Bradfield & Laurens
[2018] FCCA 1784
•9 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRADFIELD & LAURENS & ANOR | [2018] FCCA 1784 |
| Catchwords: FAMILY LAW – Final parenting – future care arrangements – competing live with applications – where the maternal grandmother seeks for the child to live with her – where the father does not participate in the proceedings – where the mother’s evidence was plausible and internally consistent – where many of the answers given by the grandmother appeared to involve some degree of obfuscation – issues of risk regarding the mother’s past drug use and the potential for relapse – issues of risk regarding present care arrangements with respect to meeting the child’s bonding and attachment needs. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 65DAC, 65DAA, 65DAA(5), 69ZX |
| Cases cited: Browne & Dunn (1893) 6 R 67 (HL) Tate & Tate(No.3) (2003) FLC 93-138 Other Articles: Evidence (Business Records), NSWLRC 17 July, 1973 B Mahendra, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| Applicant: | MS BRADFIELD |
| First Respondent: | MS LAURENS |
| Second Respondent: | MR HUTTON |
| File Number: | WOC 298 of 2016 |
| Judgment of: | Judge Harman |
| Hearing dates: | 19-20 April, 16 May 2018 |
| Date of Last Submission: | 16 May 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 9 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Apelbaum |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| The first Respondent appeared in person |
| No appearance by the second Respondent | |
| Counsel for the Independent Children’s Lawyer: | Mr White |
| Solicitors for the Independent Children’s Lawyer: | Acorn Lawyers |
THE COURT ORDERS ON A FINAL BASIS THAT:
Discharge all prior parenting Orders with respect to the child, [X] born 2015.
[X] shall live with her mother, Ms Bradfield.
Ms Laurens shall deliver [X] to Ms Bradfield at Ms Bradfield’s home at 3pm 10 July, 2018.
Ms Bradfield shall have sole parental responsibility for [X].
[X]’s grandmother, Ms Laurens, shall spend time with [X] each Sunday from 9:00am until 5:00pm (extending to 6:00pm during daylight savings) and such further and/or other periods as agreed between Ms Bradfield and Ms Laurens from time to time.
For the purpose of [X] spending time with her grandmother, Ms Laurens shall collect [X] from Ms Bradfield’s home at the commencement of each period and Ms Bradfield shall then collect [X] from Ms Laurens’ home at the conclusion of each period.
Each of Ms Bradfield and Ms Laurens shall be and are hereby restrained, from allowing, causing or permitting [X] to come into contact with Mr Hutton.
Ms Bradfield shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to permit her to self-refer or, if necessary attend upon such person or persons as necessary to complete her referral to, the Brighter Futures Program and to then engage with that Program, follow all reasonable recommendations and requirements of that Program and do all things necessary to complete any steps or actions which are recommended as desirable by those who operate the Program.
Ms Bradfield shall continue to engage with the Watershed Program and to accept such referrals or provision of service as are determined by that Program to be useful or desirable.
Ms Bradfield and Ms Laurens shall each keep the other advised at all times of their residential address and contact telephone number.
Ms Bradfield and Ms Laurens shall each do all things, sign all documents and give all consents, authorities and instructions as are necessary to enable each of those persons to be recorded with any day care centre, preschool or school attended by [X] from time to time as an emergency contact person and so as to enable and permit each to obtain directly from such day care centre, preschool or school any reports or information they desire with respect to [X] and to receive notification of any events to which parents or carers or grandparents are invited to attend and each shall then be permitted to attend those events.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no Appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Bradfield & Laurens & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
WOC 298 of 2016
| MS BRADFIELD |
Applicant
And
| MS LAURENS |
First Respondent
And
| MR HUTTON |
Second Respondent
REASONS FOR JUDGMENT
Parties
These proceedings relate to care arrangements for a young girl, [X] born 2015.
The Applicant in the proceedings is [X]’s mother, Ms Bradfield. [X] is one of three children of Ms Bradfield. [X]’s two elder siblings, [A] and [B], are not the subject of these proceedings. That is not to suggest that the arrangements for [A] and [B] are irrelevant. Far from it. However, their interests are not the paramount consideration in these proceedings.
[X], [A] and [B] live with Ms Bradfield’s mother, Ms Laurens. Ms Laurens is the first Respondent to these proceedings.
The second Respondent to these proceedings is [X]’s father, Mr Hutton. Mr Hutton does not participate in these proceedings and has never done so. Accordingly, it is necessary to consider whether due process has been afforded to Mr Hutton.
Due process
It would appear that Mr Hutton was personally served with process at the commencement of the proceedings. Whilst an Affidavit of Service has not been located upon the Court file, both Ms Bradfield and Ms Laurens agree that it is so. Further, it is inherent, from Orders made early in these proceedings, that the Court was satisfied that Mr Hutton had, in fact, been served. On that basis, Mr Hutton would appear to have been afforded the opportunity to participate from the outset.
After the first Court event, notification of the Orders made was sent to Mr Hutton at his last known address. That was the best that could occur in circumstances whereby Mr Hutton has not filed a Notice of Address for Service.
Each of the Ms Bradfield and Ms Laurens lead evidence of the communications they have had with Mr Hutton during the course of these proceedings, including advising him, during such communications, of the proceedings.
Ultimately, I am satisfied that Mr Hutton has been afforded due process. Lest I am wrong in that regard, I am conscious that the provisions of Rule 16.05 of the Federal Circuit Court Rules 2001 would permit Mr Hutton to apply to relist the proceedings and to seek leave to reopen the case should he, upon becoming aware of the Orders made by this Court, feel aggrieved by them.
History of proceedings
These proceedings commenced with an Application Initiating Proceedings filed by Ms Bradfield 29 March 2016. Ms Bradfield's Application was the subject of an Application for abridgement of time. An abridgement of time was granted by a Registrar in Chambers on the basis of suggested urgency. Urgency was also the basis for the good Registrar dispensing with the requirements of section 60I of the Family Law Act 1975.
