Briggs and Hinkley
[2014] FCCA 2410
•31 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRIGGS & HINKLEY | [2014] FCCA 2410 |
| Catchwords: FAMILY LAW – Parenting – conceded alcoholism of mother – unacceptable risk – serious psychological harm through neglect and exposure to family violence – ongoing supervision – relationships between siblings – state children’s court proceedings regarding child’s siblings – information sharing and provision of judgment to the Department of Human Services – children’s versus parent’s rights – expert evidence – self-represented litigants – Rice & Asplund – substantial role of independent children’s. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60B(2), 60B(4), 60CA, 60CC, 60CC(2), 61DA , 65DAA, 65DAA(5), 65DAC Universal Declaration of Human Rights 1948 |
| Jones v Dunkel (1959) 101 CLR 298 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 M & M [1987] FLC 91-830 Articles: |
| Applicant: | MR BRIGGS |
| Respondent: | MS HINKLEY |
| File Number: | MLC 7646 of 2008 |
| Judgment of: | Judge Harman |
| Hearing dates: | 1, 2, 3, 4 and 25 September 2014 |
| Date of Last Submission: | 25 September 2014 |
| Delivered at: | Albury |
| Delivered on: | 31 October 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid New South Wales, Sydney Central Family Law |
ORDERS
All prior parenting orders with respect to the child X born (omitted) 2004 (hereinafter referred to as “X”) shall be and are hereby discharged.
X shall live with his father Mr Briggs.
Mr Briggs shall have sole parental responsibility for X.
Notwithstanding the above order X’s mother Ms Hinkley shall be and is hereby authorised to:
(a)Obtain from any school that X may attend from time to time all and any information about his progress and welfare as she may desire including copies of school reports, awards and information regarding X’s achievement and activities as well as school photographs at her expense;
(b)Obtain from any health professional or institution dealing with X all and any information that she may desire regarding X’s medical treatment, information that she may reasonably require to be able to meet X’s needs whilst X is in her care together with any medical reports, treatment plans or similar information.
Mr Briggs shall do all things necessary and provide all consents and authorities and instructions necessary to enable Ms Hinkley to obtain information in accordance with the above order.
X shall spend time with his mother Ms Hinkley at the following times and subject to the following conditions:
(a)X shall spend time with Ms Hinkley from 11am until 5pm each alternate Sunday commencing the Sunday immediately after the making of these orders;
(b)X shall be collected from the home of Mr Briggs and returned to the home of Mr Briggs by Ms S, who shall otherwise be present at all times for the period from 11am until 5pm and shall supervise all time that shall occur between X and Ms Hinkley and in accordance with the signed undertaking that she has provided to the Court and comprising exhibit N.
Mr Briggs shall facilitate any reasonable request made by X to communicate with his mother or his brothers, X and B by telephone, Skype, Facetime or similar electronic means.
Ms Hinkley shall be entitled to telephone and speak with X between 6–6:30pm each Wednesday and Sunday and with respect to same:
(a)Ms Hinkley shall telephone X on such number as is advised to her by Mr Briggs;
(b)Mr Briggs shall allow X to speak with Ms Hinkley with privacy and without interruption or distraction; and
(c)Ms Hinkley shall refrain from discussing with X (during telephone communication or face-to-face time) Mr Briggs, Ms A, anything occurring within their household or anything relating to or arising from these proceedings and shall, further, not seek to encourage X to engage with her or spend time with her save in accordance with these orders.
Request that the Court provide a copy of these Reasons and the orders made today to the Department of Human Services Victoria.
IT IS NOTED that the above order is made with the consent of the parties and the Independent Children’s Lawyer.
Otherwise dismiss outstanding Applications and Responses and remove all issues from the list of cases 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 be returned to the person or organisation who produced same or securely destroyed.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Publish my Reasons.
IT IS NOTED that publication of this judgment under the pseudonym Briggs & Hinkley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ALBURY |
MLC 7646 of 2008
| MR BRIGGS |
Applicant
And
| MS HINKLEY |
Respondent
REASONS FOR JUDGMENT
Parties and subject matter of the proceedings
These are proceedings involving competing parenting applications regarding a child X born (omitted) 2004.
The parties to the proceedings are X’s parents, being his father Mr Briggs born (omitted) 1974 (aged 40 years) and his mother Ms Hinkley born (omitted) 1983 (aged 30 years).
Mr Briggs is the applicant in this round of litigation. Ms Hinkley is the respondent.
Siblings
X has a number of siblings who might be referred to, in somewhat antiquated terminology, as siblings “of the half-blood”. Such terminology is of little assistance to X who considers each to be his brother or sister.
Ms Hinkley has two children from relationships which have occurred following the separation of she and Mr Briggs, namely:
a)X born (omitted) 2012. A’s father is Mr J. Ms Hinkley alleges that this gentleman is an (occupation omitted) and, further, that he chooses to have nothing to do with A (paragraph 4 of Ms Hinkley’s trial affidavit); and
b)B born (omitted) 2014. B’s father is a Mr D. Ms Hinkley and Mr D reside together in a de facto relationship. Mr D has not sworn an affidavit in these proceedings although he was called to give evidence.
Both A and B have been and are presently the subject of proceedings before the Children’s Court of Victoria instigated by the Department of Human Services. At the close of submissions it was indicated by Ms Hinkley that the Children’s Court proceedings were next listed 6 October 2014 and for the purpose of allowing a clinician’s report to be released. Both children are presently living with Ms Hinkley and Mr D although they have previously been removed for brief periods.
Mr Briggs has three children of a subsequent relationship. All three children are the product of the relationship between Mr Briggs and his de facto partner Ms A. The eldest child Y is three years of age, the middle child Z is two years of age and there is a young infant born (omitted) 2014 whose name was not disclosed in the proceedings.
Past proceedings
The parties, regrettably, are not strangers to litigation. The parties, jointly and/or severally, have been involved in proceedings before the Children’s Court of Victoria, the Magistrates’ Court of Victoria and before this Court.
Involvement by the Department of Human Services has occurred as regards the welfare of X, A and B. Shortly after the separation of the parents the Department of Human Services became substantially involved in X’s welfare (he then being three years of age) and the early care arrangements for X (particularly in the period from January 2007 until May 2007) were brought about through the intervention of the Department.
Proceedings have also occurred before the Wangaratta Magistrates’ Court with respect to domestic violence/intervention orders. Those proceedings are now somewhat historical and would appear to be confined to the 2007/2008 period.
More recently and since 2013, Ms Hinkley has been involved with the Department of Human Services and this has, in 2013 and 2014, led to the removal from the mother’s care, for brief periods of time, of the child A.
The parties were first involved in proceedings before this Court in 2008 and 2009.
On 22 August 2008 Ms Hinkley filed an application with the Federal Magistrates Court (as it then was) Melbourne. Those proceedings would appear to have concluded with orders made by consent 4 February 2009. Those orders provided for the parents to have equal shared parental responsibility for X, for X to live with his father and to spend time with his mother each alternate weekend from Friday through to the following Tuesday, as well as for a period in the following week from Sunday through to Tuesday. Accordingly, the arrangements in place consequent to those orders were essentially shared care.
Shortly after those orders were made and on 15 April 2009 an application was brought by Ms Hinkley seeking a recovery order (presumably to enforce the orders and to address suggested non-compliance therewith on the part of Mr Briggs). This subsequent application was dealt with by Federal Magistrate Bender (as she then was) and other than an order that the father forthwith do all things necessary to return X to a named person at an address in (omitted) (and costs ordered in the mother’s favour), the primary order of 4 February 2009 was confirmed.
This round of proceedings was commenced by an application filed by Mr Briggs 23 April 2013. By that application Mr Briggs sought:
a)To discharge the existing parenting orders;
b)That X live with his father; and
c)That X spend time with the mother “as this Honourable Court deems fit”.
Mr Briggs has not filed an amended application in the proceedings seeking more specific or particular relief. However, it is clear and apparent from his evidence (and that contained within the Part 15 Reports prepared in the proceedings) that Mr Briggs opposes any time occurring between X and the mother other than on a supervised basis.
A response was filed by Ms Hinkley 9 May 2013. By that response Ms Hinkley sought:
a)Dismissal of the father’s application;
b)Discharge of the orders made 4 February 2009;
c)That the mother have sole parental responsibility X;
d)That X live with the mother; and
e)That the father spend time with X each alternate weekend from Friday to Sunday together with other periods.
Ms Hinkley also sought the appointment of an Independent Children’s Lawyer. An order for the appointment of an Independent Children’s Lawyer was made on the first return date of the proceedings 6 May 2013. On that date the parties also attended a Child Dispute Conference. The memorandum produced has not been considered as it has not been tendered by either party or the Independent Children’s Lawyer.
Early in the proceedings orders were made by consent commissioning a report from Dr C. A report was prepared dated 23 October 2013 and released to the parties by order 24 October 2013. An addendum report was prepared by Dr C dated 25 October 2013 which report was released to the parties by order 29 October 2013.
On 29 November 2013 an interim hearing was conducted by Judge Henderson. On that date her Honour made orders to the following effect:
a)All prior orders in relation to X are suspended.
b)The child shall live with the father.
c)Commencing 6 December 2013 the child shall spend time with the mother each alternate weekend from after school Friday until 6pm Sunday, such time to occur at the maternal grandmother’s home and upon the condition that the mother may only take the child from the maternal grandmother’s home for short periods during the day and that the time otherwise be supervised. Provision was made that in the event that the maternal grandmother was unavailable to supervise overnight time that time would, instead, occur 9am until 5pm on Saturday and Sunday of each alternate weekend.
d)The mother was injuncted and restrained from taking the child to any counsellor (save with the agreement of the father first obtained in writing), consuming alcohol or leaving the child in the care of the maternal grandmother or any other adult for the purpose of the mother attending social activities.
e)Both parties were injuncted and restrained from denigrating the other or members of the other’s family in the presence or hearing of X (or permitting any third person to do so) as well as a restraint placed upon discussion of the proceedings with or in the presence or hearing of X.
f)Both parties were ordered to enrol in and complete a PPP parenting course.
