CANNON & WESTCOTT

[2019] FamCA 148

FAMILY COURT OF AUSTRALIA

CANNON & WESTCOTT

[2019] FamCA 148

FAMILY LAW – CHILDREN – Best interests – Where the father failed to appear at the final hearing – Where the father has been convicted of indecent treatment of a child under 16 years – Where the mother and father have both been incarcerated during the children’s lives – Where the children have been exposed to significant violence between their parents and the mother’s drug and alcohol abuse – Where the father is likely to have sexually abused the two female children – Where the children have spent time in foster care – Where the children have lived with the mother since 2016, where the mother has been drug and alcohol free for over 12 months, obtained employment, maintained stable accommodation and kept the children in the same school – Where the mother has accepted assistance from relevant agencies and expresses a willingness to continue to do so – Where the father poses an unacceptable risk of harm to the children and is restrained from spending any time or communicating with the children – Where the children will live with the mother and she will have sole parental responsibility for them – Where the mother must engage in support services until at least 2020.

Family Law Act 1975 (Cth)

Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Johnson & Page (2007) FLC 93-344

M & M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655

APPLICANT:

Mr Cannon

RESPONDENT:

Ms Wescott

Independent children’s lawyer:

Ms Batenburg

FILE NUMBER:

BRC

7859

of

2016

DATE DELIVERED:

12 March 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

11 March 2019

REPRESENTATION

FOR THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Mr Cameron

SOLICiTOR FOR THE RESPONDENT:

C Guilfoyle & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Downes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sba Lawyers

Order

(1)      All previous parenting Orders are discharged.

(2)      The children W born … 2003, X born … 2008, and Y born … 2009, and Z born … 2010 (“the children”) are to live with Ms Wescott (“the mother”).

(3)      The mother shall have sole parental responsibility for the children.

(4)      Mr Cannon (“the father”) is restrained and an injunction hereby issues restraining him from spending any time or communicating with the children.

(5)      The father is restrained and an injunction hereby issues restraining him from initiating any communication with the mother.

(6)      At least until 31 March 2020, the mother shall engage with support services including the H Group and/or Town B Support Services to assist her in the ongoing care of the children and follow any recommendations that they may make from time to time, including attending any courses and other services for herself and the children.

(7)      The mother shall do all things necessary to ensure that the child, W continue to attend Town B State High School for the remainder of his secondary schooling and that the children, X, Y and Z continue to attend Town B State School for the remainder of their primary schooling.

(8)      The mother shall ensure that Mr D does not come to her home at any time.

(9)      The independent children’s lawyer is to be discharged after providing a copy of this order to the children’s respective schools, medical practitioners and the Department of Child Safety, Youth and Women. The independent children’s lawyer is also requested to provide a copy of the reasons for judgment to the Department of Child Safety, Youth and Women.

NOTATION

A.       The Department of Child Safety, Youth and Women should not conclude that this order is intended to be an endorsement of the mother’s capacity to provide a safe and stable environment for the children in the long term. In the absence of any other option, this Court has assessed the mother as currently providing an adequate level of parenting but she remains extremely vulnerable given her past and requires long term ongoing monitoring.

B.       There is evidence that the mother has remained drug and alcohol free for twelve months and that her mental health has improved over that period. There is also evidence that the children’s attendance at school has improved.

C.       The Court remains concerned about the burden of responsibility placed on the older children, particularly, the child W, given his own mental health vulnerabilities and the extent of time the children are left unsupervised because of the mother’s employment commitments. The mother would greatly benefit from ongoing practical assistance.

D.       It is noted that the mother specifically requested the Court to include a prohibition on her having Mr D attend at her property because she considered it would make her better able to set boundaries involving Mr D who is the father of her youngest child.

E.        The independent children’s lawyer is requested to arrange for this order to be explained to the children by the family report writer, Mr P. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cannon & Wescott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).Family Court of Australia at Brisbane

FILE NUMBER: BRC 7859 of 2016

Mr Cannon

Applicant

And

Ms Wescott

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.        There are times when the constant parade of misery in this Court threatens to take its toll on those charged with dispensing justice for children within the confines of applying the law pursuant to the Family Law Act 1975 (Cth) (“the Act”).