The urgency suggested at the commencement of proceedings arose from the child [X] having been taken from Ms Bradfield’s care by her mother, Ms Laurens, on 27 February, 2016. The events of that day are of some significance and will be discussed shortly.
At the time of filing there was no Judge available in the Wollongong Registry before whom the matter could be listed. Accordingly, the matter came before a Judge sitting at the Sydney Registry. The matter was dealt with by telephone on 1 April, 2016 (only two working days after the Application was filed).
On 1 April, 2016, the mother and grandmother appeared and were both legally represented. No Response had been filed by Ms Laurens at that point. A number of procedural Orders were made by the Court, including:
a)An Order adjourning the proceedings;
b)The appointment of an Independent Children’s Lawyer;
c)A direction for each of the father and maternal grandmother to file and serve a Response.
Importantly, interim parenting Orders were made 1 April, 2016. Those Orders provided for [X] to live with the maternal grandmother and to spend time with the mother each Saturday and Wednesday for a period of two hours on each occasion, such time to be supervised by the maternal grandmother or a maternal aunt (being the daughter of the maternal grandmother and the sister of the mother, Ms B).
On 24 June, 2016, the matter again came before the Judge who had initially dealt with the matter. The matter was again listed by telephone before the Sydney Registry. On that occasion the Independent Children’s Lawyer appeared for the first time.
On 24 June, 2016, further interim parenting Orders were made so as to provide that the mother would spend time with the two elder children [B] and [A][1] from 11:00am until 2:00pm each Saturday and for 2 hours each Wednesday and with [X] to be present and spend time with her mother for one or two hours of each period. The time was expressed to occur either at a park or a children’s play centre. The proceedings were otherwise transferred to the Wollongong Registry (although, in reality, the proceedings had always been before the Wollongong Registry, albeit dealt with by telephone link with Sydney).
[1] Notwithstanding that no Order had been sought with respect to those children who are otherwise the subject of final parenting Orders made 14 October 2014 being Orders made in separate proceedings.
On 24 June, 2016, a number of interlocutory and procedural Orders were also made, including a requirement that the mother submit to urinalysis as requested by the Independent Children’s Lawyer and that the mother undergo a hair follicle test. With respect to the latter test, it was noted that the Independent Children’s Lawyer would request funding from the Legal Aid Commission. Completion of the test was, at least inferentially, subject to that funding being made available.
It would appear that partial funding for the test became available in early 2018. By a letter from the Independent Children’s Lawyer dated 9 January, 2018 (Exhibit A4) the provision of partial funding was advised to the parties.[2] A hair follicle sample was eventually provided by the mother in April 2018, a fact that only became apparent on the second day of hearing. The testing report was not available at the scheduled hearing of the matter 19-20 April, 2018.
[2] Ms Laurens provided the balance of funds required. In fact, Ms Laurens would appear to have provided funding to allow a more extensive testing regime although that more extensive testing did not occur.
The proceedings first came before a Judge sitting in Wollongong on 19 September, 2016. On that date, Orders were made for the preparation of a Family Report, for the parties to participate in Family Counselling services through Family Relationship Centre, Wollongong and for the parties to participate in Family Dispute Resolution auspiced by the Legal Aid Commission. It would appear that the mother and grandmother have each complied with these Orders. Orders were also made relating to Mr Hutton’s participation in the proceedings, being Orders 9 and 10 of the Orders made that day.
The matter again came before the Court 13 February 2017 as a consequence of an Application in a Case filed by the mother. That Application in a Case sought interim parenting Orders. As the Family Report was pending and as interim Orders were already in place, the Application in a Case was consolidated with all extant Applications and the proceedings adjourned to the previously allocated return date, following the anticipated release of the Family Report, namely 16 June 2017.
There was some slight delay in preparation of the Family Report and, as a consequence, the allocated return date of the proceedings was administratively adjourned to 29 August 2017. On 3 July, 2017, the Family Report was released to the parties.
When the matter came before the Court 29 August, 2017, the proceedings were listed to hearing as a two-day fixture. Trial directions were made.
The mother’s trial material was filed substantially in accordance with the above directions, whereas Ms Laurens’ trial Affidavit was not filed until the day prior to the scheduled commencement of hearing.
At the trial, Ms Bradfield and the Independent Children’s Lawyer were represented by Counsel. Ms Laurens appeared without Counsel and was self-represented.
On the first day of trial, Application was made to strike out the Affidavit filed by Ms Laurens due to its late filing. Ms Laurens opposed the Application. The issue was resolved on the basis that the Affidavit would be read and the matter would proceed on the basis that no Browne & Dunn[3] inference would be drawn regarding any absence of cross-examination of Ms Laurens on any aspect of her evidence. On that basis I am satisfied that any prejudice to Ms Bradfield, arising from late service, was minimised (if not obviated), which also minimised prejudice to Ms Laurens (and without forensic advantage obtained). Importantly, this outcome was the best means of examining, ascertaining and protecting young [X]’s best interest.
[3] (1893) 6 R 67 (HL).
The resolution of the issue on this basis was disconnected from Ms Laurens’ self-representation. The position arrived at was simply a pragmatic outcome to the issue presented. This was especially so as the issues between the parties were clear and well identified and had been for some time.
As the Full Court of the Family Court of Australia made clear in Tate & Tate(No.3) (2003) FLC 93-138, a direction for the filing of a document is an Order of the Court with which full compliance is expected. It makes no difference whether a litigant is competently represented or not. The obligation is the same and attaches personally to the litigant. Material should be filed in accordance with the Court’s Orders which are intended to ensure that due process is afforded to all and that the Court’s busy lists can be conducted efficiently.
If Ms Laurens had not been permitted to rely upon her Affidavit, then one of a number of courses would have been open to the Court, including the possible adjournment of the proceedings,[4] permitting Ms Laurens to give oral evidence or proceeding with the matter on an undefended basis as regards Ms Laurens. The former courses may well have increased the time required to hear the proceedings,[5] at disadvantage to the parties and other litigants (who would be deprived of the Court’s resources)[6] and, more importantly, potentially disadvantageous to the best interests of the child whose interests are not only the subject of the proceedings but the paramount consideration in the proceedings. The latter course may well have been validly argued as denying due process to Ms Laurens (albeit with the motivation of affording due process to Ms Bradfield) and, again and more importantly, being contrary to the treatment of [X]’s interests as the paramount consideration.
