Tanith & Tanith

[2024] FedCFamC1F 255

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tanith & Tanith [2024] FedCFamC1F 255

File number(s):	ADC 671 of 2024
Judgment of:	KARI J
Date of judgment:	28 March 2024
Catchwords:	FAMILY LAW – CHILDREN AND PARENTING - Where one of the children is an inpatient at a hospital and expecting to be discharged for the weekend – Where the child shall live during the period the child is discharged – Where the Department for Child Protection have been invited to intervene in these proceedings and are currently conducting an investigative process – Where the parents, the paternal grandmother and the Department for Child Protection have executed a safety plan - Where the court makes orders to give effect to the safety plan
Legislation:	Family Law Act 1975 (Cth) s 91B
Division:	Division 1 First Instance
Number of paragraphs:	31
Date of hearing:	28 March 2024
Place:	Adelaide
Counsel for the Applicant:	Ms Betro
Solicitor for the Applicant:	Pascale Legal Barristers & Solicitors Pty Ltd
Solicitor for the Respondent:	Legal Services Commission of South Australia
Solicitor for the Independent Children's Lawyer:	Adelta Legal

ORDERS

ADC 671 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR TANITH Applicant
AND:	MS TANITH Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	KARI J
DATE OF ORDER:	28 MARCH 2024

UPON NOTING the contents of the Safety Plan executed by the parents, the paternal grandmother and the Department for Child Protection this day received and marked “DCP1”.

THE COURT ORDERS THAT:

1.That paragraph 7 of the Orders dated 23 February 2024 are here by suspended for the period 11 am on Monday, 1 April 2024 until 10.30 am on Wednesday, 3 April 2024.

2.That the child Z (born 2013) do spend time with mother from 11 am on Monday, 1 April 2024 until 10.30 am Wednesday, 3 April 2024.

3.As and from 10.30 am on Wednesday, 3 April 2024, paragraph 7 of the Orders dated 23 February 2024 shall remain in full force and effect.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tanith & Tanith has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

KARI J:

INTRODUCTION

1. These reasons relate to the child Z born 2013, who is 11 years of age.

2. Z is currently an inpatient in B Hospital in Adelaide. He has been diagnosed with a medical condition, and is currently having post-surgical treatment as an inpatient.

3. Z’s parents are in dispute as to the parenting arrangements for Z, but also those of his two siblings X (born 2007) and Y (born 2008). However, to date, and as a result of Z’s pressing medical needs, the focus of the litigation has been on Z.

4. The proceedings were commenced urgently by the father on 15 February 2024, shortly after Z’s hospital admission, diagnosis and surgery.

5. On 19 February 2024 orders were made:

   (a)Appointing an Independent Children’s Lawyer (“ICL”); and

   (b)Inviting the Department for Child Protection (“the DCP”) to intervene in the proceedings pursuant to s 91B of the Family Law Act 1975 (Cth).

6. On 23 February 2024 orders were made by consent prescribing the times that each of the parents were to spend with Z whilst he remains in hospital. In addition, an order was made restraining each of the parents from removing and/or discharging Z from hospital.

7. The proceedings have been before the court with intense frequency since their inception.

8. At the time of the hearing to which these reasons relate, the DCP had yet to finalise their investigation and respond to the order made pursuant to s 91B. They had, however, attended each and every hearing, and helpfully provided the court with written and oral updates in relation to Z, his treatment and care, and their investigation generally.

9. On 27 March 2024 the ICL wrote to the court requesting that the proceedings be urgently listed. The reason for this was because it had come to the attention of the ICL that there had been a news segment in Adelaide which featured Z and plans for him to be released from hospital for the upcoming Easter long weekend.

10. The reasons that follow were delivered orally at the conclusion of the hearing on 28 March 2024. The reasons have been corrected from the transcript. The introduction has been inserted to give context to the reasons.

    ORAL REASONS

11. I indicate that I remain very, very concerned about Z and his care arrangements.  The views I expressed yesterday as to it being premature for the court to form any views as to the appropriate care arrangements for Z remain unchanged. I am conscious that this is a view that the ICL also holds. 

12. I am deeply troubled by the events that have transpired in the last week or more, as best can be understood from the father’s oral evidence given in court yesterday. I am deeply troubled that, where this court is being asked to determine the parenting arrangements for Z, it now appears he was given an expectation that he would be able to go home in the absence of it being raised with the court by anybody, particularly the father, who was aware, from his evidence yesterday, that these discussions at some level were being had. 

13. I am also concerned, if I accept the father’s evidence, that arrangements were made for Z to be filmed by a film crew when he is in a vulnerable state, and that this footage was published.  It strikes me as surprising that the filming would have taken place without knowledge of the parents who have parental responsibility for him.  But if I accept the father’s evidence, and I have not yet formed a view about that, that would appear to be what occurred (it may be that someone requires the production of the forms that the father gave evidence that he had signed in that regard, and/or some further enquiries are made of the hospital, perhaps by the ICL, in relation to how that recording and publication came to be).

14. Either way, a vulnerable child was put in a position where (a) he was filmed and (b) he was given it seems, not just an expectation, but a certainty that he would be discharged for the Easter period in the absence of orders of this court.

