Bridges & Wyatt
[2022] FedCFamC2F 805
•6 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bridges & Wyatt [2022] FedCFamC2F 805
File number(s): ROC 488 of 2022 Judgment of: JUDGE DEMACK Date of judgment: 6 June 2022 Catchwords: FAMILY LAW – Parenting – Interim – where child has been living with a non-parent pursuant to a final consent order – where the mother has withheld the child following alleged disclosures of sexual abuse by the father – where the child has expressed a view to live with the mother – where the child has expressed suicidal ideation – where the statutory child protection authority is involved Legislation: Family Law Act1975 (Cth) pt VII Cases Cited: C & S [1998] FamCA 66
Morgan & Miles [2007] FamCA 1230
Division: Division 2 Family Law Number of paragraphs: 41 Date of last submission/s: 2 June 2022 Date of hearing: 2 June 2022 Place: Mackay Solicitor for the Applicant: Ms Goodwin First Respondent: Self-Represented Litigant Second Respondent: Self-Represented Litigant Independent Children’s Lawyer: Lyrene Wiid Lawyer & Migration Agent Interested Party: Department Of Children, Youth Justice And Multicultural Affairs ORDERS
ROC 488 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRIDGES
Applicant
AND: MS WYATT
First Respondent
MR C BRIDGES
Second Respondent
ORDER MADE BY:
JUDGE DEMACK
DATE OF ORDER:
6 JUNE 2022
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the mother is to provide the child X born in 2022 (“the child”) to the paternal grandfather, Mr BRIDGES at 3:00pm on 7 June 2022 at the Suburb D Police Station, E Street, Suburb D.
2.That if the child is not made available to the paternal grandfather, a recovery order will issue upon receipt of an affidavit from the solicitor for the paternal grandfather outlining the failure of the mother to comply with Order one (1) herein.
3.That the child X born in 2010 live with the paternal grandfather, Mr BRIDGES on an interim basis until further order of the Court.
4.That the mother is prohibited from and an injunction issue prohibiting her from advising the child of the handover at any point in time, prior to 9:00am on 7 June 2022.
5.That a copy of today’s order be provided to the Department Of Children, Youth Justice and Multicultural Affairs.
6.That the parties’ personal appearance is required on 13 June 2022.
7.That all parties have leave to appear by telephone link on 13 June 2022 and are required to dial into the Court on 02 9338 2221, you will then be asked to enter a participant code, please use ….
8.That the matter be adjourned to 11.30am on 13 June 2022 in the Federal Circuit and Family Court of Australia in Rockhampton.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
B.That it is expected that you will link into the teleconference by 11.30am and remain on line, with your phone on mute until your matter is called DO NOT place the call on hold. Once the matter is mentioned parties are then expected to end the call and leave the teleconference
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bridges & Wyatt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DEMACK
This is an interim decision with respect to parenting arrangements for X who was born in 2010. He is now aged 12. He is the child of Ms Wyatt who is the first respondent in these proceedings. The applicant is the paternal grandfather, Mr Bridges. The father is the second respondent. He has not participated in these proceedings and he did not participate in earlier proceedings.
X is one of four children of the mother’s. Her oldest child is a girl called F, then there is X. As I understand it, there is then a child G and a child then H. The children X and H, as I would understand it, are the children of Mr C Bridges, although these proceedings only refer to X. F and G have different fathers to each other and to X and H.
There is a final parenting order which was made by consent on 7 June 2019 following a family report by Mr J. It was Mr J’s second family report for the family. I have the second one before me. It is dated 31 May 2019. It clearly indicates that it is an updated family report and that an earlier family report had been prepared about five months earlier.
When these proceedings were commenced, they were commenced as new proceedings with a new file number and the old file was not before me. What is before me at this stage is the material which has been filed by the parties in readiness for this hearing which includes material by the paternal grandfather, the applicant, and by the respondent mother. There is also two lots of documents which were produced pursuant to section 69ZW, firstly from the Queensland Police and secondly, from the statutory child protection authority, the Department of Children, Youth Justice and Multicultural Affairs.