[4] Such a course would be extraordinary bearing in mind non-compliance with the Court’s Orders would have been the sole reason that material was not before the Court.
[5] Let alone the further disadvantage to the self-represented Ms Laurens and the reality that by evidence being orally presented by a Respondent, due process to the Applicant would not be enhanced.
[6] In light of the comments of the High Court of Australia in Aon Risk Services v Australian National University [2009] HCA 27 and Haset Sali v SPC Ltd [1993] HCA 47, the interests of other litigants as regards the use of the Court’s resources and access thereto, whilst not the paramount consideration, are relevant.
As was observed by Justice Forrest in Gordon & Gordon [2015] FamCA 616, the effect of the paramountcy principle in section 60CA of the Act, is the requirement to treat the child’s best interests as paramount for all purposes, including with respect to case management (balanced against that opined by the High Court of Australia in Aon Risk Services v Australian National University and Haset Sali v SPC Ltd)[7] and due process to the parties (as discussed by the High Court in Allesch v Maunz [2000] HCA 40).
[7] And noting that case management is not an end in itself but merely intended to regulate the Court’s business, being the attainment of justice.
The best interests of young [X] would not have been treated as the paramount consideration by arbitrarily and summarily shutting out one of the two participating parties in the proceedings and, importantly, being the party who presently predominantly cares for [X].
Lest this approach of permitting Ms Laurens to rely upon an Affidavit filed well outside of the Court’s direction, and in a timeframe which could not be said to afford due process to those upon whom the evidence was served, be suggested as a precedent[8] for the tolerance of late filing or the affording of special favour to a self-represented litigant,[9] I make clear that my only concern is to ensure that the truth might be gotten to (as best it can) and so that the best interests of young [X] might be best determined and protected.
[8] Leaving aside, for one moment, that as a first instance trial Court, Judgments of this Court do not create binding precedent.
[9] The same rules and considerations apply as regards a self-represented litigant and a competently represented litigant.
The matter proceeded for its two days of trial. The matter would have been contained to those two days of trial but for an entirely appropriate Application made by Counsel for the mother at the commencement of the second day of trial. Prior to resumption of cross-examination of the grandmother, the mother’s Counsel indicated that a hair follicle test had recently been undertaken by the mother and that the results were expected to be available within 7 to 14 days. On this basis the matter was, at the end of the second day of trial, adjourned part-heard to a final day of hearing so as to permit evidence to be taken regarding the hair follicle test. The mother’s past drug use and the potential for relapse into drug use was a significant issue in the proceedings and the ability to better consider that issue warranted adjournment and further delay in the determination of [X]’s best interests.
Material considered
Prior to the trial commencing, a Case Outline document was provided by Counsel for each of the mother and the Independent Children’s Lawyer. Those Case Outlines identify the Affidavit material relied upon. However, for the sake of completeness, the material considered comprises:
a)In the case of the mother:
i)The Initiating Application filed by the mother 29 March 2016;
ii)The Amended Initiating Application of the mother filed 2 February 2018;
iii)A Notice of Risk filed 29 March 2016;
iv)The Affidavit of Ms Bradfield, sworn or affirmed 1 February 2018 and filed 2 February 2018;
v)The Affidavit of Dr C, sworn or affirmed 11 May 2018 and filed 11 May 2018.
b)In the case of the grandmother:
i)The Response filed 22 June 2016;
ii)The Affidavit of Ms Laurens, sworn or affirmed 16 April 2018 and filed 18 April 2018;
iii)A Notice of Risk filed 22 June 2016;
iv)Portions of Ms Laurens’ earlier Affidavit, sworn or affirmed 21 June 2016 and filed 22 June 2016. As would be apparent from the transcript, Ms Laurens was cross-examined with respect to this Affidavit (principally relating to the events of 27 February 2016 the evidence of which commences at paragraph 51 of that Affidavit).
There are also a number of Exhibits in the proceedings comprising:
a)Exhibit A – The Family Report;
b)Exhibit B – Orders made in proceedings WOC590/2014 on 14 October 2014 (being Orders with respect to the children, [A] and [B]);
c)Exhibit A1 – School reports with respect to the child [B];
d)Exhibit A2 – A list of prescriptions provided to the mother;
e)Exhibit A3 –Orders made by this Court 24 June 2016, especially as regards urinalysis testing;
f)Exhibit A4 – A bundle of correspondence between the parties and the Independent Children’s Lawyer relating to hair follicle testing to be undertaken by the mother;
g)Exhibit A5 – A New South Wales Police COPS record with respect to events 27 February 2016;
h)Exhibit A6 – Records from the Department of Family and Community Services dated 15 March 2016;
i)Exhibit A7 – Records from the Department of Family and Community Services dated 18 March 2016;
j)Exhibit A8 – 3 urine analysis reports with respect to the mother;
k)Exhibit A9 – A Minute of Orders sought by mother (tendered during submissions);
l)Exhibit ICL1 – Various tagged entries from New South Wales Police (tagged ICL1 – 11);
m)Exhibit ICL2 – Material from the Department of Family and Community Services May 2016;
n)Exhibit ICL3 – Material from Town A Drug and Alcohol Service;
o)Exhibit ICL4 – A Minute of Orders sought by the Independent Children’s Lawyer (tendered during submissions).
Each of the mother and grandmother have been required for cross-examination as has been the Family Consultant and Dr C.
Credit
There are few credit issues which arise in this case. To the extent that the evidence of the mother and grandmother are at variance at any point, I accept the evidence of the mother as preferable. That is not to dismiss Ms Laurens as a witness of truth, merely to prefer Ms Bradfield’s evidence.
Ms Bradfield’s evidence was, on its face, plausible and internally consistent. Ms Bradfield’s evidence during cross-examination and in that related to the Family Consultant and others was consistent with the mother’s Affidavit evidence and that observed by others and as recorded within the documents tendered as Exhibits.