2.        This case concerns five children, four of whom are the children of the applicant, Mr Cannon, and the respondent, Ms Wescott, namely, W aged 15, X aged 10, Y aged nine and Z aged eight. There is another child, V, aged three who lives with his siblings but has a different father.

3.        The children have had a dreadful life to date but they, like so many children seen in this Court and various other courts in Australia, are what I consider can aptly be described as ‘the forgotten ones’. I say this because, for some people, it seems easier to turn away than to confront some harsh realities about a society that not only permits but encourages children to be born into households where their parents are incapable of providing safe, stable and loving homes and where the children are frequently subjected to the most horrific abuse.

4.        In the current case, the applicant, did not bother to turn up to the hearing of his application for a parenting order. A recent communication from the father to the independent children’s lawyer (“ICL”) was in these terms: (as per original) [ex 7]

I will when I am ready

The dumb c#$t could of fixed it himself, but he wouldn’t have the brains to reading all his mistakes in his family reports.

I’M TOTALLY THINKING OF PULLING THE PIN ON ALL THIS COURT SHIT!!!!

**YA ALL OVER PAID ACTORS**

5.        The email which prompted the above response was a polite enquiry about when the father proposed to repair a chair he had broken during interviews conducted with a social worker charged with the preparation of a family report in this matter.

6.        The respondent, like so many parents of children at risk, has had a dreadful life herself. She was placed into foster care and with various family members as a baby, after her mother died. She endured sexual abuse as a child. The mother’s involvement in the criminal justice system as an offender commenced as an adolescent. In 2000 she was convicted of stealing and setting fire to a motor vehicle. She abused alcohol culminating in, according to the mother, serious injury to a person while driving a motor vehicle with a blood alcohol concentration of 0.33. (I note that the mother’s criminal history records that she was convicted of dangerous operation of a motor vehicle causing death with an alcohol concentration of 0.15). The mother was sentenced to four years imprisonment. Upon her release she continued to have children despite using methamphetamine, working in the sex industry and exposing her children to that lifestyle.

7.        At times, but on too few occasions, the mother has shown the strength to protect her children.

8.        All five children have lived in foster care or with various family members. They have had no stability, no appropriate role models, and each of them have been abused either physically, sexually or by exposure to extensive family violence.

9.        At one point, despite the father being a criminal offender, the children were placed in his care presumably because there was nowhere else for them to go. The Department of Child Safety, Youth and Women (“the Department”) undertook an urgent assessment once this was brought to their attention and extraordinarily a decision was made to leave them with him. It was during this time that it appears highly likely that the two female children were sexually abused by their father. Hardly surprising one might have thought. Of course, one must remember that while the Department is charged with caring for children of parents who cannot care for them, there are so many children that fall into this category and so few places of safety to be found. 

10.      The millions of dollars routinely wasted by governments of all persuasions on endless enquiries and royal commissions into child safety could actually make a real difference if redirected to the lives of these forgotten children. Children are this country’s most important asset yet the courts and front line services such as the variously named Departments of Child Safety and Police, charged with trying to protect them, are simply starved of sufficient funds to make a difference. Foster carers are few and far between and time and time again parents are afforded second chances at the expense of their children.

11.      In the current proceedings, the father has not complied with trial directions to file material and indicated to the ICL on 7 March 2019 that he did not intend involving himself in the hearing. Despite the father’s indication, his name was nevertheless called three times in the Court precincts. He did not respond to the call. I am satisfied that the father had every opportunity to be heard in the proceedings and that he had been made aware that final orders would be made in his absence.

12. Although this hearing is effectively ‘undefended’ i.e. there is no other candidate seeking a parenting order, I must nevertheless consider the relevant sections of Part VII of the Act.

Applicable legal principles

13.      Part VII of the Family Law Act 1975 (Cth) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.

14. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

a)        The person or persons with whom a child is to live;

b)        The time a child is to spend with another person or other persons;

c)        The communication a child is to have with another person or persons; and

d)        The allocation of parental responsibility for a child.