The maternal grandmother (Ms F) completed and filed with the Court a written undertaking regarding her willingness to supervise and understanding of her obligations regarding supervision of time.
It is common ground between the parties that the arrangements for X’s time with the mother (supervised by Ms F) broke down no later than March 2014 and with the consequence that as at the commencement of the trial 1 September 2014, X had spent no time with Ms Hinkley, (or at least no time pursuant to the orders). Ms Hinkley’s evidence includes an allegation that X had, on one occasion, taken himself to a “shed” where her partner Mr D and another male Ms S were (Ms S’s mother became a witness in the proceedings in the capacity of a proposed supervisor) and spent some brief time with the mother. However beyond this, suggested visit between X and Ms Hinkley time has not occurred between March and September 2014.
At the conclusion of the interim hearing conducted by her Honour Judge Henderson, the proceedings were listed for trial and estimated to occupy four days. The trial dates allocated by her Honour were subsequently varied due to changes in the judicial calendar and the hearing dates brought forward by some weeks. The hearing occupied the four days allocated to it namely 1-4 September 2014 (by video link) and concluded on a fifth day (to conclude submissions) 25 September 2014. At the conclusion of submissions judgment was reserved.
Material considered
In dealing with the proceedings I have read and considered each of the documents identified by the parties and the Independent Children’s Lawyer.
In the case of Mr Briggs, I have read and considered each of the following documents:
a)Initiating Application filed 23 April 2013;
b)Affidavit of Mr Briggs affirmed 19 April 2013 and filed 23 April 2013;
c)Affidavit of Mr Briggs sworn or affirmed 27 August 2014 and filed 28 August 2014;
d)Affidavit of Ms A affirmed 21 August 2013 and filed 21 August 2013.
In the case of Ms Hinkley, I have read and considered each of the following documents:
a)Response to Initiating Application filed 9 May 2013;
b)Affidavit of Ms Hinkley sworn or affirmed 25 August 2014 and filed 25 August 2014;
c)Case outline document filed on behalf of Ms Hinkley 29 August 2014.
In the mother’s case two witnesses have also appeared for the purpose of giving oral testimony and being cross-examined. These have comprised:
a)Mr D (Ms Hinkley’s partner and the father of B); and
b)Ms S (a proposed supervisor of time between X and Ms Hinkley).
A number of exhibits have also been received into evidence and comprising:
a)Exhibit A the report of Dr C dated 23 October 2013;
b)Exhibit B the report of Dr C dated 25 October 2013;
c)Exhibit C material from Victoria Police;
d)Exhibit D material from Ovens and (omitted) Community Health Service;
e)Exhibit E material from Odyssey House Victoria;
f)Exhibit F material from the Department of Human Services;
g)Exhibit G material from (omitted) Medical Centre;
h)Exhibit H material from (omitted) Hospital;
i)Exhibit I material from (omitted) Primary School;
j)Exhibit J affidavit material of Ms N;
k)Exhibit K record of text messages for a period 11 December 2012 to 22 April 2013;
l)Exhibit L certificate of completion with respect to a number of parenting courses;
m)Exhibit M notes regarding telephone calls and duration of calls for a period 2007 – 2008;
n)Exhibit N undertaking by Ms S regarding supervision;
o)Exhibit O material from Victoria Police relating to Ms S;
p)Exhibit P a working with children check with respect to Ms S;
q)Exhibit Q a Minute of Orders proposed by the Independent Children’s Lawyer;
r)Exhibit R a Police event record tended by Ms Hinkley.
Issues in dispute
Before turning to a consideration of the evidence of the parties I propose to make clear the central issues which have been raised and to which the evidence of the parties speak.
The central issues raised by the parties and each of them relate to;
a)X’s safety and protection from harm; and
b)The capacity of each parent to “appropriately” facilitate X’s relationship with the other parent and other people of significance to X (including his siblings).
From the outset I make clear that perhaps the central issue in the case arises from the candid admission by Ms Hinkley that she is an alcoholic. Whilst that admission and that which flows from it (regarding Ms Hinkley’s behaviour and conduct) is a central and fundamental issue impacting upon the determination of this case it is not the basis upon which the case will be determined that being a holistic determination of the child’s best interests. As section 60CA of the Family Law Act 1975 makes clear the child’s best interests are the paramount consideration and Ms Hinkley’s alcoholism is but one factor, albeit significant and profoundly central to the determination of X’s best interests.
Other issues are raised in the proceedings and which also have some real importance. As is clear and apparent from a consideration of the objects and principles (section 60B of the Act) and the primary considerations (section 60CC(2)) one must, in addressing X’s best interests, be clear in balancing all relevant factors and giving appropriate prioritisation to the need to protect children from harm occasioned through abuse, neglect or exposure to family violence. All of those issues are raised in the evidence and by each party.
It is, to a large extent, a credit to Ms Hinkley that she frankly concedes that she is an alcoholic. There has been no attempt by Ms Hinkley to deny that allegation. There is certainly a significant factual dispute as to Ms Hinkley’s behaviour as a consequence of the admission she makes. Those factual controversies will be dealt with shortly.
What is clear and what flows from Ms Hinkley acknowledging that she is an alcoholic is that she suffers from a disease. It is a disease that has wreaked havoc upon her life, X’s life and the life of many others around her. As I have indicated to Ms Hinkley throughout the proceedings, her illness, as her alcoholism is accurately labelled, is not the basis upon which a decision will be made. A decision will be made by the Court on the basis of X’s best interests as a whole being determined.
One can have great empathy for Ms Hinkley in her ongoing struggle with the demon that is her alcoholism. Ms Hinkley asserts that she has won that struggle and exorcised the demon. Mr Briggs and the Independent Children’s Lawyer cavil with that suggestion. As will become clear and apparent from a consideration of the evidence I accept that Ms Hinkley has some real distance left to travel before she will reach the relative peace and calm of having dealt with her addiction. It continues to bedevil her, her life and the lives of the children in her care.
The difficulty that Ms Hinkley’s alcoholism creates for the Court is the same very real and cogent dilemma faced, regrettably, by young X – how a relationship might occur safely.
X, as a child of 10 years of age, has a right to a safe and secure environment both physically and psychologically. It is a right that has been sadly denied to him, to varying degrees and for varying periods, during his short life. X’s right to a safe and secure environment involves and requires nothing more than sober and competent adult supervision, direction and guidance and his basic human needs being met such as sustenance, housing and clothing.
The real dilemma created by the evidence in this case is the tension between X’s great and undying love for each of his parents and an assessment as to whether the care provided for him by his parents and each of them is consistently competent. X is of an age whereby he is acutely aware of deficiencies in his care. He should not have to be.
A compounding factor in the address of X’s best interests is, as the evidence will demonstrate, his “parentification”. This is particularly apparent as regards his relationship with his siblings and in particular the two children who live with Ms Hinkley, A and B. Based, no doubt, on X’s own lived experience of the care that he has received from Ms Hinkley, he expresses a real fear and anxiety regarding the care that his young brothers receive from their and his mother. This clearly, on the evidence, is a burden upon X’s shoulders which he should not be required to bear.
Other issues arise from the evidence and all will be addressed and considered in a discussion of the evidence shortly. However, the difficulty which arises in this case is that a simplistic address of the matter, such as declining to make any order for X to spend time with his mother if risk is found, is simply not available as X strongly desires a relationship. In this case there is very much a balancing of risk as no outcome can ensure that X is not potentially harmed either physically or psychologically.
If X’s time with his mother were terminated then the anxiety that he would experience from his concern for his siblings and the absence of the mother whom he loves and worries greatly about would be a significant risk to him.
If X were to live with his mother or spend substantial and significant time with her, then one must weigh the risk to which he might be exposed in light of his past exposure to such risk and having regard to the change which the mother has or has not affected in her life.
Rights
Before turning to a discussion of the evidence I wish for the benefit of Ms Hinkley to reaffirm that which I raised with her during the course of the hearing.
At several points during the hearing Ms Hinkley made reference to her “rights” as a mother. On each occasion I sought to disabuse Ms Hinkley of any perception that such rights exist.
To the extent that “rights” play any role in the determination of parenting proceedings the rights which the Court take into account are limited. I am of the view that a discussion of rights, whether children’s rights or otherwise, is largely unhelpful in the context of a decision making process governed by the child’s best interests as the paramount consideration. The discussion is far more usefully informed by a discussion of children’s needs and the responsibilities of parents to meet them.
In proceedings before this Court, parents largely have responsibilities which mirror and reflect the rights of the child. Parents do, however, have rights which they are entitled to assert before the Court. These are limited to:
a)A right to be treated with dignity and respect consistent with their humanity and in line with the Universal Declaration of Human Rights 1948; and
b)A right to due process – a right to be heard, to participate and to present their case and test evidence.
Beyond the above, parents do not have “rights” in proceedings under the Family Law Act regarding the care of their children. There is nothing contained within the legislation that prioritises one parent as against the other (or for that matter parents against others). To the extent that Ms Hinkley has sought to assert her right as a mother or parent she is misguided.
Rights do certainly exist under the Family Law Act. However, they are rights vested in X. The principles set out in section 60B(2) establish what might be described as “rights” for X, such as the right to have a meaningful involvement with each of his parents and a right to be protected from behaviour which causes him harm. Whilst a consideration of those rights has some limited utility in addressing X’s best interests, in this case and many others, those rights are in internal conflict and such that each right simply cannot be met.
Section 60B(4) also incorporates into the Family Law Act, as objects and principles, the entirety of the International Convention on the Rights of the Child. Numerous rights created by that convention vest in the child. They are rights vested in X and the Court must have regard to those rights. Those rights, to the extent that they can be met, generate for a child’s parents corresponding obligations and responsibilities to recognise, act upon and meet those rights. This also includes an obligation to not act contrary to the child’s rights.
