules 2004, the Court declares that an explanation satisfactory to the Court, has been given, of how these Minutes of Consent attempt to deal with the respective allegations of abuse and/or family violence within the meaning of that Rule.

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children's Lawyer be discharged.

4. Pursuant to s 65DA(2) and s 62B, 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 DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT THAT

1. All previous Orders and Parenting Plans be discharged.

PARENTAL RESPONSIBILITY

1. The Minister for Community Services (“the Minister”) is allocated sole parental responsibility for the child … born … July 2004 (“the child”) for a period of twelve (12) months, from the date of these orders.

2. At the expiration of Order 2, the mother, Ms Roland, born … 1976, (“the mother”), is allocated sole parental responsibility for the child.

LIVE WITH

1. That the child live with his mother.

SUPERVISION BY DIRECTOR GENERAL

1. Pursuant to section 68B of the Family Law Act 1975 (Cth) (the Act), the mother shall, for a period of 12 months from the date of these orders, do all such things, sign all such documents, and provide all such authorities as might be necessary or required so as to enable the Director-General, Department of Human Services, New South Wales (DHS NSW) to perfect supervision of the mother within the meaning of the Children and Young Persons (Care and Protection) Act 1998, and so as to enable the Director-General to comply with her duties and responsibilities pursuant to that Act.

2. Pursuant to section 68B of the Act, the mother shall, for a period of 24 months from the date of this order, do all such things, sign all such documents, and provide all such authorities as might be necessary or required so as to enable the Director-General, DHS NSW, pursuant to her powers under the Children and Young Persons (Care and Protection) Act 1998 to:

   i)      ensure that the Director General or her delegate/s may enter the premises at which the child may reside at all times;

   ii)     ensure that the Director General or her delegate/s may meet with and talk with the child as and when the Director General or her delegate/s may choose;

   iii)    attend at parenting courses, parenting assessment and drug testing as directed;

   iv)     organise and arrange the child’s attendance at medical appointments as directed; and

   v)     otherwise accept and arrange the child’s attendance at such appointments as required, following all reasonable referrals made by the Director General for the child.

TIME WITH

1. For a period of twelve (12) months from the date of this Order, the child’s father, Mr Speltis (“the father”) born … 1976 spend supervised time with the child for a period of four hours once per fortnight at the Interrelate Children's Contact Centre being a Saturday or Sunday unless it is school holidays (or in the event of the unavailability of the Interrelate Children's Contact Centre at a place to be nominated by a delegate of the Director General, such contact to be supervised by an employee of Community Services, Department of Human Services New South Wales (“Community Services”), or employees of an agency engaged by Community Services to supervise that contact), conditional on:

   a.   the father confirming with the child’s caseworker at Community Services, by telephone, at least forty-eight (48) hours prior to his scheduled time with the child that he is able and willing to visit the child;

   b.   the father not being affected by drugs or alcohol prior to or during the visits with the child;

   c.   the father not questioning the child about the personal life of the child’s mother or the child’s siblings;

   d.   the father speaking respectfully of the mother, the mother's partner and family members and the child’s siblings;

   e.   the father not denigrating or insulting the mother, the mother's partner and family members and the child’s siblings in the presence of or hearing of the child; and

   f.   the father not discussing these proceedings or any allegation made in Family Court  proceedings with the child; and

   g.   no other person attending contact unless prearranged and agreed to by the Director General or her delegate in writing.

2. For the purposes of the contact referred to in Order 7, the Director General will pay for the cost associated with utilising the Interrelate Children's Contact Service to enable the father to spend time with the child.

3. Following the expiration of twelve (12) months from the date of these Orders, the child’s father spend supervised time with the child once per fortnight at Interrelate Children's Contact Centre (or such other service as may be made available through Interrelate Children's Contact Service), for a period of four hours or such further period of time as can be accommodated by the Contact Service.  That contact is to occur on a Saturday or Sunday unless it is school holidays, when contact can be on a day other than Saturday or Sunday as available and as agreed between the mother and the father. 

10. For the purposes of the contact referred to in Order 9:

a.   both parties will do all acts and things required by the Interrelate Children's Contact Service ("the Contact Service") for use of the Contact Service within 21 days after the expiration of Order 7;

b.   the mother is to deliver or arrange for the child to be delivered and collected from the Contact Service for the purposes of the father spending time with the child as specified in Order 9; and

c.   the mother and father are to share equally any cost associated with utilising the Contact Service to enable the father to spend time with the child.

11. In relation to Order 9, the father shall make all necessary arrangements to travel to the Contact Service.

12. In relation to Order 9, the mother is to inform the Contact Service, as soon as practicable, the details of any school holiday or extra-curricular activities that the child will be attending during any gazetted school holiday period to allow for the Contact Service to arrange for the father to spend time with the child during the gazetted school holiday period.

13. Forty-eight (48) hours before spending any time with the child on a specified date in accordance with these orders, the father shall telephone the Contact Service and confirm his attendance. 

