Welldon and Welldon (No. 3)

[2007] FamCA 1480

FAMILY COURT OF AUSTRALIA

WELLDON & WELLDON (NO. 3) [2007] FamCA 1480

FAMILY LAW – CHILDREN – Where during current parenting proceedings the New South Wales Department of Community Services commences child welfare proceedings relating to one child – Where Mother applies for order that the Court invites the Department to intervene in family law proceedings – s 91 B request for intervention made

Family Law Act 1975 (Cth)

APPLICANT: Ms Welldon

RESPONDENT: Mr Welldon

INDEPENDENT CHILDREN’S LAWYER: Ms D Clark

FILE NUMBER: NCF 2097 of 2003

DATE DELIVERED: 12 October 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: RYAN J

HEARING DATE: 12 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C Boyd

SOLICITOR FOR THE APPLICANT: Boyd Olsen

COUNSEL FOR THE RESPONDENT: Mr Maher

SOLICITOR FOR THE RESPONDENT: Crane Butcher McKinnon

INDEPENDENT CHILDREN’S LAWYER: Ms D Clark

Orders

1. Pursuant to s 91B of the Family Law Act 1975, that the Department of Community Services is invited to intervene in these proceedings.

2. In addition to notification of the order being provided to the Department of Community Services in accordance with the Memorandum of Understanding between the Family Court and that agency, I direct that a copy of my Reasons delivered today and previously, a copy of this order together with copies of Reasons previously published by The Honourable Justice Rose are provided to the Director General of the Department of Community Services and the Manager of the Department of Community Services Legal Branch.

3. I give all parties and the Independent Children's Lawyer leave to issue any subpoena for the production of documents which they consider relevant to the issues in this case, and that such subpoena are made returnable at 9.15 am on 29 October 2007.

4. I direct that the applicant mother file and serve any Amended Application and Application in a Case together with an affidavit supporting the application for interim orders, if any, by 4.00 pm on 23 October 2007.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 2097 of 2003

MS WELLDON  

Applicant

And

MR WELLDON  

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.  They should be read in conjunction with my earlier judgments published in this case.

2. On 20 September 2007, the mother filed an Application in a Case which application is listed before me today. Included in her application is an application pursuant to s 91B of the Family Law Act seeking that the Court requests the intervention of the Department of Community Services in these parenting proceedings. There is no opposition by the father or Independent Children's Lawyer to the making of such an order.

3. The father previously asked the Court to request the Department of Community Services' intervention in these proceedings.  On 27 August 2007 I published my reasons dismissing his application.  As is explained in my decision the refusal is primarily based upon my concern that at that time there appeared to be no good reason to put the Department of Community Services to the expense and effort involved in its intervention at that point.

4. At paragraphs 7 and 8 of my decision I said:

   DoCS have been notified that [J] is missing.  There have been a number of prior notifications concerning this child over a fairly prolonged period.  To date DoCS has not sought to intervene and their investigations have not resulted in other forms of intervention or assistance to the family. This suggests that to date DoCS has not considered that [J] has been at risk.  DoCS appears to be of the view that there is nothing further that they can do beyond that which is presently being done which will address the child's circumstances or progress his interests in some fashion.  The most urgent matter that needs to be attended to is finding [J] and ensuring his safety.  The former is not DoCS primary function.  It is properly the responsibility of the State Police and, where ordered, the Federal Police.  As I have indicated, they are actively attempting to locate and recover [J].  The available evidence does not suggest that if recovered and returned to his mother that [J] is exposed to an unacceptable risk of harm.

   If DoCS believe that [J] is at risk, irrespective of their involvement in these proceedings, they have a statutory responsibility to the child. If DoCS perceives that they have something to contribute to this child and his family they may intervene as of right and their assistance would be most welcome.