Such a rights-based argument is problematic in private law proceedings. Such a rights-based approach, to the extent that it is confined to basic and universal rights of children (such as the right to be protected from harm and be provided with essential sustenance and support) might have some greater utility in public law proceedings, where the child’s protection from harm is the central determinant rather than the child’s best interests. This is particularly so as difficulties arise such as:
a)The rights as prescribed by the International Convention (or for that matter section 60B) being applied universally to all children. Such rights are, in truth, applied only to the children of separated parents rather than those children who live within an intact family;
b)Those seized with responsibility for ensuring that real life and meaning is given to the child’s rights and such that those rights can be enjoyed by the child are the child’s parents and/or other caregivers. There is the real potential for a parent’s interpretation of those rights to be conflated with their own perception of rights (e.g. “I am the child’s parent. I believe this is best for the child and will best meet their rights”); and
c)The real potential for parents to be led into dispute or even litigation on the basis of differing perspectives as to the child’s rights and that which will best meet them. This also leads, as has been a feature of this case, to undue reliance placed by parents upon the child’s right to “decide”. Such investment of authority in a child to make decisions for their own lives is both curious and dangerous and it would appear to be far more common in its occurrence in separated families.
I do not wish to embark upon a discussion of evidence leaving Ms Hinkley of the view that in doing so her “rights” as a parent are ignored. Ms Hinkley, as a parent of X, has obligations and responsibilities rather than rights and in discussing the evidence I propose to focus, at least to some extent, upon the adequacy of each parent’s discharge of those obligations and responsibilities and their likely, future capacity to do so and to do so consistently.
The evidence of the parties
There is little common ground between the parties and thus little purpose to be served in attempting to devise an agreed chronology of events. On that basis I propose shortly to deal with the evidence given by each of the witnesses and that which is contained within the various exhibits.
The parties agree that their relationship commenced in or about February 2003 and that they separated in January 2007. Ms Hinkley is more specific in suggesting that the relationship commenced on 14 February 2003 and concluded 19 January 2007.
Mr Briggs suggests throughout the relationship that:
a)Ms Hinkley drank alcohol regularly, frequently and to excess; and
b)He drank socially (although occasionally to excess) and smoked marijuana “most days”.
Mr Briggs asserts that the relationship between he and Ms Hinkley was “tumultuous” and typified by verbal and, at times, physical altercations between them. No doubt as a consequence of this (and Mr Briggs asserts that it is so) the Police attended upon their home regularly. Further, in the latter part of the relationship (Mr Briggs suggests the last six months of the relationship although Ms Hinkley suggests not until the parties separated), the Department of Human Services began to receive reports or notifications with respect to X and began to hold concerns with respect to his care.
Material produced from the Department of Human Services (exhibit F) would suggest that the first notification with respect to X was received shortly after his birth and on (omitted) 2004 and that reports and notifications with respect to him occurred on a regular basis thereafter. Clearly, as Ms Hinkley asserts, reports were also made to the Department at the time of the parties’ separation and on each of 19 and 22 January 2007.
At separation Mr Briggs suggests (paragraph 13 and 15 of his affidavit) that, “Ms Hinkley and I had another big fight. The Police came. I was charged with a few matters for my bad behaviour that night” and the following day, that “there was an altercation between me and her girlfriend [Ms Hinkley’s]. I was later charged with another assault”.
The somewhat euphemistic description by Mr Briggs, his reference to “bad behaviour”, is expanded upon by Ms Hinkley in her evidence. Ms Hinkley annexes to her trial affidavit an earlier affidavit sworn by her and filed in the first round of proceedings 22 August 2008. Ms Hinkley suggests that:
a)She was subjected to domestic violence throughout the relationship, which violence first commenced when she was pregnant with X and then escalated over time;
b)That the Police attended at their home on at least 15 occasions and on at least 10 of these that the Police had been contacted by neighbours; and
c)On at least five occasions when the Police attended (that is one third of their attendances) she and X were removed from the home by the Police and taken to the home of the maternal grandmother for the night.
Mr Briggs denies the above. To the extent that there is suggested to be clear corroborative evidence of these allegations (such as evidence by the maternal grandmother Ms F or the tender of COPS event entries relating to the suggested attendances), no such evidence is tendered. Accordingly a Jones v Dunkel (1959) 101 CLR 298 inference would arise.
As regards events at the time of separation, Ms Hinkley alleges that she was verbally abused by Mr Briggs before he then “… started punching me on the arms, body and face… and continued punching, hitting and kicking me”. It is also suggested that Mr Briggs grabbed Ms Hinkley by the throat, kicked her and pushed her face into the ground. Ms Hinkley suggests that the assault upon her girlfriend (conceded by Mr Briggs) occurred while that person was seated in their car outside of (omitted) Police station the friend having taken Ms Hinkley to that Police Station and to which Police station, Mr Briggs had previously been taken when arrested earlier that day.
It is somewhat disingenuous of Mr Briggs to refer to his behaviours in January 2007 as simply “bad behaviour”. He has not sought to deny the allegations of Ms Hinkley, as to their timing or particularisation, and I accept that alleged by Ms Hinkley. Mr Briggs was charged and pleaded guilty to each of the assaults based on Police facts consistent with the allegations of Ms Hinkley.
It does no credit to Mr Briggs to dismiss significant assaults perpetrated by him upon two women, including X’s mother, as “bad behaviour”. It is entirely inexcusable and reprehensible behaviour.
Whether as a direct consequence of the above events or simply fuelling the concerns previously held by the Department of Human Services, their intervention then occurred.
The parties are not entirely agreed as to the care arrangements for X for the period from January to May 2007, although clearly X spent some time living in the care of the maternal grandmother and a maternal aunt before, in May 2007, being placed into the father’s care by the Department of Human Services. X has remained in his father’s care since that time and those arrangements were confirmed as a consequence of the orders made by this Court (by consent) February 2009.
The father suggests that he had consented to the orders in February 2009 on the basis of a belief that he had formed, I accept erroneously, following comments by the presiding Federal Magistrate (as they then were), at the time that the family report, prepared in those proceedings, was released to the parties. Mr Briggs seeks to suggest that whilst he held significant concerns for X’s welfare whilst with the mother and significant misgivings as to the mother’s capacity to provide for X, that he consented to orders for a shared care arrangement to avoid the potential consequences of a trial.
Mr Briggs then relates a catalogue of complaints based on his own observations and suggested comments by X after returning from periods of time with his mother, as to the state of the mother’s home (being suggested to be generally unclean, disorganised and chaotic) and the mother’s use and misuse of alcohol.
In the latter part of 2009 the father suggests that he was contacted by Police who had removed X from the mother’s care while she had been present with X at a supermarket in (omitted). Ms Hinkley was cross-examined at some length with respect to that allegation and ultimately it would appear conceded that she was at the supermarket with X at approximately 12:30am (i.e. after midnight) and found their by Police in a heavily intoxicated and aggressive state, after complaints had been made to Police by staff at the supermarket. X was removed from the mother’s care and conveyed to the father. The father’s allegation in this regard is corroborated and made out.
Mr Briggs suggests that he continued to receive complaints from X and others regarding each of the above concerns (i.e. the state of the mother’s home and her intoxication) and, as a consequence, he withheld X from Ms Hinkley for various periods. Ms Hinkley particularises those periods in her affidavit. It would seem, in essence, that time in accordance with the consent orders made February 2009 has never occurred consistently or been maintained for any significant period.
During the period from separation in 2007 and to the present Ms Hinkley has undertaken a number of drug and alcohol rehabilitation programs, including residential programs through Odyssey House Victoria. It would appear that Ms Hinkley has never successfully completed such rehabilitation programs. A significant number of referrals have otherwise been made for Ms Hinkley to attend community based services. The evidence would make clear that Ms Hinkley has been, at best, intermittent and inconsistent in her follow up of any such referrals or her acceptance of service.
The most consistent service with which Ms Hinkley has engaged is with her general practitioner a Dr F. Dr F would appear to have neither qualification or experience as a drug and alcohol counsellor. This is not intended to be disrespectful of Dr F who has done his best to provide assistance to Ms Hinkley. However, what is clear (particularly from the evidence of Dr C) is that Ms Hinkley requires substantial, significant and sustained specialised drug and alcohol assistance which assistance she has not, to date, received.
In the context of the alcohol use of Ms Hinkley there has, since the proceedings were commenced (indeed it was apparent in the 2008/2009 proceedings), been a significant focus upon this issue and it is important to specifically consider some portions of Ms Hinkley’s evidence regarding alcohol use. Any such consideration should commence from the mother’s assertion at paragraph 124 of her affidavit that:
I do not drink alcohol or ingest illegal drugs and except for two isolated occasions since 2013, I have not consumed any alcohol nor ingested any illicit substance since 2008 and I am in excellent physical and mental health.
As was pointed out to Ms Hinkley during the course of her cross-examination and when more than two occasions of post 2013 alcohol abuse had been identified, such an assertion is difficult to maintain. The weight of evidence clearly suggests that Ms Hinkley’s assertion as to relative abstinence from alcohol use cannot be made out or sustained.
Ms Hinkley was cross-examined with respect to two specific events that occurred during 2014 and which are the subject of records produced by Victoria Police and comprising part of exhibit C. These events are described not only in the record of antecedents produced by Victoria Police with respect to Ms Hinkley but also in LEAP event entries and other records (such as the records of (omitted) Hospital).
In March 2014 the LEAP event entry would suggest that Police attended at the home of Ms Hinkley a little after 4am and after complaints from neighbours about loud music. The Police records suggest that the music could be heard clearly and loudly from the street (Ms Hinkley living in an apartment complex). The Police records suggest that after knocking repeatedly upon the door of Ms Hinkley’s unit that the door was eventually opened to them by Ms Hinkley who stated “fuck off cunts, there is nothing you can do about the noise. I’m not turning it off. Police and DHS can all get fucked, you’re all cunts”.