14. Following the expiration of twelve (12) months from the date of these Orders:

a.   the Director General or her delegate is to assess persons nominated by the father in order to determine whether such persons are suitable contact supervisors of the father's time with the child; and

b.   in the event that a suitable supervisor is approved by the Director General, then the father may spend time with the child on a fortnightly basis between 9am and 5pm, on a Saturday or Sunday unless it is a school holiday (when contact can be on a day other than Saturday or Sunday as agreed between the mother and the father), supervised by the approved supervisor, conditional on:

(i)the father and the supervisor not being affected by drugs or alcohol prior to or during the visits with the child;

(ii)the father and the supervisor not questioning the child about the personal life of the child’s mother or the child’s siblings;

(iii)the father and the supervisor speaking respectfully of the mother, the mother's partner and family members and the child’s siblings;

(iv)the father and the supervisor not denigrating or insulting the mother, the mother's partner and family members and the child’s siblings in the presence of or hearing of the child;

(v)the father and supervisor not discussing these proceedings or any allegation made in Family Court  proceedings with the child; and

(vi)changeover to occur in the H area at a place to be nominated by the mother and agreed to by the father, and in the absence of agreement at the H police station. 

TELEPHONE TIME WITH

15. That the child communicate with his father, and the father communicate with the child:

a.   by telephone each Wednesday.  Such calls to be initiated by the mother to a landline number provided by the father between 5pm and 7pm for a duration of up to 15 minutes, subject to supervision of such calls by the mother, and that the mother may terminate those calls in the event she determines the father is speaking innappropriately to the child.

EXCHANGE OF INFORMATION

16. The mother shall inform the father within 48 hours of any major or serious medical illness or condition suffered by the child.

17. By the father sending appropriate mail gifts and cards;

a.   For the period of 12 months from the date of these orders, to an Officer of Community Services; and

b.   Following the expiration of 12 months from the date of these orders, to the mother, the mother to provide a postal address to the father.

RESTRAINT

18. The mother, father and R ("Mr R") born … 1965 are each and respectively restrained, and injunctions are issued restraining each of them from:

a.   abusing, insulting or denigrating each other or a member of the mother’s or father’s household to or in the presence of the child and from permitting another person to do so;

b.   exposing the child to any form of domestic violence including verbal violence using abusive language to, within, or in the hearing of the child;

c.   physically disciplining or striking the child;

d.   consuming or being under the influence of alcohol or illegal drugs whilst having the care of or spending time with the child;

e.   using prohibited drugs;

f.   discussing these proceedings or any allegation made in these proceedings with the child; and

g.   questioning the child about the appropriateness of each other’s or their partner’s behaviour or parenting while taking care of or spending time with the child.

19. The father is restrained and injunctions are issued restraining him from:

a.   Contacting the mother personally or by telephone;

b.   Approaching or coming within 200 meters of:

(i)the mother, except for the purpose of the changover of contact;

(ii)      the child, except as provided for by these orders;

(iii)the mother’s children, N born… November 1998 ("N") and T born … March 2008 ("T");

(iv)the maternal grandmother; and

(v)Mr R.

c.   Approaching or coming within 200 meters of the mother's residence; and

d.   Attending at any school or pre-school attended by the child, or his siblings N and T.

20. The mother is restrained from, and an injunction is issued restraining her from, changing the child’s surname from “Speltis” to any other surname, without the written agreement or approval of the father. 

FUTURE CONDUCT

21. The Director General of the Department of Community Services and the mother are granted leave to provide a copy of the final orders, judgment, the Court Appointed Family Consultants’ Reports of Mr S dated 26 June 2008, Ms D dated 1 April 2008 and 26 March 2010 and the reports of Dr M dated 5 December 2008 and 10 December 2009 to any professional service engaged to assist the child or his mother.

22. Prior to any party taking steps to file an application or parenting plan with the Federal Magistrates Court or Family Court seeking a variation to the Final Orders, they shall first advise the parties to these proceedings including the Legal Branch of Community Services, Department of Human Services New South Wales.

NOTATION

23. The Court notes that the purpose of Order 2 allocating parental responsibility for the child to the Minister is to enable the Director General to monitor the child’s progress in his mother’s care, provide the mother with appropriate supports while caring for the child, and assess the parenting capacity of the mother and her partner Mr R when and if Mr R moves into the mother’s home.

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

FAMILY COURT OF AUSTRALIA AT LISMORE

FILE NUMBER: LEC588/2007

MR SPELTIS

Applicant

And

MS ROLAND

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. At the commencement of the final hearing of this matter I raised with Counsel for the Intervenor, the Director-General of the Department of Human Services NSW, an issue which seems to me arises from the unusual circumstances of this case.

2. This family has experienced significant intervention by that Department and the child the subject of these proceedings, a son born in July 2004, has been the subject of investigation and earlier orders made pursuant to State legislation.

