Stacey and Woden

[2015] FamCA 1107

FAMILY COURT OF AUSTRALIA

STACEY & WODEN [2015] FamCA 1107

FAMILY LAW – CHILDREN – Application by father to have all parenting orders discharged and proceedings dismissed – Application by Independent Children’s Lawyer for injunctive orders protecting the children - Allegations that children at risk in unsupervised care of father - Whether Court has jurisdiction to impose orders sought by neither party – Orders made dismissing all previous parenting orders – Injunctive orders – Order made for the appointment of the Independent Children’s Lawyer to continue until the children attain the age of 18.

Family Law Act 1975 (Cth) s 67ZP

APPLICANT: Mr Stacey

RESPONDENT: Ms Woden

FILE NUMBER: HBC 133 of 2011

DATE DELIVERED: 11 December 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 1 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fitzgerald

SOLICITOR FOR THE APPLICANT: Legal Aid Commission

COUNSEL FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER

Mr Turnbull

Ogilvie Jennings

Orders

1. All previous parenting orders in relation to G born … 2006 and D born … 2008 are dismissed.

2. Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’):-

   (a)neither parent will abuse the children or place the children in a situation where they are at the risk of abuse; and

   (b)neither parent will allow the children to see or be exposed to pornography whilst in such parent’s care.

3. That 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.

4. The applications of the parents are otherwise dismissed.

5. The order appointing the Independent Children’s Lawyer shall continue for each of the children until each respective child attains the age of eighteen (18) years or such earlier time as is agreed between the parties and the Independent Children's Lawyer or by order of a court exercising jurisdiction under the Act.

6. The continuing powers of the Independent Children’s Lawyer’s shall include:-

   (a)informing the children of this order within twenty one (21) days from the date of this order;

   (b)liaising with the children’s schools and medical practitioners, including providing them with a copy of this order and the reasons upon which it was based;

   (c)forwarding a copy of this order and the reasons upon which it was made to State Welfare authorities and liaising with and if necessary further reporting to State Welfare authorities; and

   (d)requiring (if necessary) the children to be interviewed by the Independent Children’s Lawyer or such other person deemed appropriate to the Independent Children’s Lawyer.

7. 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.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stacey & Woden 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 HOBART

FILE NUMBER: HBC133/2011

Mr Stacey

Applicant

And

Ms Woden

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. The facts and circumstances that give rise to the issues and concerns raised in a matter such as this seem relatively rare.  However, for the children caught in that reality, such rarity offers no protection or consolation.

2. The Royal Commission into Institutional Responses to Child Sexual Abuse (‘The Royal Commission’) has a mission to create a safer future for children. The Commissioners are doing this by investigating how institutions, such as schools, churches, and the like have responded to child sexual abuse.  It is the Royal Commission’s task to uncover where systems have failed to protect children and make recommendations on how to prevent or minimise such abuse in future.

3. In that context, the Royal Commissioners have made it crystal clear that the time, if there ever was such a time, has now well and truly passed where individuals and institutions can turn a blind eye to abuse or possible abuse of children.

4. Each and every member of the community and each and every organisation are or should be obliged to report, protectively respond and protect children from abuse.  That community obligation applies to all, including parents, relatives, health care professionals, teachers, churches, social groups, and Independent Children’s Lawyers; it must include State and Federal Courts and Tribunals.

5. In the context of civil law relating to children, debate and discussion surrounds the issues of public law (child protection) and private law (family law) and limitation caused by our federated system of governments.  For the children caught in this legal lacuna, such debates are vacuous.

6. However, having heard the matter on an undefended basis, insofar as the mother was concerned, it is in this background of these private law proceedings that this Court has been asked to dismiss the applications and leave these parents to go about their responsibility of caring for their children, but where on the untested evidence the children may be at unacceptable risk of sexual abuse.