15. The objects and principles of Part VII of the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

16.      In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

17.      The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

18.      In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

19.      Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

20.      In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’. Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable. The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof.”

21.      The Court is not required to make findings of fact on every factual dispute raised by the parties. The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.

22.      Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

23.      Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

24.      Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

25.      Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

26.      Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

27.      Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.

BACKGROUND

28.      Before considering the precise terms of what parenting order is proper in the circumstances of this particular case I note by way of background that the father and mother commenced a relationship sometime in 2000 and married in 2003. They separated in September 2013 and were divorced in 2016. At the time of separation the parties lived in South East Queensland.

29.      The father is 50 years old and unemployed. The father lives in rented accommodation in Town T, South East Queensland.

30.      The mother is 37 years old and lives in Town B in Central Queensland. The mother has had multiple pregnancies with five births. 

31.      The mother has worked in a variety of casual jobs in recent years and for the last four months has worked as a contractor. Her hours of work vary and include weekend work. The mother relies heavily on the assistance of her eldest son in running the household. The mother’s niece, aged 15, was also a member of the household for several months until the end of last year. 

32.      The parent’s first child, W, was born in 2003, when the mother was 21. At the time of W’s birth the mother was in gaol. W was placed in foster care but subsequently placed in his father’s care at approximately six months of age.

33.      The father was imprisoned in 2005, at which time W was again placed into foster care. He was returned to his mother’s care when she was released from prison after serving approximately three and a half years.

34.      Shortly after the father’s release from prison in or about 2007, the parents resumed a relationship. The parents had a further three children, X born in 2008, Y born in 2009, and Z born in 2010 before separating in September 2013.

35.      Since the parent’s separation in 2013 the children have experienced many changes to their care arrangements and many changes in school. The have lived in numerous houses in a number of towns and suburbs. 

36.      In around July 2014, the children returned to live with the father.  The mother was effectively homeless and injecting methamphetamines at the time. She spent time living at the father’s home too. The mother has also described herself in the past as an alcoholic.

37.      In or about October 2014 the mother kept the children after X and Y allegedly made disclosures to the mother that the father had been sexually abusing them. The mother left the children with her sisters because of her escalating methamphetamine abuse but the father took them back in January 2015 where they remained until the mother again kept them in September 2016.

38.      In the intervening period the mother gave birth to her fifth child, V, in 2016. The child was removed by the Department at birth due to the mother’s drug use, homelessness and conflict with the child’s father, Mr D.

39.      During this period the mother also had very little contact with the children. As a condition of V being returned to the mother’s care she had to live with her sister in Town F, Central Queensland.

40.      In about September 2016, the mother organised to take the children to a wedding near the father’s residence. She did not return them. She and the children moved to Town B in Central Queensland where she and the children continue to live.

41.      The children have missed a significant amount of school during the period 2016 to 2019 although that seems to have improved since the third term in 2018.

42.      W appears to be a very troubled boy and suffers from anxiety. There are definite signs of improvement in recent times but I remain concerned about the burden of responsibility placed upon his shoulders in assisting his mother care for the other children. W and his girlfriend and W’s cousin, S, were caught truanting and at home while the mother was at work late last year.

43.      The children spend far too much time left to their own devices.

44.      Despite the mother’s best efforts over recent times there have been weeks when she has had no money for food and other necessities.

45.      The mother also has an ongoing association with V’s father, Mr D. The mother consented to an Order providing for V to spend time with Mr D and that has resulted in Mr D staying with the mother for days or weeks at a time. Mr D has a history of drug abuse and although the mother denies that there was violence in their relationship I have my doubts given the content of exhibit 8 (the records produced from the H Group) which reports the mother seeking assistance in setting boundaries with Mr D “due to DV history with [Mr D] in the past”. The mother’s instructions to her counsel were to deny Mr D was violent.

