YATES & WOODFORD

[2020] FamCA 1137

FAMILY COURT OF AUSTRALIA

YATES & WOODFORD [2020] FamCA 1137

FAMILY LAW – CHILDREN – interim orders – where the first and second respondents seek interim orders to spend time with the children – where the applicant and the independent children’s lawyer oppose that application – where the first and second respondents have not spent time with the children for almost two years – where the Department of Health and Human Services prepared a s 69ZW which does not support the first and second respondents spending any time with the children – where it would be contrary to the children’s best interests to make orders to re-introduce time with the first and second respondents pending final hearing – application dismissed.

Family Law Act 1975 (Cth) s 60CC

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: 8 December 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8 December 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Purcell, Purcell & Purcell

COUNSEL FOR THE FIRST RESPONDENT: Mr Allen

SOLICITOR FOR THE FIRST 

RESPONDENT:

Knight Family Lawyers

COUNSEL FOR THE SECOND 

RESPONDENT:

Ms Teicher

SOLICITOR FOR THE SECOND

RESPONDENT:

Vernon Da Gama and Associates

THE THIRD RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Glaister

SOLICTOR FOR THE INDEPENDENT CHILDREN’S LAWYER Macgregor Solicitors

Orders

1. That all extant applications in relation to parenting arrangements for the children B born … 2015 and C born … 2006 be dismissed AND THE COURT NOTES that those children are currently the subject of proceedings in the Children’s Court of Victoria.

2. That until further order the first and second respondents spend no time with the children D born … 2008, E born … 2010 and F born … 2014,

3. That the Independent Children’s Lawyer have leave to forward a copy of the Department of Health and Human Services s 69ZW report dated 2 December 2020 to the Family Consultant AND IT IS REQUESTED that the Family Consultant provide to the Court by 22 March 2021 an addendum to the Family Report having regard to the contents of the DHHS report.

4. That all applications for final orders be adjourned for hearing before Justice Johns on … April 2021 at 10 am as a five-day matter and that the evidence in chief of all witnesses be given by affidavit.

5. That by 4.00 pm on 27 January 2021 the applicant file and serve upon all other parties;

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

6. That the applicant pay all setting down and trial fees by 4.00pm on 27 January 2021.

7. That by 4.00pm on 22 February 2021 the first and second respondents file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

8. That by 4.00pm on 15 March 2021 the applicant file and serve any affidavit in reply to that of the affidavits of the respondents.

9. That by 4.00 pm on 29 March 2021 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

10. Leave is granted to the parties and the Independent Children’s Lawyer to file a report in relation to the issues in dispute attached to an affidavit in accordance with the dates identified in paragraph 4, 6 and 8 from any treating doctor, psychologist or therapist; contact centre staff member, professional supervisor, childcare worker or teacher.

11. That no party file any further material other than as provided by these orders without leave of the Court.

12. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file and the ICL have leave to issue subpoenae to give evidence directed to case-workers of the Department of Health and Human Services engaged with the children identified and the subject of the s 69ZW report dated 2 December 2020.

13. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

14. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

15. That the practitioners for the parties file and serve electronically to …@familycourt.gov.au by 4.00pm on 12 April 2021 the following:

    (a)       a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon; and

    (c)a bullet-point summary of argument in relation to the issues in dispute.

16. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

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 today for mention.  The issues before the Court relate to the future parenting arrangements for the children D who is aged 12 years, E who is aged 10 years and F who is aged six years.  The proceedings are between the applicant, who is the children’s maternal grandmother, the first respondent who is the children’s mother and the second respondent who is the father to the three children. 

2. The proceedings also related to the children’s older siblings B, who is aged 15 and C who is aged 14. By consent I have today dismissed the proceedings insofar as they relate to those two children.  That circumstance has arisen as a result of those children being the subject of protection application proceedings, as well as criminal proceedings insofar as B is concerned, in the Children’s Court of Victoria.  As a consequence of that litigation, this Court does not have jurisdiction to entertain parenting applications in respect of the two elder children.

3. This matter has a long and complex history in both the Melbourne registry as well as the Brisbane registry of the Family Court.  This family has had significant engagement with the Department of Health and Human Services (“DHHS”) in Victoria and also with Child Protection Services in Queensland.  Final orders have previously been made in relation to the children.  Those orders were made in 2018 and provided that the children B, C and D live with the maternal grandmother and that the two younger children remain living with their parents in Queensland.  Those arrangements unravelled within a short period of time after the finalisation of those proceedings.