7. As a broader comment, it is not beyond the wisdom of policy makers and legislators to bridge the artificial dichotomy between the State and Territory child protection systems and the Federal family law system. This Constitutional structure with its arcane division of laws and law making structures, ought not continue to expose many twenty first century children to abuse and neglect.  To the credit of the Federal Government, it has invited the Family Law Council to report to it on this issue, although, this law reform needs broader constructive and informed discussions between the State and Commonwealth policy makers.     

8. Where a Family Court observes a risk to a child caught between the two systems it should not turn away from such children in the hope the State child protection system will intervene. It should, within the limited jurisdiction and powers which the Australian Constitution and Commonwealth Parliament have given to it, provide a level of protection.  In addition, it should use the authority of the Court through the voice contained in its reasons to urge State child protection authorities to engage and maintain ongoing long term monitoring and supervision of particular families, such as this one. 

9. These proceedings are about the parenting arrangements for nine year old G and his seven year old sister, D.

10. The child G lives with his father, Mr Stacey (‘the father’) and spends irregular time with his mother, Ms Woden (‘the mother’).  The child D lives equal time with each of her parents.  None of this time the children spend with each parent is independently supervised.

11. The mother has effectively ceased to participate in these proceedings from about 17 June 2014 when her lawyers sought leave to withdraw.  The father is now asking this Court to dismiss all applications, including his, and end the proceedings.

12. The Independent Children’s Lawyer says that the untested evidence before the Court was such that it was open to the Court to make a finding that one or both of the children are at risk of sexual abuse in the unsupervised care of the father. He says that in the absence of parents seeking protective orders and the view of the State child protection authorities that the children are not at risk that orders pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’) should be made to provide another level of protection for the children and that he should remain as their Independent Children’s Lawyer pending their respective eighteenth birthdays.

13. Counsel for the father says that these are private law proceedings and that parents ought to be able to get on with the task of parenting, that the allegations of sexual abuse that the children are at risk cannot be sustained, and the determination of same may have the impact of undermining the parental alliance which he says is working well at the present time.

14. If a child is at an unacceptable risk of abuse and a person or institution becomes aware of that circumstance, there is a community and sometimes statutory duty upon such person or institution to take steps to ensure that the child is protected and the child’s complaints are heard.

15. This is such a case.

THE COMPETING APPLICATIONS

1. The father seeks orders that all existing parenting orders are discharged and that all applications, and consequently the proceedings, are dismissed.

2. The Independent Children’s Lawyer agrees that the interim parenting orders are inappropriate given the arrangements which have existed for some months or years.  He seeks injunctions restraining the children from being exposed to pornography and restraining the parents from abusing the children, albeit that the later order is somewhat of a ‘belts and braces’ approach as the conduct sought to be prevented would be covered by the State criminal justice laws.

THE ISSUES

1. There is no issue about the proceedings concluding.  Counsel for the father submitted that given the legislative scheme and purpose the parents should be free to put in place whatever reasonable arrangements they determine.

2. He also submitted that whilst the Court has or had jurisdiction there is no justiciable controversy regarding the care, welfare and development of the children.

3. The Court is asked to impose orders that neither party seeks and as such should not exercise jurisdiction.  This seems more of a power issue, as to whether the Court should exercise the power.

4. In this regard counsel for the father submitted that the evidence does not support findings that the children or one of them is a risk of abuse in the future, and consequently the Court ought not to exercise that power.    

BACKGROUND

1. The father works in casual replenishments and is aged 32.  The mother is aged 26 and the only evidence of her current employment is that she undertakes home duties.

2. There are two children of their relationship, G born 2006 and D born 2008.

3. The parents commenced living together in early 2006 and they separated in 2008.

4. In February 2011 the father filed an application in the then Federal Magistrates Court seeking orders that the parents have equal shared parental responsibility for the children and that they live equal time with the parents on a fortnightly cycle.

5. It took some time for the mother to engage in the proceedings in the then Federal Magistrates Court and she did not file a response until approximately 18 months after initial filing, in June 2012.  In her response the mother sought an order for equal shared parental responsibility, that the children live with her and that they spend time with the father, each alternate weekend.

