Buller-Briggs and Buller
[2015] FamCA 834
•7 October 2015
FAMILY COURT OF AUSTRALIA
| BULLER-BRIGGS & BULLER | [2015] FamCA 834 |
| FAMILY LAW – CHILDREN – with whom the child lives – competing applications between the mother and the maternal grandmother – allegations of sexual abuse – where the child has developmental delays – where the child lived with the grandmother until late 2012 – where the child has lived with the mother since late 2012 – allegations of neglect – where the child has a close relationship with the grandmother’s son |
| Family Law Act 1975 (Cth) s 64B, s 64C, s 61DA, s 65DAB, Division 6 of Part VII, s 65D, Objects of Part VII, s 60B, s 60CA, s 60CC, s 65AA of the Act |
| Donnell & Dovey (2010) 42 Fam LR 559 Banks & Banks [2015] FamCAFC 36 |
| APPLICANT: | Ms Buller-Briggs |
| RESPONDENT: | Ms Buller |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton Solicitor |
| FILE NUMBER: | BRC | 1330 | of | 2013 |
| DATE DELIVERED: | Order made 2 October 2015; Reasons made available 7 October 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 15, 16, 17 and 22 September 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lyons |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton, Solicitor |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous orders are discharged.
The child, B, born … 1999, live with the applicant grandmother from 1.00 pm on Sunday, 4 October 2015.
In order to facilitate the child moving into the grandmother’s care and unless otherwise agreed between the parties in writing:
(a)the grandmother shall collect the child from the front of the C Town School, D Street, C Town in the State of New South Wales at 1.00 pm on Sunday, 4 October 2015; and
(b)the mother shall ensure the child is available to be collected by the grandmother from the front of the C Town Central School, D Street, C Town in the State of New South Wales at 1.00 pm on Sunday, 4 October 2015; and
(c)the mother shall ensure that the child is able to take his personal possessions and clothing and any educational items with him when he is collected by his grandmother from the front of the C Town Central School, D Street, C Town in the State of New South Wales at 1.00 pm on Sunday, 4 October 2015.
The grandmother shall notify the Brisbane Registry of the Family Court of Australia and the Independent Children’s Lawyer in writing by 4.00 pm on Tuesday, 6 October 2015 that the child has come into her care.
The grandmother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child.
Prior to making a decision about any major long-term issue in respect of the child, the grandmother shall:
(a)inform the mother in writing, by correspondence sent to an address nominated by the mother in writing, of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the mother 14 days after the provision of the information referred to above to respond to the same in writing; and
(c)consider the mother’s response, if any, when coming to a decision about any such issue; and
(d)inform the mother of the final decision made with respect to that issue as soon as practicable thereafter.
The operation of Clause (6) of this Order shall be suspended:
(a)during any time during which the mother fails to provide the grandmother with written details of the address to which correspondence should be directed; and/or
(b)following any occasion after which the grandmother has returned to her any correspondence forwarded by her to the mother to the address nominated by the mother in writing.
Each party have responsibility for daily decisions about the day to day care, welfare and development of the child when he is in that party’s care.
The child spend time with the mother at all times as may be agreed between the parties in writing and failing agreement as follows:
(a)for the first week of the Queensland gazetted school holiday period at the end of each of Terms 1, 2 and 3 each year, with such time to commence at 1.00 pm on the Saturday immediately after school ends for the Term and to conclude at 1.00 pm on the second Saturday after school ends for the term; and
(b)in odd numbered years: for the first week of the Queensland gazetted school holiday period at the conclusion of Term 4, with such time to commence at 1.00 pm on the Saturday immediately after school ends for the Term and to conclude at 1.00 pm on the second Saturday after school ends for the Term; and
(c)in even numbered years: for the second week of the Queensland gazetted school holiday period at the conclusion of Term 4, with such time to commence at 1.00 pm on the second Saturday after school ends for the Term and to conclude at 1.00 pm on 27 December each year; and
(d)for the second week of January in each year, with such time to commence at 1.00 pm on the second Saturday in January and to conclude at 1.00 pm on the third Saturday in January; and
(e)from no earlier than 9.00 am Saturday until 4.00 pm Sunday on each of the following weekends:
(i)the second weekend in February each year; and
(ii)the second weekend in May each year; and
(iii)the fourth weekend in July each year; and
(iv)the fourth weekend in August each year; and
(v)the fourth weekend in October each year; and
(vi)the fourth weekend in November each year,
with such time to occur in or around the Brisbane city area.
Unless otherwise agreed between the parties in writing:
(a)for the time which is to occur pursuant to Clauses (9)(a) to (9)(d) of this Order: the mother or her nominee shall collect the child from the front of the grandmother’s residence at the commencement of the time and the grandmother or her nominee shall collect the child from the front of the mother’s residence at the conclusion of the time; and
(b)for the time which is to occur pursuant to Clause (9)(e) of this Order: the mother or her nominee shall collect the child from the front of the grandmother’s residence at the commencement of the time and shall return the child to the front of the grandmother’s residence at the conclusion of the time.
The mother shall give the grandmother no less than 14 days’ notice in writing of her intention to spend time with the child at those times provided for by Clause (9)(e) of this Order.
If the mother fails to comply with Clause (11) of this Order, the operation of Clause (9)(e) of this Order shall be suspended and the grandmother will not be obliged to ensure that the child is made available to spend time with the mother on the weekend in respect of which no notice was given.
The mother shall have telephone communication with the child each Tuesday and Thursday between the hours of 6:30 pm and 7.00 pm or at such other times as may be agreed in writing between the parties with:
(a)the mother to initiate the telephone call to a telephone number to be provided to her by the grandmother; and
(b)the grandmother to ensure the child is available to receive the telephone call.
In any school holiday period during which the child is spending holiday time with the mother, the grandmother shall have telephone communication with the child each Tuesday and Thursday between the hours of 6:30 pm and 7.00 pm or at such times as may be agreed in writing between the parties with:
(a)the grandmother to initiate the telephone call to a telephone number to be provided to her by the mother; and
(b)the mother to ensure the child is available to receive the telephone call.
The mother and grandmother shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within twenty-four (24) hours of such change; and
(b)notify the other at least seven (7) days prior to relocating their residence; and
(c)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child; and
(d)inform the other as soon as is reasonably practicable of any serious medical condition suffered by the child; and
(e)keep the other informed of any school, educational facility or extra- curricular activity provider attended by the child.
Neither party shall enrol the child in any activity nor arrange for the child to participate in any activity which occurs during time the child is with the other party without first obtaining the written agreement of that party.
The mother is restrained and an injunction issue restraining her from using illicit or illegal drugs or permitting the child to be in the presence of persons using illicit or illegal drugs at any time during which the child is in her care.
By this Order, the parties authorise any school, educational facility or extra-curricular activity provider attended by the child to provide to each party, at that party’s request and cost, all information about the child’s educational progress and school related activities.
Subject to any conditions imposed by the child’s school, each party is at liberty to attend school functions to which parents are ordinarily invited.
By this Order, the parties authorise any medical or other health professionals who treat the child to provide to each party, at that party’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.
Neither party denigrate the other, their partner or their family to, or in front of, or within the hearing of the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of the child and, failing the third parties’ compliance with such a direction, shall remove the child from that environment immediately.
Neither party shall discuss these proceedings with the child, save in the course of any counselling undertaken to assist him to understand the implementation of this Order, nor involve the child in any discussions regarding any issue in dispute between them.
Pursuant to s 67Q of the Family Law Act 1975 (Cth), a Recovery Order shall issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.
Such persons are authorised and directed to find and recover the child, B, born … 1999 (a boy) and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found.
The child B, born … 1999 (a boy) is to be delivered to the care of his grandmother, Ms Buller-Briggs, at such address as agreed to between the person executing the Recovery Order and Ms Buller-Briggs.
The Recovery Order will lie in the Registry until 4.00 pm on Wednesday, 7 October 2015 at which time it shall issue unless the grandmother, Ms Buller-Briggs, has informed the Registry that the mother has complied with Clauses (2) and (3)(b) of this Order.
IT IS FURTHER ORDERED THAT
The Independent Children’s Lawyer is discharged upon receipt of written advice from the applicant grandmother pursuant to Clause (4) of this Order.
All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
After the expiration of the appeal period, all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated and any exhibit shall be returned to the party by whom that exhibit was tendered.
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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT
A.Upon the Applicant grandmother notifying the Brisbane Registry of the Court in writing that the child has been taken into her care (as she is required to do by Clause (4) of this Order), it is intended that an order be made in Chambers discharging the Recovery Order made in Clauses (23) – (26) of this Order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Buller-Briggs & Buller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1330 of 2013
| Ms Buller-Briggs |
Applicant
And
| Ms Buller |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
B was born in 1999. He is nearly 16 years of age. He has been assessed[1] as having global developmental delay,[2] attention deficit hyperactivity disorder (ADHD), autism spectrum disorder and behavioural disorders. Additionally, a speech assessment[3] indicated a severe core language impairment, severe receptive language impairment, severe expressive language impairment, severe language content impairment and severe language memory impairment.
[1]Affidavit of Mr E filed 17 March 2014 at Annexure 4: a report prepared in about October 2012.
[2] explained by Dr F, a paediatrician, as meaning that his brain function is impaired.
[3] Undertaken on 10 October 2012.
Whatever involvement the child’s father, whose current whereabouts are unknown, had in his life ceased before he was about two years of age.[4]
[4]See Notation 6, Orders made 23 August 2013; the mother has variously reported that the father’s name is Mr G or Mr H.
B started to live with his grandmother in Brisbane about December 2001 after she was contacted by Family and Child Safety, New South Wales and asked to travel to southern New South Wales to care for him because his mother could not be located. It appears the child had come to that authority’s attention at that time after his mother had been the victim of significant domestic violence perpetrated by her then partner.
Contrary to the grandmother’s assertion that his mother had abandoned the child at that time, the mother asserts she had simply gone out for milk. This proffered explanation is but one example of many occasions on which the child’s mother has sought to exculpate herself from responsibility and to cast the same onto others.
Whatever may have been the events of the actual day or week during which the child came into his grandmother’s care, the following is clear.
On 25 February 2002, the Department of Communities, Child Safety and Disability Services (Queensland) recorded a Child Concern Report[5] on the basis that the child was receiving minimal care from his mother and was being primarily cared for by his grandmother.[6]
[5] Hereafter referred to as a Report.
[6] Departmental Report dated 12 June 2013.
On 25 March 2002, the grandmother commenced proceedings in relation to the child and, on 1 May 2002, Registrar Spelleken[7] made an interim parenting order by consent[8]: this Order provided that the child live with his grandmother and have contact[9] with his mother and father[10] at all times as agreed.
[7] As Her Honour then was.
[8] Attached to the grandmother’s Initiating Application.
[9] As the terminology then was.
[10] Who was then named as Mr H.