The Independent Children’s Lawyer who had been appointed back at the time that final parenting orders were made in June 2019 has been reappointed. The Department of Child Safety has appeared as friend of the Court when this matter has been before me for submissions.
The final parenting order made by consent in June 2019 provided for X to live with the paternal grandfather and to spend time with his mother. That is not what is happening presently. When X was spending time with his mother during the Easter school holidays, he told his mother, apparently, because there is absolutely no specifics about this before the Court that he had been sexually abused in some way unspecified by his father, Mr C Bridges who, it seems, is common ground, was sharing the house of the paternal grandfather and the child. The child has not returned to the paternal grandfather’s care following these apparent disclosures.
The paternal grandfather brings the application to the Court, saying that the orders of 7 June 2019 effectively should be put back into full force and effect; that X should return to his care. Subsequent to filing the application, the paternal grandfather filed a further updating affidavit on 31 May 2022 and, on the same day, filed an undertaking. The undertaking provides that he undertakes to not allow the child, X, born in 2010 to have any contact, directly or indirectly, with Mr C Bridges. And in the affidavit filed contemporaneously with the undertaking, Mr C Bridges advises that he has, two weeks ago, asked his son to leave the house and he intends to comply with the undertaking which he has given to the Court and, indeed, has told his son that he has provided that undertaking.
The Department of Child Safety is currently having contact with the mother. On 17 June 2020 via a letter addressed to the mother, the department advised that it had assessed that the mother was a parent who was not willing or able to look after the children, F, G and H. The children were removed from her care and placed with her sister, who I understand is Ms K. At the time, the mother had been living in the Region L. I say that because I am not completely clear where she was living. At the time of Mr J’s updated family report, she was in Town M but was intending to move to live in Town N.
Anyway, she moved, it would seem, from the Region L area to the Region O where her sister was living and where the children had been placed. A letter dated 24 February 2021 from the department advises that the department was transitioning those children back into the mother’s care.
So the department seemed to be having some ongoing contact with the mother at this stage. The department have assessed that they need to undergo a complete assessment on the issues which are currently raised. The notification seems to go to two particular issues. (1) That X had been or has been sexually abused in some way unspecified by his father; and (2) that X has expressed some suicidal ideation.
The Department of Child Safety have advised the departmental representative who appeared as friend of the Court that they had considered that X being in the mother’s care was at low risk – otherwise expressed as being in not immediate risk; and that they gave a particularly glowing report of the mother, saying that she was a poster parent.
The department assessed that if X was in contact with Mr C Bridges, that he would be at high risk and it would prompt a faster level of response or concern by the department if the father was in the household or came into contact with the child. The department also seems to have assessed that if the child was with the paternal grandfather, they may consider the child to be at high risk because they would understand through the notification received that the paternal grandfather had known about the risk of Mr C Bridges to X and had permitted Mr C Bridges to be in his household.
There is a difficulty with the department’s assessment on that issue. The 69ZW material from the department reveals that in 2020 when Mr C Bridges was being released from custody, Mr Bridges had contact with the department for an assessment to be undertaken as to whether Mr C Bridges would be a risk to X living in his home. The department document then is before me through the 69ZW material and there is a safety assessment where the safety decision was made on 2 July 2020 noting the household to be safe and a family risk evaluation – a final risk level assessed on 13 July 2020 as moderate. In that six page document – which can be found on the 69ZW material, if one is looking at the document which is 143 pages long at page 67 and going for six pages thereafter – at page 69 under the heading What are we worried about? it states-
Harm Statements
[X] has not been harmed.
Complicating Factors
• The things that make it harder for the adults to protect the children are:
• [Mr C Bridges] has been convicted of sexually assaulting his step-daughter and [X]’s half-sister, [F].
• [Ms Wyatt]’s other children, [F], [G] and [H] were recently assessed as requiring out-of-home care. They are placed with a kinship carer, [Ms Wyatt]’s sister, [Ms K], on the [Region O].
• [Mr C Bridges] is a CPOR (Child Protection Registry Offender) offender, which means he is subject to a higher level of monitoring following his release from prison that would be required in a standard parole arrangement.
