VALANT & CALAWAY

[2020] FCCA 1739

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALANT & CALAWAY [2020] FCCA 1739

Catchwords:
FAMILY LAW – Parenting – where the child lives with the mother in accordance with previous consent orders – where the father claims the mother told him the child had stolen a car and had an accident resulting in serious injuries to the child – where allegations of family violence and sexual assault of the child by another child while the child is in the care of the mother – where significant concerns about the child in the mother’s care – where the Department of Child Protection has a current open case regarding the welfare of the child – where no independent evidence to support the father’s claims – order pursuant to section 69ZW to produce more detailed information.

Legislation:

Family Law Act 1975 (Cth) s.69ZW

Applicant: MR VALANT

Respondent: MS CALAWAY

File Number: ADC 1929 of 2013

Judgment of: Judge Young

Hearing date: 4 June 2020

Date of Last Submission: 4 June 2020

Delivered at: Darwin

Delivered on: 4 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Sinclair

Solicitors for the Applicant: Alex Mandry Legal Group

The Respondent: No appearance

ORDERS

UPON NOTING:

A.That the Court attempted to call the mother on three different mobile numbers.

B.That the solicitor for the father informed the Court that the Department of Child Protection requested the father to make an application to the court for the child to live with him but that was not referred to in the subsequent response to the Notice of Risk by the Department of Child Protection.

THE COURT ORDERS:

1. That pursuant to section 69ZW of the Family Law Act 1975 the Department for Child Protection provide the Court with the following documents or information for the period from 6 March 2019 to the present:

   (a)copies of any notifications regarding abuse allegations arising or relating to the child X born in 2009;

   (b)any assessments or investigations into such abuse allegations;

   (c)the outcome or findings of any such assessments and investigations; and

   (d)copies of any reports received by Department for Child Protection in the course of investigating any such notifications.

2. That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department for Child Protection without the Courts leave.

3. That the parties be at liberty to inspect only and the parties’ legal representatives and the Independent Children’s Lawyer (if appointed) be at liberty to inspect and photocopy the document produced by the Department for Child Protection in response to the Notice of Risk filed in these proceedings NOTING THAT this information is confidential and cannot be disclosed to any other person or entity without an Order of this Court and NOTING penalties may apply pursuant to s.121 of the Family Law Act 1975 if the report is printed or published other than as directed in these proceedings.

4. That pending further order, the parties’ legal representatives are restrained from providing a copy of the document to any other person.

5. That this matter be adjourned to 22 July 2020 at 9.30am (NT time) for telephone mention before Judge Young at the Federal Circuit Court of Australia, Darwin.

6. That the mother is directed to appear in person or by legal representation on the adjourned date by telephone and to provide a telephone number to chambers no later than 48 hours prior the that date failing which a warrant for her arrest may issue.

7. That the applicant arrange for a copy of the order made today to be served on the respondent by personal service as soon as reasonably practicable.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 1929 of 2013

MR VALANT

Applicant

And

MS CALAWAY

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application made by the father of a child X (“the child”) who is 10 and a half years old.  The child was the subject of consent orders in March last year where the parties consented to the child living with the mother. 

3. In this case, which has been in my docket for a considerable time, there have been very significant concerns about the mother’s parenting capacity.  There have been allegations that the children in her household have been exposed to family violence between the mother and her partner, or previous partner, some clear allegations that the child was subjected to a sexual assault by another child in the household, allegations about the mother’s mental health and also drug use.  Those allegations had been made at the time of the consent orders. 

4. The father makes similar allegations again and it appears there may be substance in many of the allegations he makes.  When I say “substance” I mean that it is apparent from the response to the notice of risk from the Department of Child Protection, dated 3 June 2020, that there has been a long history of concerns about this child, and indeed other children in the mother’s care, this child’s half-siblings.  What was said in the notice of risk by the father was in addition to the matters I have mentioned.  

5. I have no reason to doubt what the father says but there is no independent evidence of it.  He claims that he recently received a telephone call from the mother telling him that the child had stolen a car and had an accident.  Apparently the mother was asleep when this happened.  It was said that the car was driven into a tree and the child ended up in hospital with serious injuries, including an eye injury and suspected bleeding of the brain.

