Intervention of welfare agency ordered
Hill & Ebert and Anor  FamCA 122 (2 March 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/122.html
- The Family Report dated 20 November 2015 is annexed to these Reasons, for consideration by the Department in determining whether to intervene in the proceedings.
- The Family Report was ordered by a judge of the Federal Circuit Court prior to the transfer of the matter to the Family Court. The family consultant met with all of the family members in November 2015 and considered the affidavits and Notices of Risk and affidavits filed by the parties at that time. She also made observations of the children with the mother and paternal grandmother. The greatest areas of concern and the reason for the invitation to intervene in the proceedings arise from this Report. When the Report was prepared the father was not participating in the proceedings and his former solicitor had ceased to act for him. The father was incarcerated at the time
- The mother was 27 when interviewed and a full-time parent for three of her four children. The mother described Mr F, from whom she says she is now separated, as having been “in and out of jail for the past few years”. The mother agreed that she has a criminal record and has had difficulties with substance misuse.
- The paternal grandmother expressed to the family consultant extreme concern about C’s welfare in her mother’s household, in particular when the mother had repartnered with Mr F who is alleged to be very violent. The paternal grandmother also expressed concerns that the mother may be using the substance “ice” and also said that she could tolerate the mother’s marijuana use. The paternal grandmother also expressed the fear that Mr F may have sexually abused C and said that the Departmental offices told her that Mr F is not allowed to live at the mother’s home while the mother has care of the children because of the allegations that she molested C.
- When interviewed, C, who was five, described having seen her mother’s ex-partner, Mr F, fight with her mother and stab her in the throat. She also described an incident in which an adult male associated with the mother touched her on the genitals. The family consultant wrote at :
…without hesitation [C] nominated an adult male associated with her mother [by name] and described in very explicit terms what had been done to her. She said it was “a long time ago but I still remember”. She said it “stung a tiny bit”. What [C] described was unequivocally sexual abuse (emphasis added).
- Concerns about the physical environment in the mother’s household are also raised in B’s account of that environment to the family consultant.
- The family consultant was unable to assess the father as he was incarcerated at the time of the assessment. It also appears that he has disengaged from these proceedings. It suffices to say that the father has a significant criminal history and his participation in the Drug Court program suggests that he has significant substance abuse issues associated with his offending. The maternal grandmother and mother both allege serious violence perpetrated by the father against the mother.
- The paternal grandmother was assessed by the family consultant. She expressed fears at the outset that her involvement in the proceedings could put her physical safety at risk and told the family consultant that Mr F had previously conducted a home invasion on her and her family and she feared similar reprisals associated with the proceedings. In her report the family consultant records that B, who was seven:
…gave a graphic and very detailed account of the home invasion he has witnessed at [his paternal grandmother’s] home where “Herbie and his brothers kicked down the door with a baseball bat, ran in and stole C then drove away”. [B] said that everyone was fighting and he sat on the lounge and watched them fight.
- Concerns have also been raised about B’s alleged sexualised behaviour towards his sister.
- Although the family consultant was of the view that the paternal grandmother appeared to be currently better positioned to care for the children [than the other parents] she also raises risk factors in that household. The family consultant says at :
[Ms Bentham] also has a problematic history. She is a former amphetamine addict who came to the attention of the criminal justice system. Her son [Mr Ebert] [the father] has been in trouble with the law for a number of years. He suffers long-standing attentional problems. [Ms Bentham] said that in her view [the father] will be with her always, as he cannot manage living independently.
- In summary, the family consultant described the family as one “in which there is no unequivocally good option, but rather assessment of the least damaging option.” She is of the opinion that there are significant risk factors in each of the households. She says “as there are clear risks of significant harm issues and DFACS has had extensive involvement with the family, it is strongly recommended that DFACS become an intervenor in the proceedings” (emphasis added). Although the family consultant makes recommendations on an interim basis, her overall recommendation is that the Department become an intervenor in the matter. On the only evidence in the case, albeit untested, I am of the view that there is serious risk of harm issues in each of the parties’ households and none of the parties may be able to appropriately protect the children from harm. In these circumstances the Department is requested urgently to intervene in the proceedings.