Under the heading What is working well?
Acts of Protection and Belonging
• Mr Bridges made an application to Family Law Court to custody and parental responsibility of [X], because he was worried that [X] would be neglected and/or exposed to drug use in [Ms Wyatt]’s care.
Strengths and Resources
The things that make it easier for the adults to protect the children are:
• Probation and Parole and QPS believe that [Mr C Bridges] poses a low risk of sexual abuse to [X], as [Mr C Bridges] has always maintained that he is not sexually interested in boys or biological family members.
• [Mr Bridges] is aware of [Mr C Bridges]’s criminal history, believes that it happened, and does not minimise the seriousness of it. [Mr Bridges] has also set up the family’s lifestyle to reduce risk to [X], e.g. making sure that [X] and [Mr C Bridges] are usually supervised when they are both home, and setting boundaries around privacy in the home. There are Family Law Court orders granting sole responsibility for caring for [X] to [Mr Bridges].
• [X] also demonstrated an age-appropriate understanding of sexuality and sexual boundaries. He was able to name the body parts, including their proper names, and knew that nobody is allowed to touch or look at his private parts, ask him to touch or look at their private parts, or show him pictures or videos of private parts.
Under the heading Parents’ Willingness and Ability to Protect the Children the departmental worker writes:
I have assessed that [Mr Bridges] is a parent willing and able to care for [X] and keep him safe, for the following reasons.
•There are Family Law Court orders granting sole parental responsibility of [X] to [Mr Bridges].
•This means that Family Law Court have assessed that [Mr Bridges] is a parent willing and able to care for [X].
•[Mr Bridges] is aware of [Mr C Bridges]’s criminal conviction of sexually assaulting [Mr C Bridges]’s step-daughter. [Mr Bridges] does not deny, minimise or justify this serious offence.
•[Mr Bridges] demonstrated an understanding of [Mr C Bridges]’s reporting requirements, and ways in which he can order the family’s lifestyle to reduce any risk to [X]. (Probation and Parole and the police have assessed that [Mr C Bridges] poses a low risk to [X], as [Mr C Bridges] reports that he is not attracted to girls or biological family members).
•[X] demonstrated an age-appropriate understanding of sexuality and protective boundaries. He identified that [Mr Bridges] is a safe person who would help him if he felt unsafe.
I have assessed that [Mr C Bridges] is not a parent willing and able to care for [X] and keep him safe. While [Mr C Bridges] may provide daily care for [X] from time to time, [Mr Bridges] is [X]’s only legal guardian and primary carer
On 17 June 2020, [Ms Wyatt] was assessed as a parent not willing and able to care for [H], [G] and [F], resulting in child protection orders for all three girls. I have not assessed her as a parent with regard to [X] as she is not able to exercise parental responsibility for [X] due to Family Law Court Orders.
Outcome
The outcome for this I & A will be recorded as unsubstantiated – child not in need of protection.
So that document is from the middle of 2020 at a time when the mother had been assessed as a being a parent not willing or able to protect her other three children and the children had been removed from her care and placed with a kinship carer.
The documents all reveal that X has lived primarily with his paternal grandfather for most of his life. Coming up to the final consent orders of 7 June 2019, X had lived with his mother then for a period of a little less than a year and a half and that was the longest period of time he had seemed to have spent in his mother’s care. At the time of those orders, Mr C Bridges seems to have been in custody perhaps – again, it is not completely clear because on the final consent order his address is noted as being the same address as the one which Mr Bridges still gives to this day.
So the new circumstances which have arisen is that X, having spent time with his mother during the Easter school holidays – the mother has not returned the child to the grandfather’s place, saying that the child has disclosed abuse by Mr C Bridges. There is no details of what that abuse is before the Court. When the matter came on for hearing last week, the mother said in open court that X, at that stage, had been missing from her care since 3.30pm the day before. The matter was then adjourned for 24 hours to the following morning at 9.15am so that everybody could focus their efforts on seeing where X was.
