Yates and Woodford & Ors (No 3)

[2020] FamCA 928

FAMILY COURT OF AUSTRALIA

YATES & WOODFORD AND ORS (NO. 3) [2020] FamCA 928

FAMILY LAW – CHILDREN – intervention – request made pursuant to s 91B for the Secretary of the Department of Health and Human Services to intervene in these proceedings – request for the Department of Health and Human Services to prepare a report pursuant to s 69ZW.

Family Law Act 1975 (Cth) ss 69ZW, 91B
Family Law Rules 2004 (Cth)

APPLICANT: Ms Yates

FIRST RESPONDENT: Ms Woodford

SECOND RESPONDENT: Mr Calder

THIRD RESPONDENT: Mr Eade

INDEPENDENT CHILDREN’S LAWYER: Macgregor Solicitors

FILE NUMBER: MLC 4475 of 2017

DATE DELIVERED: 16 October 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 16 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duffy

SOLICITOR FOR THE APPLICANT: Purcell & Purcell

SOLICITOR FOR THE FIRST 

RESPONDENT:

Mr Knight, Knight Family Lawyers

COUNSEL FOR THE SECOND

RESPONDENT:

Ms Teicher

SOLICITOR FOR THE SECOND

RESPONDENT:

Vernon Da Gama & Associates

THE THIRD RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Glaister

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Macgregor Solicitors

Orders

1. The Trial date of 26/10/20 be vacated.

2. All extant proceedings be adjourned for mention before Johns J on 26/10/2020 at 10 AM.

3. Pursuant to Section 91B of the Family Law Act 1975, the Secretary of the Department of Health and Human Services is requested to intervene in these proceedings in relation to the children B born … 2005, C born … 2006, D born … 2008, E born … 2010 and F born … 2004.

4. The Department of Health and Human Services is requested to provide a s 69ZW report to the Court by 25/10/20 with such report to advise the Court of the following:-

   (a)Whether the department has or intends to issue proceedings in relation to the children B born … 2005, C born … 2006, D born … 2008, E born … 2010 and F born … 2004 in the Children’s Court Family Jurisdiction;

   (b)The current status of any proceedings in the Children’s Court Criminal Jurisdiction in relation to the child B;

   (c)Does the Department intend to join the Family Court Proceedings?

   (d)The Department’s view with respect to the following recommendations contained in the Family Report of Ms M dated 23/7/2020:-

   (i)Paragraph 172 sub paragraphs ii “It is recommended that the Court direct that Department of Health and Human Services provide accommodation for B, that he should not remain resident with Ms Woodford, Mr Calder or Mr Eade” and, iii” B is to undertake counselling as directed by Department of Health and Human Services”

   (ii)The effect on the children of the risk factors identified in the Family Report

   (e)The Department’s view with respect to an Order Sought in the proceedings by the Maternal Grandmother which seeks an Order that the child B live in supported residential care at a place chosen by the Maternal Grandmother in consultation with the Department of Health and Human Services;

   (f)Of any welfare or professional report which the Department has sought or received in relation to the above named children;

   (g)Any other relevant information which the Department seeks to put before the Court.

BY CONSENT

1. That the maternal grandmother provides forthwith, names of all treating medical practitioners that the children have or do attend.

BY THE COURT

1. The Court requests that Victoria Legal Aid continue to provide funding for the 1st and 2nd respondents (including for the hearing this day and any future mention hearing) given the complexity of the issues in these proceedings.

2. That any document produced under subpoena and provided to the parties shall be used by them only for the purposes of the proceedings and all documents shall be destroyed one month after delivery of judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4475 of 2017

Ms Yates

Applicant

And

Ms Woodford

First Respondent

And

Mr Calder

Second Respondent

And

Mr Eade

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court for mention upon request by the Independent Children’s Lawyer. The proceedings relate to parenting arrangements for the children B, aged 15; C, aged 14; D, aged almost 12; E, aged almost 10; and F aged 6.

2. The proceedings are as between the applicant maternal grandmother who currently has the care of the four younger children, the first respondent who is the mother of the children and the second respondent who is the father of D, E and F.  The third respondent is the father of B and C; he has chosen not to participate in these proceedings.

