Hennessy & Rhys
[2007] FamCA 160
•9 March 2007
FAMILY COURT OF AUSTRALIA
| HENNESSY & RHYS | [2007] FamCA 160 |
| FAMILY LAW – CHILDREN – Where mother places thirteen month old daughter into foster care – father applies to have child live with him – Department of Community Services intervenes and seeks orders to the effect child remains in state care until she is 18 – Family violence – Assessment of parenting capacity – Where child has endured numerous changes in carers and has chronic need to attach to primary and continuing carer – Where father has strong interest in pornography - Father’s computer contains 30,000 pornographic images including images of young girls and the most severe form of child pornography – Whether father poses unacceptable risk to child – Where father changes his stance and says he no longer seeks to have relationship with the child – Finding of unacceptable risk made - On last day of hearing mother asks to have child live with her – Notwithstanding uncertainties involved in state foster care system child ordered into care of Department of Community Services until 18 – Parents to have limited supervised visits with child |
| Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC(1), (2)(a), (2)(b), (3)(d), (e), (f), (g), (h), (i), (4)(a), s 60CG, s 61C(1), s 61B, s 61DA(2), s 61DB, s 64A, s 65AA, s 65DAA,(3), (5), s 69ZM, Pt VII, Div 12A |
Goode & Goode (2006) FamCA 136
| APPLICANT: | MR HENNESSY |
| RESPONDENT: | MS RHYS |
| INTERVENER: | DIRECTOR- GENERAL DEPARTMENT OF COMMUNITY SERVICES |
| FILE NUMBER: | (P)NCF | 627 | of | 2006 |
| DATE DELIVERED: | 9 March 2007 |
| PLACE DELIVERED: | Newcastle |
| JUDGMENT OF: | The Honourable Justice Ryan |
| HEARING DATES: | 5, 6, 7,12 and 22 February 2007 |
REPRESENTATION
| APPLICANT: | In Person |
| RESPONDENT: | In Person |
| COUNSEL FOR THE INTERVENER: | Mr Viney |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor’s Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Hartley |
| SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: | Attwaters |
Orders
That the Minister for Community Services (“the Minister”) have sole parental responsibility for the child C born in December 2004 (“[The child]”), including responsibility for her day to day care and long term care, welfare and development.
That the child live as directed by the Minister or the Director-General of the New South Wales Department of Community Services (“the Director-General”) or a delegate of such person.
In the event the child’s placement with her current foster carers breaks down the Minister shall notify the father and mother as soon as possible.
That the child spend supervised time with her father, on four occasions each year for a period of two hours on each occasion.
That the child spend supervised time with her mother, on four occasions each year for a period of two hours on each occasion.
For the purposes of the child spending supervised time with the father and mother (“the parents”):
(a)a delegate of the Minister or Director-General shall advise each of the parents respectively of the proposed date and time for spending supervised time with the child no less than six weeks prior to each proposed occasion;
(b)the venue at which supervised time will be spent shall be a venue agreed upon between the parents and a delegate of the Minister or Director-General; and
(c)a delegate of the Minister or Director-General shall be responsible for arranging the supervisor of the time spent between the child and each of her parents, including the costs of any such supervision.
In the event that the father or mother fails to spend time with the child as provided in these orders for a continuous period of six months, the order enabling that parent to spend time with the child is discharged.
That the child spend time with her maternal grandparents, as agreed between the maternal grandparents and a delegate of the Minister or Director-General.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Registry Manager shall return any documents produced on subpoena.
That unless an appeal is lodged, at the end of one month, all exhibits excluding the family reports shall be returned to their owner.
All outstanding parenting applications are dismissed.
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCF627 of 2006
| MR HENNESSY |
Applicant
And
| MS RHYS |
Respondent
And
| THE DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES |
Intervener
REASONS FOR JUDGMENT
Introduction
These proceedings concern the future living arrangements for the child born in December 2004. The child’s parents separated when she was nine months old. At separation the South Australian child welfare agency placed the child with her mother (Ms Rhys). The child remained in her mother’s care until January 2006 when her mother placed her in foster care. Since then the child has lived with a variety of foster carers, including for a period her maternal grandfather and his wife. When they decided they could no longer care for the child, she moved into the state foster care system living with people unrelated and unknown to the parties.
