Carnegie and Casey and Anor

[2011] FamCA 748

FAMILY COURT OF AUSTRALIA

CARNEGIE & CASEY & ANOR [2011] FamCA 748

FAMILY LAW – CHILDREN – sole parental responsibility – live with – spend time with

Family Law Act 1975 (Cth)

APPLICANT: Ms Carnegie

1st RESPONDENT: Mr Casey

2nd RESPONDENT: Ms B

FILE NUMBER: PAC 1958 of 2011

DATE DELIVERED: 7 June 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Loughnan J

HEARING DATE: 6 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Greenaway

SOLICITOR FOR THE APPLICANT: Conditsis & Associates

COUNSEL FOR THE 1ST RESPONDENT: Mr Kenny

SOLICITOR FOR THE 1ST RESPONDENT:	Longman Hill Solicitors
SOLICITOR FOR THE 2ND RESPONDENT:	Campbell Paton & Taylor

Orders

1. That, by consent, the R Town Local Court Orders made 7 April 2011 are vacated.

1. That the solicitor for the applicant notify the Legal Aid Commission within 24 hours of the below orders and that the parties provide copies to the Legal Aid Commission of all relevant applications, affidavits and other documents on which they seek to rely within 7 days from today’s date.

1. That these proceedings are adjourned to 10am 8 August 2011for consideration of:

a)an appointment of a single expert or single experts in the proceedings; and

b)for consideration of any other interim issue of which each of the parties and the Independent Children’s Lawyer is given adequate notice.

1. That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

THAT PENDING FURTHER ORDER:

1. That Ms Carnegie have sole parenting responsibility for the child C born …, 2004 (‘the child’).

1. That the child live with Ms Carnegie and Ms Carnegie have the day to day care and responsibility for the welfare of the child.

1. That the child spend time with the 2^nd Respondent Ms B at times as agreed between Ms Carnegie and Ms B.

1. That the child spend time with the 1^st Respondent Mr Cary at times as agreed between Ms Carnegie and Mr Casey, provided that during all periods that the child spend time with the 1^st Respondent, be at a contact centre or supervised by a person acceptable to Ms Carnegie and the Father.

1. That the 1^st Respondent have telephone contact with the child once per week at times as agreed between Ms Carnegie and the 1^st Respondent, and failing agreement on each Sunday between 5pm and 6pm and for that purpose the 1^st Respondent provide to Ms Carnegie a telephone contact number and Ms Carnegie will cause a telephone call to be made to implement the telephone contact.

1. That Ms Carnegie do all things and give all necessary authorizations to make available to the 1^st and 2^nd Respondents reports on the child’s education health sporting an social activities, as and when any reports are available.

1. That an Independent Children’s Lawyer be appointed for the representation of the child and the Legal Aid Commission of NSW be requested to arrange the representation.

IT IS NOTED that publication of this judgment under the pseudonym Carnegie & Casey and Anor 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 PARRAMATTA

FILE NUMBER:  PAC 1958 of 2011

Ms Carnegie

Applicant

And

Mr Casey

Respondent

Ms B
Respondent

REASONS FOR JUDGMENT

1. These are proceedings that were listed yesterday.  We got to the end of the day and the parties have referred me to a sizeable amount of subpoenaed material and I put the matter over to today for judgment.  What I have decided to do is to make orders, not all of them but most of them, in terms of the interim orders sought by Ms Carnegie. That will have the effect of the child living with her. 

2. B is six years and nine months of age.  He is the son of Ms B and Mr Casey.  A sequence of moves this year had him living variously with his father, his mother, his mother’s former brother-in-law, and his mother’s cousin, Ms Carnegie and her husband.

3. The father proposes that the child live with him in T Town in the U Region, and Ms Carnegie and the mother propose that the child live with them at the home of the Carnegies at V Town on the D Region and that he have supervised time with the father.  The key issue, it seems to me, is the question of the level of risk of harm to the child if he lives or spends unsupervised time with his father. 

The applications

1. Ms Carnegie seeks an order that she have sole parental responsibility for the child, that he live with her and that she have day-to-day responsibility for him. She seeks that he spend time with the mother at times agreed between the mother and Ms Carnegie and that he spends time with the father at times agreed between Ms Carnegie and the father provided that all periods that the boy spends with the father be at a contact centre or supervised by a person acceptable to Ms Carnegie, the Department of Community Services and the father with the father to first provide proof that he is under the care of a psychiatrist and is taking any prescribed medication.  For the purpose of facilitating time with the parents, they will collect the child from outside the McDonald’s restaurant at V Town at the commencement of each period and Ms Carnegie or her nominee will collect him from their residence or residences at the conclusion of that period.  Just stopping there.  Events have overtaken some of these orders because the mother, I am told, is now living with the Carnegies.

