WEAVER & MAHER

[2015] FamCA 509

FAMILY COURT OF AUSTRALIA

WEAVER & MAHER [2015] FamCA 509

FAMILY LAW – INTERVENTION – request for the Secretary of the NSW Department of Family and Community Services to intervene – reasons behind order pursuant to Section 91B of the Family Law Act 1975 (Cth)

Family Law Act 1975 (Cth) s 91B

APPLICANT: Ms Weaver

RESPONDENT: Mr Maher

INDEPENDENT CHILDREN’S LAWYER: Ms Coady

FILE NUMBER: PAC 4774 of 2013

DATE DELIVERED: 2 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shaw

SOLICITOR FOR THE APPLICANT: Mr Nasti of S P Nasti & Co Solicitors

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Coveney of Soden Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Coady of Louise Cody Family Lawyers Pty Limited

Orders made on 17 June 2014

1. Each of the parents is to file and serve an affidavit in relation to their engagement with ASPECT within 7 days of today’s date.

2. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

3. In the event that the Secretary intervenes, he/she is to file and serve a Notice of Intervention forthwith.

4. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

5. Leave is granted to the Independent Children’s Lawyer to photocopy Exhibits 1 to 7 for the purposes of providing copies to the Department of Family and Community Services.

6. Both the mother and the father undergo a urinalysis test within 24 hours of being notified by the Independent Children’s Lawyer of the requirement that he/she undertake such testing.

   (a)The Independent Children’s request that the mother undertake such tests upon 24 hours’ notice on no more than one occasion per month.

   (b)Such testing is to be at the mother’s expense in its entirety.

   (c)The Independent Children’s request that the father undertake such tests upon 24 hours’ notice on no more than two occasions per month.

   (d)Such testing is to be at the father’s expense in its entirety.

   (e)The test results are to be made available to the Independent Children’s immediately after the test has been concluded and the results are known.

   (f)In the event such testing reveals the presence of any illicit substance then the matter is to be relisted upon forty-eight (48) hours’ notice and until the matter has come before the Court, any time with the children is to be suspended.

   (g)In the event that either the mother or the father do not undertake the test within the time specified then the matter may be relisted upon forty-eight (48) hours’ notice by the Independent Children’s Lawyer and the mother and/or will be required to provide compelling reasons why he/ did not take the test and why time with the should not be suspended.

7. Leave is granted to the Independent Children’s Lawyer to relist the matter in respect of any matter that she regards appropriate.

8. The mother is to file any Application in a Case that she wishes to make within 7 days of today’s date.

9. The matter is stood over and to be relisted for further directions after the Department has been afforded an opportunity to consider whether to intervene and thereafter should be listed for final trial with expedition.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4774 of 2013

Ms Weaver

Applicant

And

Mr Maher

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 17 June 2015, I made trial directions in relation to the parenting proceedings between the parties. I also invited the Department of Family and Community Services (‘the Department’) to intervene in the proceedings pursuant to s 91B of the Family Law Act 1975 (Cth) and indicated that I would later publish a brief judgment in relation to my concerns and the reason for the invitation to the Department to intervene. This is that judgment.

Background

1. The parents, who are in their 20s, have four children. The parents began living together in about 2003 and married in 2007. Their first child, B, a boy who is currently seven was born in 2007. A second boy, C was born in 2010 and is currently five. The parties separated in late 2011 or January 2012. A third boy, D, who is now three was born in 2011.

2. From September 2013, the three eldest children came into the father’s care in circumstances that are in dispute between the parents.

3. In November 2013 the mother commenced these proceedings in the Federal Circuit Court and a judge of that Court invited the Department to intervene.

4. In February 2014 the Department notified the Court that it declined to intervene and the matter was transferred to the Family Court of Australia and was designated a Magellan matter. The parties’ fourth child, a daughter named E was born in 2014 and is currently one.

5. In April 2014 the Magellan Report was released and at that stage there had been 23 notifications about the family to the Department.

6. In November 2014, a Family Report in relation to the family was released.

Matters of risk and concern

1. The following matters have been identified by the parties, the Department and the author of the Family Report as relevant to this family.