Ms Bradfield gave her evidence at a very fast pace, falling short of pressured speech, but certainly rapid speech. It would appear that this is simply the mother’s way of speaking, perhaps exaggerated by nervousness as one might expect from being cross-examined with respect to the care of one’s own child and particularly when cross-examined by one’s own mother.
Ms Laurens’ evidence was given in a somewhat more measured fashion than the mother’s. However, many of the answers given by the grandmother were tangential to the question asked (often bearing no real connection to the question at all) and appeared to involve some degree of obfuscation. Again, this may well be explained by a natural nervousness that would arise when being questioned about one’s own grandchildren and the care provided to them.
The Family Consultant suggested that Ms Laurens was, to some degree, defensive during Family Report interviews. What the Family Consultant observed could well have arisen as a consequence of the grandmother’s perception that she was being judged and criticised.[10] Ms Laurens appeared readily disposed to feeling criticised by many of the questions put to her in cross-examination. Further, Ms Laurens presented as feeling invalidated when her concerns for [X] (and [A] and [B]) were not shared or apparently shared by others.
[10] Although I accept that the Family Consultant was neither judging Ms Laurens nor intending to give Ms Laurens that impression.
Prior to these proceedings and prior to Ms Laurens removing [X] from the mother’s care, Ms Laurens had expressed the view that Officers of the Department of Family and Community Services had ignored her complaints and concerns with respect to the mother. Ms Laurens expressed that such complaints either “fell on deaf ears” or were ignored as a consequence of those Officers having been “taken in” by the mother. This perception may well have flavoured the grandmother’s attitude towards those Departmental Officers and questioning during these proceedings.
After [X] passed into the grandmother’s care in February 2016, entreaties were made to the grandmother by Departmental Officers in March 2016, requesting that Ms Laurens return [X] to the mother’s care. [X] was not returned ostensibly as Ms Laurens was of the view that the Departmental Officers were taken in by the mother and had been less than diligent in their investigation of concerns raised by Ms Laurens.
Those interactions with the Department would also appear to have flavoured the approach of Ms Laurens towards the Family Report interviews and her evidence in these proceedings. Ms Laurens was clear, in response to a question from Counsel for the Independent Children’s Lawyer, in expressing her view that she felt that she had never been listened to regarding her concerns for the mother’s care of [X] and had never had her say. Further, Ms Laurens expressed that she had been judged, by Departmental Officers and the Family Report Writer, as having been “in the wrong” for having taken [X] into her care when she held concerns as to [X]’s welfare, which concerns were not shared by others.
I make clear that I do not view Ms Laurens in this fashion. That is so notwithstanding that the events of February 2016 (to which I will shortly turn) are somewhat extraordinary in their absence of explicable basis or motive for Ms Laurens removing [X] from the mother’s care. Beyond that, however, it is clear that Ms Laurens has provided well for young [X] since [X] has been in the care of Ms Laurens.
More importantly, and as was conceded by Ms Bradfield, Ms Laurens has done an excellent job in assuming care of and providing care for [A] and [B], at times when Ms Bradfield, through her descent into illicit drug use, was incapable of doing so or at least incapable of doing so without serious disadvantage to those children.
I am satisfied that Ms Laurens has, at all times, had the children’s best interests at heart and has been motivated by her desire to ensure that they are safe and well cared for irrespective of any question as to the bases for the beliefs that have led to those actions.
One must be conscious that this is not a controversy between a mother and father. It is a controversy between mother and grandmother, parties with a familial connection and past and ongoing relationship with each other separate and distinct from any parenting relationship. It is clear that each of Ms Bradfield and Ms Laurens loves and cares for the other even though the dynamic of their relationship is complex and has been so for some little time.
I did not form the impression that Ms Laurens is motivated by spite or any inappropriate “agenda” with respect to her daughter. Ms Laurens may well have not articulated her position as clearly as she might have (applying both to interaction with the Family Report Writer and her evidence during the course of this hearing). Ms Laurens has, at all times, been frank, candid and clear in asserting that “when I have the normal Ms Bradfield back [being Ms Bradfield abstinent drug use] she is wonderful and can do anything” as well as “I know she’s not going to fail as a mum. My only concern is that she’ll go back on the drugs”.[11]
[11] I have included these two passages with the intent of directly quoting the evidence of Ms Laurens. I make clear, however, that the quote is what I have attempted to write down, word for word as close as could be achieved during cross-examination, rather than to have extracted the quote from the transcript which is not available at the time these reasons are prepared and delivered.
I have explained the above matters as I would not wish for Ms Laurens to be left with the impression that the Court has viewed her as other than a caring grandmother. Ms Laurens has been thrust into the role of mother to [A] and [B]. As these proceedings do not include any plea for relief with respect to those children (or, perhaps, more correctly, any plea for amendment of the existing final Orders which provide for their care arrangements) Ms Laurens will, without question, continue to have the care of those two children. Whilst some portion of the cross-examination addressed issues of concern with respect to [B]’s development and behaviour, those issues are, I am satisfied, relevant only to an assessment of [X]’s best interests. Ms Laurens is doing the best she can, and a fairly good best at that, in meeting the needs of [A] and [B].
These proceedings are not and have never been about the capacity of Ms Laurens to provide care for her own children or for her grandchildren. The issue in these proceedings is what is prospectively best for [X].
To the extent that I have indicated that the evidence of Ms Bradfield is accepted in preference to that of Ms Laurens on areas of controversy, it should also be made clear that the areas of controversy are limited.
The evidence
I do not propose to enumerate the evidence in vast detail within this portion of these reasons. The bases for this are twofold, namely:
a)I will, at this point, provide a chronology of events supported by the evidence and discuss the evidence with respect to issues of particular significance as identified by the parties; and
b)In addressing the legislative provisions which must be considered, I will refer to further aspects of the evidence for illustrative purposes.
From the outset, I propose to adopt the chronology of events provided in the Case Outline document filed by Counsel for the Independent Children’s Lawyer. The chronology largely mutualises allegations raised in the proceedings and addresses and incorporates a large body of uncontroversial evidence.