46.      This family is very well known to police, Corrective Services and the Department.

issues

47.      When trial directions were made in this matter in November 2018 the issues identified as significant were as follows:

a)        Whether or not the father presents an unacceptable risk of harm of sexually abusing the children;

b)        Whether or not the mother has the capacity to properly parent the children; and

c)        Whether the father has financially supported the children for the previous two years.

the risk to the children from their father

48.      The circumstances of the father’s conviction for indecent dealing involve repeated acts by him involving a 13 year old girl. The father was 34 at the time and living with his brother’s family and also another friend of the family. The 13 year old was the daughter of the friend. The circumstances of the offending includes the following information:

2.2      … On one occasion the victim’s mother entered [the father’s] room and saw her daughter lying across the bed with her pants down exposing her underwear.  The victim provided information that indicated, prior to the bedroom incident she had been watching a movie and [the father] sat beside her and said: “I want to do you up the arse, I want you to suck my dick”. The victim indicated she declined and that later, [the father] called her into his room.  Once inside the bedroom [the father] pulled her pants down exposing her underwear.  While they were lying on the bed [the father]. Started kissing the victim and put his hand down her pants, rubbed her vagina and inserted his finger in to her vagina. [The father] then placed his hand on his erect penis protruding through the fly in his shorts and said, “rub my dick”, and moved his hand up and down his penis.  He then put his hand down the back of the victims’ pants and began rubbing her vagina when her mother entered the room.

2.3      … [T]here were other incidents of sexual assault that occurred over 6 months. These incidents typically occurred when the victim and [the father] would stay up and watch television and [the father] would be drinking beer.  Three occasions are noted when sexual abuse incidents occurred in [the father’s] bedroom and one occasion is recorded in which the victim and [the father] were sitting on an esky outside of the house.  On all of these occasions it is alleged that [the father] put his hand inside the victim’s clothing and touched her vagina.

49.      When interviewed by Dr E, psychologist, earlier this year for the purposes of assessing the father’s risk of re-offending, the father sought to excuse his offending on the basis that “he was feeling confused and depressed as his father was terminally ill, and his wife and baby were in the … Correctional Centre.  He indicated to police he was lonely …”.

50.      The father also sought to blame the victim and said he had been drunk. The father said to Dr E that he was ashamed of his behaviour and had never done anything like that again. I find that hard to believe. The Department records indicate that Y told a child safety officer that the father had touched her vagina. When the father was interviewed about these allegations he is reported to have said:

… due to the colour of [Y’s] eyes which are brown, is the reason she gets away with things, that she is his brown eyed princess and that he has a fetish for brown eyes.

51.      The information provided was insufficient to form the basis of criminal charges but given his history, it should have been sufficient to find he posed an unacceptable risk of sexual harm.

52.      In 2017 the father engaged in communication with a young female friend of his son, W. The girl was about 13 years old. The communications were via Facebook messenger and included the following:

60.      In mid 2017, [W's] best friend from [Town T], was (and still is) [J]. [J] and [W] were then both aged 13. [The father] was 48. [W] told me about Facebook messages between him and [J], and between [the father] and [J], and said I can show them to the court. This is what they say

[The father's] messages  [J’s] messages

Ya heard from [W]??  No

Same

Yeah

Can I ring ya soon babe?   Yeah I guess

FB call or normal number??  Any..

APR 25 AT 8.06PM

Omg ya poke good baby lol  **************

Yay 100 pokes Love ya [J] xx

You rock babes!!

APR 26 AT 7.50AM

Everyone like ya hair??  Yeah

Sweet

APR29 AT 3.16PM

[W]s onnn

Thx babe xx

MAY I AT 4.13PM

……………

..... sunlight [J]  I will lol

You'll have 100 boyfriends tomorrow at                   

school lol      Hahahah

definitely not

Lol you will  I wish

Shit if I was you age I'd be chasing you darl!!!!!!

You're a awesome girl

……………

I might ring later if ya want???  Yeah maybe

No yeah??      Idk lol (I don’t know laugh out loud)

Omg lol

[J] do you feel funny speakin with an older guy??

Remember we're mates hun

53.      This exchange resulted in W disclosing to the girl that his father was a paedophile and the girl disclosing to W that she and the father were speaking almost every day. On reflection she said, that the father calling her “sexy” and “babe” made her feel weird.