Family violence

1. First, the parties have a volatile relationship history with each claiming to be the victim of violence perpetrated by the other parent. The relationship until final separation was characterised by separations and reconciliations.

2. Police records indicate numerous occasions when police attended the family home, Apprehended Violence Orders have been made and both parents have been found guilty of offences against the other. Police records indicate allegations of severe violence made by both of the parents against each other in the former family home.

3. The father’s criminal history reveals that he was placed on a good behaviour bond for firearms offences in 2009 and a condition of the bond was that he not assault, molest, threaten, intimidate or interfere with the mother. Police records indicate that a firearm for which the father was not registered was located unsecured in the family home at a time that the eldest child, B, was a 15 month old baby.

4. However, while making allegations against one another, the family consultant was concerned that each of the parents minimises the level of violence to which the children have been exposed and demonstrates a poor understanding of the impact of family violence upon children.

5. The mother has also reported concerns about family violence since separation. She maintains that the father is verbally aggressive and controlling of her and that she feels intimidated by him. She claims that the father has used his position as carer of the children to avoid incarceration.

6. At one point the father’s gambling was identified as a “huge issue” in the parent’s relationship.

Children’s disabilities

1. The three eldest children have disabilities, with B and D being quite severely impaired as a result of their autism spectrum disorder. C has mild to moderate developmental delay. There are recorded concerns in Departmental records about each of the parent’s capacity to appropriately care for their disabled children and at the time of the family consultant’s assessment the mother had had no involvement in the children’s treatment, though the reason for this was a matter for dispute between the parties.

2. The father has made numerous allegations about the children being physically harmed when in the care of the mother, though it appears that he alleges the children are harmed by each other, as a result of the mother not being able to manage their behaviour, rather than by the mother.

Drug use

1. Each of the parents allege significant drug use by the other parent. The mother alleges that the father uses ice, cocaine and speed and Departmental records indicate a concern about the father’s alleged use of “ice”. As I understand it, the mother has also admitted to using cannabis since the age of 18 including through her pregnancies, although she currently denies using the substance. On the last Court occasion, orders were made for the Independent Children’s Lawyer to facilitate the parents participating in random urinalysis.

Father’s criminal activity

1. The father has an extensive criminal history and is at particular risk of incarceration in relation to driving matters. His criminal record includes eight convictions for driving while disqualified for which he has received a range of penalties over the year including imprisonment. He also has a record for numerous drink driving offences and firearms offences. Police records indicate that on one occasion when the father was driving while disqualified the mother, who held a valid driver’s license, and the children were in the car when it was being driven by the father.

2. It has also been alleged that the father has a mental disorder and there are concerns about some of his criminal associates.

Sexual harm in the mother’s home

1. In November 2014 the father alleges that following the children spending time with their mother, B and C both expressed fear of a person called Mr F who was present in the mother’s household and C asserted that Mr F had sexually assaulted him. According to police records, C made similar disclosure to a counsellor. In the course of a police investigation the mother apparently denied knowing a person by the name of Mr F and claimed no knowledge of the disclosures from the children. In the course of a JIRT interview, C told the JIRT officer that “Mr F hurts me” and repeated on numerous occasions that “Mr F opened my mouth”. It is to be remembered that these children have significant intellectual disabilities and for this reason are particularly vulnerable.

2. The mother resides with her parents but previous concerns have been expressed about the maternal grandparents’ capacity to assist her as they apparently both have serious health issues and their home has been described as unsafe and unhygienic. The children have on occasions been harmed as a result of accidents due to a lack of supervision whilst in the maternal grandparents’ care.

3. As noted, the family has been assessed by a family consultant for the purposes of a Family Report. However, a family consultant does not have the capacity to carry out an investigation, including home visits. Further, the applications before the Court involve competing proposals by the parents for the care of the children. It may be that following a more complete examination of the matter that neither parent is providing the children with good enough care to protect them from various forms of harm in this case. In these circumstances orders which by necessity involve the Department may be regarded as in the children’s best interest. For these reasons I made the order inviting the Department to intervene.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 July 2015.

Legal Associate: 

Date:  2 July 2015