Thompsett and Keen and Anor

[2018] FamCA 381

FAMILY COURT OF AUSTRALIA

THOMPSETT & KEEN AND ANOR [2018] FamCA 381

FAMILY LAW – CHILDREN – Parental responsibility – Intervention – where second respondent seeking to spend time with the child – where child currently in foster placement.

APPLICANT: Mr Thompsett

1st RESPONDENT: Ms Keen

2nd RESPONDENT: Mr Pemberton

INTERVENOR: Secretary, Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

FILE NUMBER: CAC 678 of 2016

DATE DELIVERED: 21 May 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 21 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Elringtons

SOLICITOR FOR THE 1ST RESPONDENT: Dillon-Smith Lawyers

SOLICITOR FOR THE 2ND RESPONDENT: No appearance by or on behalf of Mr Pemberton

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Evans Family Lawyers

Orders

1. Order 2 of the Orders made on 15 June 2017 is discharged in so far as it relates to B (the child).

2. The applicant father (Mr Thompsett) shall spend time with the child on one occasion each calendar month, such occasion, unless otherwise agreed between the father and the Department of Family and Community Services, to be supervised by a professional supervision agency such as E Group at F Town.

3. The arrangements in relation to Mr Thompsett spending time with the child may be varied by agreement in writing between the Department and Mr Thompsett.

IT IS ORDERED, UNTIL FURTHER ORDER, THAT

1. Parental responsibility for the child be allocated to the Minister.

2. In the exercise of her parental responsibility the Minister agrees she will not place the child in the interim with:

   (a)       Mr Pemberton;

   (b)       Ms J; or

   (c)       Mr Thompsett.

3. In the exercise of her parental responsibility the Minister intends to continue the child in his current placement in the D Region.

4. In the event the current foster carer is unable to continue to care for the child, the Minister will place the child in a further temporary foster care placement pending further application to this Court.

(7)(a)In the event the Minister forms the view that the child should be placed on an interim basis with Ms J she will not do so without providing 14 days’ notice.

1. Liberty for the Independent Children’s Lawyer to communicate with the child’s treating counsellor and paediatrician and to be provided with reports from same.

2. Dr G prepare a Part 15 Experts Report with cost of such report to be borne at first instance by the Minister with the parties to make a contribution to the cost subject to the parties being able to secure legal aid funding.

IT IS NOTED THAT

1. The mother and the Independent Children’s Lawyer are concerned that the child is to continue in counselling and the Minister agrees to facilitate and support ongoing counselling for the child which includes counselling for trauma, sexual abuse, and behavioural issues.

IT IS FURTHER ORDERED, UNTIL FURTHER ORDER THAT

1. The mother spend time with the child as agreed between herself and the Minister but not less than once per week and that she communicate with the child three times weekly by telephone.

IT IS FURTHER ORDERED THAT

1. The matter is transferred to the Registrar's list and the parties are at liberty to seek a restoration into a judicial list, or it may be transferred into that list on the filing of any application by the parties.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 678 of 2016

Mr Thompsett

Applicant

And

Ms Keen

1^st Respondent

And

Mr Pemberton

2^nd Respondent

And

Secretary, Department of Family and Community Services

Intervener

EX TEMPORE REASONS FOR JUDGMENT

1. The parties who have participated in the proceedings today, which excludes Mr Pemberton, who is the child B’s father, have agreed to a set of orders governing parental responsibility and how that will be exercised and effectively who will determine where B (“the child”) lives within fixed parameters pending further trial of the matter. 

2. Those agreed terms provide for the Department of Family and Community Services (“the Department”) to exercise parental responsibility for the child, but not to place him with certain persons without further order of the Court, and with other persons’ without notice, which would enable parties to make an application to the Court.  This set of circumstances comes about as the child has recently been observed to be somewhat dysfunctional in the sense that he has displayed physical violence towards his mother.  As a result of what was reported by his mother he has been excluded from the mother's home and has entered into temporary foster care as arranged by the Department. 

