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Federal Magistrate Joe Harman

Federal Magistrate Joe Harman - Parramatta (appointed 7 June 2010)

Federal Magistrate Joseph Harman was appointed to the Federal Magistrates Court of Australia in 2010 after 25 years of practice as a Family Lawyer and Family Dispute Resolution Practitioner.

In both his legal and mediation careers FM Harman has been heavily involved in researching and advocating with respect to issues of domestic violence, mental health and culture within the context of family law disputes.

FM Harman has written and spoken widely on family law issues especially in connection with parenting cases and dispute resolution and including journal articles, domestic and international conferences and training and supervision of Independent Children's Lawyers, FDR practitioners and as a lecturer at the University of Western Sydney.

Since appointment to the Federal Magistrate's Court, FM Harman has instigated a number of innovative practices designed to strive towards better parenting outcomes and engaging community-based services within the Court process and in working with parents.

FM Joe Harman for the Salvos Lecture Series Sydney 5 March 2011

Mr Joe Harman

Mr Harman holds a Bachelor of Laws from the University of Sydney and was admitted to practice as a solicitor by the Supreme Court of New South Wales in 1986. He has nearly 25 years experience in the law and has specialised principally in the area of Family Law. Mr Harman has been Director of the Cottage Specialist Family Law Centre and Penrith Family Mediation Centre since 2008 and 10 years prior to this was Sole Practitioner of Harman & Co, specialist family law solicitors in Penrith NSW. He is also a sessional lecturer in family law at the University of Western Sydney, a Family Dispute Resolution (FDR) practitioner privately and previously with Unifam and Relationships Australia and a trainer in FDR with Centacare West and Legal Aid. Mr Harman is on the panel of arbitrators for the Family Court of Australia and the Federal Magistrates Court and the Legal Aid Commission of NSW panel for the Family Court and Childrens Court jurisdictions.

Mr Harmans appointment commenced in June 2010.

Executive Secretary - Shared Parenting Council of Australia
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Judgment of: Harman FM at Parramatta - sent for counselling by Chief Federal Magistrate Pascoe

Sloan & Stephenson [2010] FMCAfam 1078 (28 September 2010)
FAMILY LAW  Children  Child Welfare Authority secrecy

FM Harman calls for public exposure of DOCS "Kafkaesque bureaucracy" which lacks "common sense, cooperation and a focus on the needs and best interests of children". His Honour expresses extreme frustration at their repeated refusals to act on serious child abuse notifications from the court itself via its forensic psychologists and using privacy/secrecy/public policy to cover up incompetence. The Court has to threaten disbarment of DOCS solicitors, warrants to appear, contempt, 6 months jail, High Court appeal, public letter to the Minister, etc.

This raises the question of what hope does an ordinary bloke have  other than climbing the Bridge? And this brave judgement likely contributed to the amendments for child welfare services participation in the Family Violence Bill.

1.  competing parenting applications with respect to a very young child now five months of age legal issues relating to the interpretation of section 69ZW of the Family Law Act and a broader issue as to co-operation and assistance between State and Federal agencies dealing with the child

2. the family consultant conducting the child dispute conference made a notification to the Department of Human Services suggesting, firstly, that this young baby, then four months age, was at serious risk of physical harm in either parents care and, secondly, that the child was, potentially, in immediate danger with either parent, neither of whom was assessed by the family consultant, based on the evidence she had before her, as appropriate carers for this four month old child nothing further has been heard.

9. The issue in this case and over a dozen others in which an order has been made by this court is that the Department, as I have indicated, has two objections: firstly, that subsection (3) which I have quoted excludes documents which identify or would have the potential to identify the notifier.

13.  I expressed my view in somewhat more heated terms in that judgment that such a flagrant disregard of this court's authority or any failure to extend courtesy to the court was not befitting a solicitor holding a practising certificate in New South Wales, and that future episodes of that nature would be referred, as they will be, to the Legal Services Commissioner to deal with and investigate the fitness of any such person to continue to practice. That is not a threat made to try and create difficulties for the Department, but to express, perhaps, this courts frustration in trying to do its job - the protection, in this case, and the case to which I have referred, and more than a dozen others of children who have been the subject of notifications by family consultants of this court that they are in serious risk with either parent.