6. On 3 July 2012 a consent parenting order had been made in the then Federal Magistrates Court providing that the parents have equal shared parental responsibility for the children, and that they live with the mother.  The order went on to provide that the children spend time with the father on weekends and other times as agreed.  It provided that the father collect the children from the mother’s home but remain in his vehicle, and made other consequential orders.

7. The mother later filed an amended response in January 2013 in which she sought orders that the parents have equal shared responsibility and that the children live with her and there be no order that the children spend time with the father.

8. The mother sought an interim order that the father’s time with the children be suspended until further order.

9. The mother alleged that the father may have acted in a sexually inappropriate way with one or both of the children.

10. In her affidavit sworn 25 January 2013, the mother said that she was now in a new relationship and had had two children of that relationship.  She said that she had returned to full time employment in the hospitality industry.

11. She provided a history that her relationship with the father ended in 2008 when she discovered him watching pornography.[1] The parties had later attempted reconciliation, but then finally separated late in 2008.

    [1] At paragraph 10 of the mother’s affidavit filed 27 June 2012.

12. At paragraphs 10 to 42 of that affidavit the mother set out concerning behaviour of the children including generalised disclosures by D, which the mother reported to Child Protection.  She described D as ‘wetting herself’ and exhibiting tearful reactions without cause.

13. In December 2011 the mother, for a period of time, withheld the father’s time with the children, but at the request of the children this was restored.

14. The unsupervised time recommenced then, in late 2012. In early 2013, D complained to the mother that ‘big daddy touched her in the wrong place and it hurt’.[2]

    [2] At paragraph 36 of the mother’s affidavit filed 25 January 2013.

15. In her affidavit, she mother said that D came back to her being aggressive and violent with her toys and siblings and that she made comments such as “big daddy touched her [sic] in the wrong places”.  In addition she acted out in other ways.  Appropriately, the mother raised this with the child’s General Medical Practitioner and Community Health Nurse.  The General Practitioner referred the matter to H Hospital and it was then referred to State child protection authorities.  There was a police investigation.   As a consequence, the mother stopped the children seeing the father and set out details of her concerns in the January 2013 affidavit.  She had raised her concerns with the father and described him as becoming defensive.  The mother was looking for alternative explanations.

16. The matter went before a Federal Magistrate and on 15 March 2013 an Order was made allowing for the father to spend supervised time with the children at the H Contact Service.  That Order remains in place.

17. A Memorandum to Court was obtained from a family consultant in November 2012 and an expert report was ordered and provided by Dr L and that report from Dr L is dated 13 November 2013.  These reports were in evidence before me.

18. At that time of the first report G was aged seven and D was aged five.  Dr L noted the difficult circumstances when sexual abuse allegations were made within families.  She then went on to observe:-[3]

    57.Unfortunately, this is a situation which a young child has made a series of disclosures alleging sexual abuse by her father, while also exhibiting specific psychological and physical signs of sexual abuse victimisation, including refusing to visit the father.  She has made these disclosures not only to her mother, but she has confided with a non-family member notifier on numerous occasions.

    58.[The child’s] mother wishes to be protective and does not know how to balance the children’s current desire for meaningful contact with their father, and her concerns that sexual abuse may have occurred.  [The mother] has been criticised by [the father] for having financial and resentful motives for making these allegations against him.  She seeks the guidance of the Court in directing her to provide a protective plan for the children.  She is aware that her own childhood sexual abuse history influences her emotions and thoughts about this issue, and above all else wishes to protect the children and support them with any therapeutic intervention they may require.  She does not want to prevent the children from enjoying a relationship with their father, as long as it is safe for them to do so.

    [3] At paragraph 57 of Dr L’s First report dated 13 November 2013.

19. In paragraphs 60, 61, 62 and 63 of her report Dr L went on express concern that the parents had recommenced unsupervised time.  She noted risk factors, including multiple disclosures by D that her father had abused her, sexual behaviour exhibited by the children, a cluster of psychological symptoms consistent with childhood sexual abuse trauma.  She noted the father’s self-reported high libido, interest in teenage partners, teaching sexual pleasure and his reported high use of pornography.  She made some concerning observations of the father’s patterns of behaviour.