What happened to these proceedings after the May 2002 Order was made is not clear. However, it is uncontroversial that the child lived with his grandmother until September 2012 and that, as a result, he lived with her son J who, despite being about 11½ years of age, is his uncle.
In September 2012, the grandmother placed the child into his mother’s care.
B has lived with his mother, her partner and their children and the mother’s daughter from another relationship (his half-sister) in or around C Town in New South Wales since then.
On the evidence before me, in the period from September 2012 until 16 February 2013, the child spent time with his grandmother on about no more than two occasions, the latest of which was in January or February 2013. Whilst telephone communication initially occurred daily, this was reduced by the mother to every second day and then further decreased as time progressed.
On 16 February 2013, the parties were involved in an altercation about the child’s future care arrangements. On any account, all of the children present were exposed to the raised voices that accompanied this disagreement.
On 25 February 2013, the grandmother filed an Initiating Application by which she sought an interim order (particularised as an “urgent recovery order”) that the child live with her.
On 9 May 2013, Judge Coates suspended the operation of the May 2002 Order, ordered that the child live with his mother and spend time with his grandmother every second weekend in C Town and communicate with her by telephone every Tuesday: a Family Report was ordered.
On 21 June 2013, Ms K, a Family Consultant, interviewed the parties and the child and gave oral evidence to the Court – after this, Judge Coates discharged the May 2013 Order, ordered that the child live with his grandmother from noon on 30 June 2013 and made a Recovery Order (but directed that it lie in the Registry until 4.00 pm on 3 July 2013).
On 23 June 2013, the mother’s partner (Mr E) took the child to the L Town Police Station to report that he had alleged his grandmother had sexually abused him.
The mother did not comply with the June 2013 Order for the child to return to live with his grandmother from noon on 30 June 2013.
On 3 July 2013, the Recovery Order which had been made on 21 June 2013 issued.
On 9 July 2013, the matter returned before Judge Coates and, after the mother told him that allegations of sexual abuse had been made, His Honour discharged the Recovery Order, ordered that the child live with his mother, appointed an Independent Children’s Lawyer, requested the Department’s intervention and transferred the matter to this Court.
The allegations of sexual abuse were investigated. the child was interviewed. The grandmother vehemently denied sexually abusing him in any manner. She maintained those denials in her evidence before me. Both the mother and Mr E provided statements to police. Each of these statements – dated 2 Aug 2013 - included the information that, a few weeks before that, the child told them that the grandmother had not touched him and had not done anything inappropriate toward him. The contents of these statements to police will be discussed further below during my consideration of whether unsupervised time with his grandmother will place the child at an unacceptable risk of harm.
By about mid July 2013, police had determined that there was not enough evidence to charge the grandmother with any offence. It was concluded that the allegations were to be recorded as ‘unfounded’ because the investigation into the same indicated it was highly doubtful that any offence had occurred.
On 23 August 2013, the parties entered into Consent Orders in relation to the time the child was to spend with his grandmother: namely every alternate weekend from 10.00 am Saturday to 2.00 pm Sunday and by telephone twice weekly.
In September 2013, the parties had a disagreement about the child’s time with the grandmother over the weekend of the Riverfire celebrations in Brisbane. The grandmother wanted to take the child to see Riverfire but the mother disagreed because of the associated travel. In the end, the grandmother took the child to Riverfire.[11]
[11] Affidavit of the mother filed 17 March 2014, at [6]
After the child returned to his mother’s care, another complaint was made to police: it was asserted that the child had said his grandmother sexually abused him during the Riverfire weekend. The information conveyed to police was that the child told his mother that his grandmother had ‘pulled him off’ in the shower and then ‘pulled’ J off in front of him.
As a result of this complaint, both the child and J were interviewed by police and/or Departmental officers in October 2013. Neither child made any disclosures during their interviews. In fact, J asserted that the mother (his half-sister) was making the allegations against their mother up; the child positively asserted that his grandmother had not touched his “privates” in the shower (or at any time) and said that he had not showered with J.
After these interviews, police concluded that their investigations indicated that no offence had occurred. The mother was told of this conclusion on about 14 October 2013.
On 8 November 2013, there was a disagreement between the grandmother and Mr E in relation to time the child was to spend with his grandmother. the child was, that day, attending a wedding – a matter which, according to the mother, the grandmother knew. [12] The grandmother disputes this assertion and instead says that she had driven for about five hours to collect the child to spend time with him, as she had earlier told the mother she would.
[12] Affidavit of the mother filed 17 March 2014 at [9]
On 19 November 2013, the grandmother filed an “Urgent Application in a Case” seeking orders that the child live with her and, failing the mother’s compliance with facilitating this, that a Recovery Order issue.
The parties participated in interviews with Ms M, a Family Consultant, on 20 February 2014. She subsequently prepared a report, dated 26 February 2014. This report was prepared without Ms M having the benefit of interview with N (then nine years of age) nor the opportunity to observe the child’s interaction with her, O (then 2½ years of age), P (then 1½ years of age) or Mr E’s son, Q (then about nine years of age).
On 20 March 2014, Acting Principal Registrar Spink discharged the August 2013 Order. He ordered that the child spend time with his grandmother at all times as agreed and, failing agreement on two weekends per school term and for one week in each of Term 1 and Term 3 school holidays (being the overlapping week with New South Wales). He also ordered that the child communicate by telephone with his grandmother twice each week.
Between March 2014 and August 2014, the child spent time with his grandmother as provided for in the March 2014 Order: namely, for two weekends per school term, during the Easter 2014 school holiday period and for one weekend at the beginning of August 2014.
However, it emerged during the trial that the child has not spent any time at all with his grandmother since then and that, when the grandmother went to collect him for another weekend at the end of August 2014, the mother would not permit him to leave with her.
Despite telephone communication between the child and his grandmother previously occurring each Tuesday and Thursday evenings between 5.00 pm and 6.00 pm on a regular basis, this too ceased at the end of August 2014. I accept the grandmother’s evidence to the effect that there has been no telephone communication between the parties and no telephone communication between the child and J since November 2014 when the mother’s telephone number was disconnected.
the parties and their proposals
The grandmother was born in 1960 and is now nearly 55 years of age. She is engaged in paid employment outside the home from 8:30 am till 2:30 pm, Monday to Friday. After she separated from the mother’s father, she re-partnered and, later, married Mr R. They, too, have now separated. J, her son with Mr R, was born in 2004. J lives primarily with the grandmother (his mother) and spends regular time with his father. No other person lives in the house in which the grandmother and J live.
The grandmother proposes that the child return to live with her and J in a suburb of Brisbane, Queensland. She proposes he spend regular time with his mother: for example, when she spoke with Ms M, the author of the Family Report, in February 2014, she proposed that he spend time with the mother every second weekend and for the overlapping week of the Queensland/New South Wales school holidays. She also proposed that the mother communicate with the child by telephone twice per week and that the parties share equally in transporting him between their households. In the event the child remains living primarily with his mother, the grandmother told Ms M she proposed that his time with her occur as she proposed it occur with his mother if he lived with her.
The mother was born in 1982 and is now nearly 33 years of age. She is in a relationship with Mr E. The child is her oldest child. She has three other children, all of whom live with her:
a)N, born in 2004, a daughter from another relationship; and
b)O, born in 2011, a son from her relationship with Mr E; and
c)P, born in 2012, another son from her relationship with Mr E.
Each alternate weekend, Q, born in 2004 (Mr E’s son from a previous relationship)[13] spends time in his father’s household. N does not spend time with her biological father.
[13] Affidavit of the mother filed 17 March 2014 at [4].
Since about April 2015, the mother and Mr E and the children who live with them have shared a house with Mr E’s parents. As Mr E’s mother suffers from a condition which impedes her functioning, his father is engaged in caring for her on a fulltime basis.
The mother proposes the child continue to live with her in New South Wales, on a property outside C Town. C Town is about four to five hours’ drive from Brisbane. Whilst her formal proposal is that the child spend time with his grandmother as he determines,[14] this must be assessed in the context of his functioning, dependence on adults in his life to make arrangements for him and the fact that – as outlined above – he has not spent any time with his grandmother or J since August 2014. Having heard the mother’s evidence during cross-examination and the tenor of her submissions, I am left with little doubt that her true position is that the child not spend time with his grandmother (and J) if he continues to live with her.
[14] Case Information document filed 15 June 2015.
The reality for the child is that if he continues to live in his mother’s household he will continue to live with his half siblings N, O and P (and spend time with Q) but will be separated from J. If he returns to live in his grandmother’s household, he will be separated from N, O and P (and, in a sense, to a lesser extent, Q) but he will return to live with J who, whilst biologically his uncle, is the child with whom he had lived until September 2012.
Assessment as to credit
I do not intend to outline separately my specific findings as to credit in relation to each of the witnesses (other than the parties) who gave evidence in the proceedings: rather, where relevant, my conclusions about their evidence will be expressed during my overall discussion of the issues requiring determination. However, I do intend to make particular comment in relation to the credit of each of the parties: such was the nature of the mother’s evidence before me that, wherever her account and that of the grandmother differ, I generally prefer the evidence given by the grandmother. This does not mean, however, that I accept, without reservation, everything contended for by the grandmother. As is so often the case in disputes involving competing claims about a child’s care arrangements, some circumspection is necessary.
Applicable Principles
In these proceedings, subject to s 61DA of the Family Law Act 1975 (Cth) (the Act), I may make such parenting order as I think proper.[15] I must have regard to the Objects of Part VII of the Act and the Principles which underpin those Objects.[16] The paramount consideration when making parenting orders is the child’s best interests.[17] The matters to which regard must be had in determining those parenting orders which are in the child’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[18]
[15] s 65DAB of the Act.
[16] s 60B of the Act.
[17] s 60CA and s 65AA of the Act.