5. Following delivery of those reasons and a publication order, J approached local Police who in turn contacted the Department of Community Services.  This is because J was highly distressed by the prospect of returning to his mother’s care.  The father, in the face of the mother's refusal to do so, signed a temporary care agreement, the effect of which was to enable J to go into the Department of Community Services’ care.  It is difficult to understand why, if Department of Community Services believed J needed to go into temporary foster care that they did not issue an Emergency Care Order to preserve the child’s situation over the weekend pending the urgent re-listing of these proceedings. J showed local Police photographs on his mobile of bruises he alleges his mother previously inflicted. Police commenced, but quickly withdrew, an Apprehended Domestic Violence Application for J’s protection from his mother.

6. Somewhat curiously, having regard to the Memorandum of Understanding executed between the Family Court of Australia and the New South Wales Department of Community Services, rather than intervene in these proceedings the Department of Community Services then commenced proceedings in the local Children's Court.  Perhaps the rationale for their doing so is found at paragraph 79 of an affidavit filed in the Children's Court by J’s case worker, Mr R.  The paragraph is in the following terms:

   The Department has concern that [J]’s interests and wishes have not been and will not be sufficiently protected in Family Court proceedings and as such should be dealt with in the Children's Court.

   The remarks are somewhat surprising and inconsistent with the respectful and cooperative relationship outlined in the Memorandum of Understanding referred to above. In my view the Director General and head of the Department’s legal branch should be made aware that the high level co-operation reflected in the Memorandum of Understanding may not be universally accepted within the department.

7. The effect of the institution of the Children's Court proceedings which now are adjourned until 7 November 2007, is that by virtue of s 69ZK of the Act, this Court can make no orders in relation J unless:

   (a)the Department of Community Services via the Minister intervenes in the proceedings and consents to their continuation; or

   (b)any parenting order is expressed to come into effect when the child ceases to be under that care of a person pursuant to a child welfare order.

8. With respect to the Department of Community Services' stance, this Court has a significant knowledge of the Welldon family including J's circumstances.  I refer particularly to the Reasons for Decision published by Rose J after a five day defended hearing completed in December 2005. Although the current dispute arose more recently because it appears the current issues are intrinsically linked to issues which arose in earlier proceedings the case has been afforded priority.  This Court’s involvement is briefly outlined in my decision published on 20 August 2007.  It is difficult to understand how Mr R’s 80 paragraph affidavit, of which most paragraphs are no more than one sentence, comprising no more than eight pages of text in total, could be said to provide the detailed information to the Children's Court of the family and child’s circumstances reflected in some 151 documents and judgments in this Court over many years.

9. In my view the proper course for the orderly completion of issues concerning J's long term care is for the proceedings in this Court to be finalised in the timeframe already in place. There is a five day hearing scheduled to commence on 19 November 2007 and by agreement Dr S, a well known child and adolescent psychiatrist, has been retained to prepare a report in relation to J and members of his family.

10. I endorse the mother's submission that the proper approach to the overlapping responsibilities of the Federal and State child protection and family law systems in this case is best met by the Department of Community Services' intervention in these proceedings. I will make orders as sought concerning the intervention application.

11. I am also asked by the mother to make an order suspending all orders whereby the father has any form of parental responsibility for K.  She seeks to avoid the situation which unfolded for J whereby the parent who has overwhelming but not exclusive responsibility for a child, that is, J, has their views usurped by the other parent who has comparatively vestiges only of parental responsibility.  There is no issue presently in these proceedings or anywhere else concerning the mother’s care of the parties two other children.  There appears no basis to anticipate that the Department of Community Services contemplates any action concerning these children or usurping this Court’s ability to deal with issues that may arise concerning them.  On balance, I do not intend at this point to make further orders in relation to the children which would have the potential to compound rather than resolve the overlapping jurisdictions.  For abundant caution however particularly having regard to Mr R’s remarks this aspect of the mother’s application will be adjourned upon the basis that it may be re-listed on 24 hours notice.

12. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date:  16 October 2007