TOBY & TOBY

[2011] FamCA 563

FAMILY COURT OF AUSTRALIA

TOBY & TOBY [2011] FamCA 563

FAMILY LAW - CHILDREN – interim orders – with whom a child spends time – where the children were temporarily placed under the guardianship of the Minister and removed from the mother’s care – where those proceedings have been dismissed – best interests – orders that the children recommence supervised time with the father.

FAMILY LAW - PRACTICE AND PROCEDURE – orders requesting the intervention of the Minister pursuant to s 91B – further orders for the preparation of a Family Report and a report from Families SA.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Toby

RESPONDENT: Ms Toby

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3995 of 2010

DATE DELIVERED: 13 July 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 13 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Taylor

SOLICITOR FOR THE APPLICANT: Mellor Olsson

COUNSEL FOR THE RESPONDENT: Mr Hemsley

SOLICITOR FOR THE RESPONDENT: Josephson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of SA

Orders

1. Pursuant to Section 91B of the Family Law Act 1975 as amended the Minister for the Department for Families and Communities – Families SA be invited to intervene in these proceedings and if not intervening to send a representative to indicate to the Court their attitude to the proceedings on the next occasion being 5 September 2011 at 10.00 am.

2. The Department for Families and Communities – Families SA be requested to prepare a report updating the attitude of the Minister and the events which have occurred since the report of 18 April 2011 and that such report be filed at this Court by no later than 4.00 pm on 1 September 2011.

3. Pursuant to Section 62G[2] of the Family Law Act 1975 as amended THAT a Family Consultant provide to the Court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the children N born on … October 2001, T born … May 2004 and J born … December 2007 and that such report be released to the parties and to the Independent Children’s Lawyer on or before 1 September 2011.

4. During the period of the adjournment all children live with the mother.

5. The parties take steps to ensure that the request for supervised time at Contact Centre 1 is renewed and as soon as the service is available the father spend time with the children T and J at Contact Centre 1 for a period of not less than two [2] hours each fortnight.

6. Further consideration of the matter is adjourned to the Honourable Justice Burr on Monday 5 September 2011 at 10.00 am.

7. During the period of the adjournment the father have Skype communication with the children T and J at 5.30 pm on Monday, Wednesday and Friday of each week commencing on Friday 15 July 2011 UPON CONDITION that N be permitted to join in the Skype session at any time he so wishes and IT BEING NOTED that the Skype session is taking place in the presence of the mother on the basis that further consideration will be given to the father spending time by way of Skype communication and face to face communication with N when the report is available in relation to all three [3] children.

8. Leave is granted to the Independent Children’s Lawyer to issue a subpoena directed to the Department for Families and Communities – Families SA and/or Child Protection Services for the production of their file.

9. If there is no objection leave is granted to the solicitors for the represented parties and to the Independent Children’s Lawyer to inspect and copy all documents produced pursuant to subpoenae issued in these proceedings (save and except any electronically recorded interview(s) of the children) and subject to any privilege claimed UPON CONDITION THAT any copies taken are not provided to the parties without further order of the Court.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3995 of 2010

Mr Toby

Applicant

And

Ms Toby

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has been before the Court for some considerable period of time.  The Family Court’s handling of the matter was interrupted whilst proceedings were taken by the Minister in the Youth Court of South Australia.  The children were placed temporarily under the guardianship of the Minister, removed from the mother’s care and placed into alternative care. 

2. The Court has received the letter of 18 April 2011 from the Department of Families and Communities to which is annexed the reports of the Child Protection Service in February 2011, and the psychological report of 25 March 2011, together with the more recent affidavit of the mother, filed on 6 July 2011, to which is attached an addendum Social Work Report in relation to the children dated of 20 June 2011, given to the Youth Court of South Australia which resulted in the orders of 20 June 2011 in which his Honour Senior Judge McEwen dismissed the Care and Protection proceedings which were before the Youth Court at that time.