After various other statements by Ms Hinkley to the Police, including a threat to kill, Ms Hinkley was arrested, handcuffed and removed from her apartment whereupon she is suggested to have yelled at Police “you’re fucked cunts, my boys will slaughter you”.
The Police record makes clear that Ms Hinkley was, at the time of her arrest, pregnant with the youngest of her children B. On the basis that B was born (omitted) 2014 it would seem that Ms Hinkley was approximately 5 months pregnant.
Ms Hinkley was taken to hospital and whilst there blood tested. The blood test reading was 0.133.
Ms Hinkley suggests that on this occasion that she had consumed very little alcohol comprising three cans of Victoria Bitter and one “cowboy shot” (being, it would seem, a combination of butterscotch schnapps and Baileys) over a period of some hours. Dr C dismissed this alleged consumption as implausible. I reject Ms Hinkley’s evidence.
On this occasion Ms Hinkley also assaulted Police. As a consequence Ms Hinkley was charged with a number of offences including making a threat to kill, contravene personal safety intervention order (relating to a threat to a neighbour whilst being taken from her unit which neighbour had an enforceable intervention order against Ms Hinkley), assault Police and procure use of vehicle by misrepresentation (having alleged that she was experiencing difficulty with her pregnancy and required hospital treatment and thus an ambulance was unnecessarily called). Ms Hinkley has been dealt with at the Wangaratta Magistrates’ Court for these offences and convicted and fined.
On the second occasion in 2014 when Ms Hinkley came to the attention of Police similar behaviour is reported. The second event occurred 6 May 2014. Ms Hinkley is reported to have been 25 weeks pregnant and had attended that day at (omitted) Hospital for a check-up related to her pregnancy when she is reported to have become abusive towards staff and was asked to leave the hospital.
Police located Ms Hinkley a short distance away whilst she was crossing railway lines as a shortcut to her home. Ms Hinkley was arrested and taken to the Police station whereupon she began to verbally and physically abuse police officers.
Ms Hinkley was again blood tested and on this occasion her blood alcohol reading was recorded as 0.182. Ms Hinkley’s evidence is that blood was never taken from her. However, in her state of intoxication, it would be plausible that she would not recall this occurring. I prefer as accurate the records from each of Victoria Police and (omitted) Hospital.
On this occasion and whilst Ms Hinkley concedes that she had consumed alcohol she again insists that her alcohol consumption had been minimal and had comprised of two or three beers and a cowboy shot over a period of some hours. Dr C, again, dismissed this alleged consumption as implausible. I reject Ms Hinkley’s evidence.
When challenged with respect to the above matters Ms Hinkley insisted that these two events were the occasions that she had referred to at paragraph 124 of her affidavit as the “two isolated occasions”. However, the records produced from various services cast some real doubt upon this assertion and document further occasions of excessive use of alcohol within that period.
Ms Hinkley’s own medical records cast real doubt upon the veracity of the allegation wherein she concedes, for example, having been arrested and locked up after drinking in January 2011. At that time she reported to her doctor drinking 18 standard drinks of alcohol at a time and this occurring 3 to 4 days a week. Ms Hinkley also conceded drinking six or more standard drinks on a daily or almost daily basis.
In 2009 Ms Hinkley reported to her doctor drinking two bottles of whiskey per week and binging twice a week and describes, with respect to her alcohol use, that she “never withdraws”. Ms Hinkley’s only comment as to this allegation (being contained in the very records from her doctor, which she assured the Court were an accurate reflection of her treatment) was “I don’t drink whiskey”.
I do not propose to canvass each and every allegation raised in the evidence regarding alcohol use by Ms Hinkley. All of the evidence, both that contained within the various affidavits read, the parties’ evidence during cross-examination and that contained within the various exhibits, has been considered. That material leaves me in no doubt that Ms Hinkley has not remained alcohol free or abstinent for any significant period of time from 2007 (when the parties separated) to the present.
The Independent Children’s Lawyer put it to Ms Hinkley during her cross-examination that there had been a number of ongoing problems with her drinking throughout 2009. Ms Hinkley responded “more than likely probable there was”. This concession is entirely at odds with Ms Hinkley’s affidavit evidence.
The various referrals provided to Ms Hinkley to receive assistance with her drug and alcohol use were also put to her. There have been a myriad of referrals made for Ms Hinkley the vast majority of which she has not taken up. Ms Hinkley has provided poor or implausible responses to explain her non-attendance upon these services such as, in the case of the (omitted) Health Service, her having had a disagreement with a member of staff from that service in 2007 and thus her refusal to return.
Similarly, as regards referrals made for Ms Hinkley to Child First, I have no confidence that Ms Hinkley has made any real attempt to engage with that service. The records, as put to Ms Hinkley, would suggest that significant effort has been spent in chasing Ms Hinkley but with no net result. Ms Hinkley has only approached that service when she has sought some financial assistance from them.
There are myriad occurrences demonstrating Ms Hinkley using alcohol and being significantly alcohol affected between 2008 and the present, being the very period during which Ms Hinkley asserts that she had not consumed alcohol save for two isolated occasions. I cannot and do not accept her assertions or her evidence as regards alcohol abuse or her suggested non-use.
On the basis of the totality of the evidence regarding the alcohol use of Ms Hinkley, I am satisfied that regular and frequent misuse of alcohol, such as that demonstrated in May 2014 when Ms Hinkley’s blood alcohol reading was .182, is a continuous feature of Ms Hinkley’s behaviour from 2008 to date and a current problem in her life.
In contradistinction, the evidence of Mr Briggs as to his abstinence from significant alcohol use and marijuana is accepted. There is no evidence that would suggest any caution in accepting his sworn testimony and the totality of evidence would provide sufficient basis for its acceptance.
That is not to suggest a demonisation of Ms Hinkley and a corresponding beatification of Mr Briggs. Mr Briggs has clearly perpetrated family violence upon Ms Hinkley and did so, at the very least, at the time of separation January 2007. Ms Hinkley suggests that there have been at least threats of violence since that time although I am satisfied that the evidence would not permit me to find that it is so (noting the absence of specificity of the allegations, the absence of any corroboration nor action taken by Ms Hinkley, the allegations were not put in any meaningful fashion to Mr Briggs and to the extent that they were put the allegations are denied by him).
The evidence of the Department of Human Services
A substantial file is produced by the Department of Human Services relating to both X and A. A number of entries from that file were specifically put to Ms Hinkley during her cross-examination.
From January until March 2013 the Department of Human Services were very active in their engagement with Ms Hinkley. A number of reports were received by them during this period regarding Ms Hinkley’s alcohol use and the condition of her home. Ms Hinkley suggests that such notifications as were made at that time were false and malicious and designed to cause mischief in her life. Specifically, Ms Hinkley identified a neighbour whom she believed was acting in concert with Mr Briggs and feeding information to him and making reports to the Department (being the neighbour Ms Hinkley is recorded as threatening at the time of her arrest above and which neighbour has an enforceable Intervention Order against Ms Hinkley).
During this period the police attended at Ms Hinkley’s home following reports of a fire (in January 2013). Ms Hinkley initially denied any such attendance or that a fire had ever occurred at her home. It was then conceded that a fire had been lit in the front yard of the home and, that “old photographs and other items” were being burnt, but by others as Ms Hinkley suggested she was not present and arrived home as the police and fire brigade also arrived.
On that occasion police records would suggest that Ms Hinkley and others at the home were heavily intoxicated. Ms Hinkley suggests that others at the home (an ex-friend Ms A and her partner) were intoxicated but not herself and that any record made by Police suggesting to the contrary is false or inaccurate. Clearly, X was present for some or all of the Police attendances and at which times a number of adults including, I accept, Ms Hinkley, were apparently heavily intoxicated.
During this period officers of the Department of Human Services attended Ms Hinkley’s home and their records describe the home as being in a state of poor hygiene, poor child safety and generally unkempt. At the time of these attendances X was present as was his younger brother A, then a newly born infant. The Departmental officers made a number of referrals for Ms Hinkley to drug and alcohol counselling and removed A from the mother’s care principally to permit her an opportunity to attend to cleaning of the home and to put it in order.
Ms Hinkley denies any referral was made for her to attend drug and alcohol counselling nor any basis for such referrals. With respect to the state of the property, Ms Hinkley is reported by Departmental officers as attributing responsibility to X.
On a subsequent occasion Departmental officers are suggested to have visited the mother’s accommodation, including her present accommodation which she shares with Mr D, and observed the home in a similarly parlous state of repair. As a consequence, on the second occasion, A was removed from the mother’s care to allow the state of the home to be addressed.
As regards the present and ongoing Children’s Court proceedings (relating to A and B) Ms Hinkley suggests that the cause of concern is not that recorded in Departmental records or as raised as the basis for concern as regards X’s welfare in these proceedings. Ms Hinkley suggests that concerns arise regarding eczema suffered by A and/or mischievous complaints.
On the last occasion that Departmental officers attended (March 2014) it is suggested by the Departmental officer who made the notes tendered by the Independent Children’s Lawyer that both the mother and her partner Mr D appeared substance affected, that Ms Hinkley took some significant time to answer the door and that when she did so she immediately told Departmental officers to “fuck off”. Ms Hinkley conceded that this was so and suggested that she had been bathing A and thus the delay, and that her entreaty to Department officers was justifiable as they were making false allegations to her which caused her offence.
What is clear is that the Department held, at that time, and in all probability continues to hold concerns, with respect to the alcohol use of Ms Hinkley, the drug use of Mr D and the general capacity of the couple to conduct their household affairs in a fashion that is appropriate and befitting the care of two infant children.
Mr D’s evidence
Mr D did not swear an affidavit in these proceedings. He did, however, attend to give evidence on day three of the trial.