The facts

52. Here is a child of four months of age whose parents are alcoholics and drug dependent, where there are substantial issues of domestic violence, impoverished households, clear involvement with the Department in relation to not only this child but elder step siblings, where this court through a family consultant and this judicial officer have raised serious issues regarding the childs safety, welfare and wellbeing through inviting intervention and providing information.

The Department took nine weeks to produce any documents, having ignored three section 69ZW orders, [They left the child in the care of drug addicted, alcoholic parents. Siblings had been hospitalised by assaults, one losing half functional capacity after suffering substantial brain damage]

35. A matter that I am sure the public will be gravely concerned about, placing faith as they do, in both welfare agencies and this court to protect children. And that one agency, a welfare agency, does not feel disposed to assist this court to do so I find it regrettable, to put it as euphemistically as I can.

53. The Department apparently think we[the Court] are not qualified to make that assessment.

54. Presumably, the determination was made in this case and each of the other cases  more than a dozen  that the childs protection was somehow subverted by either what are perceived as legal technicalities, not that the Department have seen fit to extend the courtesy to this court to come and argue it, notwithstanding I have been making these orders since June 2010 until today, but that something has outweighed the protection of this child by producing whatever information it is that the Department holds.

How the Department treats information

58.  I pause at that point to refer to the volume of Magellan reports that are produced to the Family Court which consistently note notifications and end with the phrase, No action taken. Not allocated due to competing priorities. How that possibly discharges the Director Generals obligation under section 30 I do not know, but that is a matter for the Director General.

61 Simply not allocating the matter because they are too busy with other problems, including taking up their resources coming to have arguments about providing assistance to this court, is perhaps something they might review in how they use and expend their $1.419 billion per year budget, but that is a matter for them, not this court.
64. Section 15 of the state legislation defines the role of minister. The minister does not appear in these proceedings, although she is going to be given a copy of this judgment and she is going to be made very aware, both by the court and no doubt through public debate of the issues that are raised in this case.

68.  I can direct the Independent Childrens Lawyer to issue a subpoena to the manager of each regional office that may well hold information to attend give evidence and to produce documents on subpoena, rather than seeking them through the Director General. There may be some issue regarding documents but certainly to attend to give evidence, they would be compelled to attend.

69. There would then be a very real consequence if they failed to attend. I can issue a warrant, under the Family Law Act, to secure their attendance. If they did not answer questions then under section 65 of the Federal Magistrates Act, I could imprison them for up to six months I would have DoCS officers in my court on subpoena every day. If that is what it is going to take to get the information I need to protect this baby, it is the path I will take if the Department still does not wish to provide information.

Four month old babies cannot protect themselves from drug dependant, alcoholic parents who engage in domestic violence. The Department cannot protect this child because they cannot even share information and they make it difficult for me to do my job, and I am not prepared to tolerate that any further.

Sharing of information

80. There is presently a real dialogue occurring through Family Pathways Networks and otherwise, regarding the sharing of information between disparate service providers, including this court, family relationship centres, family counsellors, and other services to parents. This court deals with private disputes, not public disputes, as does the Department. However, the type of issues that quite often arise in such public disputes find themselves inevitably before this court. That is the case in this matter, where there is a baby in serious risk, with two parents whom a family consultant has opined are neither capable of meeting the childs needs nor protecting the child.

94. State legislation does allow disclosure. Section 248, section 245H, section 29 itself allows the disclosure. Section 69ZW, subsection (3) does not preclude production. It is a choice. The Department chooses to not produce the material. They choose to waste this courts time, the litigants time, the Independent Childrens Lawyers time and their own resources in coming to court to fight about it, rather than to do what, in my mind, would fulfil the objects and principles of their legislation to which I have referred in detail, being to co-operate with another agency to aid in protection of a child.

95. It is regrettable, highly regrettable and, for this baby and, indeed, for the child I have referred to in the case decided last week, whose step-sibling was battered by the person that this court, because of the absence of that information, had left the child with for nine weeks, (to the point that he had substantial brain damage), is as I have previously opined, attributable solely to the Department. That is a matter that, when  this is debated in the public domain, the Minister and the Director General may have to answer. I will not. I will be getting on with dealing with the protection of children.

One would hope that these issues could be dealt with as one would think outside of a Kafkaesque bureaucracy through common sense, cooperation and a focus on the needs and best interests of children.

That there remain issues of significant risk of harm to this baby and yet we are here today, having devoted an hour and a half to squabbling about the Department producing the 10 documents that they say they hold. What a better waste of resources I could not envisage but that is the Departments choice.
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