6. That is obviously a very serious claim.  There is, however, no independent evidence about that event whatsoever.  That allegation was the reason I acceded to the father’s request to list the matter urgently.  The mother has not appeared and I am satisfied she has been served.  After the matter was listed I received the response to the notice of risk from the Department of Child Protection and I will read parts of it. 

7. The notice of risk made the specific allegation about the car accident and the general allegations that I have referred to.  The Department of Child Protection response states that the Department has a current open case regarding the welfare of the children at the “investigation phase” and the information in the notice of risk was assessed as “no grounds for intervention”.  Further: 

   It is recommended that the court consider making a 69ZW order for information regarding the Department of Child Protection’s involvement with this family.

8. Then there is reference to a history of some earlier notifications of which 14 were are assessed as “no grounds for intervention”, according to the glossary attached to the response to notice of risk and five are assessed as “EXF” which is defined as:  

   Extra familial allegations of abuse from a non-family member, generally, where the guardian parent is acting protectively. 

   They were assessed as requiring no departmental investigation. 

9. Four were assessed as “NRC” or “notifier concern” but the matters were assessed as not fulfilling the Department’s criteria for a child protection response.  Nine notifications were assessed as requiring a response within 10 days but it doesn’t say what the response was. 

10. There was no indication that any of the children have been found in need of care.  That being said, the summary history provided by the Department says as follows:

    Since 3 December 2019, the Department has had an open investigation for this family.  Records indicate the investigation has pertained primarily to concerns that the child [X] and her half-sibling B were being exposed to emotional and physical domestic violence between the mother and her partner.  This includes allegations that the mother’s partner has been physically violent towards the child, allegations of drug use by the mother and partner, concerns about the mother’s emotional wellbeing and ability to manage the children’s behaviours, inadequate supervision, concerns that the child’s half-sibling had moved back into the family home despite there being historical allegations of sexual abuse perpetrated by the aunt Ms C against the child and concerns in relation to the father’s Child Protection history.

    And:

    The child is staying with the father in Victoria during the school holidays and birthdays.

    That I think is a reference to the father in this case, the applicant in this case.

11. The investigation is still ongoing.  A number of voluntary safety plans have been implemented with the most recent being in agreement between the Department and the mother dated 26 May 2020.  The safety plan stipulates that the mother must continue engaging with Department of Child Protection and her mental health service, participate in random drug screens, ensure that Ms C is supervised at all times around X and B when she is at the family home and for the mother to continue engaging with services to develop her parenting capacity. 

12. Records indicate that the notice of risk was assessed as “no grounds for intervention given the concerns have been previously reported and are currently being investigated by the Department”.  The father’s affidavit in support said:

    14.I have been contacted by the Department for Child Protection who have advised me I should seek these urgent orders as the Department of Child Protection has fears for X’s safety in the mother’s care. 

    15. The Department of Child Protection has an open investigation regarding X and the mother, which has been open for approximately six months due to domestic violence in the mother’s home.

    16.The Mother’s partner, Mr D, is extremely violent, including towards the mother and X.

    17.The Department of Child Protection has advised me that if I do not seek orders for X to live with me, they ae likely to place her in foster care.

13. The notable thing is that there is no independent evidence to support many of those claims, particularly the claim that the Department of Child Protection has advised the father to make this application or the claim that the child will be placed in care otherwise.  The claim that the Department of Child Protection is supporting this application does not appear supported by the response to notice of risk and, indeed, in my view is inconsistent with the response to the notice of risk.

14. In the circumstances, I am not satisfied that there is a proper basis at this urgent interim hearing for making orders that the child live with the father and for a recovery order should the child not be delivered to the father. I propose to follow the recommendation of the Department of Child Protection and make an order pursuant to section 69ZW which will produce a more detailed report from the Department of Child Protection.

15. I will adjourn the matter to 22 July at 9.30 which will be by telephone and my associate will request Department of Child Protection to respond before that date.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 29 June 2020