Yendrambam and Misra & Anor

[2020] FamCA 35

FAMILY COURT OF AUSTRALIA

YENDRAMBAM & MISRA AND ANOR [2020] FamCA 35

FAMILY LAW – CHILDREN – where the child is under guardianship orders until she attains the age of eighteen – where the father seeks to press an application for contravention and have the substantive proceedings remain on foot – all applications be dismissed.

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1974 s69ZK

APPLICANT: Mr Yendrambam

RESPONDENT: Ms Misra

INTERVENOR: Department of Communities and Justice

FILE NUMBER: BRC 11174 of 2012

DATE DELIVERED: 28 January 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 21 January 2020

REPRESENTATION

THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Mr Anglin

SOLICITOR FOR THE INTERVENOR: Mr Mitrevski

INDEPENDENT CHILDREN’S LAWYER: Ms Berck

Orders

1. That all outstanding Applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

2. That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That Orders have made by the Children’s Court of New South Wales on 12 December 2019 in the following terms:

“The Court makes the following findings:

A.Pursuant to section 83(5) of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”), the Court finds there is no realistic possibility of restoration of the child, V, born … 2008 within a reasonable period of time to her mother Ms Misra.

B.Pursuant to section 83(5) of the Act, the Court finds there is no realistic possibility of restoration of V within a reasonable period of time to her father Mr Yendrambam.

C.Pursuant to section 83(7) of the Act, the Court finds that permanency planning for V has been appropriately and adequately addressed and approved as pr the Care Plan filed 4 December 2019.

The Court makes the following Orders:

1. Pursuant to section 79(1)(b) of the Act, all aspects of parental responsibility for V are allocated to the Minister for Families, Communities and Disability Services, until V attains the age of 18.

2. Pursuant to section 82 of the Act, the Secretary, Department of Communities and Justice is to prepare a report at twelve (12) months from the date of these orders in relation to the following matters:

   a.V’s permanent long term placement;

   b.Education;

   c.Contact; and

   d.Health (welfare and development).”

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 Yendrambam & Misra 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 BRISBANE

FILE NUMBER: BRC 11174 of 2012

Mr Yendrambam

Applicant

And

Ms Misra

Respondent

And

Department of Communities and Justice

Respondent

REASONS FOR JUDGMENT

1. On 21 January 2020, I pronounced orders, which appear at the commencement of these reasons, dismissing all current applications; discharging all previous parenting orders and discharging the Independent Children’s Lawyer.  I indicated to the parties that I would provide short written reasons for that Order.  These are those Reasons. 

2. The other reason why the Reasons have been reduced to writing is that the unrepresented father, who appeared by telephone on 21 January, was unable to clearly hear all the exchanges that took place on the day.  Sadly, this case has a difficult history and involves parenting Orders for a child, V, born in 2008 (“the child”).  The child is now 12 years of age.

3. Parenting proceedings were on foot between the Applicant mother and the Respondent father from as early as 2012.  There has been a long and difficult parenting dispute between the parties, which I do not need for the purposes of the Order I made to recite.  It is sufficient to note that at a time when there were parenting proceedings in the Family Court of Australia pending in the Brisbane registry, the child was taken into the care of the New South Wales Department of Communities and Justice (DCJ) on or about 7 August 2017, pursuant to powers vested in the Secretary of the Department, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Department say that the child was removed from the care then of the father following allegations that the father had physically abused V.

4. I note that the father disputes any abuse of the child has taken place. Nonetheless, since the actions and intervention by the New South Wales Department in accordance with their state responsibilities, effectively, the proceedings in this Court have been on hold. 

5. At the time of the intervention by the Department in August 2017, there was a pending Application for Contravention filed by the father.  It had been filed on 29 November 2016.  Carew J on 27 March 2017 adjourned the Contravention Application filed by the father asserting contravention of interim Orders made in August 2016 had occurred in September 2016.  As a result, the Contravention Application has remained dormant in the list. 

6. There were, of course, competing parenting Applications also between the parents pending in the Court, when the intervention of the Department took place.  As the affidavit of Ms D on behalf of the Department of Family and Community Services (“DFCS”), filed 17 January 2020, makes clear the history of the Department’s involvement, continued from 7 August 2017 and culminated in an initial interim Order granting parental responsibility for the child to the minister for Family Community Services on 4 September 2017, pending further order; and concluding in a trial which was conducted in the Children’s Court over a number of days, resulting in a decision by the Magistrate at the Children’s Court on 4 November 2019. 

7. I am informed that oral Reasons for judgment were provided by the Magistrate, and although the Secretary’s legal representative sought leave to provide a copy of the transcript of the Reasons for judgment to the Family Court of Australia, His Honour the Magistrate declined to grant such leave.  As a result, this Court has little information about the reasons for the Orders and findings made by the Magistrate on 4 November 2019 in the following terms: 

   “The Court makes the following findings:

   A. Pursuant to section 83(5) of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”), the Court finds there is no realistic possibility of restoration of the child, V, born … 2008 within a reasonable period of time to her mother Ms Misra.