[18]see: Banks & Banks [2015] FamCAFC 36 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
In this case, there are parenting proposals by a ‘parent’ (the mother) and a ‘non-parent’ (the grandmother). In Donnell & Dovey[19] the Full Court considered the manner in which Part VII of the Act is to be applied in such a situation. I consider that the following relevant binding principles emerge:
[19] (2010) 42 Fam LR 559.
a)‘parent’ means a biological or adoptive parent and does not include a person who stands in loco parentis to a child[20] – hence, the grandmother is not a ‘parent’ for the purpose of Part VII of the Act;
[20] Donnell & Dovey (2010) 42 Fam LR 559, [92].
b)sections 60B(1) and (2) of the Act maintain a distinction between a ‘parent’ and a ‘non-parent’ as the Objects expressed in s 60B(1)(a), (c) and (d) and the Principles expressed in s 60B(2)(a), (c) and (d) specifically refer only to “parents” (or parenting)[21];
[21] Ibid at [121]-[122].
c)there being no distinction between parents and non-parents in s 60CA of the Act, a child’s best interests remain the paramount consideration in deciding whether to make a particular parenting order regardless of ‘the biological (or other) connection of the child to the parties to the proceedings’[22];
[22] Ibid at [79]-[80].
d)sections 64B(2) and 64C of the Act permit a parenting order, which includes an order for parental responsibility, to be made in favour of a non-parent as well as a ‘parent’ and an order can be made for a non-parent to share parental responsibility with another person[23];
[23] Ibid at [82]-[83].
e)in the absence of an order of the Court which allocates parental responsibility for a child or a parenting plan, only the ‘parents’ of a child have parental responsibility in relation to that child[24];
f)the presumption of equal shared parental responsibility prescribed by s 61DA of the Act and considerations of equal or significant and substantial time prescribed by s 65DAA of the Act are not ‘prescribed pathways in the reasoning process towards a best interests conclusion’[25];
g)section 65DAA of the Act has no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent[26];
h)section 60CC of the Act on its face maintains clear distinctions between a ‘parent’ and a non-parent such that:
i)section 60CC(2)(a) has no application to a person who is not a parent and any consideration of the benefit to a child of having a meaningful relationship with a non-parent is not a primary consideration;
ii)the additional consideration in s 60CC(3)(e) of the Act does not apply to proceedings between a parent and non-parent.
i)whilst the benefit to a child of the maintenance of a meaningful relationship with a non-parent can never be a ‘primary consideration’, this does not, of itself, mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a ‘parent’[27];
j)where the subject matter of a consideration which refers only to a ‘parent’ is relevant to a non-parent, consideration of the same can occur pursuant to s 60CC(3)(m) of the Act.[28]
[24] Ibid at [81]-[83].
[25] Ibid at [86], [121]-[122].
[26] Ibid at [84]-[86].
[27] Donnell & Dovey (2010) 42 Fam LR 559, [101] - [102].
[28] Ibid at [99].
I have specifically outlined this in detail so that there can be no doubt that I am fully cognisant of the manner in which the relevant matters must be considered in determining those parenting orders which are in the child’s best interests. Any intermingling of my discussion of the relevant considerations should not be regarded as demonstrative of any confusion as to the appropriate application of these binding principles.
The consideration of all of the relevant matters must, of course, take place within the matrix of the relevant factual circumstances established by the evidence.
The benefit to the child of the opportunity to have and/or maintain a meaningful relationship with his mother and grandmother
It is, I think, convenient to consider the benefit to the child of the opportunity to have and/or maintain a meaningful relationship with both his mother and grandmother at the same time. As, I hope, has been made clear by the above recitation of the manner in which the relevant s 60 CC considerations must be considered in cases such as this, I do so completely cognisant of the fact that the benefit to the child of the maintenance of a meaningful relationship with his grandmother is not a “primary consideration.” I consider that, given the child lived with his grandmother from 2001 until September 2012, the benefit to him of the opportunity to have and/or maintain a meaningful relationship with her is of no less significance for him than the benefit to him of the opportunity to have and/or maintain a meaningful relationship with his mother. In fact, given the length of time over which his grandmother was the person responsible for his care, I consider it more likely than not that the benefit to him of the opportunity to have and/or maintain a meaningful relationship with her may well be more significant than the opportunity to have and/or maintain a meaningful relationship with his mother.
In any event, I accept the tenor of the evidence given by Ms M in the February 2014 Report to the effect that the child would benefit from the opportunity to have a meaningful relationships with both his mother and his grandmother.
The imperative of protecting the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
The mother’s formal documents do not contain any request for injunctive relief preventing the child from spending time with his grandmother. She does not specifically seek orders that any time he may spend with his grandmother occur only on a supervised basis.
However, as was recounted above, the child remained in his mother’s care despite a Recovery Order having been made because, in June 2013, Mr E told police that the child had alleged his grandmother had sexually abused him.
Authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of that parenting order which is in the child’s best interests.[29] However, an assessment of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting a child from harm.[30]
[29] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
[30] Section 60CC(2)(b).
This Court is not compelled to make a determination about whether the child’s grandmother sexually abused him. Rather, the ultimate and paramount requirement is to make orders which are in his best interests. Orders which place him at an unacceptable risk of harm clearly cannot be seen as being in his best interests.
In determining whether or not the child will be at an unacceptable risk of harm if he spends unsupervised time with his grandmother, the Court is likely to be assisted by evaluating the nature and degree of any asserted risk and determining whether, with or without safeguards, it is, or is not, of an acceptable nature.
The sexual abuse allegations
It appears from Mr E’s evidence[31] that, whilst in the car with the child on 23 June 2013, he spoke with him about his imminent return to the grandmother’s home. the child’s mother was not there.
[31] Affidavit of Mr E filed 17 March 2014, [16].
Mr E recounts[32] that, during a discussion about the child returning to live with his grandmother and having pointed out to him that, amongst other things, he could now do house chores, choose his own clothes and dress himself, make his lunch and shower himself, the child said “No”. When asked what he meant, Mr E recounts that the child said “Nanny washes me”. When Mr E asked “your back, hair, what?” the child said “all of me”. Mr E said he then asked the child if he washed his private parts and that the child got teary and said “no, Nanny washes it like this”, indicating a masturbating motion with his hands. Mr E told the child that saying that could get a lot of people into trouble and not to lie. He reports that the child then said that “Nanny washes [J] as well, that Nanny washes me, then washes [J]”. When Mr E asked whether this was in the same shower, the child told him “one at a time, we all stay in the shower room”.
[32] Affidavit of Mr E filed 17 March 2014.
In the account contained within his affidavit, Mr E said that, after this, he turned toward town to speak to police. He did not mention that he stopped beside the road and questioned the child about what he was saying.
The mother’s affidavit contains her recounting of what she was told by Mr E happened that day. She says Mr E said he asked the child why he wanted to live with his grandmother and that the child replied that his grandmother made him happy. She says Mr E said that, when he asked the child what he meant by that statement, the child said that she masturbated him in the shower.[33] This account clearly differs from that provided by Mr E in his affidavit. At no time does Mr E say that he asked the child why he wanted to live with his grandmother or that the child said anything like that she made him happy. At no time does Mr E say in his affidavit that the child told him that his grandmother masturbated him in the shower. The mother’s account contains no mention of the assertion that the child had said that J was present and that the grandmother washes him as well.
[33] Affidavit of the mother filed 17 March 2014, at [5].
When Mr E arrived in L Town, he was interviewed by the police first.
B, 13½ years old, was then interviewed alone.
B’s police interview on 23 June 2013[34]
[34] Exhibit 5; Transcript (pp. 1-8, Tab 2 of Exhibit 1).
When asked by the interviewing officer if he knew where they were right now, the child said “Saturday”. The police officer told him that ‘dad’ had told him that the child had told him something today. When asked whether he remembered what it was, the child said “about Nanna”. He was asked if he wanted to tell the police officer what he told dad about Nanna; he said that “Nanna done, when I was in the shower at Nanna’s place. I was and Nanna come and do my private parts. Pull it”.
This is different to what Mr E said in his affidavit that the child told him because according to Mr E – as set out above – the child’s only comment was that his grandmother washes it. Mr E and not the child used the term ‘private parts’ in the car and I think it more likely than not that Mr E was the person who introduced the concept of ‘pulling’ to the child.
After the child said the comments recorded in paragraph 59, the police officer said to him: “So Nanna. While you were in the shower Nanna came in and pulled your private parts”. When the police officer then asked the child what he did with his private parts usually, he said “clean it properly”. He then identified that boys got “the thing with those two ball things” and “the long thing” that the pee comes out.
The interviewing officer then used the phrase that the grandmother pulled on the child’s private parts twice before the child said she was “just pulling them”. When asked how long she did that for, the child said “two minutes or one minute”.
When the interviewing officer asked the child when was the last time that happened, the child said that he was at Nanna’s place and that’s what happened. When the officer asked how long it had been since he was at Nanna’s, the child said “ten hours”. In fact, he had not spent time with her since, at the very latest, February 2013. Further questing by the interviewer did not help clarify the child’s recounting of his recollection of the last time he stayed at his grandmother’s place and the interview was concluded.
Police documents in relation to this interview record that “disclosure is consistent with the alleged sexual abuse” and that the child said that, while in the shower, his grandmother “pulls me on the private area”. Whilst this is a reasonably accurate summation of what happened during the interview in one sense, it does not provide context of the manner in which the child’s comments were elicited.
On 24 June 2013, the Department (Qld) received “serious allegations” in relation to the child and J; however, the report does not detail what these allegations are.[35] The report noted that, upon the child returning to Queensland, which was scheduled by order of the Court to occur on 30 June 2013, the Department (Qld) will continue its investigation.
[35] Departmental Report dated 25 June 2013.
At 11.28 am on 24 June 2013, Queensland police received a referral from the Department’s after hours service in relation to information received from an unidentified notifier that the child was believed to have been sexually assaulted by his grandmother whilst in her care at Suburb S. Police documents contain the information that the alleged offence was alleged to have occurred between 1 January 2013 and 28 February 2013.[36]
[36] Tab 1, page.1, Exhibit 1.
The reported allegation was that the grandmother grabbed the child’s penis and pulled it for a minute at an unknown time.[37] Police were told that the child had disclosed to his stepfather that, while in the care of his grandmother, she would wash him in the shower and pull his private area for one to two minutes.[38] The assertion that the child told Mr E that his grandmother would ‘pull his private area for one to two minutes’ is not contained within Mr E’s affidavit recounting of what he says the child told him on 23 June 2013 (as summarised above in paragraph 54) or his 2 August 2013 statement to police.
[37] Tab 1, page 2, Exhibit 1.
[38] Tab 1, page 2, Exhibit 1.
New South Wales police then applied for an Apprehended Violence Order and, on 27 June 2013, an Interim Order was made against the grandmother: the terms of this order included that she not approach or contact the child by any means whatsoever except through her legal representative.[39]
[39] Affidavit of Mr E filed 17 March 2014 at [Annexure 5].
As was suggested by the interviewing office on 23 June 2013, the child was interviewed by police again – on 3 July 2013.
B’s joint police and Departmental interview on 3 July 2013[40]
[40] Exhibit 11; Transcript pp. 9-31, Tab 2, Exhibit 1.
When asked, the child did not know what day of the week it was. He did not know the name of the town in which the interview took place – C Town, where he went to school and where he had lived since September 2012. When asked, he did not know why he had come to talk with the interviewers. During the interview, the child had difficulty with the correct pronoun, for example, using ‘her’ to refer to Q (a boy) on occasion. When asked whether he had been to any other schools, the child said: “ No. Just here. School [C Town].” He reiterated that negative answer when the interviewer asked again whether he had been to any schools other than C Town School. He in fact attended school whilst living with his grandmother in Brisbane.