DATE
EVENT
SOURCE
1968
Maternal Grandmother is born.
Response
1989
Applicant Mother is born
A1 Paragraph 1
1992
Respondent Father is born
Response
2007
Child’s half-sibling [A] born
A1 Paragraph 2
2009
[A] commences living with MGM
A1 Paragraph 13
2011
Child’s half sibling [B] born
A1 Paragraph 2
2013
Mother and Father commence relationship
A1 Paragraph 20
2013/2014
[B] commences living with MGM
A1 Paragraph 13
2014
Mother incarcerated for credit card fraud
A1 Paragraph 14
2015
Child [X] born
A1 Paragraph 3
November 2015
Mother and Father end relationship
A1 Paragraph 20
2015 – early 2016
Mother resides with [X] in 2-bedroom unit. [A] and [B] spent each weekend Friday – Sunday at the home
A1 Paragraph 18
27 February 2016
Father attends Mother’s home to spend time with the child.
A1 Paragraph 22
27 February 2016
Mother says the Father was smoking crystal meth and when she questioned him, he kicked her in the chest. Father is on the phone to MGM and says, ‘Your mum is calling the police.’
Mother leaves home with [X]. Mother gets into MGM’s care and MGM hits and slaps her. MGM accidentally hits [X].
A1 Paragraph 22
2016
[X] commences living with MGM.
A1 Paragraph 17
2 March 2016
Mother attends upon Brighter Futures
A1 Paragraph 29
18 March 2016
Case worker attends the MGM’s home and she refuses to hand [X] back to Mother
A1 Paragraph 29
21 March 2016
Mother contacts her solicitor
A1 Paragraph 30
1 April 2016
Matter listed for first return date
Orders made for supervised time for mother
A1 Paragraph 31
A1 Paragraph 32
27 May 2016
Maternal aunt calls the Mother and says she can’t keep looking after the kids
A1 Paragraph 84-88
3 June 2016
Mother completes Watershed program
A1 Paragraph 101
24 June 2016
Orders made extending the mother’s time
A1 Paragraph 33
15 October 2016
Mother searched with nothing found. Mother or her friend made admissions to using ICE lately
NSW Police COPS EVENTS
7 November 2016
Father returns positive result to methamphetamines
NSW Police COPS events
8 February 2017
Mother and Father appear to be at MGM’s home. Father is argumentative. Police attend. Mother does not appear fearful
NSW Police COPS events
February 2017
MGM permits unsupervised time between child and Mother
A1 Paragraph 41
Easter 2017
[X] and the older sibling spend most of the holidays with the mother
A1 Paragraph 42
After Easter 2017
[X] and the older siblings commence spending each weekend Friday – Monday with the mother
A1 Paragraph 43
16 May 2017
Mother is victim 1. POI wakes from drug induced coma and yells at mother ‘give me $10 so I can buy some pot.’ Police attended and located drug equipment in the mother’s bedroom
NSW Police COPS EVENTS
Unknown date in 2017
After the maternal aunt leaves the MGM’s home, the Mother commences to care for [X] from Tuesday to Wednesday evening each week. Mother cares for [X] 4 nights per week and the older siblings 3 nights a week.
A1 Paragraph 44-45
29 June 2017
Father returns positive result for methylamphetamine and cannabis in roadside RDT
NSW police COPS EVENTS
June/July 2017
Following the release of the family report the MGM reduces the mother’s time from 3 nights to 2 nights on weekends. Meaning [X] is in the mother’s care for 3 nights a week and the older two siblings for 2 nights a week
A1 Paragraph 51-52
23 October 2017
Father stopped by police and they locate a small resealable bag in his wallet. Found to be a cutting agent.
NSW Police COPS events
26 October 2017
Drug dog made an indication to Father. Father said he just consumed cannabis. Searched, but nothing found.
NSW Police COPS events
November 2017
MGM stops providing the children to Mother
A1 Paragraph 55-69
29 November 2017
MGM tells Mother she can only see the children at her home
A1 Paragraph 70
3 December 2017
Mother caught stealing from (Store)
NSW Police COPS events
January 2018
Mother cares for the children on various days.
A1 Paragraph 71-79
19 January 2018
Mother obtains rental accommodation with a friend and her 3 children
A1 Paragraph 94
It is germane to observe that two significant issues are raised on the evidence with respect to suggested risk to young [X]. These issues comprise:
a)The risk to [X] of the mother relapsing into use of illicit drugs and the probability that this might arise in the short, medium or long term;[12] and
b)The risk, if any, presented to [X] by the present care arrangements and, particularly, as a consequence of [X] being within an important phase of bonding and attachment. A clear issue is raised as to whether the present care arrangements meet [X]’s attachment needs such as to allow and permit her to form secure attachments with any person.[13]
[12] This risk would arise, albeit in different ways and to differing degrees of significance, irrespective of whether [X] were living with or spending time with her mother.
[13] This might be seen as analogous to permanency planning in the child welfare jurisdiction.
As these two risks were clearly identified from the evidence of the parties and the Family Report Writer, I propose to discuss each suggested risk together with a discussion of the events of 27 February, 2016. The events of 27 February, 2016, as already indicated, assume some real significance in these proceedings, being the time at which [X] passed from the care of her mother into the care of her maternal grandmother, with whom she has continued to reside since that date. [X] has now been in the care of her grandmother for a period slightly in excess of two years or two thirds of the child’s short life.
The events of 27 February 2016
Each of the parties gives evidence with respect to these events. In addition, the Police COPS event entry (Exhibit A5) addresses this event.
The evidence of Ms Bradfield with respect to the events of the day commences at paragraph 22 of her trial Affidavit. The evidence of Ms Laurens with respect to the events of the day commences at paragraph 27 of her trial Affidavit. The incident is also addressed in the earlier Affidavit of Ms Laurens commencing at paragraph 51.
There are a number of aspects of the events of the day which are uncontroversial.