When the matter was next on before me in Court, the mother said that X had returned to her care at about 3.30pm on that day that Court had been on. So he had been away from her care for about 24 hours. There seemed to be some suggestion – although I am not completely clear about this – that X running from his mother’s care was a response to X understanding that these matters were on in Court and there being some reluctance to return to his grandfather’s care because of issues to do with his father.
So where the department seemed to have formed a view at this juncture that the paternal grandfather was somehow not aware of his son’s offending or somehow minimised his son’s offending – I note that that is wholly contrary to the assessment which they made on that specific issue less than two years ago.
X has always predominantly been in his grandfather’s care. And the assessment by Mr J, done in June 2019, indicated that the child’s relationship with his grandfather was good and solid and one where there was a certain calmness to X and his life.
The mother was represented at the time that the final consent orders were made in 2019. The mother is well aware that there are final parenting orders in place. The mother is plainly well aware of the role that the department has and well aware of what the strength is of parenting orders under a Family Law Order.
The department have long been involved in the mother’s life. Referring to Mr J’s updated family report dated 31 May 2019 at paragraph (j) on page 20 – Mr J states:
It is deeply concerning that the mother, in interview for this update report, and in interview for the writer’s earlier report, suggested that she had received a “wake-up call” with respect to her drug abuse and other lifestyle choices, and is taking positive steps to address those matters. Again, there appears to have been a pattern of behaviour with the mother making such assertions repeatedly over quite a number of years to the Department of Child Safety, whenever she has had engagement with that authority, and yet, the issues and concerns noted in child safety material remain consistent today, with those matters raised over many years, dating back to at least 2010 [and earlier as a child herself]. Child Concern Reports, and Notifications received by the Department over many years reveal ongoing themes with respect to the mother, of: alcohol and drug abuse; domestic violence; transience; neglect of the children’s basic care needs; lack of supervision of the children; and inadequately addressed mental health issues. It is noted throughout subpoenaed material from the Department of Child Safety Youth and Women, that the mother has a propensity to decline assistance from external agencies when offered, and claiming to no longer have any issues that would negatively impact on her parenting capacity.
And then at paragraph (k) on page 20 of the document:
Despite the mother’s very recent engagement in programmes recommended by Child Safety Services, the writer notes a pattern of behaviour by the mother in previous years of seemingly positive engagement of similar nature for periods of time, but subsequent reversion to lifestyle choices that place her children at unacceptable risk of harm. The child protection themes that have been noted, have been consistent over many years, and the inevitable conclusion to be drawn is that the mother’s lifestyle choices are deeply entrenched and she has not, in any meaningful way demonstrated a capacity for sustained change over any significant period of time.
.
It is further noted that Mr J accepts that the paternal grandfather does not come to the Court without his own difficulties. He has been convicted historically of cultivating cannabis and, indeed, since the child has been in his care following the final consent orders being made, he was charged with further offences of growing cannabis in the house. That seems, though, to be the extent of the real difficulties with respect to Mr Bridges.
This is a parenting matter and the best interests of X are my paramount consideration. I am mindful of the objects and principles of part VII of the Family Law Act. There is a final parenting order in place which provides for the paternal grandfather to have the child live with him and for the child’s time with the mother to be as specified within that order.
Subsequent to that order being made and when the mother moved to relocate to the Region O when her three older children were placed with her sister in a kinship care arrangement, a parenting plan was agreed to which varied that arrangement as X would not be able to spend weekend time with his mother now that his mother was living on the Region O and his paternal grandfather remained living in Town P – a small regional community just to the east of Town Q. But the parties had worked together to put that parenting plan into place. So it is clear at that point in time the mother understood that there was a final order in place which provided for X to continue to live with his grandfather.
What is alleged against the grandfather is not that the grandfather harmed the child but that his son – that is, the child’s father – harmed the child. The department have previously assessed that Mr Bridges understood that his son was a risk and were satisfied that steps had been taken to make sure that X was not at risk. I have no details in front of me as to what is currently alleged against Mr C Bridges. What I do have in front of me is the serious steps that Mr Bridges has taken whilst having commenced these proceedings to exclude Mr C Bridges from his home and to provide an undertaking to the Court that he will not allow the child to come into contact directly or indirectly with Mr C Bridges.