2. Ms Carnegie seeks that the parents have telephone contact with him once a week at times agreed between Ms Carnegie and the parents and, failing agreement, on Sundays between 5 and 6. The parents are to provide Ms Carnegie with a telephone number and she will cause a call to be made to implement the contact.  Again, events have overtaken that order.  She seeks that she be required to do all things to give authority so that the parents can receive updating reports on the child’s education, health, sporting and social activities when the reports are available.  She seeks an order that the father be restrained from approaching her residence or being within a 500 metre range of the residence or workplaces of herself and her husband.  She seeks that an independent children’s lawyer be appointed for the child and that the Legal Aid Commission make arrangements. She seeks the appointment of a particular psychiatrist to make a report into the parents. 

3. Because of an order made in the R Town Local Court on 7 April 2011, the father simply seeks that those orders be affirmed.  Those orders provided for the child to live him. 

4. C was born in 2004.  He has been diagnosed to have Asperger’s Syndrome, which is a condition in the autism spectrum, ADHD and some learning difficulties.  He had been prescribed Ritalin and Melatonin.  

5. As to the relevant adults, the mother was born on 24 November 1968, so she is 42 years of age.  She suffers from a condition called fibromyalgia, a chronic degenerative syndrome that causes constant fatigue and pain, and she has stress-related anorexia, she says.  She doesn’t have paid employment.  I think she might be in receipt of a disability pension.  As of 20 May 2011, she lived in R Town but I understand she since moved to live in with the Carnegies at V Town on the D Region.  The mother has two older children, J who is 18 and K, 16. 

6. The father was born on 23 August 1970.  As of the date of hearing he was 40 years of age.  In 1986 he had a motorcycle accident.  He said in one of the hospital reports that he hit a traffic pole at 180 kilometres an hour.  The accident, according to one version of events, put him in a coma for about two months and left him with a brain injury.  He spent time in psychiatric hospitals in 1999, 2005, 2009 and 2010. He is not currently in paid employment but he has sporadically had paid employment.  He has two other children Q and Ms H.  I gather they were both removed from his care by the Department of Community Services.  I understand that Q was subsequently adopted by his foster parents and now lives in the Country O.  Ms H is 21.  She lived with her father and the mother in the proceedings for a period from 2004.  Ms H’s partner is Mr W and they have a son, X, who is one and I understand that Mr W has another child.

7. The mother and father commenced a relationship in December 1998 and last separated in September of last year. 

8. Ms Carnegie was born in 1973.  As at the date of hearing she is 37 years of age.  She works in health services and is the mother’s first cousin.  Mr Carnegie was born in 1973 and as at the date of hearing was 37 years of age.  He is a scientist and he married to Ms Carnegie in 1993.  They have two children, Y and Z, who are 15 and 14 years of age respectively. 

9. As to the background facts, I don’t think any of this is controversial.  The material is quite voluminous and some of the affidavits are like ships in the night.  So it may be that there is some of the detail that is incorrect but the gist of it is right.

10. The parents and the mother’s children, J and K, started living together in about 1998.  In 1999, the father was admitted to AA Hospital at R Town under the Mental Health Act having behaved irrationally and threatened a friend with a knife.  In January 2000 J and K left to live with the mother’s parents.  The child was born in 2004 and at that time J, K and the father’s daughter Ms H were living with the parents.  In August 2005 the mother placed the child with Ms Carnegie for two months.  At about that time the father was admitted to BB Town Hospital after the mother called the police.  He was returned to live with the mother, J, K and the child at CC Town in the D Region.

11. The mother says that the father became angry, that there were problems with neighbours and there is some evidence from Ms H about that.  And she said the family moved to live with the Carnegies for two or three weeks and then moved to the R Town district.  In January 2008 J moved out to live with his grandparents.  In October 2008 the father and K had an argument over the washing up.  The police report has it that the father told K to fuck off and she did.  He drove after her and forcibly dragged her into his car.  He was aggressive with the police.  K ultimately refused to give evidence and the mother screamed at the police for breaking up the family.  K then, too, moved in with her grandparents.