Firstly, it is agreed by all that [X] was, until 27 February, 2016, living in the predominant care of Ms Bradfield and had so lived since birth some 12 months earlier.
Secondly, it is agreed that Ms Bradfield was living with [X] at a rented apartment on 27 February, 2016. It is agreed that [X]’s father, Mr Hutton, came to that apartment that day to visit [X].
Thirdly, it is agreed that whilst at Ms Bradfield’s apartment that day, Mr Hutton telephoned Ms Laurens and Ms Laurens then heard Ms Bradfield “yelling and screaming”. Ms Laurens then determined that she would go to Ms Bradfield’s home and remove [X] from Ms Bradfield’s care. Thereafter controversy arises.
Ms Bradfield agrees that she was yelling and screaming. She states that this was on the basis that Mr Hutton had commenced to smoke crystal methamphetamine (hereinafter referred to as “ice”) in her flat. Ms Bradfield was very much opposed to this, yelling at Mr Hutton “What the fuck do you think you are doing? Get the hell out of my house”. This is, to a large extent, corroborated by Ms Laurens who indicates, in the first of her Affidavits (paragraph 51) that, having been telephoned by Mr Hutton, that she heard Ms Bradfield yelling. Ms Laurens also indicates (paragraph 54) that Ms Bradfield then telephoned Ms Laurens and said to her “Mum he’s smoking crack in [X]’s room, that’s why I’m going off at him”.
In her trial Affidavit Ms Laurens indicates (paragraph 28) that she could hear “… Ms Bradfield losing control, she was screaming at the top of her voice and appeared to be moving toward and away from the phone, her yelling was such that I was unable to hear her clearly until she worked out that I was listening on the phone, then I heard “is that my mother on the phone, why is my mother on the phone, why did you ring my mother””.
During cross-examination, Ms Laurens reaffirmed the earlier version of events wherein she agreed that her daughter had told her that Mr Hutton was smoking ice.
After hearing these events on the phone, Ms Laurens then contacted Police and requested that they attend the mother’s home. Ms Laurens then also placed the two elder children, [A] and [B], into her motor vehicle and, in company with an unidentified male friend, drove to the mother’s home.
Upon arriving at the mother’s home, Ms Laurens saw the mother either sitting in the car of a neighbour or running from the apartment building towards the car of the neighbour (both versions are given in Ms Laurens’ evidence). Ms Bradfield says that she was already in the car.
There is then no controversy that whilst Ms Bradfield was in the neighbour’s car with [X] (there being some controversy as to [X]’s specific placement within the car) that Ms Laurens reached into the car and pulled Ms Bradfield out of the car by Ms Bradfield’s hair.
Ms Laurens gives two versions of events as to Ms Bradfield’s actions at or about the time that Ms Bradfield was pulled from the car by her hair. On one version, Ms Bradfield was striking at Ms Laurens before being pulled from the car and on the other version, which I prefer, Ms Bradfield, having been dragged from the car by her hair, began to strike and throw punches at Ms Laurens who had dragged her from the car by her hair.
It would seem that during this melee that young [X] was taken from the car (or from the mother) by Ms Bradfield’s neighbours and, at about the time the Police arrived, was handed to Ms Laurens.
After the Police had spoken with all parties present, Ms Laurens left the scene in her car with the unidentified male friend, the two elder children [A] and [B] as well as with [X] and Mr Hutton. Ms Laurens indicates that the Police requested that she take [X] as well as requesting that she give Mr Hutton a lift. This is suggested to be so notwithstanding the evidence of both Ms Bradfield and Ms Laurens that Mr Hutton had been smoking ice.
The Police Report (Exhibit A5) suggests that Mr Hutton indicated to Police that he “noticed [that the mother] was under the influence of drugs which he disclosed to Police as being ““Crack/ICE””. Mr Hutton is recorded as confirming to Police that he and Ms Bradfield were separated and he had been visiting to see [X] (somewhat corroborative of the mother’s evidence regarding the relationship). The Police record does not suggest that Mr Hutton disclosed to Police that he had been smoking ice even though that is the agreed evidence of Ms Bradfield and Ms Laurens.
What is observed by the Police with respect to the mother is as follows:
Police tried speaking with [the mother] but at the time she was extremely Irate. The [mother] continued to pace up and down refusing to stand still and continued to speak very fast making it hard for police to understand what she was saying. The [mother] would cry for a moment then be fine the next. Police were of the opinion the [mother] was drug effected due to her behaviour although she denied ingesting any drugs.
Later, and after describing that the Police had formed the opinion that it was best for [X] to go with the grandmother, the Police record indicates that the reasoning for this decision was “… The [mother] showing clear signs of being under the influence of drugs”.
The Police record is admitted as a business record pursuant to section 69 of the Evidence Act 1995.[14] To that extent, I am satisfied that I should, as the New South Wales Law Reform Commission Report opined,[15] treat the direct recording of observation or speech as more probably correct than not. However, that approach does not apply to the opinions that are formed and expressed within the document, particularly with respect to the mother’s suggested drug use.
[14] Notwithstanding that section 69ZX of the Family Law Act 1975 provides that the portion of the Evidence Act 1995 which includes section 69 does not apply in parenting proceedings.
[15] Evidence (Business Records), NSWLRC 17 July, 1973.
Prior to speaking with the mother, the Police had spoken to both Mr Hutton and Ms Laurens and had been told by each of them that the mother had a “history of drug use”. Neither are recorded as telling Police that Mr Hutton had been using drugs nor that Mr Hutton’s drug use was the cause of Ms Bradfield’s upset. These positive statements may well have influenced the interpretation of the mother’s behaviour by Police and may have led the Police to form the opinions that they have recorded.
There is nothing recorded to suggest what was observed of the mother, beyond the mother speaking quickly (as she would appear to do) and being irate (as I accept she might be in the circumstances), such as to found and support the opinions expressed. Further, there is nothing to suggest the qualification or experience of the attending Police such as to permit them to validly form and express the opinions they have recorded.
