Watkins and Polglase (No 2)

[2009] FamCA 1242

FAMILY COURT OF AUSTRALIA

WATKINS & POLGLASE (NO. 2) [2009] FamCA 1242

FAMILY LAW – PRACTICE AND PROCEDURE – child proceedings – part-heard trial – where the mother has failed to continue to participate and cooperate in the Court proceedings – where a report of the Minister raises serious concerns – Minister to conduct a parenting assessment and put into effect Departmental Case Plan – resumption of trial vacated

FAMILY LAW – CHILDREN – interim – with whom a child spends time – order for the child to spend time with the father upon such terms and conditions as the Minister determines

Family Law Act 1975 (Cth)

APPLICANT: Ms Watkins

RESPONDENT: Mr Polglase

INTERVENER: Minister for Families and Communities

INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

FILE NUMBER: ADF 3088 of 2001

DATE DELIVERED: 2 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 2 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Ms Horvat

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

COUNSEL FOR THE INTERVENER: Ms Cox

SOLICITOR FOR THE INTERVENER: Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ian Charman & Associates

Orders

UPON NOTING that the Court anticipates that the Minister for Families and Communities will conduct the Parenting Assessment referred to in paragraph 5 of the Families SA report dated 1 December 2009 and put into effect the Departmental Case Plan mentioned in paragraph 6 of the said report.

1. The trial listing for the week commencing 14 December 2009 is vacated and the matter be relisted for five [5] days in the week commencing 1 March 2010 before the Honourable Justice Dawe.

2. Any affidavit material to be filed by the mother, father, Independent Children’s Lawyer and the Minister for Families and Communities, be filed and served by 4.00 pm on 12 February 2010 setting out the current circumstances or other relative evidence that needs to be filed prior to the resumption of the trial in the week commencing 1 March 2010.

3. Leave is granted to all parties (the Mother, Father, Independent Children’s Lawyer and Minister for Families & Communities) for leave to issue subpoenas for documents as they may be advised.

4. The father spend time with the child E upon such terms and conditions as the Minister for Families and Communities may determine PROVIDED THAT the Minister for Families and Communities notify the mother, the father’s solicitors and Independent Children’s Lawyer of the terms and conditions of any such time to be spent with the child in writing before the time spent commences.

5. The Minister for Families and Communities is given leave to release to any expert preparing the report such documents as the Minister for Families and Communities considers necessary.

6. Liberty to all parties to apply for such interim orders as may be necessary pending the resumption of the trial.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3088 of 2001

MS WATKINS

Applicant

And

MR POLGLASE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have read the report and I have heard the submissions of the parties.  I note that the counsel for the father does not have specific instructions in relation to that report due to it only having been received yesterday.  However, the matter is listed before me today and the material in the Minister’s report is of such serious concern that I consider it would, in any event, probably over-ride any comments the father might have to make due to his limited time with the child recently and whilst I am also aware of his proposals for the child in the long‑term, it seems to me that the immediate need for the child is for the matters referred to in the Minister’s Department report to be put in place.  In particular, that the Department case plan referred to in the report be put in place as a matter of some urgency because of the need for serious steps to be taken to ensure the child’s welfare.

2. The Court had previously fixed the week of 14 December to complete this trial which I believe started some time in November 2007.  The Court has been required to adjourn the trial for various reasons, all associated with steps that need to be taken to investigate or attempt steps to be put in place in relation to the child’s welfare. 

3. The delay has also, to a certain extent, been occasioned by the mother’s failure to continue to participate and cooperate in the process of the determination by the Court of what is in the child’s best interests.

4. The matter comes before the Court today for mention in order to ensure that it is ready for the resumption of the trial.  However the report from the Minister makes it clear that steps are proposed to be undertaken by the Department to attempt to promote better circumstances and appropriate care for the child.

5. One of the steps proposed is to arrange for a parenting assessment to include the mother, her current partner, Mr K, and the father, being conducted by a departmental psychologist. 

6. Ms Horvart does not have instructions.  This is no fault of hers or the father’s.  The mother has not attended today although she has been made aware of the Court hearing.  She is not yet aware of this report.  It is to be hoped that once she becomes aware of the serious concerns of other persons, she will cooperate and participate in the Department case plan, including the parenting assessment.

7. I accept the submissions of the Independent Children’s Lawyer’s counsel that such a parenting assessment will be useful, if not decisive, in the Court’s consideration of the future orders to be made to promote the child’s best interests.  Therefore, although adjourning the trial out of the December list was not necessarily a matter that previously would have been contemplated (because the Court would have been anxious to conclude litigation concerning the child, for everybody’s benefit, but primarily for the benefit of the child’s carers and therefore indirectly for the benefit of the child) I feel I have no other alternative in this matter but to vacate the listing for the week of 14 December and relist the matter for the five days commencing Monday 1 March 2010.

8. I anticipate that the parties, in particular the father, Independent Children’s Lawyer and the Minister, and if she participates, the mother and Mr K, may need an opportunity to file updated material before the matter resumes before me on that date.  I would propose to order that any affidavit material setting out the current circumstances or other relevant evidence that needs to be filed prior to the resumption of the trial in the week of 1 March be filed and served by 4.00 pm on Friday 12 February 2010.

9. We are in the middle of the trial.  It may be necessary for me to grant leave.  I will make a general order that all parties, that is the Minister, mother, father and Independent Children’s Lawyer, have leave to issue subpoena for documents as they may be advised.

10. In relation to the orders to be made in the meantime,  the report from the Minister refers in paragraph 5 to the psychological parenting assessment and says:

    “A discussion occurred on 1 December with the departmental psychologist in relation to a parenting assessment for this family.  It was advised that an assessment could be carried out within eight to 10 weeks of a referral being made.  In order to achieve a fair assessment it was recommended that [the child] commence contact with [the father].  A criminal history check would also be required of [the father] to assist with the assessment.”

11. The Minister is in a position to obtain the criminal history check herself, as I understand it. 

12. In relation to the order that might be made in relation to the child spending time with the father, at the last hearing before me or certainly in the recent past, evidence has been given of the child spending unsupervised time informally with the father. 

13. The Court is not in a position at this stage to assess the appropriate balance of factors, however, I would be concerned that unsupervised time between the father and the child commence immediately, due to the concerns expressed in this most recent report about the child’s emotional and psychological wellbeing and the difficulties which such unsupervised time might present for the father himself in managing such an arrangement.

14. I would therefore recommend that the Minister consider attempting arrangements for the child to spend time with his father on a supervised basis at an appropriate child-related location or child aspect location initially. 

15. However, the Minister, at this stage, appears to have more information concerning the child’s current situation than the Court.  I propose therefore to order that the father spend time with the child upon such terms and conditions as the Minister may determine, provided that the Minister notifies the Independent Children’s Lawyer and the father’s solicitors of the specific terms and conditions that the Minister notify the mother, father and Independent Children’s Lawyer of the terms and conditions of any such time to be spent with the child in writing before the time spent commences.

16. The Minister is officially a party to these proceedings so it is not necessary to make any order permitting the Minister to have access to the files.

17. I note that the Court anticipates that the Minister will put into effect the Department case plan mentioned in paragraph 6 of the report and conduct the parenting assessment referred to in paragraph 5 of the report.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 December 2009