20. Dr L recommended that the contact between the children and their father remain supervised until D reached an age where she can better articulate her thoughts and emotions and has the capacity to self-protect.  In her report of 19 November 2013 Dr L says:-[4]

    I did find reason for concern that the children have not been safe in their father’s care …. . There is a concerning constellation of risk factors for sexual abuse present that I have been unable to dismiss confidently enough to support unsupervised access between the children and their father in the short term …

    [4] Ibid at paragraph 60.

21. In August 2014 the Independent Children’s Lawyer wrote to Dr L expressing concern as to the circumstances where the mother and father are no longer prosecuting their application.  Dr L provided a supplementary report dated 28 August 2014 which was in evidence before me.  In that second report; Dr L observed:-[5]

    2.Under these circumstances, I feel a sense of obligation to the children that given that I have identified the risk and formed views regarding appropriate mismanagement, there is a requirement for protective action.  It may be that the matter is deferred back to Child Protection Services for that purpose.

    [5] At paragraph 2 of Dr L’s Second report dated Report 28 August 2014.

22. She added:-[6]

    5.I am concerned that the children, particularly [D], were too young at the time of forensic Police interview to particularise disclosure and sufficient detail from criminal investigation of this matter, and that Child Protection Services discontinued involvement because [the mother] was viewed to be acting protectively.  Thus, there is no current, active monitoring of the children’s wellbeing in this situation from the relevant authority.

    [6] Ibid.

23. At paragraph 7 of the same report she said:-

    7.… However, if it is decided that the Court has jurisdiction, in my clinical opinion it would be responsible management to Order a mechanism of monitoring the wellbeing of [the children].

24. In both of her reports Dr L states that the children may be at risk of harm in the care of the father. 

25. On 1 May 2014 the mother filed an affidavit, prepared by her then solicitor, in which she reported:-

    a)The Police enquiries had concluded and that the police would be laying no charges.

    b)The Child Protection Services had completed their enquiries and reported to the mother that[7] ‘Based on the information provided to CPS during our investigation and  information from police investigation, CPS has substantiated that the children are at risk in their father’s care’ [emphasis added].  The letter went on to recommend that the mother had been acting protectively in requiring supervision of the father’s time and that she continue to act protectively until the Family Law Court [Federal Circuit Court] determines ‘what is in the best interests of the children’. The letter suggested that the mother engage with appropriate counselling and support services.

    c)The mother did not engage the children with those Services as there was a delay of a few months between her contact and their response.  However, the time was supervised and the mother continued to work with the child health nurse.  The mother observed that the children’s presentation had improved, and in terms of [D] that improvement was dramatic.

    d)The mother again contacted Child Protection Services who apparently advised her to ‘remain protective’.

    e)The mother arrange for the children to see the father supervised by their paternal grandmother.

    f)Over the second half of 2013 the mother and father improved their communication and time moved to unsupervised.  By November 2013 the mother expressed that ‘the arrangements worked well and I have no concerns for the welfare of the children whilst in his [the father’s care]. Further that ‘I believe the children are safe in [the father’s] care’.[8]

    g)Relevantly in paragraph 47 of her affidavit the mother says:-

    I do not consider the children to be at risk of physical or psychological harm in [the father’s] care. I am satisfied that he is a good and protective father and will look after the children’s welfare.  I do not believe that [the father] will harm the children or allow any other person to harm the children.  I do not believe the [the father] will expose the children to any act or material that might cause harm to the children.

    [7] Annexure “A” to mother’s affidavit filed 1 May 2014 being a letter from Child Protection Services to the mother the date of which was not provided.

    [8] Ibid at paragraph 37.