4. By December of 2018, all five children were living with the maternal grandmother in H Town.  The issues raised, which have required the intervention of the DHHS, include allegations that the children have been exposed to family violence as between the first and second respondents and that the children, too, have been victims of family violence at the hands of the second respondent.  It is alleged that the children have been exposed to the first and second respondents’ drug taking, particularly in respect of cannabis and also in respect of ice.

5. There are allegations that the children have been sexually abused by the second respondent.  There are allegations that C, as well as D and E, have been sexually abused by their older brother B.  The allegations raised are denied by the first and second respondents.  They say that they have been the victims of a course of parental alienation that has been visited upon the children by the maternal grandmother.

6. Today I have made orders listing the contested parenting applications for a final hearing to commence on 19 April 2021.  I have afforded this matter priority over other matters in my list to ensure that the final hearing will proceed on that day.  This is not the first time this matter has been afforded priority in my list but such are the issues that confront these children it is my view that those matters necessitate this matter having priority.

7. The three younger children have not spent time with the first and second respondents for a period of some 21 months.  Their communication with the first and second respondents has been sporadic.  Today the Independent Children’s Lawyer (“ICL”) makes an application for two orders.  The first order sought is that until further order the first and second respondents spend no time with the three children.  The second order sought is that the ICL have leave to forward a copy of the DHHS s 69ZW report dated 2 December 2020 to the family consultant for the purposes of the preparation of an addendum to the family report dated 23 July 2020.  That order is not opposed and I will make orders in those terms.

8. The position with respect to the application that the first and second respondents spend no time with the children, insofar as the first and second respondents are concerned, is that they oppose that application.  The application of the ICL is supported by the applicant.  The ICL’s application is largely based on the observations and recommendations as contained in the s 69ZW report dated 2 December 2020.  That report provides a comprehensive history of this family’s engagement with the DHHS.

9. As to the position with respect to D, E and F, the DHHS’ position is articulated at pages 15 and 16 of the report.  Significantly, at page 15 of that report, the report writer, Ms Q, observes:-

   All three children expressed feeling safe and happy in the care of Ms Yates. D, E, and F were able to articulate specific examples of neglect, abuse, and feeling unsafe and unhappy in the care of their parents.

   And it continues:-

   All three children were adamant they did not want to see their parents at the current time. Information provided by the children was consistent with information provided by them to the Family Court Consultant.

10. At page 16 of the same report, Ms Q notes and makes a recommendation as follows:-

    Child Protection do not support the children returning to the care of their parents due to a combination of risk posed to them by B due the allegations of sexual abuse, risk of exposure to family violence, and their strong desire not to have contact with their parents.

    It is recommended by Child Protection that any future contact occur in a regulated facility with supervisors having a clear understanding and knowledge of family background and history. The children should not be forced to have contact with their parents against their wishes.

11. It is based on those observations and recommendations that the ICL seeks orders in the terms that I have identified.  The first-named respondent raised the question as to the appropriateness of whether or not the children should have supervised time.  That position, at this stage, is opposed by the ICL.  The reality is that the children have not spent time with either the first or second respondent for a period of almost two years.  The question of whether the children should spend time and, if so, the basis upon which time should be reintroduced, is a matter for determination at trial.  I agree with that submission.

12. In determining parenting arrangements, the Court is required to make orders that are in the children’s best interests. In assessing what is in the children’s best interests, regard must be had to the considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) (“the Act”). One of the primary considerations that the Court must take into account in determining what is in the children’s best interests is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The evidence before the Court, albeit untested evidence contained in the s. 69ZW report, is that these children have been exposed to harm whilst in the care of the first and second respondent.

13. The report from the DHHS indicates that the children are in a stable, secure and safe setting in the care of the applicant.  It may be that the position as pressed by the first and second respondents today has some basis, but until such time as there can be a testing of evidence, I am not in a position to make any decision as to the matters raised on behalf of the first and second respondents.

14. The best evidence before the Court currently is that which is contained in the report from the DHHS.  That report raises significant concerns as to the risks the children face if there is any arrangement made at this point in time for them to spend time with the first and second respondents.  In addition, I note that whilst the respondents raise the issue of supervised time, the reality is that there are no available contact centres that would be in a position to facilitate such time between now and the final hearing.

15. In my view, the orders as sought on behalf of the ICL are appropriate and in the children’s best interest.  They will ensure that the children will continue to live in stable and settled circumstances pending the final hearing.  In my view, it would be contrary to the children’s best interests to make any orders at this stage to attempt to re-introduce time in circumstances where it is not clear whether or not such time is going to be in the best interests of the children.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 December 2020

Associate: 

Date:  8 December 2020