3. The proceedings have been a long running conflict, having commenced their life in the Family Court of Australia in Brisbane in 2016.  This family has come to the attention of the Department of Health and Human Services equivalent in Queensland, and evidence has been adduced before the Court as to the engagement of this family with those services in Queensland. 

4. Since about 2018, upon final orders being made by Hogan J on 31 July 2018, the children, B, C, and D, have lived with the applicant.  In December 2018, following the making of those orders the younger children, E and F, who were in the care of the mother, were placed into the applicant’s care. Notwithstanding those arrangements, the conflict as between the adults has not abated. 

5. There are significant and serious issues raised in the proceedings.  There are allegations of family violence allegedly perpetrated by the first and second respondents against each other, and in relation to the children.  There are allegations that the applicant maternal grandmother has visited extreme disciplinary measures upon the children.  There are also allegations of substance abuse by the first and second respondents. 

6. Over the course of the past year, the conflict has heightened.  There are significant behavioural issues, particularly in relation to the child B.  As this Court understands, he has been charged with criminal offences and is to come before the Children’s Court of Victoria in relation to those matters.  There are allegations that B has sexually abused his sister, C, and may also have perpetrated sexual abuse against the younger children.  These issues have been considered in the family report prepared for these proceedings by the family consultant.  That family report is dated 23 July 2020.

7. The report in its conclusion makes a series of recommendations with respect to the future care arrangements for the children.  Included in those recommendations at (ii) is a recommendation that this Court direct the Department of Health and Human Services (“DHHS”) to provide accommodation for B, that he should not remain living with the applicant, the first or second respondent.  Further, it is recommended that B is to undertake counselling as directed by the DHHS.

8. Today, I am informed that C has been placed on a short-term placement by the DHHS as a result of events that occurred on or about 9 October 2020.  The applicant’s counsel has informed the Court that it is his client’s understanding that the DHHS intends to make a protection application in relation to C.  It is his instructions that as a result of the applicant’s discipline of C, C made threats to kill the applicant. 

9. Further, there was an incident at P Town Train Station.  The applicant instructs that C threatened to suicide.  Following that event, C was admitted to the H Town Hospital for treatment and was hospitalised for a period of three days.  It was following her discharge from hospital that she was placed on a short-term placement arrangement by the DHHS. Save for the information provided by the applicant through her counsel this day, there is no evidence before the Court as to these matters.

10. Previously, this Court has sought information from the DHHS pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”).  The most recent report provided by the DHHS is dated 27 March 2020.  That is a report that spans some 23 pages and details the troubled history this family has had in terms of the relationships between the adults, the challenges facing the children, and as to the level of involvement the DHHS has had with the family.

11. In that report it is clear that recommendations and arrangements have been made with respect to B’s care.  At the time of that report, B was living with his mother and it is clear that it was intended that he would remain living with his mother.  There was a specific direction in that report that the second respondent should have no contact with B.  The information before this Court would indicate, certainly from the applicant’s perspective, that notwithstanding that direction, that in fact, B is having ongoing contact with the second respondent. 

12. Of concern to this Court is that it is alleged that the second respondent has a history of drug abuse, that B is now taking illicit substances, and that the second respondent is complicit in that drug taking. 

13. On any view, it is clear that this Court needs information from the DHHS as to what is occurring from the department’s perspective in relation to these children. Further, the Court is likely to be greatly assisted by input and guidance from the DHHS as to what steps may be taken to ensure that these children are appropriately protected and that any decision taken by this Court is a decision that is in the children’s best interests.

14. Absent engagement by the DHHS in these proceedings, this Court’s hands are tied.  It would seem that there is some prospect that there will be parallel proceedings on foot in relation to C.  If a protection application is issued, that will end this Court’s capacity to make decisions regarding C’s best interests.  It is clear that the issues relating to C will impact and influence the decisions to be made in respect of the younger children.  Of particular concern to this Court are the allegations that C has been subjected to sexual abuse at the hands of her older brother.  There is an allegation that the younger children have also been exposed to such behaviour by B. 

15. In order to have a clear picture as to what has occurred and what should occur in the future, there needs to be input from the DHHS regarding its investigations, inquiries, and actions in relation to these matters.  It is for that reason that I am satisfied that it is appropriate that an order be made requesting the DHHS intervene in these proceedings.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 October 2020.

Associate: 

Date:  16 October 2020