The child went into foster care against her father’s wishes. From the time she signed a temporary care agreement and until the final day of this hearing the mother said the child should not live with her. She vacillated between strongly opposing and supporting the father’s desire to have the child live with him. In the months leading up to this hearing and until its last day the mother said she wanted the child to live with the father. However, during a ten day period in which the hearing was adjourned to await production of documents, the father filed a Notice of Discontinuance and returned to Darwin. Contacted by telephone during the last hearing day the father said he no longer sought any orders concerning the child. Upon being informed the mother wanted to resume the child’s care, the father supported her.
Because of its child protection concerns regarding the child’s parents, the Department of Community Services (DOCS) intervened in the proceedings. DOCS submit that the child’s long term interests require she is placed into their care until she is 18. The effect of such an order is that the child will have virtually no relationship with either of her parents.
Chronology
Following a domestic violence incident the parties separated on the first occasion in May 2005. The child remained with the mother and the father was charged with assaulting a family member, namely the mother. After three weeks they resumed cohabitation.
The parties finally separated in September 2005. At separation the family was living in Adelaide. The parties were unable to agree which of them would have the child’s care. On the day they separated, the child was injured during an incident in which each parent tried to gain possession of her. During a scuffle with Mr J, a friend of the father’s who was living with the parties, the mother dropped the child. Fortunately Mr J caught her and handed the child to the father. Shortly afterwards the mother called South Australian Police to their home. The police attended and contacted the South Australian Department of Children Youth & Family Services (known as FAYS). A FAYS officer attended the home and arranged the child’s immediate admission to the Adelaide Women’s and Children’s Hospital. In the following days the child underwent exhaustive medical examinations in order to determine whether her injuries were more severe than the visible bruising and swelling to her lower back, lower hip, abdomen and shins. These examinations[1] revealed no additional injuries. However on review it was noted that the child had presented to the hospital in May 2005. On this earlier occasion the hospital noted she had redness across the upper third of her back, across her chest, upper third of her right arm and a ring of redness around her neck. These injuries occurred when the child was caught in the midst of a physical dispute between her parents and when the father forcibly removed her from the mother. The child was not admitted to hospital in May 2005 and curiously there was no child at risk notification made.
[1] Exhibit “C”
During September 2005, whilst the child was in hospital, FAYS met with her parents, doctors and hospital workers so as to decide into which parent’s care she would be discharged. It appears that on the basis the mother had been primarily responsible for her care and the father’s domestic violence allegations, FAYS decided the child would be discharged into her mother’s care.
FAYS also determined that the father would be permitted only supervised contact with his daughter. In order to reach this decision, FAYS appears to have accepted the mother’s version of the parent’s relationship and rejected the father’s advice concerning the mother’s difficulties parenting the child, his version of their relationship and two domestic violence incidents. As the mother’s evidence in these proceedings reveals, excluding her history of primary care for the child, the father’s information given to FAYS was more accurate than hers.
As a precursor to the child’s placement with her, in September 2005 the mother executed a “Safety agreement for [the child]”[2] with FAYS.
[2] Annexure “A” affidavit of Ms L filed 6 June 2006
On 17 September 2006 the child was discharged from hospital into the mother’s care. By prior arrangement with the mother’s father, he arrived from M and later that day the maternal grandfather, the child and her mother flew to M. This is where the mother’s father and step-mother reside. Although the “safety agreement” included a term: “I understand should I go interstate CYFS [FAYS] will forward this agreement to the relevant Child Protection Authorities” FAYS did not inform the New South Wales Department of Community Services about the child’s arrival in M.
DOCS’ first involvement with the child was a notification from the mother’s step-mother on 7 October 2005. Summarised, the step-mother raised concerns about the mother’s ability to care for the child. She made DOCS aware of the child’s hospital admission and FAYS involvement. A DOCS worker contacted FAYS who confirmed their involvement with the child in terms of the history given above. Interestingly, and notwithstanding they released the child into the mother’s care, the FAYS worker “indicated that the South Australian Department had been unable to investigate the allegations, as the mother had by that time moved to [M] with [the child]”. As FAYS were directly involved in the mother’s departure from South Australia with the child, the officer’s admission concerning their failure to investigate allegations regarding the mother’s care of the child is concerning. With these investigations not pursued, FAYS failure to transmit information concerning the child to DOCS before the child arrived in New South Wales is a poor child protection response.
On 20 October 2005 DOCS met with the mother and her new partner, Mr E. In accordance with DOCS recommendation, at this meeting the mother agreed to attend anger management classes, accept referral to a young parent’s support worker and see an early childhood nurse. Importantly, the mother informed DOCS she and the child would continue living with her father and step-mother for at least six months.