To the extent that the Police have formed the opinion that the mother had been using drugs based upon observed behaviours (the mother being distressed and irate and speaking quickly whilst pacing), there would not appear to be any basis to connect these behaviours to an irresistible conclusion that the mother was drug affected.[16] The mother’s rapid speech was observed during her cross-examination and it was not suggested by Ms Laurens, for example, that the mother was drug affected at that time. It may well simply be how the mother speaks, particularly when feeling distressed or upset.
[16] It is also to be noted that the mother specifically denied that she had been using drugs when questioned by Police.
Importantly, the grandmother gives no evidence that she had observed Ms Bradfield using drugs nor that she appeared drug affected on 27 February, 2016. The only evidence with respect to drug use is that of Ms Bradfield regarding Mr Hutton’s drug use. Of this (and whilst acknowledging Ms Bradfield’s comments regarding Mr Hutton’s drug use in, at least, the first Affidavit), Ms Laurens then states (paragraph 33 of her trial Affidavit), “… it is not my opinion that the incident occurred due to Mr Hutton “smoking meth in front of [X]”. At no time was I told of Ms Bradfield’s allegations regarding Mr Hutton until we attended Court some months later”. This simply cannot be reconciled with Ms Laurens’ earlier Affidavit or her concession during cross-examination that Ms Bradfield had, in fact, made statements to Ms Laurens on 27 February, 2016 regarding Mr Hutton’s drug use on that day and that Mr Hutton’s drug use had been the cause of Ms Bradfield’s initial upset.
Ms Bradfield concedes that she did smoke ice on 27 February, 2016. However, Ms Bradfield asserts that her use of ice occurred after [X] had been removed from her care and as yet another example of Ms Bradfield turning to drugs at a time of stress. Ms Bradfield underwent urinalysis very shortly after the occasion and at the behest of the Department of Family and Community Services. The urinalysis report confirms that ice was found in Ms Bradfield’s system. It is impossible to determine whether the ice had been consumed before or after [X] had been removed from the mother’s care[17] and, as I have no reason to doubt Ms Bradfield’s evidence, particularly not in light of the inconsistencies regarding Ms Laurens’ evidence, I accept that, in all probability, Ms Bradfield consumed ice after [X]’s removal from her care on 27 February, 2016.
[17] Discounting any possibility of passive exposure to Mr Hutton’s ice use as Ms Bradfield concedes that she did use ice on that day.
That leaves the curious dilemma as to understanding either the reaction of Ms Laurens in driving to Ms Bradfield’s home with the preformed intention of removing [X] from the mother’s care or understanding the reasons why that intention was formed. Whilst Ms Laurens indicates that she held concerns that Ms Bradfield “may” have been using drugs, Ms Laurens does not suggest that she had formed that belief on that day nor does Ms Laurens indicate anything upon which that belief might have been formed (validly or otherwise). It would seem that the only concern that could have arisen was Ms Bradfield’s yelling at Mr Hutton regarding his use of ice.
To the extent that Ms Bradfield clearly believed that her mother would remove [X] from her care upon arriving on 27 February, 2016, that belief is logical and explicable. [X]’s two elder siblings had already left Ms Bradfield’s care and were living with Ms Laurens. It is also difficult to comprehend, if Ms Laurens held any real concern as to violence or drug use by Ms Bradfield (or Mr Hutton for that matter), why she would choose to take the two elder children, [A] and [B], with her to the scene of those behaviours. Ms Laurens conceded, during her cross-examination, that to have done so was a mistake.
At the time that [X] was removed from Ms Bradfield’s care, Ms Bradfield was engaged with the Department of Family and Community Services and the Brighter Futures Program. Departmental Officers were supportive of Ms Bradfield as a parent to [X]. Indeed, Departmental Officers were so supportive of Ms Bradfield that they attended upon Ms Laurens, some few weeks after [X]’s removal, requesting that [X] be returned by Ms Laurens to Ms Bradfield’s care.[18]
[18] Irrespective of the absence of any legislative basis or authority to intervene.
The records that are tendered from the Department, particularly Exhibit A6, corroborate that Departmental Officers held no concerns with respect to the mother’s care of [X] at that point but did hold concerns regarding Ms Laurens’ “willingness to expose the children to her aggressive attacks on Ms Bradfield”.[19] The above Departmental records report that the Brighter Futures caseworker had “…observed good attachment between Ms Bradfield and [X]” up and until 27 February, 2016. That is in contradistinction to that observed of [X]’s attachments, by the Family Report Writer, at the time of the Report interviews and as will be discussed shortly.
[19] On any version of events and irrespective of which version of events is preferred, Ms Laurens had violently attacked Ms Bradfield on 27 February 2016 by dragging Ms Bradfield from the car by her hair.
Arrangements for [X] post 27 February, 2016
After these proceedings were commenced and Orders were made (see above), [X] spent limited time with her mother, Ms Bradfield. From February 2016 until early 2017, Ms Bradfield’s time with [X] occurred, predominantly, if not solely, for brief periods of time in the presence of Ms Laurens.
In early 2017, Ms Laurens indicates (paragraph 44 of her trial Affidavit) that:
After a period of weeks of checking on her progress, it seemed she was ready to spend more time and in fact have occasional overnight contact with her children. This would perhaps be 1-2 nights per week.
The reference to “her children” refers to all three of Ms Bradfield’s children, being [A], [B] and [X].
Ms Laurens is quick to point out (paragraph 45) that “…[X] had never stayed overnight with Ms Bradfield without either [A] or [B] until sometime second school term 2017”.
However, the reality remains that unsupervised time, both during the day and overnight, then commenced between [X] and her mother in early 2017.
It would appear common ground, as the Family Report Writer indicates at paragraph 11 of the Family Report, that in about April 2017 [X] began to spend significant periods of time with her mother. This was described by Ms Laurens (paragraph 49 of the Family Report and during cross-examination) as “my little test for her”. Irrespective of the purpose or motivation of the change, it is clear that [X] then began, from no later than April 2017, to spend three or possibly four nights per week with the mother.