12. The parents separated in November 2008.  Initially, the child lived with the father until January 2009.  The mother says that the father was reported to the Department of Community Services for inadequate care of the child.  The mother then moved back in and a couple of weeks later the father moved out, leaving the child with the mother.  The child was placed in temporary care by the Department of Community Services in early 2009 and was returned to the mother in September 2009.  In December 2009 the father approached the DD Centre at the R Town Hospital saying he was angry at everything, depressed, that he was not taking his Aropax because he couldn’t afford it and because he forgot.

13. In March 2010 the mother couldn’t cope so she placed the child with her brother-in-law, Mr N.  He is a tradesman and lives at EE Town.  The father was also living with Mr N at that time and the mother said that the child initially did well. She particularly wanted him to attend a small school at EE Town; I think there is a mention of there being nine students.  On 8 June 2010 the father was admitted to AA Hospital, FF House, at R Town and was discharged on 18 June 2010.  He was admitted seeking help.  He expressed suicidal ideation, thoughts of driving into a tree.  He was brought in by members of his family.  He admitted to a significant anger management problem, that he lost control easily, that he worried excessively and that he was missing his son, C.

14. In July or August 2010 the father and Mr N, this is the mother’s brother-in-law, had a falling out and the father moved out of his premises; leaving the child there.  The mother says she was worried about the child’s care with Mr N and she approached Ms Carnegie to take the boy.  She was not able to negotiate that with Mr N.  Mr N says that he received abuse and threatening emails from the mother. The mother said she collected the child from Mr N.  Mr N and Ms H said that, in fact, the child was snatched from Ms H’s partner’s car when Mr N arranged for Ms H and her partner to take the child into town to spend time with the mother.  This happened on 25 January 2011. The mother placed the boy with the Carnegies.

15. Mr N approached the R Town Police and he says that they told him to go back to the rat hole that he lived in.  Suffice it to say, he didn’t have any joy with the R Town Police.  The Carnegies then caused the child to see a Dr P, a paediatrician, and to have his eyes tested.  Mrs Carnegie says Dr P attended on the child on 7 February and there was a follow-up appointment on 23 March.  Dr P says he is a consultant paediatrician.  His diagnosis was ADHD on Ritalin, previous diagnosis of Asperger’s syndrome, learning difficulties, significant social deprivation and suspected abuse, recent relocation to D Region, now in foster care. He recorded:

    I was pleased to meet the child today, aged six years and seven months with this new foster carer, [Ms Carnegie].  [The child] only recently moved to the [D Region] last month.  [Ms Carnegie] is the first cousin of his birth mother, [Ms B].  [Ms Carnegie] is currently in the process of applying through the Courts to become his legal guardian. 

16. I don’t know that at that stage there had been any application made anywhere.  Now, what Dr P says must simply be what Mrs Carnegie told him.  He went on:

    [The child] was previously under the care of Dr AA, R Town- based paediatrician.  He had been diagnosed with Asperger’s syndrome.

    [The child’s] behaviour is difficult to interpret in the context of probable emotional and physical abuse.  Certainly many of his behaviours that I witnessed today could be explained as adaptive as opposed to autistic, in other words reaction to what’s happened to him.  His diagnosis of ADHD does seem to be borne out by his witnessed inattention and clinical improvement on Ritalin.

    And then in March, 23 March:

    On examination [the child] again a high energy and engaging little boy.  He clearly had a short attention span and significant hyperactivity.  His weight was up.

    And there was an agreement to recommendations for the child to be changed to a slow-release stimulant, Concerta, presumably instead of Ritalin, 27 mg a day, and to increase his melatonin.

17. The father attempted to have the child returned. Ultimately, he instructed a solicitor who filed for residence and a recovery order at the R Town Local Court on 5 April 2011.  On 7 April 2011 a Magistrate granted those orders ex parte and apparently on a final basis.  The recovery order was executed and the boy was given to the father.  The police noted an affectionate reunion between the father and the son.  Just stopping there.  As to the proceedings formally before me – there is a Notice of Appeal in relation to this apparent final parenting order and there is an initiating application. However, because the Local Court order was made ex parte, in effect, there is no requirement for those orders to be set aside. Ex parte orders are only made until there can be a hearing on the merits in the normal course.  Baker J, a retired Judge from this Registry, gave a decision in relation to an instance where two state courts had made inconsistent ex parte orders. His Honour, who I think probably never made an ex parte order in his entire judicial career, had something to say about the problems of ex parte orders being made.  Mr Kenny carefully asked me yesterday not to make any inferences against his client in relation to the circumstances of what was a denial of natural justice, and I don’t.