Mr D commenced his evidence by indicating that he has two children of prior relationships named C (aged 3) and D (aged 2). Mr D indicated that the mother of D was named Ms V. Mr D did not know Ms V’s surname nor did he know her current place of residence with D. Clearly, Mr D is not spending time with D nor enjoying a relationship with him. The relationship with D’s mother was suggested to have lasted 8 to 9 months and the relationship is suggested to have commenced 8 to 9 months prior to D’s birth.
Mr D was able to identify the mother of C as a Ms A. Mr D suggested that his relationship with Ms A had lasted approximately 7 months and that they had separated approximately one month after C was born. Mr D indicated that he sees C “every now and then” but without further particularisation.
Mr D was then questioned as to his use of drugs and, in particular, the drug “ice”. This line of questioning particularly arose from:
a)The inclusion within the material tendered (from the Department of Human Services) of a drug test report of Mr D suggesting the presence of both amphetamines and methamphetamines; and
b)A suggestion in the records of the Department of Human Services that Ms Hinkley had indicated to Departmental officers that she had terminated her relationship with Mr D when she became aware of his “ice addiction”. Ms Hinkley denied that she had ever made any such statement.
The drug test report produced had been undertaken by Mr D at the insistence of the Department of Human Services. The positive drug test was suggested by Mr D to have been the “one and only time” that he had ever consumed drugs. Mr D was strident in his denial that he had ever used drugs more than on this one occasion and maintained such insistence notwithstanding that he was warned that material would be put to him which would be in direct contradiction to the allegation and that any evidence that suggested any further occurrence of drug use beyond the singular occasion he conceded would thus render his evidence incapable of acceptance.
A number of documents were then put to Mr D including material from the Department of Human Services and material produced by the (omitted) Hospital wherein, it would seem, on the same occasion in May 2014 when Ms Hinkley was blood tested and came to the attention of Police, that he had stated to a social worker at the hospital that he had “given up ice five weeks earlier”. Mr D was quick to assert that the statement that he had, in fact, made to the hospital employee was that he had given up ice five months earlier (i.e. predating his positive drug test by three months).
Mr D readily conceded that his evidence and that contained within the exhibits put to him were entirely inconsistent with his assertion that he had only used ice on one occasion. Further, when it was put to Mr D that his drug test disclosed not only methamphetamines but amphetamines he responded “the ice was cut with amphetamines”. I am urged by the Independent Children’s Lawyer to infer that such a statement demonstrates a degree of knowledge and sophistication with respect to drug use consistent with use beyond once. I do draw that inference.
Mr D throughout his evidence slouched across the witness box in a fashion suggesting that he found the entire process tedious and bothersome. However, more important than Mr D’s demeanour are the internal inconsistencies and implausibility of his evidence.
I do not accept Mr D as a witness of truth and especially I do not accept his evidence that his use of ice was confined to one occasion. The importance of that finding is that the allegations made with respect to Mr D, that he has had a long-standing history of use of ice, are all the more plausible and are accepted.
Ms A’s evidence
Ms A (Mr Briggs’ partner) was required for cross-examination. The greatest criticism that would appear made of Ms A is that “she is not X’s mother” and yet had, on one occasion, physically chastised him (on Ms A’s version of events in an entirely appropriate circumstance and in an entirely appropriate fashion). The additional criticism raised of Ms A is that she attends to a significant amount of “parenting” of X when “she is not his mother” and when his father Mr Briggs should, presumably, be attending to such matters.
I do not accept the above criticisms and particularly note that Ms A presents, through her evidence and during her cross-examination, as an entirely sensible and appropriate adult who enjoys a close relationship with X and he with her. No criticism is raised as regards the standard of care which Ms A does, in fact, provide to X in combination with Mr Briggs.
Ms S’s evidence
The final witness called in the proceedings was Ms S. Ms S is the mother of a friend of Mr D, the partner of Ms Hinkley. Ms S was called late on day four of the hearing and without prior notice.
Following Ms S’s evidence the proceedings were adjourned to enable further enquiry to be undertaken by the Independent Children’s Lawyer as to Ms S and her suitability as a supervisor of X’s time with his mother. Those enquiries, in the nature of due diligence, were undertaken, subpoena issued and material produced comprising a portion of the exhibits enumerated above.
I accept that Ms S has advanced herself as a supervisor of time in a generous and accommodating fashion. Nothing arose during her cross-examination that would cause me any concern as to either her ability to supervise X’s time with Ms Hinkley or her appropriateness to do so. Ms S gave her evidence in a frank and candid fashion, and including her concession of some minor criminal convictions of a historical nature and which do not trouble me in any fashion.
The evidence of Dr C
As set out above Dr C has provided two reports in these proceedings. The expertise of Dr C in dealing with and commenting upon issues of substance abuse is significant.
In dealing with the evidence of Dr C (both his reports and that which flowed from his cross-examination) I do not propose to set out each and every aspect thereof. I will touch upon matters of particular significance and for illustrative purposes.
Dr C met with each of the parties as well as with Mr Briggs’ partner Ms A. X was also involved in the interviews and was observed with each of his parents and interviewed individually. I propose to deal in some more detail with X, as an individual child the subject of this determination shortly but will address some portions of the evidence of Dr C regarding him also.
Of concern, Dr C observes at paragraph 20 of his report (albeit on the report of Mr Briggs) that:
Neither parent seems able to control their temper when faced with the other, in the presence of X, and neither parent appears able to understand the need for calmness or the effect of their behaviour on X when they are arguing, and, in Ms Hinkley’s case getting physical.
In commenting upon X, Dr C observes at paragraph 27:
X is said to not listen and given the his (sic) early destructive life and exposure to domestic violence and transitions he has had, as well as the fact that his parents retain a high level of inter parent conflict (and Ms Hinkley appears to have significant conflict in her neighbourhood as well) it is not surprising that X does have some externalising behavioural problems. Indeed I am a little concerned that neither parent appears to be capable of taking the full responsibility for how X’s behaviours are very largely a function of the difficult behaviours the parents themselves have modelled over the years.
This theme is returned to in paragraph 28 of the report as follows:
Indeed it should be commented that X had seemingly had some protective influences from somewhere given his generally good level of behavioural adjustment and cheerful disposition…
…Presumably he has received sufficient care, especially from extended family and Ms A that has to some extent counteracted the difficulties of both parents in his early life. His alleged need to be protective of A at his mother’s place probably has some role to play in developing a preternatural maturity. However, the child development literature is quite consistent on the long term, negative impacts of an early exposure to prolonged family violence and neglect, and thus X can be considered to be a vulnerable child at risk of deterioration in his psychological state if his environment is not stabilised.…
…Thus there is an urgent need to consider how to settle X’s environment on the supposition that it is a major contributor to his current behavioural displacement.
In addressing the “protective behaviours” and involvement with care of his younger sibling, A, each of the parties has made some comment.
Mr Briggs (paragraph 8 of his affidavit 27 August 2014) refers to an incident where in X had stolen money from Ms A and had taken it to school where it came to the attention of staff. Mr Briggs was called and the incident discussed at school. Mr Briggs relates “when questioned about this he said he needed to buy food and clothes for A.”
Ms Hinkley for her part suggests that the relationship between X and A is very close (and I accept that it is). Similarly, X would appear to have a close and loving relationship with each of his other siblings in his father’s household.
It is not the closeness of the relationship between X and his siblings (particularly A) that concerns me. The real concern arises from that which is described by Dr C as X’s “parentification” and of which the above evidence, particularly that of Mr Briggs, is corroborative.
Dr C returns to the issue of parentification at paragraph 52 of his report wherein he says:
X said a number of things that made it appear to me that when he was at his mother’s place a higher level of parentified behaviour was expected of him than at his father’s place. While some parents justify the need for a child to exhibit parentified behaviours as developing life skills (such as cooking, caring for siblings and the like) from my perspective it seems that X experiences a degree of insecurity about the level of responsibility he felt that he has to engage in when he was with his mother.
This is to some extent based upon that reported by Ms Hinkley that X engages (willingly and happily) in undertaking duties for his siblings. However it is also of some concern in light of the anxiety demonstrated by X towards the care of his siblings when he is away from them.
X’s vulnerability was also emphasised at paragraph 89 of Dr C’s report in the following terms:
One of the issues that arose in obtaining information about X from both parents is the observation that X is a very vulnerable child behaviourally but also developmentally. In the context of poor parenting practices X’s vulnerability raises concerns about the ability of these parents to share the care for X in a way that will lead an effective outcome for him.
The tolerability of X and the history of conflict between the parents was addressed at paragraphs 137 and 138 of Dr C’s report as follows:
Mr Briggs and Ms Hinkley report a long history of conflict. Both parents present with the history of significant dysfunction, although Mr Briggs appears to have largely achieve stability and drug free behaviour since 2007. His behaviour in 2007 was clearly terrible, and would have been traumatising to X at the time. His parenting skills in 2008 to 2009 appear to have been somewhat deficient, and he continues to show some inconsistency in his parenting despite significant improvements. However, it seems any remaining deficiencies are well compensated for by Ms A. Ms Hinkley presents herself as having had a substantial recovery in her position since 2010 although it is obvious that she has been unable to establish effective parenting practices up until recent times and concerns remain about her cooperation with services and reliability and her self report about her alcohol use. It is highly likely that into at least the first half of 2013 she was still using alcohol in a problematic fashion. Ms Hinkley continues to present as a somewhat volatile and immature person, and it may be that her difficult background and limited cognitive ability contribute to that.
The above reference (paragraph 137) is somewhat telling as regards the reports of Ms Hinkley upon which Dr C bases his opinions.
Ms Hinkley suggested to Dr C that she had been alcohol abstinent for significant periods. The allegations by Ms Hinkley were ultimately contradicted by her as well as by records that had been produced on subpoena, provided to Dr C and which now form part of the exhibits before the Court (thus no Makita & Sprowles (2001) 52 NSWLR 705 issue arises with respect to the opinions expressed by Dr C reliant thereupon). I propose to deal with those issues more specifically as regards the discussion of the opinions offered by Dr C in relation to Ms Hinkley’s alcohol use.