Ms Bradfield opines that the move to this expanded arrangement, effectively a shared care arrangement between mother and grandmother, was a result of a change in the grandmother’s household wherein [X]’s aunt Ms B had moved out (having previously lived with Ms Laurens) and was not available to assist in the care of the three children as regularly as had previously occurred.[20] Thus, Ms Bradfield refers to the arrangement coming into place as Ms Laurens needed assistance with the children’s care in light of her own work arrangements.
[20] Although Ms B continued and continues to be involved in caring for [X].
During cross-examination, there was some dispute raised by Ms Laurens as to the quantity of time that the children were spending with their mother as at April 2017. Ms Laurens indicated that she did not believe that [X] spent 50% of her time with her mother but closer to 40% of her time. As the Family Report Writer was not cross-examined by Ms Laurens with respect to the issue, I am satisfied that I can and should accept the Family Report Writer’s summary of the arrangement at paragraph 11 of the Report. Not a great deal turns upon the issue as, on either version, a shared care arrangement clearly had come into play.
At about this time, it also became apparent that [X] (indeed all of the three children) were being cared for by up to five carers per week comprising the mother, grandmother, the maternal aunt Ms B, a babysitter attending at the grandmother’s home (during Ms Laurens’ morning work commitments in particular) as well as [X] attending day care. These arrangements, without intending any disservice to the parties, are somewhat chaotic and were so described by the Family Report Writer.
The above shared care arrangement continued until July/August 2017 and until shortly after release of the Family Report.
After the Family Report was released, the arrangement reduced slightly but continued with at least substantial and significant care for [X] being provided by the mother.
In about November 2017, the arrangement changed dramatically. At this time it is common ground that Ms Laurens indicated to Ms Bradfield that the parties would return to practice arrangements pursuant to the Orders which had been made at the commencement of proceedings, being Ms Bradfield spending time with [X] for short periods of time at the home of or in the presence of the grandmother. The rationale for this change is unclear. For her part, Ms Laurens indicates that she became aware that Ms Bradfield was living with her [Ms Bradfield’s] father who, on the agreed evidence, is a regular user of drugs and has been a regular user of drugs since Ms Bradfield’s childhood. Ms Bradfield asserts that Ms Laurens was aware, at all times, that she was sharing accommodation with her father and that the change in arrangements came about following release of the Family Report and was reactive, on the part of Ms Laurens, to the Report’s recommendations that [X] might be restored to the mother’s full-time care.
The limited arrangement for [X]’s time with her mother would appear to have continued from August 2017 until late January/February 2018 at which time the mother changed accommodation (moving to her current residence). The mother continues in this accommodation which she shares with a friend Ms R as well as Ms R’s three children.
Ms R is a long term friend of the mother’s and is, herself, a former drug user. It would appear that Ms R’s past drug use had attracted the attention of the Department of Family and Community Services, such that Ms R’s three children had been removed from her care and were subject to Children’s Court proceedings. Ms R’s children have since been restored to the care of their mother.
After moving in with Ms R, accommodation which the mother continues to occupy and proposes to continue to occupy for the foreseeable future, [X] returned to spending significant time with the mother comprising some portion of each weekend and at least one day during the week.
It should also be made clear that whenever reference is made to [X] spending time with the mother that, on most if not all of those occasions, [X]’s elder siblings, [A] and [B], have also spent time with their mother. It is also clear that [X]’s maternal aunt Ms B, whom Ms Laurens describes as [X]’s favourite, has continued to spend time with [X] and provide some care for [X] in each week.
At the time of trial, the care of [X] was divided between the mother, grandmother and Ms B. From time to time assistance of babysitters is also required at the grandmother’s household due to her work arrangements (Ms Laurens works as a (occupation omitted) commencing early most weekdays and occasionally also working on weekends). In addition, [X] attends day care for some days each week whilst in the grandmother’s care.
There is no real controversy with respect to the above care arrangements and the chronology. Whilst there is some controversy as to how or why certain changes were initiated, little if anything turns upon such motivations and, accordingly, they are not further considered. It is not suggested that any of the changes have arisen as a consequence of concerns with respect to the mother’s drug use although, in fairness to Ms Laurens, it might be suggested that the November 2017 change (which change was unilateral on the part of Ms Laurens) arose from concern that Ms Bradfield was associating with drug users, namely, Ms Bradfield’s father.
Allegations of risk
In the context of the above evidence, two significant issues arise regarding allegations of risk. The allegations of risk comprise:
a)A concern that the mother will revert to or relapse into illicit drug use; and
b)A concern that [X] does not presently have any secure bond or attachment with any person and that this may significantly impact [X] in the short, medium and long term.
I propose, at this point, to deal with each of these allegations of risk. In doing so, I am greatly assisted by that discussed by Justice Tree in Johns & Jasapas [2016] FamCA 471 and, to that end, I incorporate from his Honour’s decision, paragraphs 46 to 48 thereof. I will, in due course, pose and answer each of the rhetorical questions that his Honour has suggested as relevant in assessing and considering risk.
The notion of unacceptable risk
46. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
47. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
48. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[21]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[21] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Possible relapse into drug use
The Family Report canvasses this issue in some detail, reporting the perspectives of the parties and offering the Family Report Writer’s opinion.
Ms Laurens’ attitude towards Ms Bradfield was summarised (paragraph 81) as “… almost uniformly negative and any positives that she offered were given grudgingly and then almost immediately qualified retracted”. The Family Report Writer was not cross-examined with respect to this opinion which, in any event, is consistent with that observed of Ms Laurens during cross-examination. Accordingly, I accept the opinion as valid.
The negative attitude of Ms Laurens towards Ms Bradfield’s rehabilitation from drug use and her ability to remain abstinent has some relevance. Ms Laurens has, for some years, and it would seem predating [X]’s removal into the care of Ms Laurens, been suspicious and sceptical of Ms Bradfield’s drug abstinence. Ms Laurens, in her trial Affidavit, suggests that “in her opinion” Ms Bradfield was using drugs in the early stages of these proceedings and until at least May 2016.
For those reasons, I am satisfied that Orders can and should be made as follows (see Orders).
I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 9 July, 2018
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