When asked whether he remembered the other day that he spoke to “somebody” in L Town, the child said it was “the cops”. When asked could he remember what he spoke to the cops about, he said “about Nanna in Brisbane”. He was able to tell the interviewer her name. When asked what did he say about her, he said “Um, very naughty”. When asked what happened that Nanna was naughty, he said “lies. One time.” When asked what did Nanna lie about, he said “stuff”. When asked whether he remembered what he told the cop that had happened, the child said “her done with my private part when I was in the shower.” The interviewer then asked the child “where were you when Nanna did your private part in the shower?” Perhaps unsurprisingly, the child said “in the shower”. After telling the child that he had told her that Nanna “done your private part in the shower”, the interviewer proceeded to investigate whether the child knew another word for “private parts”: he identified that he used the private parts for peeing, was unable to nominate any other particular word to describe his “private parts” but identified them on a drawing.
The interviewer then asked the child could he tell her everything that happened from the beginning to the end when “Nan did your private part in the shower”. the child said “I don’t know”. The interviewer asked “can you tell me what Nan was doing when she did your private part in the shower?” the child said: “don’t know either”. When asked what part of Nan’s body touched his body, he said “hands” (showing them). When asked what part of his body did Nan’s hands touch, he said “my private parts”. When asked to tell everything that Nan did with her hands on his private parts, he said “pulling it” (demonstrating a hand motion). When asked what the action meant, he said “that means pulling it”. When asked how long did Nan pull his private part for, the child said “only a couple, only a couple of minutes”. When asked whether this had ever happened before, he said when he was at her place; when asked whether it happened one time or more than one time, he said more than one time.
When the police officer asked him whether he remembered the very last time it happened with his Nanna and whether he remembered how old he was, he said “nine”. When she asked again how old he was when he was in the shower at his Nanna’s house and she was pulling his private part, he said “I don’t know”. When she said “don’t know?” He said “nine”. When asked which house it was that his Nanna’s hands touched his private part and was pulling out, he did not know. He said that no one else was in the room, just him and Nanna. When he was asked whether Nanda use soap or did not use soap or something else when she put her hands or touched her private part and was pulling at, the child said he did not know. He did not know the very first time it happened. He later explained that Nanna had taught him how to clean himself in the shower.
B confirmed in the interview that he had told Mr E about this but not his mother. When initially asked whether he could remember anybody else he had told, the child said “Mr R” (who is J’s father). When the interviewer sought to clarify whether he had said he told Mr R about the stuff with Nanna, the child said “no”. When he was asked what he thought about Nanna, the child said “I don’t like her”. When asked whether there was anything that he liked about Nanna, he said “no”. When asked if there was a time he had to go up and stay with her and how he would feel about that, the child said “upset”.
The grandmother’s interview with police on 15 July 2013
Police interviewed the grandmother at the Suburb T Police Station on 15 July 2013. She explained that she last had custody of the child in September 2012 and then saw him once in January – February 2013, during which time she was never alone with him. She said she had not assisted the child to shower since he was six years of age and that she had not touched him in the genital area. She told police she believed the report had been made due to an ongoing custody issues before the Court. She told police that the Court granted her “custody” of the child on 9 May 2013 and she thought the complaint had been made in an attempt to prevent her from having the child return to her primary care.
Police actions/conclusions – mid 2013
In mid-July 2013, Queensland police determined that, having reviewed the digital recording of the child’s disclosures to the New South Wales police, there was insufficient evidence to prosecute the grandmother. Police did not believe there was enough evidence to charge her, noting that, during the interview, the child appeared to have difficulties in providing particulars. Police further concluded that the matter was to be recorded as “unfounded” because their investigation indicated it was highly doubtful an offence had occurred.
B’s comments at school: 30 July 2013
On 30 July 2013, the child told a member of staff at the C Town School that he would not see her again. When she asked why, he said because he lied. When she asked what he lied about, he said (words to the effect) that he lied to the Court and had said that Nanna touched him on his private parts in the shower and that she had never done that. When the staff member asked him why he lied, he said that sometimes he lies and sometimes he does not. He also said that his mother was very angry and had told him and N that they were going to sleep in the shed because they were naughty. He also said that he wanted to go and live somewhere else; he was very upset and teary.
Statements given to police by the mother and Mr E: 2 August 2013
Mr E gave a statement to the Police on 2 August 2013.[41] This statement contains the following information:
a)that, in the conversation in June 2013 about the grandmother washing the child, the child said “Nanny washes my bum” after which Mr E asked him “your boy bits?” and he said “yes”; and
b)when asked how his grandmother washed his “boy bits”, the child used his hands, meeting one hand back and forth in a fist (described by Mr E as a masturbating motion); and
c)when asked whether it was just one, the child said Nanny had been doing it for a “long time”; and
d)when asked whether his grandmother did not wash anyone else like this, the child said “yes J. After Nanny washes me, she washes J and I stand there to get dried while she is washing J”; and
e)when asked whether anyone else washed him, the child said there was a young boy “U”, who had had his mouth on his boy stuff (pointing to his penis).
[41] Exhibit 1, Tab 2, p 49-55.
Mr E’s police statement also includes the following information:
The other day the child was a bit naughty. He would often tell us that he wanted to go back to Nannies and to go home, only when he got in trouble, trying to punish us. He said “Nanny didn’t do it”.
We were quite upset about the whole thing and explained that if he said this and it was wrong, then there was a lady going to Goal and it was wrong. I explained that if I have to go to court and the judge thinks that I made these allegations up that there was a good chance that I could go to Goal. I told him “don’t lie, regardless of what the answer is, I want the truth, it has to be the truth.” He stood there and said “Hah, Nanny didn’t do it”. Up until this point, he had always strongly maintained that he did it, there was no doubt. This was until he got in trouble. We just left it after this.
The mother also gave a statement to police on 2 August 2013.[42] This includes the assertion that Mr E told her he asked the child why he wanted to go and live with Nan; that the child said “because Nanny makes me happy” and, when Mr E asked what he meant by that, the child apparently said something like “Nanny plays with me in the shower”.
[42] Exhibit 1, Tab 2, p 41-48.
The mother’s police statement also includes the following:
For the last few weeks [the child] has been saying to us that he didn’t want to live here anymore when he got into trouble, to try and hurt us. Last weekend I got angry at [the child] about something that he did. I told him “Fine I’ll send you back to Nanna’s to see how you go up there.” He said “Fine Nanna didn’t do anything”. I was dumbfounded and I couldn’t speak. I think [Mr E] came home about half an hour later. I told [Mr E] what happened and what the child had said.
[Mr E] spoke with the child about it. [The child] said again, “It didn’t happen.” Later that night [the child] walked up to [Mr E] in the lounge room and said, “Sorry I lied, Nanny did.” I was on the lounge room as well. We spoke with [the child] about how serious these things were.
One interpretation of the mother’s interaction with the child, as outlined above, is that she was deliberately threatening to return him to a household in which she believed he had been the victim of sexual abuse. However, I do not accept that she is likely to have threatened to send the child back to his grandmother’s care if she genuinely believed he had been sexually abused by her. I do not accept that the mother would have threatened such a thing, even in anger, if she had truly believed her mother had sexually abused the child.
As noted above, the parties entered into Consent Orders in late August 2013. These orders provided that the child spend time with his grandmother every alternate weekend from 10.00 am Saturday to 2.00 pm Sunday and by telephone twice weekly. In September 2013, the child’s grandmother took him to Brisbane to see the Riverfire celebrations.
The October 2013 complaint
On 2 October 2013, police received information that, after the child returned to his mother’s care after spending time with his grandmother (namely, between 20 September 2013 and 30 September 2013) he told her (his mother) that his grandmother “had pulled him off in the shower and then pulled his brother J in front of him”.
Despite the documents suggesting that the mother was the informant, the mother denied contacting police.
As a result of this complaint, police arranged with the Department to conduct a joint interview of J (then eight years of age) at school on 10 October 2013.
J is interviewed by the police: 10 October 2013
J was observed to be a well presented young child and in a clean uniform. He was friendly and cooperative. When asked initially about the concerns contained in the information received on 2 October 2013, J said he knew what it was about and it was about the ‘war’ between his mother and his “aunt”. J told the interviewers that the mother often made up lies about the grandmother, including that she molested him and the child. He said this was not true and that his mother (the grandmother) had never touched his or the child’s private parts. He also said this was because of an ongoing custody issue relating to the child. Police records note that he provided all of this information to police at the commencement of the recording, before they even had an opportunity to complete their introductory comments.
Information provided to the Department about J’ attendance at school was that he was generally neat and tidy, with good presentation; was not a high academic achiever and had never been; possessed better verbal skills than written skills – in summary, no major concerns about him had been identified.
Police also interviewed the child again.
B’s Interview on 14 October 2013[43]
[43] Exhibit 2.
B was interviewed by police at the C Town Central School on 14 October 2013. He described travelling with the grandmother to Brisbane during the September/October 2013 school holidays and watching the fireworks with her and J. He said he did not have a shower during the time he stayed at his grandmother’s home in Brisbane.
The interviewing officer asked the child whether he remembered the last time police came and spoke with him. After telling them that he did, and that he did not know what they spoke with him about then, he said he really wanted to go back to “Nan’s” place – a reference to his grandmother’s place.
He reiterated that he really wanted to do this. When asked why he wanted to go back to her place, the child said it was because he loved her. When the police officer asked him whether he would rather be “here” with his mother or “up there” with his Nan, he said “up there with Nan”. He said: “and don’t tell my mummy about that.”
When the police officer asked him why he wanted to go back to his grandmother’s, the child said it was because he really missed her; he missed her very much. Whilst he was unable to particularise what it was that he missed about his grandmother, he continued to say that he just missed her. He also continued to say that he liked her and he loved her so much. When asked why he loved her so much, he was, again, unable to particularise this beyond reiterating that he just loved her.
When the police officer asked the child what it was that made him not want to stay with his mother, he said it was because he did not want to be “treated like this”. He said that he did not want to be smacked all the time: that was why he wanted to be with his grandmother. He complained that his mother smacked him all the time for being naughty, later saying that he was smacked on the face, on the legs and “everywhere”. He was unable to particularise what he did which resulted in him being smacked. From his perspective, it was clear he regarded himself as getting in trouble a lot whilst in his mother’s care. Apart from this, he did not say that there was anything he did not like about being with his mother - he agreed that he would just rather be with his grandmother.
B was able to identify parts of the body, including his “private parts”. Whilst he was unable to articulate the “proper” name for this part of his body, he identified that he used it for peeing. He said that no one touches him on his private part and that no one had ever touched him on the private part. He explained that he showered himself at both his mother’s and grandmother’s home and that he had a shower on his own at his grandmother’s home. He denied that J had a shower with him. He said his grandmother did not help him to have a shower and that he washed himself in the shower. He could not remember anyone ever helping him wash himself in the shower. He said his grandmother only went to the toilet when he was in the shower.