After the child’s discharge from hospital, the father lost contact with her. He knew nothing more than FAYS released the child into the mother’s care and that they were in New South Wales with the mother’s father. In an attempt to establish contact with the child, the father spoke with the mother who declined to reveal their whereabouts. Disheartened by his inability to persuade FAYS that his concerns for the child were genuine the father in effect walked away from her. On 15 November 2005 he left Adelaide and returned to Darwin, where prior to the child’s birth he and the mother lived.
On 9 November 2005 DOCS received another notification from the mother’s step-mother concerning the mother’s inability to care for the child. The mother’s step-mother also advised DOCS the mother was contemplating moving out of their home with the child.
On 10 November 2005 DOCS convened a meeting with the mother’s step-mother and the mother. Following advice from the mother’s step-mother that she and her husband were not able to accommodate the child and her mother, DOCS arranged crisis accommodation for the mother and the child. In the event, the mother decided to share a house with friends and agreed to a young parent support worker conducting home visits.
On 13 November 2005 DOCS received a Child at Risk report concerning the environment in which the child was living and reports that the mother was constantly yelling at her.
On 30 November 2005 DOCS discovered the youth parent support worker had lost contact with the mother and the mother had failed to attend a group meeting scheduled for 17 November 2005.
DOCS workers visited the mother and the child on 1 December 2005. During the visit they observed a bruise and lump on the centre of the child’s forehead. The mother claimed no knowledge of its cause and surmised that a 12 month old child living in the home “could have caused it as they play rough together”. DOCS requested the mother take the child to a doctor, which despite eight telephone calls and a home visit on 2 December 2005 did not occur.
DOCS met with the mother again on 6 December 2005. During this visit, further and new bruising on the child was observed. This included a number of bruises on the child’s head, lower abdomen and at the top of her sternum. On the child’s chin, DOCS workers observed “bruising as resembling a grab mark and being light blue in colour”. Again, the mother attributed all bruising to “[the child] and [N] often play roughly”. The mother denied inflicting this bruising on her daughter. At DOCS insistence, the mother took the child to a doctor. DOCS offered the mother three options concerning the child’s care. These were the mother and the child entering a refuge, returning to the maternal grandparents’ home or placing the child in temporary care. The mother elected to stay at the M Women and Children’s Refuge and accept DOCS guidance and supervision concerning the child.
On 22 December 2005 FAYS facsimiled documents from their file to DOCS. Given FAYS involvement with the child and knowledge DOCS had received Helpline notifications concerning the child, it is most concerning that they took three months to send this information.
On 23 December 2005 DOCS received a further Child at Risk notification concerning the mother’s care the child. The consistent theme in these notifications is that the child was being neglected, unsupervised and placed at risk. The mother admits the accuracy of all notifications. DOCS quickly interviewed refuge workers who expressed concerns about the mother’s ability and willingness to care for the child.
On 30 December 2005 at DOCS suggestion, the mother agreed to attend family care centre. I infer this was offered in order to enhance the mother’s parenting skills and give DOCS first hand information concerning the mother’s parenting capacity. The mother and her child did not enter the family care centre.
On 11 January 2006, DOCS met with the mother and a refuge worker where the various notifications and refuge worker’s observations were discussed. At DOCS suggestion, the mother executed a two week temporary care agreement and the child was then placed into temporary foster care with people previously unknown to her.
Later on 11 January 2006, the father contacted DOCS, after the mother told him the child was now in foster care. From this time on DOCS was aware the father wished the child to live with him.
Shortly before the temporary care agreement expired, DOCS met with the mother and on their advice, she extended the temporary care agreement until 17 February 2006. Notwithstanding DOCS knew of the father’s interest in his daughter, they did not involve him in this decision. The first the father knew the temporary care arrangement was extended occurred during his phone call to DOCS on 31 January 2006. The father invited DOCS to assess his suitability to assume his daughter’s care. DOCS advised the father “That this was not appropriate, as the current care arrangements for [the child] were only temporary”. The father was advised that if he wished to see his daughter, he must come to New South Wales. The father expressed the view to the DOCS worker: “You are not doing anything to help me. [The mother] is the neglectful mother”. During a follow up telephone call on 7 February 2006, the father repeated his concerns to DOCS workers about the mother’s inability to care for the child and repeated his request the child lives with him. He was advised that as the child was only in temporary care it was inappropriate to move her to another state. DOCS strategy was, and had been since they first met the mother, to support the mother’s long term care of the child. Because of their concerns regarding the child’s care this involved temporary foster care while the mother was linked with necessary community supports and provided with appropriate accommodation.