At paragraph 138 of his report Dr C opines as follows:
The principal issues in this matter relate to the vulnerability that exists for X given the history of parental discord in high conflict. At the moment the current contact regime supports a sense of fairness between the parents, but is not in X’s interests. Although Ms Hinkley presents X’s issues as a function of his traumatisation because of the father’s violence towards her in 2007, the reality is there seems little genuine residual trauma in X over that: it is the attrition of coping and the vastly differing home environments and routines he is exposed to that are more likely to cause problems for him.
In discussing Ms Hinkley’s alcohol use Dr C begins by setting out that which is reported by Ms Hinkley. At paragraph 78 Dr C reports:
She said he [Mr Briggs] keeps trying to bring her alcoholism into the situation, but she says she stopped drinking. When I asked when was the last time she had a drink she said four months ago, although she said prior to that it was three years of sobriety.
In more specific discussion of the substance use history of Ms Hinkley, Dr C opines, at paragraph 123 of his report:
Ms Hinkley says that she began drinking at the age of 15 and said that she began drinking regularly early in her teenage years… Medical records from 2006 reveal Ms Hinkley in denial about her substance use and alcohol use at that time. The history obtained revealed heavy alcohol use from the age of 15 with up to 36 standard drinks being consumed in a session. Despite apparently engaging for a while with an alcohol treatment worker in 2008, Ms Hinkley was noted to have significant problems with alcohol in 2009 (DHS file/COPS reports). She said she stopped drinking more or less in 2010 although there have been occasional episodes of drinking since on special occasions but not with loss of control. She thinks that she has probably been drunk on three occasions since 2010 and denies any sustained relapse. She says there have been no alcohol related problems since 2010. Her medical notes contradict such information…
Ms Hinkley did not seek to cross-examine Dr C as to the accuracy of his reporting of that which she had stated to him. I accept that Dr C has accurately recorded that which Ms Hinkley disclosed to him. That which Ms Hinkley disclosed to Dr C is entirely contrary to that which she swore in her trial affidavit and is, to a large extent and as is observed by Dr C, internally inconsistent and internally contradictory.
With respect to the drinking habits of Ms Hinkley, Dr C opines at paragraph 125:
Taken as a as a whole it is likely that there continues to be at least irregular hazardous an problematic alcohol use by Ms Hinkley into the current year but her pattern of denial is so entrenched that it is difficult without highly intrusive biological testing to establish whether that is the case or not. GP management of her drug and alcohol issues is not appropriate as it cannot achieve the level of intensity or frequency of visit that would be required to do any useful intervention.
In his cross-examination Dr C expanded upon the above opinions. Dr C had also, at the time of his cross-examination, had the benefit of perusing material produced on subpoena and ultimately tendered in the case as well as the affidavits sworn by the parties for the purpose of trial. Having considered that additional material Dr C was of the view that the Department of Human Services material, in particular, raised concerns as to the mother’s capacity to meet the needs of the children in her care including X and that unsupervised time during the day (i.e. not on an overnight basis and as had previously been recommended by him) was “a bit adventurous”. Indeed, Dr C was of the view that supervised time was required to ensure that X’s needs were met and that X was not exposed to an unacceptable risk.
Dr C was clear in identifying the factors which he had considered in offering this opinion including:
a)The mother having re-partnered with Mr D and the concerns with respect to his behaviour, particularly, drug use (which concerns are compounded by the difficulties I have with the evidence of Mr D);
b)Ms Hinkley now having the care of two infant children and the apparent difficulties as apprehended with respect to her care of those children;
c)The ongoing involvement of the Department of Human Services arising from the mother’s inconsistent self-care and care of those children in her care. Dr C was particularly aware of and made reference to the Police events discussed above (when the mother was substantially intoxicated and whilst pregnant); and
d)The ongoing concerns with respect to X’s vulnerability, parentification and anxiety.
In light of all of the above Dr C was of the view that “those things all say that it would be hard for Ms Hinkley to care for X. She is in a difficult, drug-affected relationship with high personal needs of her own”.
In relation to the prognosis for Ms Hinkley’s future alcohol consumption Dr C was, to say the least, pessimistic. This pessimism was, in part, based, as Dr C put it in words to the effect “she has been adamant over a substantial period that she is abstinent when she has not been, so the risk of relapse is high”.
The Independent Children’s Lawyer specifically sought from Dr C some indication of the best way forward particularly as regards management of Ms Hinkley’s alcohol abuse issues. Dr C was of the view that the mother’s long-term use required a long-term rehabilitation program with a substantial period of being alcohol free, a residential rehabilitation service and with the hope that these may assist the mother in developing insight into tackling her own drinking in an “upfront way”.
When asked whether Dr C was of the view that the mother had or could demonstrate any real change in her behaviour (including demonstrating any period of significant abstinence), Dr C responded that given the material from the Department of Human Services that there would appear to have been no real change in the mother’s insight or behaviour. Further, Dr C was of the view that this gave rise to issues regarding the mother’s capacity to care for children or to care for them on a consistent basis. Dr C was, in light of the evidence presented to him as to the mother’s alcohol use since 2007, pessimistic of any change in the mother’s behaviour or maintainable change in the foreseeable future.
Dr C was clear in his view that having considered the additional material filed or subpoenaed (and tendered) since his reports were completed, that he would be anxious in recommending or supporting unsupervised time. Dr C expressed concern as to the mother’s capacity to act protectively with respect to X (or the other children in her care) which concerns were based not only upon the mother’s own internally inconsistent self-report as to her alcohol use but compounded by the volatile relationship that she has now established with the father of her eldest child B, being Mr D.
Discussion of X
Through the evidence of Dr C one can gain some real insight into X as a person.
The concerns and criticisms raised with respect to X’s behaviour are not matters which are recited above for the purpose of criticising X or berating him. X is a product of his parenting and a function of the environments in which he has been raised.
Mr Briggs says of X and as reported by Dr C, that notwithstanding the behavioural difficulties that can be demonstrated by him that he is otherwise a delightful young man.
When X was observed with Mr Briggs and with Ms A nothing remarkable was observed. He interacted with each appropriately, warmly and lovingly. X was similarly observed interacting with Ms Hinkley. Again nothing of great significance arises from those observations and X was observed to interact warmly and appropriately. The only distinction between the two is the comment offered by Dr C that during observation with the mother (as opposed to observation with the father) that “… X’s attention was really on his mum and not on the activity and he appeared to be quite happy to go along with whatever it was she was doing”.
The above comment, perhaps when read with that opined by Dr C (paragraph 107 of his report) has some real significance. At paragraph 107 Dr C states:
When asked what her positives as a parent were she said “just do it” and when asked what things she might change about her parenting she didn’t think there was anything that she needed to change and then said that X said she didn’t need to change what she did. Such a comment raised concerns that Ms Hinkley might seek reassurance from X about her parenting and underlined what I believe to be the case that Ms Hinkley has a poor sense of how to establish appropriate parental boundaries.
In discussing X’s views Dr C has offered the following at paragraph 50:
… it would appear that X would appear more secure and felt he would have a more reasonable opportunity to do things if he was to live more at his father’s house than at his mother’s house, although he professed a good relationship with both parties and with all of his half siblings.… he presented as having a good relationship with Ms A [Ms A] as well as having a good relationship with Y and Z, and equally with A
In addition at paragraph 49:
X was quite happy to be interviewed by me. He didn’t appear to have any reticence in doing so. However, X’s conversation with me has to be filtered through a concern that he raised that he was aware that he was in a difficult area of dispute between his mother and his father and that his parents would be reading what he was talking about. He was concerned about what his parents might think or feel. He didn’t appear to be concerned that his parents might be angry with him, but he was particular concerned that his mother might get upset at things that he said.
At paragraph 52:
X said a number of things that made it appear to me that when he was at his mother’s place a higher level of parentified behaviour was expected of him than at his father’s place. Whilst some parents justify the need for a child exhibit parentified behaviours as developing life skills…from my perspective it seems that X experiences a degree of insecurity about the level of responsibility he felt that he has to engage in when he was with his mother.
At paragraph 141:
X does appear to have good relationships with both parents. He seems more wary of, and concerned about managing the response his mother may make to any declaration of wishes than he does about his father. I believe that despite him having a good relationship with his mother, he is also somewhat scared of her, although I am not sure whether it is fact he is scared for her (does not want to disappoint her or cause her suffering) or whether he is fearful of her overly dramatic responding to him. Either way I think that X’s wishes have to be considered through the risk of harm to him should Ms Hinkley come to believe he has not supported her position (which is the X wants 50/50) ….A critical issue to X will be maintaining his link with A – discussion with him, as well as with Mr Briggs and Ms A suggests that X is somewhat parentified in his care of A.
The impression that one is left with of X is that he is a little boy who, whilst dearly loving each of his parents, is not aware of, or is if aware, protective of his parents and their behaviours which are disadvantageous to him.
It is a strong element of Ms Hinkley’s case that the “present arrangement” of shared care (which has not operated for some time now and certainly not for a period of at least six months prior to hearing) is “working well”, is something with which X is familiar and which X desires continue. Significant issues arises as to the extent to which X is in a position to comprehend the benefit or detriment to him of that arrangement and, ultimately, the weight to be attached by the Court to his views to the extent that those views are before the Court.
