The Secretary, Department of Family and Community Services (NSW) and the Marks Children [2016] NSWChC 2

Children's Court New South Wales

Medium Neutral Citation: The Secretary, Department of Family and Community Services (NSW) and the Marks Children [2016] NSWChC 2 Hearing dates: 19 January 2016 Decision date: 27 January 2016 Jurisdiction: Care and protection Before: Children's Magistrate Graham Blewitt AM Decision: Father to be excluded from proceedings Catchwords: CHILDREN - Care and Protection - term "parent" - exclusion of father from proceedings (s 104A Care Act) - father and legal representative not to be served with materials (s 64(7)(a)(ii), - father prohibited from having contact with the children (s 90A) Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: Re Andrew (2004) NSWSC 842 J v Lieskhke (1987) 162 CLR 44 Twist v Randwick Municipal Council (1976) 136 CLR 106) EL & WL v Director-General of the Department of Human Services & Ors [2010] NSWDC 248 (3 August 2010) Category: Procedural and other rulings Parties: The Secretary, Department of Family and Community Services The Children The Parents Representation: Ms Voncina for the Secretary Ms Ng for the mother Mr Tricca for the father Ms Stanton, ILR, for the children File Number(s): 283-6/2015 Publication restriction: Pseudonyms have been used in order to anonymise the children and parents.

Judgment

Brief background 1. The Court is called on to rule upon an unusual application brought by the Secretary, which is also supported by the mother and the ILR, to effectively exclude the father from the proceedings. The main application is for the Court to find that the father is not a "parent" of the children having regard to the definition provisions and s 98 of the Children and Young Persons (Care and Protection) Act, the "Care Act". Alternatively, the parties are seeking orders that would exclude the father from participating in the proceedings. The basis of the applications mainly involves the protection of the children and acting in their best interests. 2. The circumstances of this case are, in my experience, unique and very unusual, if not exceptional. They are such, in my view, that call for special considerations. 3. The father has not been served with any of the filings in these proceedings, including the Initiating Application under s 61(2) of the Care Act, lodged on 27 November 2015, nor any of the subsequent affidavits. Similarly, his lawyer, Mr Tricca, has not been served with copies of the filings. The basis of the father not being served is because it would amount to an unacceptable risk to the children to serve the father. 4. In this regard, the proceedings were first before this Court on 1 December 2015, when an order was made, pursuant to s 64(7)(a)(ii), that the father not be served with any material until further order. The father, who was then, and still is, in Immigration detention, elected not to appear at Court on that date, when this order was made. 5. The matter was next before this Court on 16 December 2015, when the father was present (by way of AVL, or perhaps phone link, the Court's Daily Bench Sheets are not clear) and was represented by Mr Tricca. On that date the proceedings were adjourned for hearing on 19 January 2016, to determine whether the father should remain a party and/or whether any material may be served on the father and/or Mr Tricca. 6. When the matter came on for hearing on 19 January, the father attended via telephone link, and was represented by Mr Tricca. Ms Voncina, for the Secretary, and Ms Ng for the mother, provided the Court with written submissions and made oral submissions on the invitation of the Court. Ms Stanford, the ILR, also made oral submissions. Mr Tricca, handicapped as he was without having access to any of the materials filed in the proceedings, also made oral submissions. The Court adjourned the proceedings for judgment on 27 January, ordering that the father appear by way of AVL. 7. Having regard to the orders made by this Court pursuant to s 64(7)(a)(ii) on 1 December, there are limitations on the amount of background information the Court can provide in this judgment, without frustrating the basis of the applications currently being considered, and without jeopardising the safety, welfare and wellbeing of the children. 8. This dilemma highlights one of the issues that this Court will face if the father remains a party to the proceedings. 9. It is possible, however, to provide some background in relation to matters already within the father's knowledge, by reason of proceedings in the Federal Circuit Court, and the proceedings relating to his Australian Visa Application. 10. In August 2014 the Federal Circuit Court, in Parramatta, made orders allocating sole parental responsibility for the children to the mother. These orders were made against a background of allegations that the father was physically violent towards the mother and the children; allegations of sexual interference with the eldest child; abducting the children from the mother's care overseas; threatening to kill the children; and moving the children across international borders (Sweden/ Finland/ Iraq/ Australia). On 26 August 2013 the father returned to Australia with the children, leaving the mother in Iraq. The mother returned to Australia on 28 October 2013, and subsequently obtained a recovery order in relation to the children from Campbelltown Local Court on 27 November 2013. On 4 December 2013, NSW Police executed the recovery order and the children were recovered and placed in the mother's care. As noted above, in August 2014 the Federal Circuit Court made orders allocating sole parental responsibility for the children to the mother. The father has been convicted and has served prison sentences for sexually assaulting young children. I do not propose to go into detail in relation to most of these background issues, but they are contained in the material that has been filed in these proceedings. In respect of the mother's allegations, corroboration does exist. 11. I am satisfied that the father does pose an unacceptable risk to the children, and the current order of this Court that the father not be served with materials filed in these proceedings is justified in the circumstances. 12. In relation to the father's status in Immigration detention, he is seeking a review of a refusal, on character grounds, of his application to stay in Australia. This review is listed to be heard next in February 2016. This Court has been provided with a copy of the father's Visa Application which was lodged with the Department of Immigration and Border Protection in May 2015. Further, in relation to this application, the Court also has a copy of the Protection Visa Assessment dated November 2015. That assessment involved findings of fact, and concluded that the father was fabricating his claims and "is not a witness of truth and greatly exaggerated his claims of facing a real chance of harm in Iraq (page 11 of the assessment). On page 12 of the assessment the following appears: "….the applicant (the father) appears to be well-connected and resourceful within the Iraqi society. NSW Police supplied the following information about the applicant: contrary to what he now claims about having an agreement with his former wife…. ,regarding his custody of their children in Sweden, he took them to Iraq without her approval. His wife travelled to Iraq attempting to retrieve them but was sexually and physically assaulted by the applicant. He was given 14 years imprisonment by an Iraqi court (for attempted rape) but was released from jail only 3 days later after bribing the officials."