Police actions/conclusions
Police interviewed the grandmother again on 14 October 2013. She reiterated her view that, because the child wanted to come and live with her, the mother continued to invent stories to prevent this from occurring. She also raised the suggestion that Mr E was the one behind “the push” that the child continue to live with his mother on a full-time basis. Having seen both the mother and Mr E give their evidence, this assertion does not seem to be without foundation.
Police concluded that, because neither child made any disclosures during their respective interviews, there was no evidence to indicate that any offence had occurred. The mother was informed of this conclusion on about 14 October 2013.
Other evidence asserted to be relevant to an assessment of the sexual abuse allegations
Mr E also gives evidence of an occasion when, upon returning from a weekend with the grandmother, the child was asked by a family friend how his weekend was and he immediately replied “Nanny didn’t touch me, Nanny didn’t come into the showers, nothing happened” while holding his hands up and tears welling in his eyes.[44]
[44] Affidavit of Mr E filed 17 March 2014 at [19]
Mr E Snr (Mr E’s father) provided an affidavit filed 17 March 2014. This document contains evidence of his observations of the child’s behaviour not long after he started to live with the mother and Mr E in September 2012. Mr E Snr recounts an occasion where he observed the child exposing himself and “playing with himself” in the lounge room.
Whilst his affidavit contains no assertion that the child said anything like “Nanna lets me do it”, Mr E Snr said during his oral evidence that such a comment had been made. He initially appeared to regard this comment as some sort of indication by the child that his grandmother had, in some way, sexually abused him. However, as was pointed out to Mr E Snr during his cross-examination, at its very highest, the comment he reported the child making was nothing more than a child telling an adult that another adult had “let him” do something that the first adult was reprimanding him about. It certainly is not a disclosure by the child that his grandmother had done anything of a sexual nature to him.
Ms M says, in her first Family Report that, when she spoke with the child in February 2014 he told her that “Nanny didn’t have a shower with me. Nanna had a shower. Then J walk in. Then I walk in.”[45]
[45] Paragraph 52, Family Report dated 26 February 2014.
Discussion
I note that Mr E attended at the C Town police station on 28 September 2013 in what is described in the documents as a “very agitated state”, raising concerns that nothing had been done with the investigation into the allegations that the grandmother had sexually assaulted the child. He is recorded as being “adamant” that the child had been “molested” by his grandmother: when challenged as to what evidence he had, he said that “I was molested, I know what to look for”. This comment raises the very real prospect that, during the discussion in the car in June 2013, Mr E was the instigator of conversation with the child and that his conversation was designed to ascertain whether the child had been the recipient of any inappropriate interaction from his grandmother.
I am not persuaded on the evidence before the Court that the child will be at an unacceptable risk of harm if he spends unsupervised time with his grandmother. Whilst he has made various comments at various times to various investigating officers, these comments must be analysed in the context of:
a)his developmental delay and associated difficulties in recalling information accurately; and
b)the evidence that he had been questioned by Mr E (who himself had been sexually abused as a child and who, therefore, knew ‘what to look for’) for a time before his first interview; and
c)his comments to a member of the school staff in July 2013 – when he had had no interaction with his grandmother other than during the Family Consultant interview - that he lied when he said Nanna touched him on the private parts in the shower and that she had never done that; and
d)his other frequent changes of position: for example telling the mother and Mr E at some time before 2 August 2013 that the grandmother did not do anything and then, according to the mother (but not Mr E’s statement to police), reaffirming that she had; and
e)that, on an occasion, he told others his grandmother had not touched him or come into the shower; and
f)his comments to Ms M in February 2014; and
g)the inconsistencies in his various accounts during his various interviews: for example, telling police on occasion that his grandmother had touched his private parts and also telling them on occasion that no-one had ever touched his private parts; and
h)the inconsistencies in the accounts provided by the mother and Mr E at various times about the events of 23 June 2013; and
i)what J told authorities when he was interviewed at school in October 2013.
B and his expressed wishes
A further appreciation of the child’s functioning can be gleaned from the information that, during his initial assessment on 12 September 2012 (when he was nearly 13 years of age), he did not speak in full sentences and was slow to process the teacher’s request for him to open his book and show some of the work he had been doing that week. Further, during another assessment, he was described as becoming fixated on one task and wanted to keep coming back to it. When taken to the first reading task, he said he only knew the letters in his name. He was assessed as performing at an age equivalent of less than five years on the word reading subtests[46] but, due to behavioural difficulties during the assessment, this may not necessarily be a true or accurate reflection of his abilities.
[46] Which tests the phonological awareness and letter identification skills.
Similarly, the child performed at an age equivalent of less than five years in his spelling subtest but, again, it was noted that his oppositional behaviours during the test meant that the results may not indicate his true abilities. However, as his behaviour was more settled during the numerical operations subtest, his performance at an age equivalent of five years, eight months was thought to more accurately indicate his true abilities.
As at the end of 2012, the child’s classroom teacher noted the following critical items: threatens to hurt others, is easily annoyed by others, has hearing and eye sight problems and hits other students. He was regarded as having demonstrated clinical levels of anxiety, learning problems, atypicality, and withdrawal – such observations supporting the diagnosis of ADHD, behavioural issues and ASD.
The conclusions from his testing outlined above should properly be seen in the context that a previous assessment in 2010 resulted in the child being assessed with extremely low verbal comprehension, low average perceptual reasoning, extremely low working memory and borderline processing speed.
At the time of the 2012 testing, the child had recently moved to live with his mother and her household: that is, with Mr E, who at that time he had only met about twice before and his half siblings with whom he cannot, at that time, have had any relationship whatsoever. Whether the child’s performance and consequent test results may have been in some way affected by the sudden significant change to his care arrangements is an unknown.
Ms K, a Family Consultant who interviewed the child and the parties on 21 June 2013, observed that, despite then being 13½ years of age, he behaved in the manner she would expect of an eight to ten year old.
When he spoke with her in June 2013, the child expressed very clearly that he wanted to live with his grandmother because he thought she was the best, he got on with J and Mr E hit him when he was naughty (which was sometimes). When Ms K asked him if he would miss his mother if he moved to live back with his the grandmother, he said: “I don’t care. I can see her on the weekends. No. the holidays. Oh, I don’t know. Just for a couple of day.”
Whilst I accept Ms K’s evidence to the effect that, despite his comments, the child did not impress as having the ability to contemplate the consequences for him of what he was saying, I note that he was insistent during his October 2013 interview with police that he loved and missed his grandmother and wanted to live with her. That he made the comments recorded during this interview to complete strangers provides support for my acceptance of the grandmother’s evidence to the effect that, on occasions - including during her visit on 16 February 2013 – the child has told her that he wanted to stay with her and/or go home with her.
Further support for a conclusion that the child continued to express a wish to return to his grandmother’s care in 2013 can be found in the contents of the statements made by the mother and Mr E to police in August 2013. Whilst they characterise the child’s comments that he wanted to go to stay with his grandmother as being made to hurt them, or in the context of disagreements within the household, such characterisation does not change the fact that the child continued to express this wish.
Reference to documents produced by C Town School also reveals that, on 17 September 2013, the child said he missed ‘Nanna’. In early February 2014, he told another member of staff that he wanted to go back and live in Brisbane. In mid-May 2014, the school noted that he was in a bad mood and had said that it was Mother’s Day and he could not see “Nan” – he said he did not love his mother.
Additionally, when she interviewed him in February 2014, the child told Ms M that he wanted to live with his grandmother because she “has [J] and I love [J].”
More recent school assessments from the C Town School suggest, at first blush, that he has improved significantly whilst in that school’s care. In fact, these reports contain no reference at all to the existence of the child’s global developmental delay nor to the fact that he continues to receive one on one aide assistance three days per week to assist him to participate in the class.
No person reading these more recent reports would, from those documents alone, appreciate that the results recorded there have been obtained via a tailored process: namely, that the child does a modified version of the curriculum completed by his contemporaries and is assessed with the assistance of his aide reading questions to him, assisting him in his understanding of them and, via discussion, obtaining his answers to the same. This remains necessary because, as Mr E succinctly put it, the child cannot read or write fluently.
Once this is appreciated, it is immediately apparent that there is little utility in attempting to compare the child’s pre-September 2012 results with these more recent results: one could only do so with confidence if one could be assured that the same processes had been implemented by the different schools at which the child has attended. There is no evidence before me in this respect. Similarly, there is no objective basis upon which it can be concluded that, whatever improvement has been noted in the child, this has been the result of his attendance at C Town School in particular as opposed to that he has been the recipient of significant assistance – which, on the grandmother’s evidence, would be available to him (and had previously been made available to him) at educational facilities in Brisbane. Similarly, there is no way of assessing the degree to which maturity has contributed to those improvements which it is asserted the child has achieved since living with his mother.
I am required to take the child’s expressed wishes into account in determining those parenting orders which are in his best interests and, absent the effects of his impairments as already outlined, the wishes of a 16-year-old child would ordinarily be accorded very significant weight. However, as the weight to be accorded to such expressed wishes must take into account the child’s maturity (both intellectually and emotionally), his cognitive ability to understand the consequences for him of the implementation of any such expression and an assessment of the strength with which any expressed wish is held, I do not intend to place any significant weight upon the wishes he has expressed at varying times since September 2012.
B’s relationships and his capacity to maintain such relationships
During the course of responding to their questions, he told the interviewers on 3 July 2013 he liked all of his family (including Q, who he said he liked a little bit) except his sister N who he said he had never liked.
The mother told Ms M in February 2014 that the child did not give a lot of thought to people who were not physically present.[47] His grandmother disputes this assertion on the basis that he has given her drawings of her and J which he has done whilst in his mother’s home.
[47] Paragraph 36, Family Report dated 6 February 2014.
I consider that the contents of all of the child’s interviews with police support a conclusion that he is capable of retaining at least some memory of persons with whom he is not in regular contact. He clearly remembers J and has made consistent comments which clearly demonstrate that he misses him. He clearly retains a memory of his grandmother and, in October 2013, clearly stated that he loved her and missed her. Given the relative lack of time that he has been able to spend with her after September 2012, these comments suggest that he is capable of retaining some knowledge of members of his extended family, even when he is not living with them on a day-to-day basis.
I accept the tenor of the grandmother’s evidence that, during the time the child and J shared a household, they had a very strong relationship: after all, they were parented as though they are brothers. As noted above, he told Ms M in February 2014 that he loves J.
The mother’s parenting capacity generally and in relation to the child in particular
On 2 September 2004 – the day of N’s birth - the Department recorded a Child Protection Notification[48] in relation to her. The concerns reported related to the mother’s capacity to care for the infant as a result of her alleged prior neglect of the child. Departmental records indicate that this notification was unsubstantiated.[49]
[48] Hereafter referred to as a Notification.
[49] Departmental Report dated 12 June 2013.