   B.     Pursuant to section 83(5) of the Act, the Court finds there is no realistic possibility of restoration of V within a reasonable period of time to her father Mr Yendrambam.

   C.     Pursuant to section 83(7) of the Act, the Court finds that permanency planning for V has been appropriately and adequately addressed and approved as pr the Care Plan filed 4 December 2019.

   The Court makes the following Orders:

   1.   Pursuant to section 79(1)(b) of the Act, all aspects of parental responsibility for V are allocated to the Minister for Families, Communities and Disability Services, until V attains the age of 18.

   2.   Pursuant to section 82 of the Act, the Secretary, Department of Communities and Justice is to prepare a report at twelve (12) months from the date of these orders in relation to the following matters:

   a.   V’s permanent long term placement;

   b.   Education;

   c.   Contact; and

   d.   Health (welfare and development).”

8. The effect of that order is that a child welfare order within the meaning of section 69ZK of the Family Law Act 1975 is now in existence for the child V until the child attains the age of 18 years.

9. As the submission is of the Independent Children’s Lawyer Ms Berck, the Department’s legal representative, Mr Mitrevski, and the solicitor appearing on a pro bono basis for the mother, Mr Anglin, all contended the Court now has no current jurisdiction (absent any consent of the Department which is not likely to be forthcoming, it appears) to make any parenting orders in respect of V. 

10. I canvassed with the father whether he had filed an appeal against the Order of the Magistrate in the Children’s Court, the father clearly being very unhappy with both the process and the outcome.  He told the Court that an appeal had been filed on 6 January 2020.  Neither the lawyer for the mother or the Department’s representative appearing before me had received a copy of the appeal, but I note that the father was prepared to provide a copy to this Court. 

11. For the sake of the decision I made, I was prepared to accept that an appeal had been filed, but I am not of course in any position to determine what the merits of any such appeal would be.  That of course is not a matter for this Court, as any appeal is dealt with, it seems, in the District Court of New South Wales, and is a hearing de novo.  Mr Mitrevski indicated that such a process to its finality could take, in his estimations, well over 12 months to be dealt with finally.  In the circumstances therefore, the current Order – which is, unless the appeal is successful, to be regarded as unimpeachable – stands, and the jurisdiction of this Court under the Family Law Act 1975 has been removed.

12. In my view, therefore, there is no utility at all in the proceedings and the consequent costs to both the Legal Aid-funded Independent Children’s Lawyer, the federal resources – both judicial and administrative – applied to this case, and to the pro bono efforts of the solicitor on the record for the mother to allow the proceedings to continue. 

13. I raised in circumstances where the father was clearly upset that the proceedings were coming to an end in this Court, what prejudice would occur if the father was successful in his appeal.  In circumstances where I understand the mother now resides in the United States of America (paragraph 5 of the affidavit of Ms D filed 17 January 2020), it seems to me that if the father’s appeal is successful then he would have every right to bring fresh proceedings under the Family Law Act.

14. I contemplated whether it was in the interests of the administration of justice and the best interest of V to adjourn these proceedings until the appeal was dealt with by the District Court.  If I was minded to do so, I would have transferred these proceedings to the Sydney registry of the Family Court of Australia, as the father lives in New South Wales and the child now resides, in care, in New South Wales.  However, in view of the circumstances of the matter, I elected to make no such order.

15. Through the course of the exchange between the Bench and the father, he drew to my attention the existence of the pending contravention application.  With the mother now residing in the United States of America; with the events being so long ago, and with the orders which have now been made by the Children’s Court of New South Wales, there is in my view no utility in the application for contravention being dealt with by this Court.  It is not realistic that any resources – judicial or administrative – of the Court to such an exercise is likely to be of any benefit to the child, and most likely could not be heard in the absence of the mother, who is, as I say, now a resident in the United States.  Accordingly, the Order that all applications be dismissed also related to the contravention application. 

16. My further observation is this:  it is not possible for the Court to make any observations about whether or not, as the father says, the Department’s actions in removing the child from the father because of alleged physical abuse by him of a child would be a finding made by this Court.  I could understand that he may well feel that he has been removed from any ongoing role in the life of his child, which greatly distresses him, but I cannot ignore the finding made by the learned State Magistrate in the Children’s Court of New South Wales that:

    “B. Pursuant to section 83(5) of the Act, the Court finds there is no realistic possibility of restoration of V within a reasonable period of time to her father Mr Yendrambam.”

17. Accordingly, the Orders which I made and pronounced on 21 January 2020 are in all respects appropriate.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 28 January 2020.

Associate:

Date: 28 January 2020