54.      I reject Dr E’s opinion that the risk of the father re-offending is low. While alcohol may have been a contributing factor to some offending behaviour I place no weight on the father’s self-reporting of reduced alcohol consumption given the inconsistencies in the evidence. I reject the notion that alcohol was the reason for the father’s offending in the first place in 2003. Indeed the father offered numerous other excuses at the time. There were repeated offences over a number of months in 2003.  Although the convictions were a long time ago the father has not clearly acknowledged his offending nor addressed it in therapy. There is some evidence that he has sexually interfered with his two daughters, although insufficient evidence to support criminal charges.

55.      When interviewed by Mr P, the father was casual and downplayed his sexual offending and in Mr P’s opinion the father did not take his offending seriously. Mr P recommended against the children spending time with the father and this is supported by the ICL.

56.      Although the child, W, has maintained some communication with the father it seems that this has at times exacerbated his anxiety. In the recent family report interviews the father could not contain himself and made a derogatory comment to W about the mother. The father’s interaction with W, as described by Mr P, seemed entirely inappropriate. W conceded to Mr P that having ongoing contact with the father may detrimentally impact his ongoing functioning. 

57.      The history as outlined and his communication with his son’s female friend as recently as 2017 cause me to find that the father poses an unacceptable risk to the children. In my assessment, the father poses an unacceptable risk to children generally and should not be permitted to have children in his household or to be engaged with children in any capacity.

58.      Such is my concern about the father’s bad influence on his children, I have concluded that he should not only not see them he should have no communication with them.

59.      I realise that W has maintained some communication with the father and has expressed some inclination to continue a connection with his father, but I consider the father’s influence to be potentially very damaging to W and accordingly I propose to restrain the father from communicating with W even if instigated by W.

60.      At the suggestion of the ICL, Mr P , the family report writer will explain the Order to the children and, in particular, W.

the mother’s capacity to parent the children

61.      Mr P is a social worker of considerable experience and he has interviewed this family on two occasions. When he first met the mother on 26 October 2017 he described her presentation as “fractious” and “emotional” and observed that she struggled to answer questions. It was his opinion at the time of his first report dated 12 March 2018 that “the mother’s mental health and her capacity will always be a risk factor for the children”.

62.      In his second family report involving interviews on 22 January 2019, Mr P opined that the mother “presented in a more positive fashion than she had in the earlier assessment. She was more considered and less erratic in her responses”. At that time she had recently commenced a property maintenance business and also worked as a cleaner and kitchen hand. In one position she worked from 10 am to 7 pm and in the other from 4.30 am to 11 am. Clearly the mother is not afraid of hard work.

63.      At the time of the hearing before me the mother was working for Q Services (one of the employers at the time of her interviews with Mr P) and her employer speaks highly of her. She commenced with that employer in October 2018 and works 35 hours of paid work weekly which involves some weekend work and early starts.

64.      Since 13 September 2018 the mother has received intensive family support from the H Group apparently at the recommendation of the Department. There have been a number of case plans instigated and on the whole the mother has done her best to abide by those. There are occasions when the mother failed to engage or failed to attend appointments but by the end of their involvement in February 2019 there was some optimism expressed about the improvement in the mother’s parenting capacity. The support offered included buying groceries for the mother and assisting her to establish routines (the children were sometimes not eating their evening meal until 9 o’clock at night) and healthy eating for the children (the children’s diet was often limited to chips, pies and pizza). The assistance afforded to the mother represents all very basic requirements for adequate parenting.

65.      There are clear vulnerabilities for the mother not only because of her history of drug abuse, mental health issues and choice of partners but also the sheer enormity of parenting five children on her own with little respite. The latter is a risk factor identified by the H Group.