3. The matter is brought back before the Court this morning.  The mother seeks orders that the three children reside with her.  She is not opposed to an order that the father spend supervised time with the two children of the relationship.  She is opposed to an order that the child, N (who is her eldest child by another father) spend time with the father in these proceedings. 

4. The mother seeks conditions that the time spent is to be at Contact Centre 1 where both parties have already registered in accordance with the orders previously made by Justice Burr.  None of the parties are opposed to the order being made that there be a Family Consultant report prepared in this matter.

5. The Independent Children’s Lawyer draws the Court’s attention to what can be described as the anomaly of the Department instituting proceedings and obtaining temporary guardianship orders removing the children from the care of the mother primarily upon the basis of concerns about her failure to protect the children by allowing them to spend time with the father, and the recommendations now appearing in the report provided to the Court from Families SA in which it is recommended the children continue to have regular supervised weekly contact, at that stage, with the mother, and that T and J, the two younger children, have regular supervised contact with the father.

6. The most recent report, which was the report provided to the Youth Court in June 2011, has a page of summary and recommendations in which concern is expressed about the mother’s mental wellbeing.  It then says:

   “Even though the Department still has concerns of the emotional impact on the children by [Mr Toby], the domestic violence between [Mr and Ms Toby], and the concerns raised in the Child Protection Services assessment relating to [Mr Toby], given the lack of substantiation of the sexual abuse allegations in relation to [Mr Toby] the Department will withdraw their 12 month Care and Protection Application in relation to the children [N], [T] and [J].”

7. It then refers to the Department being of the belief that there is significant risk for the children should they be returned to the father’s care.  Then it says:

   “… As a result the Department will return the children to the care of their mother;  [Ms Toby] given the Department removed the children from her care and also because she is receiving counselling to work on her issues.  The Department would like to request to [Ms Toby] that she continue to attend any relevant counselling to assist her in managing the children’s behaviours and for her to support the children with CAMHS counselling.”

8. It concludes:

   “The Department would like to request to [Mr Toby] that he attends therapeutic counselling as recommended by Mr R, Psychologist to regulate his emotions and assist him to respond appropriately to the children’s behaviour and to improve the quality of his contact with the children.”

9. The Court is told today from the bar table that the mother has been continuing to assist the children spending time with the father by communicating with him by way of Skype, and that the Department have, until recently, been organising for the father to spend face-to-face time with the children, at least the two younger children, supervised by the Department. 

10. I accept, therefore, the submissions of the Independent Children’s Lawyer that it would be of assistance to this Court for the Department to notify this Court as to whether they would be prepared to intervene in these proceedings and become a party, which would then assist the Court in receiving appropriate information.  The Court requests that they provide this Court with an updated report about what has transpired since their last formal letter to this Court on 18 April 2011.

11. In relation to the children spending time with the father, I propose to order the Family Consultant to prepare a section 62G(2) report in relation to the children and to adjourn the matter. 

12. There is already an adjourned date before Justice Burr, of 5 September 2011, which has not been vacated.  If I leave that in place, there may be some opportunity for the Family Consultant’s report to be prepared and released by that date and for the Minister to have responded. 

13. In the meantime, considering the issues which appear from the reports, and in particular the section 60CC primary factors (being the need to protect the children and the need to maintain meaningful relationships).  I propose to make an order that during the period of the adjournment, the mother continue to take steps to ensure that the children, T and J, are able to Skype with the father regularly each week in accordance with the previous orders that were made for telephone contact between the children.

14. The order that I will make will be that he have Skype communication with the children at the same times.  In relation to the face-to-face contact, I am also mindful of the fact that the parties have registered with Contact Centre 1 and that the approved supervisor, Mr S, is apparently not now available. 

15. I will order that the parties take such steps as to ensure that the request for supervised time at Contact Centre 1 is renewed and that as soon as the service is available, the father spend time with the children, T and J, at Contact Centre 1 for a period of not less than two hours each fortnight.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 July 2011.

Associate: 

Date:  18 July 2011