15. This is concerning, because all along I have made it clear to the parties that this court is not in a position to yet make orders for Z’s care arrangements outside of the hospital environment. In addition, I have repeatedly expressed concerns that Z might be discharged in the absence of the court making parenting orders for his living arrangements outside of the hospital environment.

16. On any view Z is a very young and vulnerable person, and it does not strike me that his interests are currently being prioritised by those who should be prioritising his interests. 

17. Be that as it may, I am conscious that the DCP at the invitation of the court, have been asked to intervene in these proceedings and that they are conducting an investigative process.  That process has not yet concluded.  However, for reasons that I ultimately might learn more of in due course, the DCP have formed the view that it is appropriate that Z be discharged over the weekend, and they have formed the view that such a discharge into the care of the paternal grandmother is appropriate.

18. I note the terms of the Safety Plan that has been entered into by the DCP with each of the parents and the paternal grandmother, Ms C. 

19. I am also conscious that the paternal grandmother has attended court today.  The paternal grandmother is not a party to these proceedings.  She is not presently asking this court to make any parenting orders in her favour in relation to Z.  At the present moment, the only reason that any arrangement is being made which would see Z in her care has been with the imprimatur of the DCP pursuant to the safety plan.

20. It remains to be seen whether the DCP will separately take any action in relation to Z’s care.  They may well do so.  These proceedings will necessarily be put on hold if action is taken by the DCP in the Youth Court seeking care and protection orders for Z.  If, however, that is not the case, and if, ultimately, the only applications that are before the court are those of each of the parents, it may be that the paternal grandmother considers it appropriate that she intervene in these proceedings and seek parenting orders in her own right in relation to Z.

21. I make it clear to the paternal grandmother that I have not formed a view about the suitability of her as a carer for Z in any way, shape or form, in the same way that I am yet to form a view about each of the parents and their capacity to meet Z’s needs. 

22. What I do know, however, at this stage, is that very significant risk issues have been raised in relation to each of the parents, and the court is overwhelmingly concerned that each of these parents are not presently able to meet Z’s needs. That is the reason that orders were made inviting the DCP to intervene in these proceedings. It is not for any other reason that an order was made pursuant to s 91B of the Act, other than my principal concern that each of these parents may not be appropriate, ultimately, to have the primary care of Z.

23. The risk factors associated with each of these parents, include but are not limited to, use of illicit substances; a prior inability to meet Z’s needs; allegations of failure to obtain appropriate medical treatment for Z; allegations of inappropriate and/or neglectful care of Z.

24. I am grateful for the assistance of the ICL and his ability to persuade the paternal grandmother to attend court today, and to the extent that the ICL has indicated that he will direct the paternal grandmother in the right direction of the duty lawyer at the court. I urge the paternal grandmother to take up that offer by the ICL, and to obtain some preliminary legal advice. 

25. It may be that the paternal grandmother does not wish to intervene in these proceedings.  That will ultimately be a matter for her, but if she does not do so it may well be that the DCP does take action elsewhere, in the face of the only applicants before this court being each of the parents. 

26. I make it clear though, having said all of that, that I have no view whatsoever as to the suitability of either of the parents or the paternal grandmother as a long-term viable option for Z’s care.  On any view, from the evidence that I heard yesterday, and that which I otherwise have been informed about by the DCP, Z is vulnerable, and he has high needs.  He is unable to meet any of his basic care needs.  He requires full-time care.

27. These proceedings are difficult, given they involve care arrangements for a young child who, to be frank, from the evidence that I presently I have before me, may not live through this litigation or the process of his medical treatment.  That is a sobering thought for everyone, but particularly for the court. Equally sobering is that at the time of Z’s highest vulnerability, these parents are having to litigate in this court about his care arrangements.  That could not be, on any view, in this child’s best interests. This litigation proceeding in these circumstances is deeply sad, it is deeply distressing, and it is sobering, and it should be sobering to the parties and to the paternal grandmother.

28. I am grateful for the assistance of the DCP, and particularly the ICL, in bringing the matter back before me this week, in circumstances where despite having been repeatedly before me, the father, on his own evidence, did not see fit to raise Z’s possible discharge with the court.  That he failed to do so is deeply troubling. 

29. I am now invited to make orders which whilst they are parenting orders, they are orders effectively to give effect to the safety plan that has been entered into between the parties, the DCP and the paternal grandmother to provide for Z to be discharged over the Easter long weekend.  They suspend orders made on 23 February 2024, to provide for each of the parents to spend time with Z while he is an inpatient at B Hospital.  I am content to make these orders, understanding that I do not make these orders in support of the safety plan, but simply to give effect to the terms of the safety plan.

30. The proceedings are next before the court next Wednesday after the Easter long weekend.  I have a hope, not without some hesitation, I might add, that Z will be safe over the Easter weekend and that we will be back here on Wednesday to consider the progress of the matter.

31. I have issued a subpoena, as I indicated yesterday, for his social worker and his specialist to attend court and give evidence next Wednesday because I consider it appropriate that the court hear directly from his treating practitioners.  It is not without, again, some hesitation that I’ve issued those subpoenas because I’m conscious that they are busy people, meeting the needs of not just Z, but other young vulnerable children in their care.  It is a significant step for the court to issue a subpoena, and particularly a subpoena to professional experts to come and give evidence before the court.  That I have done so should be an indication to all of just how seriously I am taking matters in relation to Z.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari.

Associate:

Dated: 6 May 2024