On 15 November 2004, the Department recorded a further Notification in relation to N. The allegation was that she was being neglected in her mother’s care. The Department substantiated this allegation. An Intensive Family Support intervention was implemented to assist the mother to address the identified concerns. This intervention concluded in March 2005.[50]
[50] Departmental Report dated 12 June 2013.
I accept the grandmother’s evidence that the mother’s living arrangements and stability improved after she commenced her relationship with Mr E. I also accept that, when she left the child in his mother’s care in September 2012, the mother’s home was fairly clean and tidy and, from her observations, the mother appeared to be in a fairly stable relationship and seemed to be looking after the children to a fairly good standard.
Unfortunately for the child, the “fairly good standard” of care in his mother’s home referred to by his grandmother appears not to have continued given the following:
a)on 14 June 2013: the C Town School recorded “signs of neglect” concerns following observations of the child’s hygiene and clothing: it was noted that he had been wearing the same T-shirt all week and that it was very dirty and had started to smell; body odour was evidenced by the smell of unwashed hair, clothing and jacket – this had been gradually getting worse, especially that week; it was described as “nauseating”; he had the signs of a cold or flu like symptoms; his jacket was very dirty and smelly; the school also recorded that this was the third occasion on which he had not taken his medication before coming to school: he explained he had run out of medication and had to wait for his mother to get them from the chemist. Concern was expressed by a member of the school staff that the child would be subjected to ridicule by other students because of his appearance and odour which could/may result in isolation and social bullying; and
b)when the school spoke with the mother on 14 June 2013 to raise the issue of him receiving treatment for a rash on his arms, the mother told the staff member that he got the condition every year at the same time (a matter which can only have been supposition on her part given her significant absence from the child’s life until about early 2012) and she must get some cream – despite this, the school recorded that there was no indication of treatment given by the end of term (28 June 2013); and
c)on 18 June 2013: the school recorded that he seemed “down/depressed”: whilst the school records that the child said that he was “never going to see his mother again” if he goes to live in Brisbane and that his grandmother had told him this, the evidence establishes that he had not, in fact, spent time with his grandmother since no later than February 2013 and had not had opportunity to speak with her by telephone that year; he continued to present with signs of a cold or flu and was coughing and shivering with cold; and
d)on 19 June 2013: the child attended school in shorts and no jumper, shivering with cold; showed a member of staff the rash on his arm which had worsened and that he had not received any cream for it; when asked whether his mother had taken him to the doctor to have it checked, he said “no”; the child asked a member of staff to buy him something for lunch because he did not have a sandwich as his mother had no bread; and
e)in contrast to the position during Term 1 of 2013, the school recorded that, for Term 2 of 2013, the child wrote no journals at home and had not done any reading or sight words during the term (despite him being keen to read and do sight words); and
f)on 9 September 2013: the school contacted the mother to tell her that the child was unwell (had a hot forehead, was coughing and looked unwell); the mother told the school she was not coming to get him as she felt he was “faking it” – when the school insisted that he did seem unwell, the mother said she would come and get him: when she arrived, she was quite aggravated and repeatedly told a member of staff and the child that he was not sick; she eventually left with the child who was getting distressed, saying it was her day off and that Mr E would be mad at him; and
g)on 16 September 2013: the school recorded that, despite being unwell, the child asked staff not to call his mother, saying that she would not come and pick him up; the principal suggested that the child be allowed to sleep in sick bay rather than him getting into trouble with his mother; the school recorded its concern that the child was not and had not been receiving any care or medical attention since his illness (which had been ongoing for the last week); the records contain a record of concern, being “signs of neglect”: namely, unwashed clothing - he was wearing clothes that still had the same dried food on them that had been present the previous week and his pants now had dried food on the seat of them and had not been washed; and
h)on 18 October 2013: the child was spoken to by a member of school staff about his behaviour in asking other students for food and money; he replied that his mother only let him have an apple and two sandwiches for school; and
i)between about 21 October 2013 and 28 October 2013, members of the school staff noted that the child’s uniform had not been washed and he was attending in a dirty uniform; and
j)on 18 November 2013: the school recorded again that the child’s uniform was “foul” and looked like it had not been washed for ages; and
k)on 28 November 2013: the school recorded that the child’s clothes appeared unwashed and have become very smelly; and
l)in early 2014: despite a request that the child be provided with stationery he needed to participate at school, no stationery was provided by the mother’s household and the school was left to provide the same – this occurred when the school requested he be supplied with a flash drive.
The evidence suggests that there has been somewhat of an improvement in the child’s overall presentation at school (including the amount of food he is sent with and his uniform) from about April 2015 onwards. However, it is also abundantly clear that he is left to ready himself for school and that, if he returns saying that he missed the bus, he assists Mr E cutting wood for the day. It is clear that no effort is made at all to convey him to school on such occasions, despite the fact that it is only about 20 – 25 minutes drive into town. Whilst described within the mother’s household as “work experience”, I have been left to conclude that it is highly likely the child has been used to provide – at the very best, underpaid and at the worst, unpaid – labour to assist Mr E in his work.
Additionally, a further appreciation of what I consider to be the mother’s disinterest in the child’s education generally can be seen from the fact that, despite the last day of the trial occurring in the last week of school for Term 3, the mother did not know that this was the case: that is, despite having two children (namely, the child and N) enrolled at the C Town School, the mother did not know their school holidays started the week after the trial concluded.
The grandmother told Ms M in February 2014 that the mother had multiple addresses during a three-year period (including two in C Town where she has lived since 2012); that she thought she may be experiencing financial hardship based upon the mother’s claims that she was unable to share the costs associated with the child’s travel to visit her and telephone calls.[51]
[51] Family Report dated 26 February 2014 at [24].
The mother’s own evidence makes it clear that she, Mr E and their children moved from their previous residence in C Town to L Town for a three – four month period in early 2015: I am easily persuaded that she took no steps to notify the grandmother of the school to provide her with appropriate contact details during this time. I do not accept the mother’s explanations for the absence in communication between the child and the grandmother from about mid-2014 onwards; I do not accept that she was unable to get into contact with the grandmother: rather, I consider it much more likely than not that she simply moved and determined not to provide any updated contact details. I also consider it much more likely than not that her failure to provide the grandmother with any contact details was part of a demonstration of her underlying view that the grandmother should simply remove herself from the child’s life.
Complaints about lack of food and other issues of neglect
The mother raised with Dr F whether her actions in decreasing the child’s medication[52] could have resulted in an increase in the child’s appetite. I accept Dr F’s evidence to the effect that this should not be the case and that a reduction in the medication should return a child’s appetite to more “normal” ranges.
[52] in this case, dexamphetamine.
I am still left with the disconcerting conclusion that, on occasions, the child may well have been locked in his room overnight in order to prevent him accessing the fridge. Whilst the mother’s household appeared to advance that he was simply a child with an enormous appetite (in fact, one could almost conclude that he is almost insatiable), there is no evidence to suggest that, at any time since September 2012, any professional investigations at all have been undertaken to see whether this is simply an aspect of his functioning or has some other underlying cause. The failure to take any steps to investigate this issue is, I think, consistent with the mother’s attitude generally toward matters of health: for example, she only took the child to a medical practitioner for treatment after a member of school staff took the extraordinary step of making an appointment for him and - despite her assertion to Ms M that the child “attends paediatric appointments with [Dr V] in [W Town]”[53] - she has never taken him to see this specialist or, on the evidence before me, any other.
[53] Paragraph 44, Family Report dated 26 February 2014.
Where they conflict, I accept the evidence given by Ms X to that given by both the mother and Mr E. It follows, therefore, that I am persuaded that the child has been sufficiently exposed to the use of marijuana whilst in his mother’s care that he used the term “bong” when referring to a bowl in a picture at school. I am also persuaded that, contrary to Mr E’s evidence, he (Mr E) has previously used marijuana in the shed located next to the house. I consider his explanation about the two marijuana plants located by police in pots near the vegetable garden as fanciful. Given his admitted long-standing use of marijuana, it is almost inconceivable that, despite going to the vegetable garden to obtain vegetables for use in the home, he did not recognise the two marijuana plants growing there in pots.
My conclusion in this respect casts a pall over the rest of the evidence given by Mr E.
The grandmother’s parenting capacity generally and in relation to the child in particular
On 30 May 2007, the Department recorded a Report in relation to the child because the grandmother had been seen to hit and yell at him when told of behavioural issues at school.[54] Whilst the grandmother did not accept that she had struck the child on this occasion, she did accept that she may well have yelled at him. I accept that it is more likely than not that, on this occasion in front of a member of the relevant school’s staff, she hit the child across the chest to reprimand him for his behaviour.
[54] Departmental Report dated 12 June 2013.
On 26 October 2011, the Department (Qld) recorded a child concern report in relation to J on the basis that he had persistent head lice which were causing him discomfort and that his mother had failed to treat the same appropriately.[55] The grandmother said she had consistently treated J for head lice but that they continued to return. She denied that she had not attended to the issue in October 2011.
[55] Departmental Report dated 12 June 2013.
Whatever the previous situation, in October 2013 J’ school reported that he was generally neat and tidy, with good presentation. No mention is made of persistent head lice. There is no evidence to suggest that his presentation at school has deteriorated since then.
Medical treatment and medication
The mother said she believed the grandmother has had the child misdiagnosed and overmedicated.[56] She told Ms M in February 2014 that, whilst the child’s grandmother loved him and she did not think her a bad mother, she was concerned that if he returned to her care, he would be prescribed heavy medication and be enrolled in a special school: matters to which she is opposed. [57]
[56] Affidavit of the mother filed 17 March 2014 at [10].
[57] Family Report dated 26 February 2014 at [33].
In response to these criticisms, the grandmother obtained evidence from Dr F, a paediatrician, to whom she had taken the child between 2004 and early 2011. It is clear from his evidence that the grandmother attended upon him, followed his advice and administered medication in the manner that he prescribed. There is nothing in the evidence to persuade me that the child’s grandmother in any way caused any misdiagnosis of him. Similarly, there is nothing in the evidence before me to suggest that she mismanaged the use of the medication prescribed for him.
Given the absence of any expert opinion as to the appropriate dosage for a child of the child’s age and characteristics, it is impossible to determine on the evidence whether or not he has previously been “overmedicated” (as asserted by the mother). I accept Dr F’s evidence to the effect that he did not have any record in his notes of the child’s attendance upon him to suggest that either the grandmother had raised a concern that the child’s medication may have been too high (in terms of dosage) or that he himself had noticed anything in reviewing the child to suggest this was an ongoing issue; I also accept his evidence to the effect that part of the review process is to enable adjustments to dosage to be made for the very purpose of ensuring that the dosage is appropriate in each particular case.
I accept Ms M’s evidence that the mother told her she had taken the child to Dr V, a paediatrician. It follows that I do not accept the mother’s account, given during cross-examination, that Ms M must have concluded from the fact that she (the mother) showed her (Ms M) an appointment card that the mother had actually taken the child to see this specialist. This conflict in evidence provides yet another clear example of the mother’s attempts to deflect responsibility for her actions (or inactions) onto others.