DOCS convened a meeting at M on 14 February 2006 to discuss the child’s long term care arrangements. In addition to DOCS workers, the mother and her step-grandmother were present. The father was not invited to attend. The mother advised DOCS workers she had taken legal advice and, upon reflection, decided: “It is best for [the child] and best for me if [she] lives with [my father] and [step-mother]”. When the mother’s father and step-mother agreed to assume the child’s care, DOCS officers informed the father. Angered by this decision, the father adopted DOCS recommendation that he consult a solicitor.
On 18 February 2006, the child was placed in her maternal grandfather and step-grandmother’s long term care. The step-grandmother took ten weeks off work to settle the child in. By taking the child into their care, the maternal grandparents hoped the mother might show more interest in her daughter into whose care she would ultimately return. As it transpired the mother showed virtually no interest in the child and visited her once a month for no more than two hours. There is no adequate explanation for her failure to spend more time with the child. From this point on the mother basically relinquished the child to others in favour of pursuing her own interests.
The father telephoned the maternal grandparents on 2 March 2006 hoping to speak to the child. The step-grandmother refused him permission. She doubted the father’s commitment to the child and considered that as he had in effect turned his back on her, limited contact when the mood took him could only be disturbing for the child. She was mindful that the father had not sent the child anything for her birthday or Christmas and that for months he had made no attempt to speak to her.
On 28 March 2006 the father filed a residence application in the Federal Magistrate’s Court at Darwin. In this application, he applied for interim and final orders in the following terms:
(1)That the child of the relationship namely […] born [in] December 2004 reside with the father and that he have sole responsibility for all day to day decisions affecting the child’s care, welfare and development.
(2)That the parties retain joint responsibility for all longer term decisions affecting the child’s care, welfare and development.
(3)That the mother have contact to the child as may be agreed between the parties.
Shortly prior to 1 May 2006, DOCS became aware of the father’s residence application. As his application was returnable the following day, on 1 May 2006 DOCS wrote to the Federal Magistrate’s Court seeking an adjournment and advising its intention to intervene in the proceedings.
On 2 May 2006, the father’s lawyers, but no one else, appeared in the Federal Magistrate’s Court. The Court adjourned the proceedings to 9 May 2006.
On 9 May 2006 the father’s lawyer attended and the mother appeared by telephone on her own behalf. The Court made the following orders:
(1)That the mother file and serve a Response and Affidavit in support within 14 days of today’s date.
(2)That [the maternal grandfather] and [his wife] of [M] in New South Wales be joined as respondents in the proceedings and to this end be served with a copy of the Information Sheet, Application and Affidavit filed 28 March 2006.
(3)That pursuant to section 91B of the Family Law Act 1975 the Department of Community Services in New South Wales is invited to intervene in these proceedings.
(4)That a copy of the orders made today be served on the respondents.
(5)That the matter be adjourned to 6 June 2006 at 2.15 pm (Australian Central Time).
On 26 May 2006 the Crown Solicitor’s Office of New South Wales entered an appearance on behalf of the New South Wales Department of Community Services.
On 29 May 2006, the maternal grandfather contacted DOCS. In summary, he informed them that he and his wife could no longer cope with the child’s demanding behaviour and proposed to relinquish her care. DOCS wanted this placement to continue and explored all possibilities with the grandfather which they hoped would result in the grandparents agreeing to keep the child. The maternal grandfather explained their decision was final. During discussion concerning other options, the grandfather advised DOCS they should consider the father for the child’s future care. In his opinion, the mother had “made him out to be worse than he actually is”.
Following further discussions between DOCS and the maternal grandfather, DOCS convened a meeting on 5 June 2006 with the maternal grandparents at M. At this meeting, the grandparents agreed to continue the child’s care until DOCS located an appropriate alternate placement. It was agreed, following the child’s placement elsewhere, the grandparents would continue to see her and revert to a role as supportive grandparents rather than full time carers. Later that day, Ms L, Child Protection Case Worker responsible for the child, swore an affidavit which was filed in the Federal Magistrate’s Court on 6 June 2006. In this affidavit, Ms L revealed to the Court and both parents grandparents’ discussions with DOCS. The mother did not ask to resume her daughters care.