18. I don’t quite understand how Mr Kenny’s instructing attorney could be in a situation where he was left without an opportunity to say anything before an order was issued on an inappropriate basis, but there it is.  It is not the father’s fault. At all times the father knew where the Carnegies lived.  He probably knew where the mother lived and certainly the mother and the Carnegies were necessary parties. Therefore they had to be involved, it’s trite to say, before any significant order could be made. No harm is done for the purposes of these proceedings because on 23 May 2011, as I will come to, a Judge of this Registry suspended those orders indefinitely.

19. I think from the DoCS records it says that 16 notifications were then made about the father’s care of the child.  Now, whether I have got that wrong or not, certainly after a certain date 16 notifications were made and the department noted that they were all made from non-compellable notifiers, that means they were made from individuals, probably people involved in the case.  On 15 May 2011, as a result of those notifications, the officers of the department made a home visit and the report notes that the Family Law Court had placed the child with the father. Well, in defence of this part of the Family Law Court, the Family Court of Australia, that wasn’t the case, but no harm done.

20. The departmental officers observed the child to be safe, healthy, very happy, engaging, energetic and responsive to the father and the case workers. They noted that the child has been diagnosed with Asperger’s syndrome, ADHD, learning difficulties and that he had been prescribed with Ritalin and Melatonin. 

21. The Carnegies filed an appeal and an initiating application and that came before Collier J of this Court on 23 May 2011 and his Honour, as I said, suspended the local court orders and left the boy with the father until 28 May and then placed him with the Carnegies until yesterday’s hearing.

22. Because this matter has come up so strangely, there wasn’t an opportunity for any of the things that normally should happen in parenting proceedings.  When the parties came before me yesterday morning, I discovered that the parties hadn’t seen a Family Consultant as parties to parenting proceedings have been obliged to do since about 1976. I ordered that they do that and the family consultant, Mr GG, saw the parties.  No one has told me that there is any objection to me relying on his memorandum.  The section 69ZU of the Act, provides that evidence of the opinion of a family consultant cannot be admitted without it being sworn unless that’s agreed.  I take it there is an agreement about this.

23. He saw the parties at about 9 o’clock yesterday. He didn’t see the child. He noted that:

    There was no agreement about living arrangements and no agreement about spending time.  There appeared no potential for agreement between the parties.  Whilst there appeared to be some alignment between the applicant, [Mrs Carnegie], and the respondent mother, there were significant differences to what the respondent father, [Mr Casey], was seeking.  [Mr Casey] proposes that the child lives with him.  [Mrs Carnegie] and [Ms B] propose that [Mr Casey’s] time with the child  requires supervision.

    Given the issues reported in this conference, [the child] has ADHD and Asperger’s disorder, involvement with the Child Protection Services with [Mr Casey’s] older children, allegations regarding [Mr Casey’s] mental health state, the impact of acquired brain injury and the perpetration of child abuse and family violence, [Ms B’s] physical and mental health state which was noted, and it also noted [Mrs Carnegie] proposes to home school the child, the Court may be assisted by a family report if the report writer has access to the records.  

    A nice line in understatement Mr GG noted that there will be no consent orders, no parenting plan, that no further child dispute conference should take place, that a judicial decision is required and there should be an expert’s report under s 62G; there should be an independent children’s lawyer and the matter needs individual case management.

1. The parenting proceedings are determined on the basis of section 60CA of the Act which provides: 

   In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as a paramount consideration. 

2. There is a hierarchy of logic in the legislation starting with decisions about parental responsibility and that leads the Court to making findings in relation to what’s in the best interests of a child.  Decisions are then made about parental responsibility and about living arrangements, having regard to those findings.  In a decision of Aldridge & Keaton, the Full Court was faced with an appeal against the Chief Federal Magistrate who made orders in proceedings between a non-parent and a parent, and the Full Court was posed questions in the context of the appeal.

   A two-step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child or a grandparent.  In other words, is the applicant a person concerned with the care, welfare or development of a child at step one and, if so, what order should be made in the best interests of the child.  This consideration may lead to an order for parental responsibility, an order that a child live with, spend time with or communicate with a person or that no such order be made.  Step 2.   Section 65C does not prescribe a hierarchy of applicants.  The application falls to be determined under section 60CA –

   that’s the provision I read out –

   guided by the objects and principles in section 60B(1) and 60B(2) and based on the consideration of relevant matters under section 60CC(2) and (3).