On that basis, it is hard to see that there is any order that should be made, other than having X return to his grandfather’s care.
X is said to be suicidal or has expressed some suicidal ideation. That is a serious issue and there is no reason for me to form the view that Mr Bridges does not have what is needed to be able to support X. X has previously plainly had a very good relationship with his paternal grandfather as assessed by Mr J.
The department, in forming the view that the mother was a low risk or rather that the child was not at immediate risk in the mother’s care needs to be understood, it seems to me, on the basis of the big scheme of everything that I have in front of me about where the mother has been in terms of her parenting and her parenting capacity and her attitude to the role of parent and the issues that she has plainly faced which has meant that the department has taken serious steps to remove children from her care even in the last two years and the notion that she is now a poster parent and is given a particularly glowing reference.
This is an interim decision. The Full Court of the Family Court in Morgan & Miles as considered by Boland J agreed with what Warnock J had said in Campbell & Spalding: if there are arrangements in place a person should not change those arrangements for the purposes of then assessing what outcomes would be in the best interests of the child on a final basis.
The mother has unilaterally removed X from the care of the paternal grandfather.
On an interim basis, the issue effectively seems to be one of safety or risk for X in the paternal grandfather’s care. The mother purports herself to being low risk. Historically, the mother has been a parent assessed as unwilling and unable to protect children. And she herself agreed to a final parenting order three years ago for X to live with the grandfather. In terms of X’s risk at the grandfather’s house, the grandfather has removed Mr C Bridges from the home. He gives an undertaking to the Court that he will not allow the child to be brought into contact directly or indirectly with his father. There is no reason for me to think that Mr Bridges is not able to provide the necessary emotional support to his grandson who has been in his primary care for the bulk of his life.
The mother’s other concerns relate to Mr Bridges being on dialysis and requiring that three times a week. This is not a new issue. That was something which was in place in 2019 when Mr J did his updated family report. So that is not something which causes me to have any concern with respect to Mr Bridges’ capacity to care. Indeed, it is an issue which has been of a longstanding nature and there is no evidence that it places any hurdles in the way of Mr Bridges’ capacity to care.
The other issue which is raised somehow obliquely is that perhaps Mr C Bridges has gone to live in the home of X’s nanna who provides assistance to X and to the paternal grandfather from time to time. Even if that were the case, Mr Bridges has given an undertaking to the Court which says that X will not be brought into contact with Mr C Bridges directly or indirectly. So Mr Bridges will no doubt ensure that, even through Nanna, there is no contact with Mr C Bridges. So that is not something which would be an impediment to the orders being in place.
There are two primary considerations – the benefit to X in having a meaningful relationship with both of his parents and secondly, the need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is the second of these which is to be given the greater weight.
I assess on an interim basis, doing the best I can with the evidence which is before me, noting that I cannot make findings of fact where there are matters in dispute, that X, in being in the care of his paternal grandfather who has given an undertaking to the Court is not at apparent risk of harm. Being in his mother’s care contrary to a parenting order which she agreed to on a final basis and noting all of the issues historically with the mother and, notwithstanding the current glowing report which must be understood in the history of the mother’s long engagement with the Department of Child Safety whilst continuing thereafter once engagement ends to have further child protection concerns raised that the mother is not somebody on an interim basis who the Court would be considering ordering for the child to live with.
I order that the child live with the paternal grandfather on an interim basis. I order that he be returned to the grandfather’s care by no later than 3 pm tomorrow afternoon 7 June. In the event that he is not returned to the grandfather’s care at that time, a recovery order will issue upon the solicitor for the paternal grandfather filing the necessary affidavit. The handover, therefore, is to be at 3 pm at the police station at Suburb D, E Street, Suburb D.
I further order that the mother is prohibited from and an injunction issues prohibiting her from advising X of the handover at any point in time prior to 9 am tomorrow morning 7 June. So the mother is not to advise the child of the handover prior to 9 am on 7 June.
I would like to have a mention date back before me Monday 13 June at 11.30 by telephone. All parties are to appear.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Demack. Dated: 17 June 2022
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