As it turns out, the mother’s evidence during cross-examination revealed that she has not taken the child to see Dr V at all: at its highest, she has done nothing more than make a series of appointments which, for whatever reason, have not been kept. Given my scepticism about much of the mother’s evidence, I have significant doubts that she in fact made any appointment at any time for the child to attend on Dr V: in arriving at this conclusion, I take into account the evidence from the school to the effect that, despite raising the child’s need for medical attention with the mother on a number of occasions, he only attended on the local general practitioner when school staff made an appointment for him and told the mother to take him to it. This demonstrated attitude toward dealing with the child’s medical issues (even when raised by the school) persuades me that it is much more likely than not that the mother has done little – if anything at all – to engage with any medical expert to obtain information about how best to assist the child.
Even accepting the mother’s evidence about this issue in the manner most favourable to her, I can only conclude that:
a)despite having the child in her primary care since September 2012; and
b)despite asserting that the grandmother had previously mismanaged his medical care,
she has done nothing to follow up missed appointments and, consequently, has done nothing to obtain assistance from any qualified person about matters such as whether the child would or would not benefit from using medication. Rather, her household seems simply to have implemented their view that the child is better off without medication than he is with it.
The grandmother’s care of foster children
I accept the grandmother’s evidence that, in 2012, the child’s behaviour became increasingly difficult for her to manage and that, on occasions, he was lashing out, punching and hitting her. I consider it more likely than not that the presence of four foster children in the grandmother’s home at that time may well have contributed to the child’s unsettled and difficult behaviour. I accept that, in this context, from about May 2012 onward, the child started to spend more time with his mother: I also accept the grandmother was responsible for initiating this time and for doing the travel necessary to facilitate it. I accept that it was in this context, then, and because the child was expressing a desire to experience living with his mother that his grandmother made the decision to take him to stay with his mother.
The grandmother has previously been used as a foster carer by the Department between about early 2012 and about the end of March 2013. At that time the Department removed the children previously placed into her care. The Department had received reports that the foster children were inadequately supervised. During her discussions with Departmental officers, the grandmother advised that at no time had the children had an odour or not had their basic care needs met; she explained that she was experiencing difficulty drying clothes for herself and the five children (being J and the four foster children who had been placed into her care by the Department) given that it was raining continuously at that time. Her explanation in relation to the issue of alleged insufficient supervision was accepted by the Department. The Department noted that none of the children made any disclosure of inadequate supervision. Further, the grandmother had acted appropriately when one of the foster children in her care absconded.
I note that the Department records that, during assessment, the grandmother’s home presented as tidy and the children had adequate sleeping arrangements and bedding. Whilst there is mention that one of the rooms had a distinct unpleasant odour around the bedding, the grandmother advised that a builder had uncovered mould in the flooring and walls as a consequence of the significant wet weather experience in Suburb S in January 2013 (when that suburb was one of many inundated by floodwaters). Given that the Department records contain a reference to “hoarding”, the further possibility that one of the children themselves was hoarding food cannot, I think be, eliminated as a possible cause of any odour detected in the grandmother’s home at that time.
The contents of the documents before the Court appear to me to establish that one of the significant factors in the Department’s decision was that, because she had taken the four foster children (aged under 11 years) then living with her interstate when she went (with J) to visit the child on 16 February 2013, those children were exposed to the verbal argument and/or verbal altercation which occurred on that day. Exposure to the verbal altercation resulted in one of the children wetting himself. The Department was significantly concerned that the grandmother appeared unable to appreciate that putting the foster children entrusted into her care at risk of exposure to aggression placed them at risk.
Departmental records note that the grandmother told the Department she would not take on school aged children again; she indicated a willingness to work through Departmental concerns because she was interested in fostering children into the future and it appears that she appreciated that the Department imposed a high standard on Departmental carers and required that they work on any identified deficiencies in their parenting.
I also note that an “Action Plan”, dated 14 June 2013, prepared by or with Departmental authority records that the grandmother’s support agency advised it would ensure that all Departmental placement requests were attended to through it and that no placements were to be directly discussed with the grandmother to ensure that she does not agree to taking on children and/or responsibilities greater than her capacity; it appeared to be accepted that the grandmother had struggled to refuse direct Child Safety Officer requests to care for children out of her concern for those children. In fact, one of the specific matters within the Action Plan to which the grandmother was asked to commit was that she tell any Child Safety Officer who approached her directly (seeking that she provide care for a child) that discussions must occur with her support agency.
I accept the grandmother’s evidence that she has no intention of working as a foster carer again. I consider it more likely than not, therefore, that the grandmother’s household will not again be required to deal with the pressures associated with her working as a foster carer.
I accept that the grandmother has obtained employment which enables her to earn sufficient monies to support her household and that this employment enables her to be available outside school hours to care for J and, if he returns to live with her, the child.
The only incident during which criticisms were made of the grandmother’s parenting of the child occurred in 2007. The difficulties she experienced in her care of the four foster children under the age of about 11 years who were placed into her care by the Department appear to me to be likely to have arisen as a combination of the intersection of the mere fact of being asked to provide care for four children at one time (whilst still caring for J) and her desire to ensure that she continued to maintain a relationship with the child: whilst the Department’s focus was, understandably, upon the welfare of those children placed into the grandmother’s care, her actions in taking them with her when she and J travelled to spend time with the child interstate are, I think, also understandable, especially given that the mother had not done anything to transport the child to Queensland to spend time with his grandmother.
The attitude in the mother’s household to the child’s relationship and time with his grandmother
Whilst the mother told Ms M, a Family Consultant, in February 2014 that she was thankful her mother had parented the child when she was unable to,[58] the evidence before me persuades me that neither the mother nor Mr E consider that there is any benefit for the child in maintaining a relationship with his grandmother.
[58] Paragraph 33, Family Report dated 26 February 2014.
I accept the grandmother’s evidence in relation to the contents of Exhibit 7, the agreement she and the mother arrived at in relation to time the child would spend with his grandmother. I do not accept the mother’s evidence about this document.
I consider that, as the grandmother told Ms M in February 2014, the mother has done little, if anything, to support the child in having an ongoing relationship with her. In fact, I accept that the mother’s actions – for example, in moving home without notifying the grandmother of the new contact details – clearly demonstrate a desire to ensure the child does not have the opportunity to have an ongoing relationship with his grandmother. I consider that the mother has, on numerous occasions, failed to comply with orders intended to provide the child with that opportunity. There is nothing in her evidence or presentation before me to suggest that, once final orders are made, she is likely to behave differently in the future.
In contrast, I consider that the grandmother has acted to support the child in having a relationship with his mother at times when the mother has sought this out. I accept that she has undertaken all of the travel necessary to ensure he had the opportunity to spend time with his mother in 2012. I do not accept the mother’s evidence that the grandmother positively acted so as to prevent her from having time and/or a relationship with the child prior to 2012.
What happened on 29 August 2014?
The grandmother said the parties had agreed she would collect the child at 4.00 pm on 29 August 2014. She arrived early and, when she pulled up outside the mother’s home, the child was in the process of walking home from school and walked over to her car. When it was pointed out to her that the terms of the operative March 2014 Order provided for her time to occur between 9.00 am Saturday and Sunday afternoon, the grandmother said she and the mother had a written agreement that she would have the child with her from 4.00 pm Friday until 4.00 pm Sunday because her parents were visiting from New Zealand.
The grandmother produced a document (which became Exhibit 7) on the next day of the trial. I accept her evidence that she and the mother sat together, the mother told her the dates she could have the child and the mother wrote out two copies of the document so that each of them would be able to retain one in their respective possession. She said each party signed the document as is shown on it.
The mother denied writing the document and denied that the signature on it was hers. As noted above, I do not accept her evidence in this respect. I accept that Mr E had never seen the document before. I consider it highly likely that he modified his evidence to some extent when he said he was not sure whether the writing or the signature was that of the mother.
Events since August 2014
B has not spoken by telephone with his grandmother since August 2014. This is in non-compliance with the March 2014 Order. Nothing in the mother’s evidence suggests the existence of any reasonable excuse for this non-compliance other than that she considered the child easier to manage if he was not able to speak with his grandmother. If the mother’s inability to ensure that the child have the ongoing opportunity to speak with his grandmother – and J – by telephone has arisen because of the competing demands on her time, such demands have resulted in the child being cut off from J and his grandmother: of all of the mother’s children, he is the child who has suffered as a result and it is his welfare which is likely to have been compromised.
The likely impact on him of this is addressed by Ms M in her report – I accept that, for the child, the absence of his grandmother and J is highly likely to be regarded by him in some way at least as abandonment and/or rejection. This likely impact could so easily have been avoided if the mother had acted in any way to ensure the child had the ongoing opportunity to communicate in some way with both his grandmother and J.
I do not accept that the mother made any attempts to ensure the child maintained any sort of relationship or communication with his grandmother or J; I do not accept her evidence that she attempted to remain in contact with the grandmother. I find that she deliberately failed to inform the grandmother she had moved, deliberately failed to ensure that the grandmother had a contact mobile telephone number for her and, in essence, I am easily persuaded that the mother simply determined it would be easier for her in her parenting of the child if his grandmother was no longer a part of his life in any way: I consider she simply acted to do her best to ensure this was the case.
Her absence of insight into the likely effect on the child of her decision to cut him off from his grandmother and J is easily demonstrated by her evidence to the effect that because the child was upset after talking with his grandmother on the telephone after coming into her care, she determined to reduce the occasions on which he could speak with her – his behaviours settled and he was easier for her to manage - she thus concluded that the best way to manage the situation was to ensure that he not have any real opportunity to maintain a relationship or communication with his grandmother.
At trial the mother evidenced no improvement in what I regard as a breathtaking absence of insight into the significant impact on the child of almost complete severance of the opportunity to communicate with the person with whom he had lived since he was two years of age. Nothing in her evidence persuaded me that there was likely to be any change in her attitude toward, and appreciation of, the importance to the child of having an opportunity to spend time and communicate with his grandmother and J.
I accept that, whilst the mother had previously permitted the child and J to speak by telephone, she disconnected the telephone when she heard the grandmother’s voice. This, after all, is consistent with the mother’s own evidence that she has previously acted to decrease and minimise the child’s opportunity to speak with his grandmother by telephone because he became upset and demonstrated disturbed behaviour after doing so.
I accept that, having driven for five hours to reach C Town on 27 December 2014, the grandmother then discovered that the mother and her family had moved address. I accept her evidence that, when she knocked on the door of the home in which the mother, Mr E and the children had previously lived, another woman answered and told her that they had moved and she did not know where they lived. I accept entirely her evidence that the mother had failed to inform her of this move and that it came as a complete shock to her to learn that the mother and her family had moved residences. I also accept her evidence that she had no telephone number for the mother after about mid-November 2014 when that phone number was disconnected.