3. The Full Court went on in that decision to consider the problems caused by section 60CC, many of the factors refer only to parents. There is a catch-all provision in section 60CC(3) which can usefully be used to apply the other provisions of section 60CC to a non-parent. It does not matter much whether there is a distortion of the particular categories of section 60CC(2) and (3) under section 60CC(3)(m) to relate to non-parents, as long as it’s done.  Certainly, the Full Court didn’t accept that the Chief Federal Magistrate fell into appellable error by using the framework of section 60CC(2) and (3) with appropriate qualifications to arrive at his ultimate determination.

4. Here, there is no doubt that Ms Carnegie is a person who has an interest in the welfare of this child. The parents have invoked the care of the Carnegies or have acquiesced their care, in part, on three occasions over the boy’s life. Nextly, going to the primary considerations in section 60CC(2):

   The Court is to consider the benefit of a child having a meaningful relationship with both parents.

   In the decision of Kent & Shaw (2010) the Full Court said that they thought that meant taking a prospective approach.  In other words:

   …to consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.

5. I might say that none of this was the subject of submissions before me yesterday.  In this case the proposal of the applicant is that the child will - and I am told this is happening, be living in a household where the mother is living.  The question really is how to facilitate a meaningful relationship between the father and the child, and as Mr Kenny said, that’s a real problem in terms of the sort of orders that I am proposing to make. What is a meaningful relationship is an important issue and there are other criteria that are to be considered.

6. The other thing to say is that these are interim proceedings and it would be hoped that these arrangements won’t be in place for an indefinite period. 

7. Secondly:

   The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

8. Assault, includes sexual assault on a child and means an offence under the law, written or unwritten, in force in a State or Territory in which the Act constituting the assault occurs.  Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, reasonably to be apprehensive about, his or her personal wellbeing or safety.

9. This case is like the Montague v the Capulets, the families of Romeo and Juliet.  They have lined up either side of the case and there is a raft of evidence from people, including people who lived in the household with the mother and father at various times, and they give entirely contradictory evidence.  The father and his daughter in particular, and his mother to some extent, although his mother never lived with them, give evidence of a loving father who virtually never struck anybody in his house and who had nothing but the best interests of the child in his mind.

10. However there is no doubt about the father’s anger problem.  Ms H says:

    When dad got upset, mostly he went outside or for a walk to calm down.  He didn’t throw stuff at us kids.  We did not see a lot of blow up.  He made assure us kids hardly heard him.  We were not in danger of him.  I never saw dad hit [the child] with a belt ever nor has he ever told me anything of the sort.  I have never seen or heard dad go to punch any of us kids.  Dad did stick [K’s] head under the shower but it was cold water, not in the laundry.  Dad was not belting her that left marks for three months.  He did smack her but marks most definitely were not there for three months. I remember clearly dad do not hit any of us on a regular basis.  He barely smacked us at all. 

    He is damned with faint praise on this issue.  On the other side, there is evidence from J, from K and from the mother to the contrary.  K says:

    I remember being belted on the knees multiple times by [Mr Casey].  I think this was about 2004 when I was about nine or 10.  I had bruises on my knees for about three months.  Mum tried to drown me in hot water and [Mr Casey] lost it and belted me on the knees over and over.  Mum held my head under hot water in the laundry tub and then [Mr Casey] belted me.  This was a punishment for having food under my bed.

11. She says the food was left by Ms H, who I have just referred to. 

    Mum and dad told me clean it up but I was only nine years old and I didn’t know how so I was punished for this, too.  This meant getting another belting.  This time it was on my bum.  I remember being hit or belted very often.  [Mr Casey] used his hand and his brown belt doubled over.  Often he hit me on the bum but sometimes other places. 

    I should say, I excluded an affidavit sworn by K but she gives this evidence through Ms Carnegie and that is admissible:

    [Mr Casey] hit me for any reason at all, for not following instructions, for not doing something properly or for arguing with [J], anything at all really.

    I remember [Mr Casey] hitting the child a lot with his leather belt or his hand.  He had red marks on his bum for ages.  The teachers at the school care centre asked about it but I think Mum just told them he fell on a toy or something.  I remember there were always a lot of yelling and screaming and hitting in the household when [Mr Casey] was there.  I remember having things thrown at me and at [J] by [Mr Casey].  He would throw anything that was near him - lighters, cups, glasses, anything that was hard.  I managed to duck most of them.  I remember one time [J] was punched by [Mr Casey].  [Mr Casey] was trying to punch [the child], who was only a baby, and [J] took the blow to protect him.

