Powers of Court independent of parents – Stacey & Woden  FamCA 1107 (11 December 2015)
Last Updated: 14 December 2015
FAMILY COURT OF AUSTRALIA
Family Law Act 1975 (Cth) s 67ZP
1 December 2015
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1107.html
- Each and every member of the community and each and every organisation are or should be obliged to report, protectively respond and protect children from abuse. That community obligation applies to all, including parents, relatives, health care professionals, teachers, churches, social groups, and Independent Children’s Lawyers; it must include State and Federal Courts and Tribunals.
- However, having heard the matter on an undefended basis, insofar as the mother was concerned, it is in this background of these private law proceedings that this Court has been asked to dismiss the applications and leave these parents to go about their responsibility of caring for their children, but where on the untested evidence the children may be at unacceptable risk of sexual abuse.
- Where a Family Court observes a risk to a child caught between the two systems it should not turn away from such children in the hope the State child protection system will intervene. It should, within the limited jurisdiction and powers which the Australian Constitution and Commonwealth Parliament have given to it, provide a level of protection. In addition, it should use the authority of the Court through the voice contained in its reasons to urge State child protection authorities to engage and maintain ongoing long term monitoring and supervision of particular families, such as this one.
- The child G lives with his father, Mr Stacey (‘the father’) and spends irregular time with his mother, Ms Woden (‘the mother’). The child D lives equal time with each of her parents. None of this time the children spend with each parent is independently supervised.
- The mother has effectively ceased to participate in these proceedings from about 17 June 2014 when her lawyers sought leave to withdraw. The father is now asking this Court to dismiss all applications, including his, and end the proceedings.
- The Independent Children’s Lawyer says that the untested evidence before the Court was such that it was open to the Court to make a finding that one or both of the children are at risk of sexual abuse in the unsupervised care of the father. He says that in the absence of parents seeking protective orders and the view of the State child protection authorities that the children are not at risk that orders pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’) should be made to provide another level of protection for the children and that he should remain as their Independent Children’s Lawyer pending their respective eighteenth birthdays.
- Counsel for the father says that these are private law proceedings and that parents ought to be able to get on with the task of parenting, that the allegations of sexual abuse that the children are at risk cannot be sustained, and the determination of same may have the impact of undermining the parental alliance which he says is working well at the present time.
- If a child is at an unacceptable risk of abuse and a person or institution becomes aware of that circumstance, there is a community and sometimes statutory duty upon such person or institution to take steps to ensure that the child is protected and the child’s complaints are heard.
- This is such a case.