I accept the grandmother’s evidence that she has not changed her mobile telephone number since 1997 and that she has had the same home landline telephone number since February 2010. I therefore accept that, had she wished to, the mother would have been able to contact the grandmother and would have been able to facilitate ongoing communication between the child, his grandmother and J.
The grandmother’s attitude to the child’s relationship and time with his mother
I accept the grandmother’s account to Ms M in February 2014 that, between 2002 and September 2012, the mother spent inconsistent time with the child and that the time she did spend was mostly facilitated by her: for example, she mostly initiated visits and telephone calls between the child and the mother.[59]
[59] Family Report dated 26 February 2014 at [18].
I accept the tenor of the grandmother’s statement to Ms M in February 2014 to the effect that she would continue to facilitate the child’s relationship with his mother and siblings because she believed it important to him to understand his family of origin and to have the opportunity to form enduring relationships.[60]
[60] Family Report dated 26th every 2014 at [29].
The impact on the child of any significant change to his current parenting arrangement
Until September 2012 the child had never lived with his mother. It was an extreme and significant matter for him to leave his grandmother’s home and go into the care of his mother and her household.
The mother told Ms M in February 2014 that the child had settled well into school and had made several friends. She said he had experienced only two outbursts since living with her and that he responded well to general discipline. She claimed his self skills and educational achievements had improved.[61]
[61] Family Report dated 26 February 2014 at [34].
Given the matters outlined above, I accept that a further change to the child’s primary parenting arrangement may well be destabilising and unsettling for him – at least in the short term. Whilst an outcome in which he lives primarily with his grandmother would remove him from his mother’s household (where he has lived since September 2012), it would reunite him with the household in which he had lived for the decade prior to that. A change of primary residence would also require the child to adjust to a new educational environment.
I accept the grandmother’s evidence about the facilities that are available to the child if he returns to live with her in Brisbane. I consider he may well obtain greater benefit from accessing those services than if he remains living within his mother’s household.
Whilst returning to live with his grandmother will separate the child from the daily interactions with his half siblings in his mother’s household, it will provide him with the opportunity to spend daily time with J, a child with whom he has a clear and significant attachment.
Given the deficiencies in the mother’s attitude toward managing the child’s presentation at school, dealing with day-to-day medical matters and engaging with specialists from whom assistance might reasonably be thought to benefit the child, I consider it more likely than not that his grandmother is the person best able to address these matters in a way that will benefit the child.
Other relevant matters
I accept the grandmother’s evidence that she did not bring a contravention application after the mother refused to permit the child to spend time with her in August 2014 because she received advice that such a course would delay the final hearing of this matter. I am not remotely persuaded that her asserted inaction in this respect reflects any ambivalence whatsoever about ongoing, meaningful involvement in the child’s life.
I accept the grandmother’s evidence to the effect that she acceded to the mother’s demand that any changeover after March 2014 occur at her home rather than at the police station as was provided for in the order. I accept that she acted in this manner because, on the very first occasion after the order was made, she waited for about half an hour at the police station (from where she could see the mother and two children in the yard) before going to the mother’s home as the mother said she could not go to the police station with all the children. I further accept her evidence when asked how changeovers at the home went: namely, that sometimes they went smoothly and sometimes the mother and Mr E were verbally aggressive toward her, particularly about being punctual in returning the child to their care.
I accept that the grandmother has done all of the transport involved in facilitating the child’s time with his mother and in her attempts to maintain an ongoing relationship with him since September 2012. I accept that the cost of the travel associated with each trip is between $150.00 and $175.00. I also accept that she has done all that she can do to maintain the child’s relationship with J and that this has included taking J with her during the five hour one-way drive required to see and spend time with the child.
I accept that the grandmother ensured that she and J sent the child a birthday card and an Easter card. I further accept her evidence that the birthday card was returned to her and that the Easter card was not. This evidence accords with the mother’s evidence that she and her family had moved residences in December and with my finding that the mother had not provided the grandmother with details of the new address. I consider that, in sending these cards to the child, she did all that she could to ensure that he did not think that either she or J had in any way abandoned or forgotten him.
The grandmother was criticised to some extent during the course of her cross-examination because she had not tried to communicate with the mother in writing about the issues between them. However, I accept her explanation that she did not try to write to the mother about the child because she did not think she (the mother) would respond to her. Given the mother’s actions as I have found them to be - namely, moving address without informing the grandmother and disconnecting her mobile telephone number – any thought that written communication would have been likely to result in any response from the mother is fanciful.
Given the evidence from the school about the children’s presentation there in 2013, the grandmother’s evidence – namely, that she did not leave the child with his mother for significant periods of time before 2012 because the house was usually dirty and not suitable for him to stay there – has resonance.
During his interview with police and a Departmental officer on 3 July 2013, the child said, when asked if he had plans for the school holidays, “No. Just cutting wood all the time.” Given the mother and Mr E’s evidence about the way in which their house derives income (namely, by Mr E cutting wood and selling it), it is clear to me that, even then, it was likely the child had been significantly involved in helping Mr E in woodcutting. There is, of course, nothing at all wrong with a child helping a family member with that family member’s employment during school holidays. However, as I have already mentioned, I have been left with the very distinct impression that the child has regularly been put to work as an unpaid (or, at the very best – underpaid) labourer helping Mr E and that this has not been restricted to holiday periods only.
I accept as more likely than not that, on occasions, the child has been physically disciplined by Mr E and, potentially, his mother. Reference need only be made to his comments to Ms K in June 2013 and during his October 2013 police interview. Save for the event in 2007, there is no evidence to suggest that he has been the subject of similar discipline whilst in his grandmother’s care.
I accept Ms K’s evidence that, during her involvement in June 2013, the mother and grandmother reached agreement that the child would return to live with his grandmother. I further accept that the mother changed her mind about this agreement after Mr E’s intervention. The mother’s evidence during the trial has certainly left me with the impression that she has been somewhat ambivalent about the child’s living arrangements.
How have the parties interacted?
In early September 2011, there was a disagreement between the parties when the grandmother allegedly demanded money from the mother and Mr E.
The events of 16 February 2013 appear to have precipitated the current proceedings. On that day, according to Mr E,[62] when the grandmother asked the child where he wanted to live, he said: “with you”. His mother disagreed, noting that he lived with her, his family was there, he went to school there and was doing well. Mr E recounts that the grandmother pushed the mother, turned to him and said that if he hit her, she would have him charged and he would “lose”. Mr E also recounts that the grandmother said she had orders to take the child home - presumably, a reference to the terms of the May 2002 Order. On Mr E’s account, the grandmother removed a bag of the child’s belongings and a box of toys when she left – he pursued her, intercepting her in front of the police station. He retrieved the child’s belongings from one of the foster children who had accompanied the grandmother on this visit to the child.
[62] Affidavit of Mr E filed 17 March 2014 at [15].
On 7 March 2013, the Department recorded a report in relation to the child. The concern noted was that he was being exposed to a verbal dispute between his mother, step-father and grandmother about his living arrangements.[63] It seems highly likely that the event referred to was the altercation which occurred on 16 February 2013. This concern seems well made out on the evidence before me.
[63] Departmental Report dated 12 June 2013.
The grandmother told Ms M in February 2014 that she and Mr E had a conflictual relationship. She described him as verbally abusive toward her in front of the child and J in February 2013 and said that he was frequently verbally abusive to her when she collected the child from the mother’s home. She outlined that his verbal abuse was the reason the changeover location was changed. She also considered that Mr E influenced the mother in her decisions about the child: for example, she outlined that, during the June 2013 family inclusive conference, the mother decided that the child could live with her but changed her mind after Mr E intervened.[64]
Is it in the child’s best interests that his mother and grandmother share parental responsibility for him?
[64] Family Report dated 26 February 2014 at [28].
The presumption contained in s 61DA of the Act does not apply in this case. Thus, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, subject always to the child’s best interests being the paramount consideration.[65]
[65] see s 60CA; s 65AA.
If the Court makes an order that the parties are to share parental responsibility for the child and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to him, such order requires the decision to be made jointly by the parties.[66]
[66] s 65DAC(2) of the Act.
When Ms K gave evidence in June 2013, she conveyed that the mother viewed the grandmother as intimidating and bullying her. In February 2014, the mother told Ms M that the grandmother did not consider her wishes about medication for the child and the manner in which his education had been managed. From her perspective, despite enrolling the child in “mainstream” schools on two occasions (after they argued about this) the grandmother later and without consultation and contrary to her wishes, re-enrolled him in a “special” school.[67]
[67] Family Report dated 26 February 2014 at [33].
I accept the grandmother’s evidence that the mother has done nothing to keep her informed about the child’s progress and that she has never received any documents about him or his progress from the mother. As noted above, having moved her residential address, the mother did nothing to inform the grandmother of this, despite the existence of orders which provided for the child to spend time with his grandmother.
I have absolutely no hesitation in concluding that there is absolutely no way the mother and grandmother could make decisions about the child jointly. There has been no communication between them for a significant period of time and it was abundantly clear from the attitude expressed by both the mother and Mr E that neither has any desire to change this situation.
B’s best interests can only be served by according to the person with whom he lives primarily sole parental responsibility for decisions about major long term issues relating to him.
Further discussion and conclusions about the person with whom it is in the child’s best interests to live primarily
The deficiencies in the care provided to the child whilst living with his mother (as detailed above) and my conclusions as to the mother’s absence of support for the child’s ongoing education and his ongoing relationship with his grandmother and J persuade me that, even taking into account the likely disruptions and instability associated with a change of primary living arrangements and the importance of ensuring that he has the opportunity to maintain an ongoing relationship with his mother (his biological parent), the child’s best interests are met by an order which will see him return to live with his grandmother and J.
In arriving at this conclusion I have taken into account the evidence given by Ms M. I decline to accept her recommendations, noting that neither of her reports contain an explanation of the basis upon which – or the reasons for which – she arrived at her expressed recommendations. Additionally, I consider that certain aspects of her report involve significant speculation, based upon an uncritical acceptance of information provided by the mother: who I have found to be a person lacking in credibility. I note, also, that neither of Ms M’s reports contain any consideration of the information provided by C Town School about the appalling and neglectful state in which the child presented during 2013.
B’s time with his mother
The orders prescribing the child’s time with his mother, as outlined at the commencement of these Reasons, represent my best efforts to balance the importance of affording the child the opportunity to spend time (and communicate) with his mother and members of her household and the practical realities associated with the geographic distance between the respective residences.
Whilst the child should, of course, have the opportunity during holiday periods to spend time with his mother and half siblings, he should also have the opportunity to spend time with J and any of his own friends during those periods also. In particular, the restriction that weekend time during the year occur in or around the Brisbane city environs takes into account the mother’s concerns about travel and its impact upon the child as expressed to Ms M.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 October 2015.
Associate:
Date: 7 October 2015
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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