    I remember the day I ran away and [Mr Casey] chased me into a storm drain.  He pulled me out by the ankles.  The police were involved.  I had an AVO to protect me.  I don’t think he was charged because I didn’t want to go to Court.  It was at that time I left home and I have lived with my grandparents ever since. 

12. Mrs Carnegie goes on to speak for J but, unlike K, he is over 18.  Mrs Carnegie says when the child arrived in January, he had a large bruise and said to her: 

    That’s where [Mr N] –

    that’s the mother’s former brother-in-law –

    that’s where [Mr N] hit me with a gun.

    She says: 

    When [the child] first arrived in January he was anxious whenever I left the house without him.   

    She says - this is after the child was removed on the recovery order - she saw him on the Easter weekend. 

    During that time [the child] said to me, “I am scared of dad.  He yells at me and hits me all the time.”  He then described a belt he said his father had and demonstrated how his father hit him with the belt.  I overheard a telephone call between the child and his father.  I couldn’t hear what [Mr Casey] was saying but I heard the child say, “I want to stay here, there are no belts in [BB Town].”  I could hear [Mr Casey’s] voice but couldn’t make out the words.  I heard the child say, “Yes, you do hit me, you hit me all the time.” 

    That led to one of the DoCS reports  and to the DoCS investigation.

13. I cannot make a finding about whether these things happened or not.  Several people have set about to perjure themselves in this case because they have given entirely inconsistent evidence about these things. Nevertheless I am not permitted to simply pick one uncorroborated version of events. But having said that, I am not permitted to ignore the allegations either. 

14. Then there are additional considerations: 

    Any views expressed by a child and factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should be given. 

15. We don’t have any independent observation of the child’s views. The father says that the child loves him and wants to live with him.  Mrs Carnegie says when the child parted from her each time after January, it was, “Good bye, I love you.  I will miss you” and then he developed a habit of saying, “Good bye, I love you and I won’t miss you” which she understood to mean, “I will see you when I come back.”  Even Mr N, he says that the child has expressed a wish to stay with him and not go with the mother.

16. There is nothing about the child’s maturity and he is coming up to seven years of age later in the year; that’s all I know.  His reported views are inconsistent.

    The nature of the relationship of the child with each of the child’s parents and other persons.

17. The Department of Community Services observed a lovely interaction between the father and the child. Mrs Carnegie and Mr Carnegie report that the boy was a bit jumpy around men but settled down to a normal, comfortable relationship in their household in a relatively short time.  There is not really any evidence about the relationship between the child and the mother.  Again, because the case has come up with two unilateral removals, instead of somebody just filing an application in the normal course and us getting social science caught up with the case, we don’t have any opportunity for any independent observation of these things.

18. As to the likely effect of changes in the child’s circumstances including on separation from either parent and from any other child or another person: Mrs Carnegie tried to describe his living arrangements.  Half the documents have got him born in … and half the documents have got born in …, but: born in … or … 2004, he lived in CC Town in the D Region; from July to August 2005 he lived in V Town with the Carnegies; from September 2005 to 2006 in CC Town; then two to three weeks in V Town; then an emergency house in the HH Town from May 2006 for six weeks; then a couple of months in II Town; then back to R Town in September 2006. He stayed in one house through until March 2009; then temporary accommodation with DoCS, a foster care placement in R Town; then with the mother in September 2009 in JJ Town where he stayed until he was handed to Mr N in March 2010 at EE Town;  then from 25 January to 7 April in V Town; then 7 April 2011 till 28 May 2011 at T Town. In relation to some of those periods, his parents came and went. He has experienced a great deal of change.

19. The critical thing about the case is the impact of the orders that I am proposing in separating him from the father, and I will come to the practical problems in a minute - but the fact is that the father lives in T Town in the U Region and the Carnegies live in V Town on the D Region.  The father doesn’t have a drivers licence.  Supervision is going to be an issue and it might be that the father’s mother can assist with that. Whatever I do, there is going to be a significant separation for this boy from a parent. In placing him with Ms Carnegie he will be separated from his father and I don’t know what impact that’s going to have. That is not for the first time, of course, but that doesn’t make it any better.

20. The child has had so many influences on him, let alone his own medical conditions. It will be very hard to identify, even for an expert to identify the impact of one thing over another. Notoriously, children in the autism spectrum, even Asperger’s children who tend to be high functioning, don’t take very well to change.  So I just don’t know. 

The practical difficulties and expense of a child spending time and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis. 