3. Cognisant of the provisions of s 69ZK of the Family Law Act 1975 (Cth) (“the Act”) I sought from Counsel for the Director-General instructions, if available, as to the Director-General’s attitude in circumstances where the Court was minded to make orders in accordance with the first two of three alternative proposals put forward by the father as orders sought by him in these proceedings.

4. In very broad terms those proposals where that the parents were to share care of the child on a week about basis. The father clarified in oral evidence that his intention in seeking that order was that the mother would return with the child and her other children from her current place of residence in the H region to the Lismore region so as to effect that order. The second alternative sought by the father was that the child should live with him and the mother have weekend and holiday time with him.

5. Counsel for the Intervenor, having sought specific instructions from the Director-General, indicated that, if the Court was minded to make one or other of those orders – or indeed to make an order whose effect was that the father would have anything other than supervised time with the child – the Director-General proposed to take action pursuant to her power’s under State legislation.

6. In those circumstances the proceedings for a significant bulk of the orders sought by the father would become effectively redundant because of the provisions of s 69ZK of the Act. Plainly enough then, the proceedings in this Court have a very significantly truncated ambit.

7. With those matters in mind, towards the end of the first day of the final hearing in this matter Counsel for the father indicated that the parties sought to have discussions with a view to resolving all outstanding issues between them. Those discussions produced an agreement at the end of the first day of hearing which such agreement was embodied in the Minutes of Consent ultimately handed to the Court at the commencement of the second day of hearing.

8. The background to those Minutes of Consent, and to these proceedings generally, can be described, in very broad terms, as containing a plethora of allegations and counter-allegations by each of the parties and containing a number of matters which the Court would regard as being significant with respect to the best interests of the child. Included among those last mentioned matters are allegations of drug abuse and issues relating to mental health.

9. The facts and circumstances just described led me to make interim orders on an earlier occasion, consequent upon the intervention by the Director-General of the Department of Human Services NSW in these proceedings, that the Director-General have parental responsibility with respect to the child. In the period since those interim orders were made the child was placed into a third party placement for a short period of time and thereafter returned gradually to his mother’s care where he currently remains.

10. There are a number of independent expert reports before the Court. They are unanimous in their expression of a real need for the child’s care to be monitored with a view to ascertaining that each of his parents, and the family constellation generally, are meeting his day-to-day physical, emotional and psychological needs.

11. The orders made by consent between the parties reflect that unanimous expert opinion. They provide that the Minister for Community Services be allocated sole parental responsibility for a period of time. They also provide, by way of mandatory injunction, for the mother to effectively comply with “supervision” requirements as provided for in the relevant State legislation.

12. The orders agreed to by the parties can again be seen to be consistent with the expert opinions in terms of their specific provisions because the orders contemplate that, during a period of two years from the date of the orders, the Department is likely to have an active role in continuing to monitor the child’s day-to-day development. The specific orders include, for example, that the Director-General or her delegate may enter premises at which the children may reside at all times and may meet with and talk with the child as and when the Director-General or her delegate may choose.

13. The orders reached by consent by the parties can, then, be seen to reflect a balance between providing the child with the day-to-day care of his mother, his siblings and the mother’s new partner but to also provide for there to be regular involvement in the child’s life by his father. I repeat that in each of those respects, including the contemplated supervision of the father’s time, they are wholly consistent with the expert opinions before the Court.

14. Rule 10.15A of the Family Law Rules 2004 (Cth) casts upon the Court a mandatory obligation to be satisfied that orders reached by consent deal with allegations of abuse and family violence in an appropriate way. This case involves, as I have said, allegations and counter-allegations and has a number of significant issues related to the parenting capacity of each of the parents.

1. As was submitted by way of opening at the commencement of the final hearing: it would probably not be either necessary or possible for the Court to make findings about all of the factual allegations and counter-allegations made in this matter. It will be plain from what I have already said, though, that the active continuing role of the Director-General of the Department of Human Services or her delegates in the manner provided for by the Minutes of Consent meet any such allegations and counter-allegations and other factors relating to the child’s care present on the evidence before me.

2. Accordingly I am satisfied within the meaning of that rule that the orders properly deal with those allegations of abuse and family violence.

3. More broadly for the reasons that I have just outlined, it seems to me, that the Minutes of Consent reflect an appropriate degree of involvement by experts charged with statutory responsibilities towards the child and reflect an appropriate means of dealing with the complex issues making up the factual matrix of this case.

4. I commend each of the parties for their capacity to put aside, at least temporarily, their very many differences and for their capacity, with the assistance of their legal advisers, to be able to reach agreement so as to provide for an agreed arrangement that might see the child benefit from co-parenting by each of his parents.

5. I am satisfied that the orders proposed by the parties are in the child’s best interests and I accordingly make them by consent.

6. I also make orders in the usual form removing any outstanding applications from the cases list, for the return of the subpoenaed material and for the discharge of the Independent Children’s Lawyer.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  4 May 2010