66.      While there is mention in the evidence of extended family involvement in the mother’s life, it seems to be largely at times of crisis when family members took the mother to hospital e.g. in 2015 when she was suffering what is described as psychotic episodes. The mother has been an involuntary patient in psychiatric hospitals on occasion and the mother has said she has been a patient in such institutions on many occasions, sometimes for weeks at a time. The mother apparently has one sister with bi-polar disorder and the sister who lives in the same town as the mother apparently has a gambling addiction. The mother has family in South East Queensland who provided accommodation to her and the children during the hearing. The evidence also suggests a reliance by the mother on Mr D to assist in parenting during his stays at her home. Mr D and the mother were serious drug users when together and according to the mother he was a bad influence on her. During 2016 the Departmental records indicate that baby V may have been left unattended by the mother and Mr D and he was removed from their care for a period. It seems remarkable that V was returned to the mother’s care not once but twice. The mother was using methamphetamine throughout her pregnancy and her most recent conviction for possession of dangerous drugs was in August 2016 (offence committed in July 2016). 

67.      The evidence also demonstrates that the mother has expressed many good intentions in the past and numerous occasions when she has failed to follow through.

68.      However, there has been improvement since the mother took the children to live with her in Town B in October 2016.

69.      The mother and children continue to live in the same rental property they have lived in since December 2016 and the mother recently signed a tenancy agreement which secures her accommodation until at least October 2019.

70.      The children remain at the same local school they commenced upon their arrival in Town B and V attends day care five days per week. The children’s school attendance is improving although there remains issues about homework completion. The children’s academic progress is also improving and the children’s behaviour is generally described in positive terms.

71.      The mother has shown a willingness to engage in employment although there have been numerous changes in her employment. Her current employer speaks highly of her and she has maintained that employment since October 2018. Another former employer speaks highly of the mother and confirms that the mother’s reason for leaving that employment was unrelated to any misbehaviour or unreliability.

72.      The mother has accepted assistance from the H Group at the recommendation of the Department and has shown real improvement in her parenting capacity. She agrees with the recommendation of the ICL to continue her engagement with that service until at least March 2020.

73.      The mother’s sister, Ms G, lives in the same town as the mother and works full time 7 days on and 7 days off. She says that she is aware of the mother’s troubled past and has previously contacted the Department when concerned for the safety of the children in the mother’s care. She says that she would not hesitate to do so again if she felt the children were at risk. She has children of her own although only one of them lives with her. It does not seem that she has the capacity to provide any practical assistance to the mother.

74.      On the basis of this evidence I am satisfied that the mother is currently providing an adequate level of parenting for the children although she remains vulnerable. 

the father’s financial support of the children

75.      There is little evidence that the father has financially supported the children. As at January 2019 he was unemployed.

conclusion

76.      The four children who are the subject of these proceedings have endured a traumatic life. Sadly, their parents did not fulfil their responsibilities to provide a safe and stable life for them. The children have had to endure a most horrific lifestyle including exposure to significant violence between the parents, drug abuse by their mother, alcohol abuse by their father, likely sexual abuse (of the two female children) by their father, absence of their parents while in prison or otherwise, repeated changes to their residence and school and a failure to receive on occasions the basic necessities in life such as food and clothing.

77.      There is reason to be cautiously optimistic however because the mother appears to have made significant efforts to turn her life around. She has been drug free for at least a year (possibly longer); she has maintained the same roof over the children’s head since December 2016; she has kept the children at the same schools they commenced when they arrived in Town B (although there have been significant absences); she has obtained employment and finds the regularity of employment to be of assistance in maintaining a drug and crime free lifestyle; she has accepted assistance from appropriate agencies and has indicated a willingness to continue to do so.

78.      The father poses an unacceptable risk to the children and should not spend time with or communicate with them. He has a history of sexual offending for which he has been convicted and imprisoned. The father’s alleged behaviour towards his own daughters and his admitted communication with female friend of his eldest son (then aged 13) are factors relevant to the finding of unacceptable risk. He also has a history of violence and alcohol abuse and has failed to undertake drug and alcohol tests on the occasions requested by the ICL.

79.      The father is not to spend time with nor communicate with the children.

80.      In the current proceedings, I have no option but to make the order sought by the mother and leave the children in her care. There is no one else. While the mother is to be commended for doing what she can to turn her life around over the last twelve months, the journey ahead is likely to be very difficult for her and her many children. All I can do is hope that the children remain safe.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 12 March 2019.

Associate: 

Date:  18 March 2019