1. On 14 March 2014 an order was made pursuant to s 91B of the Act for information from the Department of Human Services (‘the Department’). A report was provided on 17 June 2014.[9]  This report provided a history from February 2012 through to April 2013.  The Department undertook a series of investigations and concluded that no further action from Child Protection Services was warranted at that time.  This was in circumstances where the children were in shared care arrangement and which Child Protection Services saw both the children and where the family were subsequently supported in the broader community.

   [9] Dated 16 June 2014.

2. The Department confirmed that it was aware of and noted the concerns raised by Dr L’s 2013 report.  In the report it was observed that those notifications were considered in line with the legislation and departmental policies and procedures.  The Department were aware that the father was spending unsupervised time with the children. The report observed that ‘the parents had engaged with [Child Protection Services] in a manner that indicates that they acknowledge the concerns and are acting in the children’s best interests’.

3. Child Protection Services had advised the mother to remain protective of the children, but were content that the mother was meeting their needs.  From then on the time the father spent with the children increased and the mother asserted the following:-[10]

   This arrangement [unsupervised time] has worked well and I have not any concerns for the welfare of the children whilst this arrangement has been in place.

   [10] At paragraph 37 of the mother’s affidavit filed 1 May 2014.

4. The Department resolved not to take further action in the matter.

5. The mother’s evidence was untested by cross-examination.  The mother said that she believed the children are safe and that she is content for the current parenting arrangements to continue.

6. The untested evidence of the father was that contained in his affidavits filed 18 February 2011 (‘the first affidavit’) and 12 June 2014 (‘the second affidavit’).  In his first affidavit the father sets out the difficulties he expresses to have in relation to the children and the time he spent with the children.  There is nothing in that affidavit in relation to allegations of sexual abuse, although this is unsurprising given that it had not been raised with him, at least in the context of the legal proceedings at that time.

7. In his second affidavit the father responded to the mother’s 1 May 2014 affidavit.  The father’s affidavit was prepared by a legal aid solicitor and was moderate in its affect.

8. In that affidavit the father did not specifically deny any abuse although that inference may be drawn from its context.  In paragraph 23 of the father’s affidavit he says:-

   …I am conscious of my behaviour in front of the children and ensure that they are never at risk.  I acknowledge that in the past I have had a high libido, however I have never let that affect the care of my children.  Since February 2014 I have been on medication which has as a side effect lowered my libido.  I love my children very much and do everything I can do to protect them from any form of risk. 

9. On 17 June 2014 the mother’s then solicitor filed a Notice of Ceasing to Act and was given leave to withdraw from the proceedings.  Since that time the mother has not participated in these proceedings.

10. Dr L provided a supplementary report of 28 August 2014.  She said she continues hold concern, notwithstanding the fact that the parents (particularly the mother), no longer believed that the children were at risk.  In fact at that time the children were living in a shared time arrangement.  She stated:-[11]

    By way of future directions, it would appear potentially harmful for the children to have their current shared care arrangements disrupted if they are settled.  However, if it is decided that the Court has jurisdiction, in my clinical opinion it would be responsible risk management to Order a mechanism of monitoring the wellbeing of [the children].  For example, it is important for [D’s] psychological wellbeing that her disclosures are taken seriously, and that adults around her are seen to be acting protectively.  [D] should be encouraged to speak about issues that are of concern to her.

    [11] At paragraph 7 of Dr L’s Second report dated Report 28 August 2014.

11. In June 2014 affidavits were filed on behalf of the Independent Children’s Lawyer by the children’s teachers.  It is an agreed fact for the purpose of this determination that the Independent Children’s Lawyer had spoken to the children’s current teachers (different from those of last year) and that there are no matters of concern arising out of the children’s attendance or performance at school.

12. These proceedings were transferred from the Federal Circuit Court to the Family Court by order made 10 November 2014.  The matter was then listed for undefended hearing on 20 April 2015.  Unfortunately, the Independent Children’s Lawyer became unwell and that hearing was adjourned until later in 2015.

