Teague & Crowell
[2023] FedCFamC2F 146
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Teague & Crowell [2023] FedCFamC2F 146
File number(s): ADC 4599 of 2020 Judgment of: JUDGE JENKINS Date of judgment: 13 February 2023 Catchwords: FAMILY LAW – parenting – child aged 17 with intellectual disabilities – child will be shortly turning 18 and out of the jurisdiction of this Court and the Department for Child Protection – DCP reports raise serious and immediate concerns for the child’s welfare – mismanagement of NDIS funding – child not receiving necessary supports – referral to the Office of the Public Advocate and the Public Trustee – transfer into supported living accommodation – DCP require further time to complete their investigation pursuant to a section 91B order Legislation: Family Law Act 1975 (Cth) s 91B Cases cited: Rafidi v Commonwealth Bank of Australia [2017] NSWCA 96 Division: Division 2 Family Law Number of paragraphs: 20 Date of last submission/s: 13 February 2023 Date of hearing: 13February 2023 Place: Adelaide Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: KP Lawyers Solicitor for the Respondent: Mr Jelbert from Camena Legal Solicitor for the Independent Children's Lawyer: Ms Ryder from Ryder Family Law Solicitor for the Department for Child Protection: Ms Yeeles from the Crown Solicitors Office ORDERS
ADC 4599 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TEAGUE
Applicant
AND: MR CROWELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
13 FEBRUARY 2023
UPON NOTING consideration will be given on the adjourned hearing date for the parties to attend with the child X born in 2008 upon Ms B for the interviews so she can complete the Family Assessment Report pursuant to order 2 of the orders made on 24 August 2022 NOTING that the father has advised the Court he will ensure X attends and UPON FURTHER NOTING the mother consented to Order 3 in the event Y was placed in supported accommodation
THE COURT ORDERS THAT:
1.The trial listed on 6, 7 and 8 March 2023 at 10.00am is vacated.
2.The mother deliver up the child Y born in 2005 to the DCP on a date and at such time as notified by the DCP and that the DCP thereafter facilitate Y’s transitioning into supported living accommodation (“the supported living facility”), and to arrange transport if the mother is not able to drive.
3.By consent, the C Disability Support Coordinator (“the Disability Support Coordinator”) of the supported living facility be responsible for the management of Y’s NDIS funding, Centrelink and bank accounts and for that purpose be authorised to sign all documents and do all things necessary to ensure this occurs pending any determination as to an administration order.
4.The parents be restrained and injunctions granted restraining them from thereafter causing Y to move out or removing her from her supported living facility SAVE for a short day visit and only after consultation with the Disability Support Coordinator.
5.By consent, the parties be restrained and an injunction granted restraining each of them from:
(a)discussing these proceedings with either of the children, including any allegations that have been made, or allowing anyone else to do so;
(b)abusing, denigrating or criticising the other parent or his or her partner in the presence or hearing of either of the children, or allowing anyone else to do so; and
(c)interrogating either child about the other parent or his or her household.
6.The appropriate Officer of the Federal Circuit and Family Court of Australia cause a copy of these orders and this judgment along with copies of all documents filed in these proceedings including the preliminary report from the DCP and the material provided under s69ZW to be provided to the Office of the Public Advocate and the Public Trustee.
7.The Office of the Public Advocate be requested to consider an application for a guardianship order for the child Y and the Public Trustee be requested to consider an order for administration for Y.
8.Further consideration of the proceedings is adjourned to 5 May 2023 at 10.00am with respect to the mother’s time with X.
9.Leave to the Respondent father to file and serve any further Affidavit/s by no later than 5.00pm on 6 April 2023.
10.Leave to the Applicant mother to file and serve any further Affidavit in reply by no later than 5.00pm on 21April 2023.
11.Leave to the Independent Children’s Lawyer to file and serve any further Affidavits in reply by no later than 5.00pm on 21 April 2023.
