WATKINS & POLGLASE

[2010] FamCA 167

FAMILY COURT OF AUSTRALIA

WATKINS & POLGLASE [2010] FamCA 167

FAMILY LAW – CHILDREN – final orders by consent – parental responsibility – intervention by the Minister seeking final orders – where the reports before the Court raise serious concerns about the welfare of the child –– best interests – order granting Minister sole parental responsibility for 12 months

FAMILY LAW – JURSDICTION – the court does have not have jurisdiction to orders under the Children’s Protection Act 1993 (SA)

Family Law Act 1975 (Cth) ss 60B(1), 62B, 60CC & 65DA(2)
Children’s Protection Act 1993 (SA)

APPLICANT: Ms Watkins

RESPONDENT: Mr Polglase

OTHER PARTY: Minister for Families and Communities South Australia

INDEPENDENT CHILDREN’S LAWYER: Mr Charman

FILE NUMBER: ADF 3088 Of 2001

DATE DELIVERED: 24 February 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 24 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Horvat

SOLICITOR FOR THE RESPONDENT:	Ann Josephson Lawyers
COUNSEL FOR THE OTHER PARTY:	Ms Cox

SOLICITOR FOR THE OTHER PARTY: Crown Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Charman

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

Orders

UPON NOTING that if the matter is required to return to the Court the father will be seeking to rely upon the evidence already heard in the trial before the Honourable Justice Dawe

BY CONSENT IT IS ORDERED THAT

1. All previous parenting orders in relation to the child E are discharged.

2. For a period of twelve [12] months the Minister for Families and Communities (“the Minister”) have sole parental responsibility for the day to day care, long term care, welfare and development of the child E.

3. For a period of twelve [12] months the father spend time with the child E as determined by the Minister or her nominee and upon such conditions as determined by the Minister or her nominee.

4. For a period of twelve [12] months the mother spend time with the child E as determined by the Minister or her nominee and upon such conditions as determined by the Minister or her nominee.

5. The Minister provide each of the parents and the Independent Children’s Lawyer a summary report concerning E’s care and progress approximately every three [3] months and approximately every three [3] months the Minister give consideration to permitting the parents and the Independent Children’s Lawyer to speak to the specialists or experts providing treatment for E.

6. The Minister keep each of the parents and the Independent Children’s Lawyer appraised of the type of placement for E.

7. The appointment of the Independent Children’s Lawyer be discharged twelve [12] months from today.

8. All matters be removed from the pending list.

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

And

MINISTER FOR FAMILIES & COMMUNITIES SOUTH AUSTRALIA
Other Party

EX-TEMPORE REASONS FOR JUDGMENT

1. This is, what can only be described, as a very difficult matter which has been before the Court for a considerable number of years.  The matter commenced by way of trial in Whyalla in November 2007.  Some of the evidence was taken on that occasion and the matter adjourned due to circumstances concerning the child's welfare.  When the matter was due to resume, other matters had arisen.  The Minister has intervened in these proceedings. 

2. The matter was again set down for hearing before me by way of concluding the trial commencing next week.  In the meantime, the matter has been brought on at the request of the Minister, clearly based upon the need for the Minister to seek urgent orders based upon the material which is now before the Court from the social worker from Families SA and from the psychologist who has carried out an assessment and provided a report. 

3. The matter comes on before me this morning.  The Court telephoned the mother and then waited for the mother to return to her home so she could be present and participate in this hearing.  The Minister is represented by counsel, as is the father.  The Independent Children’s Lawyer is present.  The mother is unrepresented and has been present via telephone link. 

4. The mother has been unrepresented in these proceedings for a considerable period of time.  The Court has confirmed that all of the parties have received the Minister's Amended Response seeking final orders and the affidavits annexing the report of the social worker and the report of the psychologist. 

5. Having heard the submissions, it is clear that the counsel for the father has been able to take instructions and is consenting to the orders sought provided there are certain conditions placed upon the order. 

6. The mother is also consenting to a final order for the Minister to have sole responsibility for E for a period of 12 months.  The Independent Children’s Lawyer is also consenting to that order. 

7. It is not, therefore, usually necessary for me to give detailed reasons for a consent order, but bearing in mind the significant order which the Court is about to make, and the history of the matter, I will say a few brief words emphasising that anyone considering my reasons should carefully read the 30-page report from the Senior Clinical Psychologist that is before the Court and the 23-page report from the social worker (both of which set out serious concerns for E’s emotional and psychological and physical well‑being based upon the material which has recently arisen in relation to E’s behaviour and care)  I have also had the benefit of hearing some oral evidence from some of the witnesses and previous detailed reports in relation to E.

8. The primary consideration for the Court is to make an order that takes into account E’s best interests as the paramount consideration.  The provisions of Part VII of the Family Law Act clearly set out those matters that the Court is required to consider.

9. The primary considerations clearly are that the Court should consider promoting a meaningful relationship between E and his parents, but at the same time also consider the need to protect E from abuse, whether it be emotional, psychological or physical abuse. 

10. The provisions of section 60CC also emphasise the need to consider the additional considerations. A significant one is the likely effect of the change in the circumstances on the child and the nature of the relationship of the child with each of the parents and other persons.

11. An order should be made to ensure that E receives appropriate care to bring about a situation which improves his emotional and psychological health and reduces the risk that his current behaviour indicates;  namely the risk of harm to himself or other persons, which could be quite serious.  I have taken into account the provisions of Part VII and given serious consideration to the orders sought. 

12. It is heartening that these orders are being made now by consent.  This is a significant step forward, hopefully, for E, to ensure that his day‑to‑day care needs, his psychological, emotional and education needs are met. 

13. The Minister will have a substantial responsibility to exercise in relation to E, but it appears from the reports, the case plan and the psychologist reports, that those assisting the Minister are well aware of the size of the task that they have to undertake.  The reports include a case plan and proposals which, if implemented promptly, would suggest that there is a possibility that E’s welfare will be improved.

14. Although it is unusual, I propose to make the order that for a period of 12 months (that the Minister have sole parental responsibility for the long‑term and day‑to‑day care, welfare and development of the child E). 

15. In the normal course, I would probably simply make an order that the Minister have the sole parental responsibility for E, involving, as that does, the capacity to make all the decisions, whether it be short‑term or long‑term day‑to‑day care. 

16. I would also make an order discharging all previous orders of the Family Court in relation to any parental order in relation to E. 

17. The Minister was seeking an order that the child live at such residence or facility as nominated by the Minister or her nominee for 12 months.  I think that also is an order which is not necessary as it flows directly from the order which gives the Minister sole parental responsibility.  I will make it specifically, if the parties are asking me to do so. 

18. Similarly, the Minister will have the ability to make arrangements for both the father and the mother to spend time with the child as determined by the Minister or her nominee on any conditions that she might determine.  It is noted that the Minister was seeking those orders.   

19. I note that if the matter is required to return to the Court, the father will be seeking to rely upon the evidence that has already been heard in the trial before me.  I will order that the Independent Children’s Lawyer's appointment be discharged 12 months from today.  Otherwise, I am removing all matters from the pending list.  That does not stop any of the parties coming back before the Court by filing a fresh application setting out the orders that they seek and if the Minister decides not to proceed in the Youth Court. 

20. The Court is aware that there are discussions by politicians and bureaucrats about giving this Court power to make an order under the Children's Protection Act 1993 (SA). In these particular circumstances it would have been a preferable option because the State Act sets out in detail the Minister’s responsibilities, duties and powers. This Commonwealth superior Court does not have that jurisdiction.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  5 March 2010