X is a child who has had incredible and significant disruption in his life. On the account of each party the period leading up to the separation of the parties (when X was three years of age) was hostile, volatile and, I accept, traumatic for X. Thereafter, there have been significant changes in his care arrangements with movements between various households (including but not limited to those of his parents) and, importantly:
a)Periods when his relationship with his mother has been terminated or withheld but in any event not practised;
b)Periods when he has been in the care of his mother when she has been alcohol affected. That is particularly concerning not only as regards her incapacity to fully and properly meet X’s physical and emotional needs whilst alcohol affected but also in light of the behaviours in which Ms Hinkley clearly engages whilst so affected including and extending to verbal and physical violence;
c)Exposure to ongoing conflict and hostility between his parents;
d)Exposure to active denigration of each parent and especially denigration of Mr Briggs and Ms A by Ms Hinkley; and
e)Whilst in the care of Ms Hinkley having no appropriate arrangement made for his care relating not only to the difficulties which Ms Hinkley faces with her alcoholism but also the difficulties, the subject of the more recent Department of Human Services intervention, with Ms Hinkley’s capacity to provide a clean, safe and appropriate environment for children.
In light of all of the above matters it is far from difficult to understand and accept how Dr C has opined that X is a vulnerable child who requires consistency and stability in his parenting arrangements. The challenge for the Court will be to determine if and how they can be achieved whilstsoever both parents continue to have an involvement in his life.
Submissions
Consistent with the Federal Circuit Court Rules 2001 the Independent Children’s Lawyer made submissions first. In opening submissions a Minute of Order proposed by the Independent Children’s Lawyer was tendered (exhibit Q).
The Independent Children’s Lawyer proposes that Ms S supervise any time which shall occur between X and Ms Hinkley. It is proposed by the Independent Children’s Lawyer that time would occur once per month.
I am greatly assisted by the submissions of the Independent Children’s Lawyer which have clearly been prepared after a thorough and extensive consideration of the evidence and with specific reference to portions thereof to support each submission put.
The Independent Children’s Lawyer opened by highlighting that which Dr C had opined, namely, that X is a “vulnerable child”. The Independent Children’s Lawyer also emphasised the “urgency” with which stability of X’s arrangements should be achieved and so as to specifically address and minimise the risk of oppositional behaviours by him increasing (see paragraphs 28 and 140 respectively of the report of Dr C).
The Independent Children’s Lawyer highlighted that the interim orders made 29 November 2013 required supervision (by the maternal grandmother) and that such supervision and, indeed, the entire arrangement for X to spend time with his mother broke down rapidly and particularly following the assumption of A’s care by the Department of Human Services in March 2014. It was submitted that whilst the father might potentially be seen as “ungenerous” in unilaterally terminating time at that point (indeed such a submission, put with more vigour, was made by Ms Hinkley), that the action taken by him at that time could and in all probability should be seen as protective
In reliance upon the evidence of Dr C (and I pause to observe that the evidence of Dr C whilst expert and accepted by me forms part only of the evidence and is not, by and of itself, a determination of the proceedings), the Independent Children’s Lawyer submitted that any time between X and his mother, Ms Hinkley requires supervision particularly noting:
a)The history of “ice” use of Mr D as reported by Ms Hinkley to the Department of Human Services and as later denied by both she and Mr D, although subject to the difficulties in accepting the evidence of Mr D being disingenuous as I find it to be;
b)The mother’s incapacity to provide consistent care for X or for her children A and B;
c)The stressors that the additional children within the mother’s home reflect particularly as Ms Hinkley has been unable to remain unaffected by alcohol since their birth or, for that matter, during her pregnancy with any of the three children;
d)The lack of insight demonstrated by Ms Hinkley into her alcoholism, her need for treatment and rehabilitation and, importantly, the impact of the behaviours flowing from her alcoholism and whilst affected by alcohol upon herself and X; and
e)The general lack of insight demonstrated by Ms Hinkley regarding her behaviours and the role they have played in the various interventions which have occurred through courts and the Department of Human Services. Ms Hinkley, for instance, suggested that she has never fully read the report of Dr C nor reflected upon any recommendations made by him. Similarly, Ms Hinkley has demonstrated a lack of insight into the basis upon which the Department of Human Services has removed children from her care, including in recent past, and minimised and/or denied that removal having any connection with her behaviour or her parenting incapacity.
As the most desirable outcome cannot be attained then I must turn to the next best outcome which is and must be focused upon ensuring X’s protection from future exposure to such circumstances as I have found being exposure to unacceptable risk. That, of necessity, dictates far more limited and supervised time between X and his mother than might occur if Ms Hinkley were a more appropriate competent indeed “fit” parent.
Criticism is often raised of decisions made by the court such as to suggest that the court holds mothers to a higher standard than fathers and requires them to demonstrate their “fitness”. I have not used this terminology above in furtherance of that argument or to provide support to it. It is simply appropriate language. Ms Hinkley’s home and the parenting arrangements that she has provided at different times and as assessed by the Department of Human Services have not been fit for children. This is the language that has been used in both Police and Department of Human Services records when attending of the mother’s premises in 2009, 2011, 2013 and 2014.
Mr Briggs certainly has shortcomings. His behaviour at the time of separation in visiting violence upon Ms Hinkley and her companion is entirely inappropriate. He has demonstrated some understanding of and contrition towards those behaviours. Mr Briggs was, at separation, and on his own admission using marijuana on a daily or near daily basis. However, he has addressed that consumption and discontinued it and has been drug free to some years.
By analogy one can compare Mr Briggs and Ms Hinkley as drivers of cars which are broken down at the side of the road. There are those who look at their car, broken down and with steam belching from its bonnet and blame the car, the weather and anyone else present for the circumstances and do nothing to seek to fix the problem. Ms Hinkley falls within this category.
Then there are others who acknowledge that the car is broken down, may well complain and become angry and frustrated but ultimately recognise and acknowledge that they might have taken better care in servicing the vehicle, topping up the oil and water and driving it responsibly and then open the bonnet and begin to find the problem and fix it. Mr Briggs might be described as falling within this category.
To continue the above analogy and by reference to the behaviour that Ms Hinkley has demonstrated towards those who have either offered her assistance or to whom she has been referred to obtain assistance, Ms Hinkley would, in all probability, when passers-by stopped to offer their help, abuse them and turn them away and decry the need for their assistance even though the need to help is clear and obvious.
It is on this basis and for the reasons discussed above that I am satisfied that there would be, overall, as positive an impact upon X of day only supervised time between he and his mother as can be achieved in the circumstances. This arrangement would have the most positive potential impact upon X of all the various proposals available including the complete termination of X’s relationship with his mother or a resumption of the shared care arrangement which most clearly was not working and which, with the resources the parties have demonstrated they possess, is not capable of being made to operate to X’s advantage.
Capacity of each parent (and others) to provide to X’s needs
As would be clear from the above discussion of the evidence I am satisfied that there are significant deficiencies in the capacity of Ms Hinkley to recognise or meet X’s needs physically and emotionally or educationally.
I am satisfied that Mr Briggs or more correctly his household comprising himself and Ms A is in a better position to meet X’s needs. His needs are presently being met well (including without financial assistance from Ms Hinkley) and of the difficulties which X has experienced in his behaviours and at least, in part, impacted by the difficulties in the past care that he has received from Ms Hinkley and the present difficulties in his relationship with her, are addressed appropriately and sensitively by Mr Briggs and by others with whom X is engaged including X’s school.
Mr Briggs is not a perfect parent (even if such a creature exists). However, he has made significant changes in his life (to the better) since the termination of his relationship with Ms Hinkley and is providing perfectly adequate care and parenting to X.
I am conscious that being a single, male parent is not a role which Mr Briggs would likely have determined for himself as a matter of free choice. It has, to a large extent, been thrust upon him by circumstances, the Department of Human Services (in May 2007) and as a consequence of Ms Hinkley’s failure to address her difficulties and play any more significant or substantial role in X’s care. However, Mr Briggs has “stepped up to the plate” and whilst he may not have hit a 240 yard homerun on his first swing has, at least, batted in several runners and given a good account of himself.
Whilst Ms Hinkley is critical of Ms A, whom she believes has no “right” to be involved in X’s parenting, it is clear that X is lucky to have Ms A in his life. She provides a good quality of care to all four children within the household (X and his three siblings) and augments Mr Briggs’s parenting and “fills the gaps” as it were in Mr Briggs’s parenting capacity.
I am not satisfied that Ms Hinkley has demonstrated her capacity to provide a sufficiently safe, structured and protective environment for X without supervision.
I am not satisfied that Ms Hinkley has demonstrated her capacity to care for children without significant assistance and clearly she has been provided with assistance and supervision by officers from the Department of Human Services and other community agencies without which, I am confident, her present limited capacity would be more deficient.
I have no confidence at all in accepting the evidence of Mr D and I do not do so. Mr D’s role in providing care within the home he shares with Ms Hinkley and two infant children is clearly minimal. During his cross-examination Mr D was not able to describe arrangements within the home and sought to turn to obtain assistance from Ms Hinkley when he clearly was found wanting in his capacity in describing a thing as basic as the sleeping arrangements for the children.
Mr D’s evidence regarding drug use is so problematic that I am satisfied that an inference can be drawn, adverse to him, as to his credit and which would have the consequence that certainly as at the intervention of the Department of Human Services earlier this year, at which time Ms Hinkley suggested Mr D had a significant difficulty with “ice” addiction, that he was, in fact, significantly involved in drug use and thus of no assistance in the care of, or in pursuing a relationship with any of his three children.
Maturity, sex, lifestyle and background of X and others
X is a child of 10 years of age. Since the age of three there have been significant deficits and deficiencies in his care. Throughout his short life he has been exposed to conflict and violence and his mother’s alcoholism and behaviours and deficiencies consequence thereupon.
In many regards X presents, particularly from the evidence of Dr C, as a relatively mature child. However, as is described by Mr Briggs, his maturity is perhaps better described as “street smarts”. He has had to grow up fast. He has had to provide for himself at times as well as for his younger siblings, A and B and has had to protect himself, particularly emotionally, from exposure to Ms Hinkley’s behaviours.