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 a pseudonym Teague & Crowell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE JENKINS
These reasons were delivered orally and have been edited and corrected from transcript. I have endeavoured to correct grammatical errors, clarify any citations and generally make my oral reasons easier to read.
This is quite a complex matter involving Y, aged 17 years, and X, aged 13 years. Y is turning 18 this year but has severe intellectual disabilities and I will address those further in my reasons.
The parties were in a relationship from approximately 2001 to approximately February 2020. As I understand it, the children lived with the mother after separation, were sent to the father to stay sometime in the middle of 2020 and remained in his care. The mother consequently initiated these proceedings on 24 September 2020. The mother’s Interim Application filed 9 December 2022 sought time with the children on the basis she had not seen either child since the Child Impact Report in 2021 or at least that was the case when she attended for the Family Report interviews in November 2022. The father did not attend for the Family Report interviews nor take the children.
It has since come to light, pursuant to an affidavit filed by the mother on 12 February 2023 that Y is now in the mother's care. The circumstances around that are somewhat unclear but Y was admitted to hospital whilst living with the father and from there went into the mother’s care. The mother's case is that Y fled the father. I cannot make a finding about that and there is little detail about what exactly occurred. It is not significant though to the decision I have to determine today because of Y's intellectual issues and the broader welfare concerns.
On 14 December 2022, I made a s 91B order for the Department for Child Protection (“the DCP”) to intervene in these proceedings. Ms Yeeles has attended on behalf of the DCP today. Present in Court I have Ms D who is the Senior Family Court Liaison, Co-located Child Protection Practitioner and the DCP social worker, who has made the unusual trip to Court this day for an interim hearing in order to try and support the parties in discussions and what is best for Y. The DCP have filed a Short Form Report on 9 February 2023 and ultimately need, not surprisingly, six to eight weeks to complete their investigation.
The Independent Children's Lawyer (“ICL”) has filed an affidavit containing reports from Y's occupational therapist and her disability support coordinator and those reports raise serious and pressing concerns for Y's welfare. As a consequence of these reports and that Y is nearly 18 years old and will shortly be out of the jurisdiction of this Court and the DCP, I indicated at the commencement of this hearing that I was considering referring the matter to the Office of the Public Advocate and requesting they consider applying for a guardianship order on behalf of Y. Having given that indication, I stood the matter down for the parties to prepare any submissions which they wished to make on that issue. The father, the ICL and the DCP now support that course of action. It was indicated by Mr Jelbert on behalf of the father that the father would ultimately be making his own application for the guardianship process and that this might expedite matters. However, given that the father has not attended the Family Report or filed material pursuant to the orders in December 2022, I have no confidence that he will do what he says he is going to do. There is a risk, if the father does not file an application for the Office of the Public Advocate to make a guardianship order, that Y would be out of the jurisdiction of this Court and there would be no power to make that order.
As I indicated, I have had the benefit of the two reports filed by the ICL. In summary, the occupational therapy report prepared by Ms E assesses Y's functional ability in communication as an equivalent to a child aged between two years, seven months, and five years, ten months. Her daily living skills are equivalent to a child aged between three years and seven years, four months, and her socialisation equivalent to a child aged between two years and seven years, nine months. Ms F, who is Y’s disability support coordinator, in her report notes that Y has a significant intellectual disability and secondary diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”) and Obsessive Compulsive Disorder (“OCD”). She says that Y's parents have failed to use large portions of her National Disability Insurance Scheme (“NDIS”) funding and that Y has accessed virtually none of her core NDIS funding. Further to this there are virtually no therapists working with Y, which means she is not receiving the support she needs.
I have also had the benefit of the preliminary report from the DCP. The reported concerns in relation to this family pertain to the mother’s substance misuse and resultant unsafe behaviour, domestic violence within the parents' relationship and the children's exposure to this and a stabbing occurring at the mother’s residence in 2020. It notes that since the children commenced residing with the father, the DCP have received concerns in relation to home schooling, allegations of the father perpetuating physical violence against Y, the mother retaining care of Y and allegations Y was neglected whilst in the father’s care. Additional concerns were reported in relation to Y currently receiving NDIS and/or support pension funding and neither parent using the funds for its intended purpose.