3. As set out in the affidavit provided by the departmental worker, what was initially a temporary arrangement, which might have been expected to give respite and have the child shortly return to the mother's home, has extended on a number of occasions.  It is extended under circumstances where the Department had determined that the conditions were right for the child to return to live with the mother but that the mother has on each occasion indicated to the Department that she is not ready for that to take place. 

4. She has expressed concerns about how the child will behave towards her and concerns for how it is that she might be able to cope with that.  She says at the same time the child’s exclusion from the home has not had any significant impact on C, his brother, who continues to live in the home. 

5. The material that has been prepared has indicated that this has had an impact on the child and that while he seems to prefer to return to live with his mother this has not been able to be accommodated.  The extended time that he spent in foster care has meant that the Department has now sought the allocation of parental responsibility to itself so it can determine his living arrangements.  That has been agreed by those who participated in the hearing.  The child’s father has not participated, but has lodged no objection or desire to participate in the ongoing proceedings. 

6. The remaining issue before the Court is as to what time the child should be spending with Mr Thompsett.  Historically, Mr Thompsett appears to have functioned as though he was the child’s father from when the child was about two years old.  Dr G, the Single Expert in this case, has noted that both the child and C seem to love and miss Mr Thompsett.  The child, she notes, has an established bond with Mr Thompsett, at least at the time of the preparation of the report.  However, the time that Mr Thompsett has been spending with C and the child has been extremely limited.  

7. Although he had been having overnight time with the two boys, in June 2017, orders were made to change this to supervised time following allegations of sexual abuse.  These allegations remain untested but the supervised time was thought to provide sufficient protection to enable the maintenance of what seems to be an important relationship, while maintaining a protective mechanism for both of the boys.  Mr Thompsett has set out the frequency that he spent time with each of C and the child.  With C it has seemed in recent times to occur on a monthly basis, although on a short period for a fortnightly basis.  With the child it appears to have occurred generally on a monthly basis until the point that he was taken into foster care.  Since that time Mr Thompsett has not spent time with the child. 

8. The contest is now not whether he should spend time with the child, as it seems to be agreed that he should, but as to the frequency of that happening being whether it should happen on a fortnightly basis or on a monthly basis.  The Department, the Independent Children’s Lawyer (“ICL”) and the mother seek that it occur on a monthly basis, while Mr Thompsett seeks that it occurs on a fortnightly basis.  It seems that the relationship between the child and Mr Thompsett is an important relationship for the child but at the moment has attached to it an unascertained risk. This has meant that it is has had to occur under supervision and in a sporadic manner, especially given the practical difficulties that come from the child living in D Region and the father living in the Canberra region and being reliant upon public transport. 

9. The child is currently in a position where those important relationships may be of particular importance to him given the difficulties which have happened between him and his mother.  He is also, at present, in a stable foster care arrangement but a foster care arrangement that may be brought to an abrupt end should the child become violent, as he is described as having done so in the past, or engage in sexually inappropriate behaviour, again, as he has been described to do in the past.  This has meant that in order to provide an emotionally stable residence for the child much emphasis has been placed by the Department and the ICL on ensuring stability.  This is both a stability for him in a placement that he has, and also a general stability for him.  In particular, the ICL’s submissions as to the matter contained at [99] of Dr G's report that:

   the child needs a safe, calm, stable environment and consistent parenting.  Increasing uncertainty in flux will harm him.  Increasing predictability will help him. 

10. Her emphasis on this particular matter resonates in this case.  It resonates because it seems that with all of the uncertainty that the child is being faced with, it is important that he have both a stable placement and he have stable arrangements to surround him.  While it is a finely balanced matter as to whether there should be fortnightly time between the child and Mr Thompsett or monthly time, the balance in terms of trying to ensure stability for him at the moment falls to him having monthly time with Mr Thompsett.  In doing so it will be important that the Department, who will be responsible for ensuring that time happens, seek to coordinate the time so that the child is able to spend time with C when he spends time with Mr Thompsett.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 May 2018.

Associate: 

Date:  30 May 2018