A particularly troubling example of the manner in which X has had to deal with his own safety and care is the incident when he was present with Ms Hinkley at a supermarket 12:30am. On that occasion Ms Hinkley was heavily intoxicated and aggressive towards supermarket staff and the Police were called and, as a consequence, she was arrested. On that occasion X was taken into police care and arrangements made for Mr Briggs to then collect him. At the time of that incident X was a child of five years of age.
When Ms Hinkley was asked to give some explanation of the incident she indicated that she had gone with X to the shops to “get food and smokes”. Ms Hinkley was specifically asked whether she considered that action, whether sober or intoxicated (she was clearly heavily intoxicated) appropriate she responded “yes”. She then sought to change her answer to respond “Well it wasn’t appropriate. I should have left him in bed”. Each proposition is problematic and each demonstrates a fundamental lack of maturity, ability to act appropriately or protectively as well as a self-focus with little or any regard to X or his best interests.
X, as a child of 10, is now described as vulnerable and requiring significant assistance to obtain a stable, structured arrangement that will enable his needs to be met and enable him to “get back on track”.
The evidence of Mr Briggs, which I accept, is that since March 2014, corresponding with the period when X’s time with Ms Hinkley ceased, X’s behaviour and academic performance has improved. That is not to suggest that the termination of the relationship between X and Ms Hinkley is, of necessity, that which has brought this about. However it is, at the least, coincidental. Perhaps significantly it also reflects the first significant period in X’s young life when he has not been regularly exposed to Ms Hinkley’s intoxicated state, squalid and inappropriate household, repeated comings and goings of people including several short term partners of Ms Hinkley and the emotional trauma and distress that exposure to those behaviours and circumstances must trigger for X, including the triggering of memories of earlier times and an earlier age when X has been exposed to behaviours of the same nature and which has, no doubt, had a profound impact upon X’s development.
X’s maturity and his need for protection would support the making of orders as sought by the Independent Children’s Lawyer and Mr Briggs and would reject orders as proposed by Ms Hinkley
Aboriginality
Neither parent nor X identify as Aboriginal or Torres Strait Islander.
Attitude towards the responsibilities of parenthood
The above discussion would make it abundantly clear, I would hope, that I have real concerns as regards the attitude of both Ms Hinkley and Mr D with respect to their responsibilities as parents, whether to X, the children in their care, or in the case of Mr D, the two other children that he has fathered.
I do not have any such concerns with respect to Mr Briggs and Ms A.
Whilst there are real criticisms which can genuinely be levelled at Mr Briggs particularly regarding the circumstances around the separation of these parents, those attitudinal criticisms are more historical and of more recent times, Mr Briggs has demonstrated and acted upon a far more abundant appreciation and understanding of his responsibilities as a parent. This is, I am satisfied, borne out by the evidence and I accept that it is so.
Family violence
There is some complexity to a consideration of family violence in this case.
I accept that Mr Briggs perpetrated family violence upon Ms Hinkley at the termination of their relationship. Mr Briggs admits as much and he was charged and convicted with respect to offences arising from that behaviour. Whilst he has euphemistically described his behaviour at that time as “bad” his behaviour was atrocious and criminal. Mr Briggs does acknowledge his behaviour, however, and demonstrates some understanding, albeit retrospectively, as to its inappropriateness.
I accept that X was exposed to the violence that occurred at and immediately following separation. However, consistent with the evidence of Dr C, I accept that any trauma experienced by X has abated or, if it has not, pales into insignificance compared to the trauma experienced by X through his exposure to Ms Hinkley’s behaviours whilst in her care including significant violence which has occurred between adults in his presence let alone the substantial drunkenness that has surrounded him.
Dr C has opined that one would be loath to accept that Ms Hinkley has demonstrated any significant change in her behaviours or insight into the need to change, let alone the impact of her behaviours upon others including the children around her from time to time. I do not accept that any such acceptance of change is demonstrated. More concerning I am not satisfied that Ms Hinkley has demonstrated or is presently capable of demonstrating:
a)any commitment towards seeking or obtaining assistance to change her behaviour;
b)Any insight into the profound impact upon children of exposure to her drunkenness. This extends to a lack of insight into the profound potential impact upon the foetus she was then carrying (both as to physical and intellectual impediment) of her drinking to excess during pregnancy. I am satisfied, on Ms Hinkley’s own admission that she drank to excess during each of her pregnancies including her pregnancy with X. On the basis of the credit issues which Ms Hinkley faces and in combination with the clear evidence from the (omitted) hospital as to Ms Hinkley’s blood alcohol readings on each of the two occasions she was taken into police custody during her pregnancy with B (being 0.133 and 0.182) I accept that, in all probability, Ms Hinkley drank to similar levels during each of her three pregnancies;
c)Any ability to not drink to excess and to the levels described above or to moderate her drinking or refrain from drinking whilst children are in her care. Whilst Ms Hinkley asserts stridently in her affidavit material and during her cross-examination that she has never drunk nor been alcohol affected whilst children have been in her care, her evidence has been clearly disproved through the objective records tendered and which I accept as more probably accurate than Ms Hinkley’s evidence;
d)Any ability to consistently maintain a clean habitable home; and
e)Any ability to engage with or receive benefit from services that would assist her in addressing any of the above.
Whilst clearly Mr Briggs has perpetrated family violence upon Ms Hinkley in 2007 I am satisfied that the greater risk of family violence and X’s exposure to it arises in Ms Hinkley’s household.
Family violence orders
There are none.
Whether it would be preferable to make the order which would least likely lead to future proceedings
I am conscious that an order for ongoing supervision by a third party volunteer has some real potential to lead to future proceedings. Such an arrangement lends itself to readily predictable difficulties such as the illness of the supervisor, their growing weary with their benevolent assistance or conflict as to the level or appropriateness of supervision provided and a loss of faith in the supervisor.
Whilst I am hopeful that the above matters would not arise I am conscious, that if they do, future proceedings will be almost inevitable. I am satisfied that these orders, as proposed by the Independent Children’s Lawyer and Mr Briggs, are the best orders which can be made.
The orders which would least likely lead to future proceedings would be an immediate cessation of time between X and Ms Hinkley. However, that would come with the cost or potential cost of increased anxiety for X and, in light of the suggestion in Ms Hinkley’s evidence that X has, on at least one occasion, sought her out, greater prospect of arrangements of an unsettling and undesirable nature arising which could and in all probability would expose X to further risk as well as damage to his relationship with Mr Briggs and Ms A. Those consequences are undesirable and more undesirable than the possibility that future proceedings might arise.
Conclusion
For the above reasons I am satisfied that ongoing supervision of time between X and Ms Hinkley is:
a)Necessary to ensure X’s physical and emotional protection whilst spending time with Ms Hinkley; and
b)Preferable to a cessation of time between X and Ms Hinkley, and consequently a cessation of time between X and A and B.
The Independent Children’s Lawyer by their minute exhibit Q has proposed monthly supervised time. Whilst I am satisfied as to the general requirement for supervision and accept Ms S as an appropriate supervisor I am conscious that more frequent time might well be practicable (both Ms Hinkley and Ms S indicated their availability and willingness to attend for such times and with such frequency as the Court may order) and this would bring with it the consequent benefit to X of more frequent time with his mother and importantly his brothers A and B.
Based on past experience arrangements for fortnightly time have been problematic and have rapidly broken down. However, the bases for the breakdown of arrangements have, largely, been the behaviours of Ms Hinkley and her inability to effect change in her behaviours. On that basis there is no more likelihood that a monthly arrangement as opposed to an alternate weekend arrangement would be any more problem free.
An alternate weekend arrangement would provide a far more substantial (in fact double) opportunity for X to spend time with his mother and brothers and if occurring on a supervised basis (and subject to Ms S’s availability and willingness to be available with such regularity), I am satisfied that it would be beneficial to X.
As between Mr Briggs and Ms S there was, at the conclusion of submissions, relative agreement as to changeover arrangements and on the basis that Ms S would attend at the home of Mr Briggs to both collect and return X. Accordingly I propose to make an order for changeovers to occur in that fashion.
Orders are also proposed by the Independent Children’s Lawyer which would enable, allow and authorise Ms Hinkley to obtain certain information with respect to X particularly regarding his school and medical treatment. Whilst an order for sole parental responsibility will be made in favour of Mr Briggs those orders would appear entirely appropriate. They do not involve any interference in the sole exercise of parental responsibility by Mr Briggs but allow and afford to Ms Hinkley the opportunity to obtain information with respect to X and so as to be able to discuss such matters with him and to address difficulties with X if appropriate.
I had also canvassed with the parties and each of them the desirability of telephone communication occurring between X and his mother. The Independent Children’s Lawyer rightly observes that there is very little evidence presented regarding past telephone communication or its future benefit particular noting the allegations, spoken to at some length by Dr C, that Ms Hinkley is prepared to go some substantial distance to undermine and denigrate Mr Briggs and Ms A.
For his part Mr Briggs indicated that he would have no difficulty in telephone communication occurring and has proposed that this occur between 6pm and 6:30pm on Saturday evenings. Ms Hinkley seeks that telephone calls occur three times per week and between 7pm and 7:30pm.
I am satisfied that telephone calls can occur twice per week and I will order them to be each on Wednesdays and Sundays to provide some continuity and consistency and especially focusing X’s relationship with his mother on Sundays. I am further satisfied that Mr Briggs is in a better position to know the arrangements within his own household and those in which X is engaged and accordingly calls will occur within the timeframe he has nominated namely 6pm – 6:30pm.
On the basis of the concerns raised regarding an absence of “boundaries” I am satisfied that some limitation upon Ms Hinkley’s capacity to contact and speak with X is appropriate and I propose to accede to the orders otherwise sought by the Independent Children’s Lawyer and not opposed by Mr Briggs being that X be permitted to contact his mother at such times as he may desire (noting the reality that he would, in all probability and at his age, have the capacity to do so should he wish and irrespective of the views or consent of either parent).
For the above reasons I am satisfied that orders can and should be made as follows:
I certify that the preceding three hundred and fifty-one (351) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 31 October 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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