On 8 February 2023, the DCP consulted with Y's NDIS support coordinator, who confirmed she currently receives no therapeutic intervention and there have been issues in the past in relation to both parents' ability to coordinate such services. In addition, neither parent is allowed to manage the funds due to previous mismanagement.
Y was described by the DCP as functioning significantly below her biological age and, as such, has increased vulnerability when she is in the community and concerns were noted in relation to both parents not fully understanding the nature of her disability, which has led to both parents being unable to consistently and adequately meet her needs. For all of those reasons, I have serious concerns for Y’s welfare. In particular, the stability of her housing, her education and possible isolation.
I have endeavoured to find authority on the power of the Court to refer the matter on the papers to the Office of the Public Advocate or the Public Trustee. I have been unable to locate any authority in this jurisdiction. I note however in the case of Rafidi v Commonwealth Bank of Australia [2017] NSWCA 96 at par 16:
A decision “to refer papers” to some regulatory or policing agency (or on occasion the Australian Tax Office) is, as the judge noted, “an independent administrative decision by the court” and not part of the judicial process.
I am of the view that this would capture the Office of the Public Advocate (and the Public Trustee) and accordingly I propose to make an order that the matter be so referred on the papers.
In regard to the orders with respect to where Y lives in the meanwhile, it was submitted on behalf of the mother that there was not sufficient information before the Court (due to the incomplete DCP investigation) to determine that it was in the best interests of Y to live with the mother or the father or any other person.
This appeared to be premised on an earlier indication I gave to the parties that I could not on the information before me determine it would be in Y’s best interests to make an order that she resides with the mother.
What I meant by that indication was that I could not be satisfied on the material before me that it would be in the best interests of Y to live with the mother specifically, for all of the reasons I have already referred to. I cannot make a finding of fact about those things, but it is not in dispute that the mother has been convicted of driving whilst on methamphetamines, and there are a number of other significant allegations. Although I cannot make a finding, judges are not required to ignore serious issues just because they are contested and they are serious allegations.
There are likewise serious allegations made with respect to the father, but as he has conceded that Y ought to go into supported accommodation, I need not address concerns specifically about the father.
It has come to light during the hearing that there is a placement available in the next couple of days for Y to go into supported living which can be facilitated by the DCP. The father supports an order along those lines. The ICL and the DCP support that order. The mother seeks that I not affect the status quo, being that Y remains in her care, and if I am not prepared to make an order for Y to live with her, that I not make any order. However, in light of the risk concerns, I propose to make the order as sought by the ICL, that the mother cooperate with the DCP to facilitate Y transitioning into supported living accommodation as soon as it becomes available in the next couple of days.
The ICL also proposed an order that the father have sole parental responsibility so that one of the parents can be in charge of the NDIS funding. I questioned why the father was appropriate, and the rationale was simply that somebody needed to manage the funds and it was very clear that the parents could not work together. However because I have concerns about both parents - and these have been identified by the DCP with respect to the use of that funding - I queried whether there was a third party who could manage the funds pending any application for guardianship or administration. The father, the ICL and the DCP all, somewhat unusually, proposed that the disability support coordinator be given that responsibility.
The disability support coordinator is not a party to these proceedings and if they are not prepared to manage the funds, I cannot force this responsibility on them. I also note this course of action was opposed by the mother. However in light of the concerns raised by the DCP about the use of the funding (whilst noting I am unable to make a finding about that) and to ensure that Y starts receiving the funding as soon as she possibly can, and the services she needs, I propose to make an order that the parents do all acts and things necessary to authorise the disability support coordinator, to have the responsibility for Y's NDIS funding, Centrelink benefits and banking, pending any guardianship order.
For these reasons, I make the orders as set out at the beginning of this judgment.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Jenkins. Associate:
Dated: 20 February 2023
0
1
0