13. At this time neither parent seeks to prosecute their applications before this Court.  The child G lives full time with the father and the child D lives equal time with each parent and they (the parents) believe that the present informal parenting arrangements should continue.  Since the children have been in the parties’ shared care there have been no further allegations of sexual abuse by the father, and there have been no reports to the Child Protection Authorities.

14. The Independent Children’s Lawyer says there are a number of options available.  If one or both of the children are at risk of sexual abuse the Independent Children’s Lawyer says, given the current circumstances, that he should remain Independent Children’s Lawyer, until each of the children attain the age of 18 years.  Given the comments of Dr L in the circumstances of this matter that approach is protective and warranted.  It is to the credit of the Independent Children’s Lawyer that he has made that submission and taken that long-term responsibility.

15. He says he should be able to speak to the children and inform them that he is available to them.  In addition he says he should be able to contact the children’s teachers and health care professionals to ensure that they are thriving and provide a place of safety for them.

16. If the Court is satisfied that the children are not at an unacceptable risk of abuse then the Court can either dismiss the proceedings, and consequently the existing orders, and leave the parties to continue with their parenting arrangements, dismiss the proceedings and leave the present orders in place or dismiss the proceedings and make orders reflecting the current circumstances.

JURISDICTION

1. These proceedings were commenced by the father’s 2011 application for parenting orders.  Since then there have been various applications by the parents and, relevantly, by the Independent Children's Lawyer.  Thus the father and mother invoked the jurisdiction of the then Federal Magistrates Court and consequently the Family Court following the transfer of the proceeding.

2. Counsel for the father submitted that there was no justiciable controversy regarding the care, welfare and development of the children. He conceded that there had been jurisdiction, but with the mother’s abandonment of the proceedings and his application to withdraw his application that there was no justiciable controversy regarding the care, welfare and development of the children requiring the court’s intervention.

3. Given the applications by the Independent Children's Lawyer, that submission must fail.

4. In the present case if the Court accepts its authority to adjudicate is dependent on the Court, as a jurisdictional fact, there is a justiciable controversy requiring the court’s intervention as between the substantive parties, then in the present case the Court has jurisdiction.

POWER

1. This is the nub of the father’s legal concerns.

2. The Independent Children's Lawyer seeks injunctions and continuing orders to enable him to provide a safety mechanism for the children.  In addition these orders seek to enable him to report and provide information to education, health and child protection authorities.  The Independent Children's Lawyer is bound to make submissions, and presumably seek orders, in the child’s best interests.[12]

   [12] Section 68LA(3) of the Act.

3. The orders he seeks are:-

   The Independent Children’s Lawyer’s appointment be continued to allow the Independent Children’s Lawyer to continue to carry out his obligations set out in Section 68LA of the Act including but not limited to:-

   (a)Liaising with the children’s schools and medical practitioners;

   (b)Liaising with the State Welfare Authorities;

   (c)Requiring (if necessary) the children to be interviewed by the Independent Children’s Lawyer or such other person deemed appropriate to the Independent Children’s Lawyer;

4. These orders are not foisted upon the Independent Children's Lawyer; he has volunteered to undertake this onerous role.

5. As to the injunctions s 68 of the Act relevantly provides as follows:-

   S 68B(1) if proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child including: …

6. In his written submission dated 25 September 2015, the Independent Children’s Lawyer sought restraint orders [under s 68 of the Act] to enjoin the parties from abusing the children or permitting them or seeing to be exposed to pornography.[13]  He is also seeking ongoing orders for his appointment to continue until each child attains the age of 18 years, to enable the children to be safe and that his concerns (including those raised in these proceedings) are available to relevant school, health and child protection authorities.   

   [13] Submissions of the Independent Children’s Lawyer’s filed 1 December 2015 regarding orders available to the Court page 3.

7. A parenting order is one as provided pursuant to s 64(B)(1) as being an order under this part dealing with matters mentioned in s S64(B)(2) includes in the definition of parenting order:-

   (i)   any aspect of the care, welfare and development or of any other aspect of parental responsibility for a child.