1. Well, the parents have now chosen to live that distance apart, so that can’t be fixed.

2. In the medium term, it might be that they choose to live in the same area, but I am presented with the facts. The public transport task would be enormous. The Carnegies propose sharing the delivery, they would collect the child from the father’s home but there is still one side of that journey for the father to manage. The boy, of course, would also need to do some travel, depending on how those arrangements work.

   The capacity of the parents and other people to provide for the child, including emotional and intellectual needs. 

3. This is a real issue.  I guess the parents have both, each of them, voluntarily handed the child over to somebody else when they couldn’t cope. Very candidly, these two parents have said there were times when I couldn’t handle things and they have made arrangements for the child to live with somebody else, including each other.  That is all we can ask of parents. There is nothing about having an acquired brain injury that prevents somebody being the residence parent of a child.  There is nothing about having fibromyalgia that prevents a parent being the mother of a child. The problem is, as these things build up and if you have an anger problem, some of those things can be inconsistent with, so complicated a task as caring for a child on a daily basis.  A six year old child has very little capacity for self-protection. So what we are looking for, as  these parents have done on many occasions, is for them to take a step to protect the child first and then look to their own needs. They haven’t always been able to do that. Sometimes something else has happened. For example DoCS have come in and taken the child into care for periods.

4. Mr Kenny said yesterday, the father’s own mother caused him to be reported when she was concerned about his care of the child. That was an occasion when he wasn’t able to be protective, himself. There have been other occasions when family members have referred him to a mental health wing at a hospital.

5. As Mr Kenny conceded there are no such allegations made against the Carnegies. I don’t want to keep harping on this, but there in no expert evidence.  It might be that if we had an expert look at the father, the expert could say yes, he falls off of the wagon every so often but these are the indicia of that; he is compliant with his medication and the child would be well with him.

6. The problem is that in the history I am given, I know that the father is not compliant with his medication. One of the early hospital reports said that they would refuse to work with him because he was a long-term marijuana user and he wouldn’t come off it.  He was prescribed Aropax.  At one point he forgot to take it and couldn’t afford to take it, he told the hospital in 2009.  That doesn’t make much sense of him being found by the police with $8200 in his car a year later.  On the face of the history, where would $8200 come from?  He didn’t have it in 2009 because he couldn’t afford to take his Aropax. These are issues and there may be an answer to them. Perhaps he had paid employment and he earned the money. I don’t know but they need to be explored.

7. As I said to Mr Kenny yesterday, I am a bit risk averse. It is not the Court’s role to take risks with somebody else’s children. Having said that, there are risks, whichever way you look in this case. I readily accept that there is a risk of this little boy feeling some betrayal in not having access to his father for a period. However, compared to the danger if his father again has a suicidal ideation and thinks that, the answer would be driving into a tree or forgets to take medication or looses control of his anger and strikes the boy, they could have a more devastating effect than separation from his father. There is no expert evidence about the capacity of the parents.

8. They both have done an amazing job under considerable difficulty.  They both recognise that they couldn’t continue that job at various times.

9. As to the maturity, sex, lifestyle and background of the child and of the parents, nothing particular comes to attention there.  He is young.  He is a boy.  He has had what is called - and everybody says in the documents – a tumultuous or turbulent or whatever, history. He has medical conditions. I mean, at the margins there are odd things about the parents’ conduct. There is a reference to a lack of personal hygiene in the father. There is one reference to the father having OCD - not being willing to bathe at caravan parks where he lived for a period and so on. But those issues pale into insignificance compared to the more substantive ones.  There is nothing about 3(h):  

   The attitude to the child and responsibilities of parenthood demonstrated by the parents.  

10. I have said what I have said about that.  The parents, I believe have done their best and apart from a period in care and some periods when they have put the boy with somebody else, the Carnegies and with Mr N, they have managed. They have had some assistance from family

11. I have referred to the evidence about family violence. I don’t know what the truth of that it is.  Somebody is lying or exaggerating about that.

12. I know of no family violence order that affects the boy or the parents.

13. 3(l) refers to an order that is least likely to lead to further proceedings.  These are interim proceedings and not relevant.

14. 3(m) is anything else that’s relevant. I take up there the issues in relation to the Carnegies that aren’t directly within the umbrella of one of the other provisions of CC(2) or (3).

15. The test that the Courts used in relation to sexual abuse cases is one of unacceptable risk, focusing on the fact that it is impossible for a Court, even on a final basis often, to make a decision about whether something happened or did not happen. The High Court said that the relevant test is one of unacceptable risk. Here there are allegations about the father’s parenting capacity and in particular about his anger management. There is some suggestion that he had some anger issues before his accident but that his capacity to deal with it disappeared after the accident.

