PARTIES: JACKIE WALSH
v
K.S
TITLE OF COURT: Family Matters
JURISDICTION: Family Matters – Alice Springs
FILE NO(s): 20510044
DELIVERED ON: 29 November 2005
DELIVERED AT: Alice Springs
HEARING DATE(s): 23 November 2005
JUDGMENT OF: M Little
CATCHWORDS:
REPRESENTATION:
Counsel:
Minister: M Heitmann
Mother: M Preston
Child: J Stirk
Party seeking to join: R Goldflam
Solicitors:
Minister: Mark Heitman
Mother: Murray Preston
Child: Povey Stirk
Party seeking to join: NTLAC
Judgment category classification:
Judgment ID number: [2005] NTMC 087
Number of paragraphs: 10
IN THE FAMILY MATTERS COURT
AT ALICE SPRINGS IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20510044
BETWEEN:
JACKIE WALSH
Minister
AND:
K.S
Child
REASONS FOR JUDGMENT
(Delivered 29 November 2005)
Ms M LITTLE SM:
1. Before the Family Matters Court is an application by the Minister that Ricky Lange be joined as a party in the matter of K.S. This application was joined by Mr. Goldflam acting on behalf of Ricky Lange. Ricky Lange is in a de facto relationship with the mother of the child, Kerryn Strawbridge, and has been for approximately four years. K.S was born on 1 November 1997 and has just turned eight years of age.
2. The father of the child, K.S is unknown. The mother of the child has declined to advise who is the father of the child and has declined to give any reasons as to why she has not nominated the father. Of course there may be express and even understandable reasons why this has occurred, but the Court does not know. The mother has acknowledged to Dr. Blunt that she knows who the father is. As a consequence, the natural father has not been served with this application. Ms Strawbridge has told Dr. Blunt that the father was present at the birth. That being the case, the hospital records may reveal that name of K.S’s father. A man named M.G is K.S’s ‘psychological’ father. I do not know if he has been served with the application, but he certainly plays no part in the proceedings.
3. Both Ms. Strawbridge and Mr. Lange are charged with unlawfully causing grievous harm to a child, Joshua Lange. Joshua is the 6 year old child of Ricky Lange. Joshua’s mother is Roxanne Marsland. The summary of his injuries are on page 2 of Dr Blunts report of the 5 November 2005. Suffice to say there is a range of serious injuries to Joshua. He had been in the care of Ricky Lange and Kerryn Strawbridge at or around the time of the injuries. Mr Lange has admitted causing some of the injuries. The cause of the rest of the injuries are, as yet, undetermined. The charge of grievous harm is currently before the Court of Summary Jurisdiction awaiting an oral committal. The Family Matters Court proceedings relating to K.S was commenced by the Minister following the presentation of Joshua to the Alice Springs Hospital at the end of April 2005. The Minister also commenced proceedings relating to two other children, D.S and P.S, being the children of Ricky Lange and Kerryn Strawbridge.
4. Pursuant to s 36 (4) of the Community Welfare Act, in relation to an application that a child be declared in need of care, the Minister, the parents, guardians or persons having the custody of a child are or shall be deemed to be parties to the application. At all relevant times Ricky Lange did not fall into any of the categories set out in s 36 (4) of the Community Welfare Act. Prior to the commencement of these proceedings Mr. Lange may have been within one of these categories. He has not been present at any of the Family Matters Court Hearings relating to K.S.
5. I have not been referred to any cases on the question of what are relevant matters when considering an application to join a party to Family Matters proceedings. I will consider what I believe are the relevant matters in the circumstances of the case. The catalyst for the application was the presentation of Joshua to the Alice Springs Hospital with serious injuries. Applications were brought with respect to the other 3 children in the household, including this application relating to K.S.
6. The report of clinical psychologist Dr Lucy Blunt 5 November 2005 sets out that the child K.S alleges she has been hit by Ricky Lange with the item which is described as a ‘whacker’. She alleges that she has been hit on numerous occasions by Ricky Lange with this item. As part of the assessment process leading to the report, an incident was witnessed by Dr. Blunt and her impression from this incident (and her other observations) was that;
“K does not trust Ricky and finds him unpredictable- never being really sure of where she stands with him…” (page 6 of the report dated 5 November 2005).
Dr Blunt formed the view that Ricky Lange treated K.S differently to the children P. S and D.S. The mother stated that she thought he did treat K.S differently, including disciplining the child K.S for things that she (the mother) would not have disciplined the child for. . Mr Lange said he tried to treat them all the same way. While the three children were residing together prior to Joshua being presented to the Alice Springs Hospital, I have material before me which prima facie suggests that they were being treated differently
Earlier in the report, Dr. Blunt sets out that Joshua stated that it was only he and K.S who were hit with the ‘whacker’. What Joshua and K.S have in common is that they are the not the natural children of both Kerryn Strawbridge and Ricky Lange. Joshua’s mother is Ms Roxanne Marsland and K.S’s father is unknown.
7. The report of Dr. Blunt suggests that the child Joshua became the target and brunt of the release of stress – that he was victimised in the household. The material I have from Dr. Blunt suggests that, whilst not treated anywhere nearly as bad as Joshua, KS was to some extent being treated in the same manner as Joshua. I have material before me which suggests that they were treated differently to the other two children.
8. One important issue is that K.S is to be a key witness in the on going prosecution. That is a difficult position for an eight year old. Once again, this places her in a very different position to P.S and D.S- children who are too young to give evidence. While it could be argued that for the Court to treat K.S differently by not joining Ricky Lange as a party may perpetuate her being treated differently in the family, I have no material before me which gives that notion any weight.
9. Given the nature of the Family Matters jurisdiction, I would not normally join parties unless it was warranted in all the circumstances of the case, taking into account that the Community Welfare Act focuses on the best interests of the child. In all the circumstances of this case I can not see that joining Ricky Lange as a party is in the best interest of the child KS. I decline to join Mr Ricky Lange as a party.
10. There have been lengthy meetings in this and the other related matters which lead to an agreed position being presented to the Court on 23 November 2005. In this matter the parties sought an order that Ricky Lange be a joint guardian (together with the mother, the maternal grand parents and the Minister), with custody at the discretion of the Minister. I declined to make an order that included Ricky Lange as a joint guardian. I also ordered that the Minister could not place the child into custody of the Mother unless the Court so allows. Dr. Blunt’s report raises a number of concerns with respect to Ricky Lange’s relationship with K.S which, in my view, did not justify the order as proposed being made. I made that decision in the whole of the circumstances of the case and acting, as the Court must, in the best interests of the child. This is a separate question to that of whether he is joined as a party. To the extent the reasons I decline to join him as a party are relevant to this question, I rely upon these reasons. Arguably even the mother should be excluded from a joint guardianship order until after the prosecution is completed especially as K.S is to be a prosecution witness. However, I formed the view that that part of the proposed order should be made in the child’s best interests.
Dated this 29th day of November 2005.
_________________________
M Little
STIPENDIARY MAGISTRATE