8. The injunctions relate to the exercise of parental responsibility by the father.

9. Even if the Independent Children's Lawyer cannot, on his/her own initiative, seek orders; the Court may do so pursuant to s 69ZP of the Act which provides:-

   The Court may exercise the power under this Division:-

   (a)on the court’s own initiative; or

   (b)at the request of one or more of the parties to the proceedings.

10. In some ways the protective orders sought by the Independent Children's Lawyer (other than the injunctions) confer some limited aspects of parental responsibility on the Independent Children's Lawyer.

11. I also accept and adopt the Independent Children's Lawyer’s submission that:-[14]

    (k)the Court has power pursuant to Section 67ZC to make the Order continuing the Independent Children’s Lawyer’s appointment following the dismissal of the proceedings. The High Court has made it clear that Section 67ZC [of the Act] does not refer to any substantive rights, privileges, duties or liabilities of the persons who can apply for and be made subject to any Order under this section. Further, a Federal Court may only be invested in jurisdiction that Parliament has defined by Law with respect to one of the matters mentioned in Section 77 of the Constitution. Such a “matter” may be invested inferentially with such inference being drawn from the nature of a remedy granted or from other provision in the legislation that confers rights or imposes duties or liabilities upon persons.

    (l)The High Court has found that Part VII of the Family Law Act gives parents rights to seek an Order to advance or protect the welfare of a child and accordingly gives rise to a “matter” that involves an exercise of judicial power as described in Section 77 of the Constitution. The Court made it clear however in [Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992)] that the Family Court did not have a welfare jurisdiction at large and that there were limits on that jurisdiction.  

    (m)The Family Court may make an Order under Section 67ZC that is binding upon a parent.  Under that Section it may also make Orders such as those made in Marion’s Case or those analogous to Orders traditionally made by Court exercising parens patriae jurisdiction.  The Family Court however does not have jurisdiction to make Orders binding on third parties whenever it would advance the welfare of a child to do so.  Nothing in Section 67ZC imposes expressly or inferentially any duty or liability on third parties to act in the best interests or to advance the welfare of a child.  Section 67ZC may support the making of an Order compelling a parent to engage in particular conduct necessary for the welfare of a child independently of a parenting Order being made.  So for example, with the consent of a party the Court can make a stand alone Order for a mother to undertake therapy.  This does not necessarily extend to situation where there is no consent.

    [14] Ibid at pages 6 and 7.

12. I accept the submission of the Independent Children's Lawyer that the Court has the power to make an Order for the Independent Children’s Lawyer to remain appointed pursuant to s 68LA.

GENERALLY

1. Given the evidence set out above, I am satisfied that in the past the children were at unacceptable risk of abuse in the unsupervised care of the father. As to the present time and into the future, given the state of the evidence, much of it untested, I am not satisfied that the children are at risk of sexual abuse on the unsupervised care of the father, nor am I satisfied that they are not at unacceptable risk of abuse in such care. However, I am obliged to give effect to the objects and principles of the Act, including protecting children from harm.[15]

   [15] See sections 43(1)(c), 60B, 60CC(2)(b)(3)(j & k), 60CF, 60CG, 67Z(dd) and 69ZN(5) of the Act.

2. The Independent Children's Lawyer is correct when he submitted he has obligations to the Court, and more importantly, to the children once appointed. These include having an independent view and to act the best interest of the child. He is and was obliged to analyse evidence and inform the court of relevant circumstances, such as in this proceeding.  In this case the Independent Children's Lawyer made submissions and filed a Notice of Risk of Abuse.  

3. Interim orders were made as set out earlier and remain in place. To all intents and purposes the parties have jointly ignored the orders for some years. They have co-operatively made their own arrangements, which they are permitted to do pursuant to s 64D of the Act. As such those orders serve no purpose and I will discharge them.

4. I am satisfied that the Court has the power to make protective orders sought by the Independent Children's Lawyer for these children into the future.

5. I am satisfied that the making of the injunctions referred to above would fall within the scope of such order.

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on         11 December 2015.

Associate:     

Date:   11 December 2015