16. In June last year he admitted to the R Town Hospital he “has a significant anger management problem, loses control easily”.  In December 2009, the year before, when he was at the mental health centre at R Town, the records show: “angry at everything, depressed, not taking his Aropax because he couldn’t afford to and forgets”.  The father has a substantial COPS record.  In 1998 he was fined and paid costs in relation to the malicious destruction or damage to property.  He appealed to the District Court and lost.  In 1998 he was fined and paid costs in relation to resisting or hindering police.  In 1999 he was placed on a bond for possession and cultivation of a prohibited substance. In 2000 he was fined for a common assault. In 2001 there was a bond and he was required to undergo an anger management program in relation to destruction of property and the contravention of an AVO.  On 23 October 2010, he was placed on a bond under section 10 for six months for goods in custody. That related to the $8200. He told the police about three different inconsistent things about how he came to have $8200 in his possession.

1. This year he was fined and paid costs for driving unlicensed. He was disqualified to February next year. 

2. The father has some memory problems. For example, he told the department workers on the 15 April 2011 visit that he didn’t know why his older children, Q and Ms H, had been removed from his care some years ago.  He said to the officers, “[C] keeps me stress free.  I was stressed before as I was trying to do it all by myself”. 

3. He would understand that my focus is on his six year old boy.  I accept, it would be better for this loving father if he had his son living with him. However the focus has to be on the boy. There is no doubt that the best thing for his boy is for his father to be well, to be compliant with his medication and to deal with the things in his life as best he can. The same applies to the mother, of course.

4. The parents will be the parents of this boy forever. They do not only have to worry about the child at six years of age. They have going to high school, girlfriends, marriage, grandchildren – a life time of things to think about.

5. It will take the Court system a while to get to the bottom of things, but that is the best system we have. We ask parents to be patient while the Court tries to get to the bottom of things and to have an expert look at the issues. In the meantime, this is the sort of matter where the orders will be made until further order but the minute somebody has a better idea about something, they bring the matter back in.

6. When the ICL, the lawyer appointed for the child, gets across the documents, that person might have a view about a suitable expert. For that reason, I will not make an order today about an expert being appointed.

7. It seems to me that the father’s mother is somebody, as Mr Kenny said yesterday, who has stood up to the father and for that reason is a person independent and she might be, if she would be willing, an ideal supervisor. That is something about which the parties might like to talk about in the first instance.  I am not going to make the injunction for personal protection.  Nobody made any submissions about the father being restrained from approaching residences or whatever. He should be under no misapprehension. If he goes within cooee of the Carnegies’ house uninvited there is going to be an inevitable consequence.  So I am not going to make the order but he shouldn’t do it. 

ORDERS DELIVERED

1. I will express the orders and then if anybody immediately has a thought about something in the formulation of the order, say so.  Otherwise I will probably put the matter over to 8 August, I think that is the next duty day.  By then the ICL should be on board and we will see what the ICL has to say about having a single expert or single experts and any other issue going to the management of living arrangements between now and then. 

2. Could I say, there was a great deal of criticism of Mr N and yesterday there was a fair deal of criticism of the Carnegies. I can’t understand how somebody who has agreed to step into a parenting role at the request of a parent and taken that role on for a period, comes to be accused of everything from kidnapping to white slavery. Were it not for those people then the child would have been in foster care for those periods.  So as I said yesterday, the last thing in the world the Court would be doing is to criticise someone for agreeing to take up that role in relation to a child who is not their own child.

3. It seems to me that the child is a lucky boy to have so many people who are interested in his care.  I would ask all of the people in the background to calm down and just let this process run. For example, the allegations are very florid from Ms H and from K and from J. One or more of those three people are lying because they have given inconsistent evidence. They should take that a bit more seriously. The child needs everybody working for him, not working to pick fights and to take sides in relation to these issues.  I note that the orders of the Local Court at R Town made on the 7th day of April 2011 were suspended until further order on 23 May 2011.

4. If you have a system whereby there is to be supervised time with a person acceptable to someone then you don’t need to add another criteria.  You will just never be satisfied with that person - for both sides - until your requirements for the child have been met. If you draw a line in the sand and you say you want a certificate from a psychiatrist, you might get to a day where you don’t feel as though you need that and then this order would have prevented you from agreeing.

5. The parties need to be clear about the orders they seek and to file relevant evidence. They must keep each other advised. 

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 7 June 2011.

Associate:

Date:  21 September 2011