The proceedings were again before the Federal Magistrate’s Court in Darwin on 6 June 2006. Although they had been joined in the proceedings, the grandparents did not appear. The father, mother and DOCS all appeared. Following a hearing of the father’s interim residence application, the Court made the orders set out below.
(1)That the New South Wales Minister for Community Services (“the Minister”) have parental responsibility for the child […] born [in] December 2004 (“the child”).
(2)That the proceedings be transferred to the Newcastle Registry of the Federal Magistrates Court.
(3)That further consideration of the matter be adjourned to 19 July 2006 at 9.30 am before Federal Magistrate Lapthorn in Newcastle.
(4)That the Minister be granted residence of and responsibility for making decisions concerning the long term and day to day care, welfare and development of the child. It is the intention of the Minister to have the child remain in the care of [the maternal grandfather] pending the final hearing of this application.
(5)That the Minister will advise, as soon as practicable, all parties and the Court if he intends to remove the child from the care of [the maternal grandfather] before the final hearing of this application.
(6)That the mother, […], have contact with the child on one occasion each fortnight for a period of two hours, with such contact to be supervised and arranged by the Director-General of Community Services (“the Director-General”).
(7)That the father, […], have contact with the child in New South Wales as agreed between the father and the Director-General, with such contact to be supervised and arranged by the Director-General.
(8)That pursuant to the Federal Magistrates Court Rules 2001, [Ms S], Clinical Psychologist, be appointed to enquire and report on matters pertaining to the welfare of the child.
(9)That in preparing the report to the Court, [Ms S] be requested to consider the following matters:
(a)the capacity of each parent to provide for the needs of the child, including the child’s emotional needs;
(b)the attitude to the responsibilities of parenthood demonstrated by each of the parents;
(c)whether the child is at risk of any physical or psychological harm in the care of either parent;
(d)each parent’s proposals as to residence and contact and the likely effect of the proposals on the child; and
(e)any other matter that [Ms S] considers relevant to the welfare of the child.
On the weekend commencing 21 July 2006, the child went into respite care arranged by DOCS. The child briefly met the respite carer and one of her children at the maternal grandparents’ home on 1 July 2006. Weekend respite went well. The next weekend respite, with the same carers, occurred on 11 August 2006.
After the proceedings were transferred to Newcastle, the father arranged six month’s leave of absence from work and moved to M. He arrived shortly before 25 August 2006 when interviews with the Court expert, Ms S were scheduled.
On 25 August 2006 Ms S conducted her interviews with the father, mother, maternal grandparents, as well as observing each of them with the child. This was the first time since 17 September 2005 that the father saw or spoke with the child.
Later that day the father approached DOCS and asked to start seeing the child in accordance with the interim orders made on 6 June 2006. Agreement was reached that on 26 August 2006 the maternal grandparents would supervise their time together at MacDonald’s. At this visit, although the father tried to engage the child appropriately, the grandparents reported to DOCS she would not go to him. In order to make the child more comfortable the group returned to the grandparents’ home where the situation did not improve. Given the father’s limited role caring for the child during cohabitation and the period during which they did not see each other, the child’s discomfort with her father is not surprising.
On 8 September 2006 the Crown Solicitor’s Office advised the Federal Magistrate’s Court at Newcastle, the father and mother that the child would shortly leave the grandparents’ household and move into a short term foster care placement. Unlike the father, the mother made no request to resume the child’s care.
On 4 September 2006 Ms S finalised her report[3]. Ms S reached the following conclusion:
“Unfortunately, the ideal placement for this young child – with the maternal grandparents – is not an option. Nor should [the child] be placed with the mother, given her poor track record with parenting and her significant core parenting and personality deficits.
This leaves the choice between a biological father about whom there are major concerns, but who likely has the capacity to be a ‘good enough’ parent and the child entering the State Out of Home Care system, in which there are inherent risks.
All things considered, placement with the biological father seems the least potentially damaging of two poor options. However, if there is any substance to the investigation of child pornography, then the father should not be considered as an option for [the child’s] placement nor should he have unsupervised contact with her.”
[3] Exhibit “I”
Ms S’s reference to child pornography relates to an investigation by the Major Crime Organised Crime Division of the Northern Territory Police Force. On 25 May 2006, Detective Senior Constable Q executed a search warrant at the father’s Darwin home. When Ms S interviewed the father, this investigation was still underway and she did not have access to its details. As best she could, Ms S explored the pornography issue with the father. Simply put, he disclosed an interest in adult pornography and disavowed any involvement or interest in child pornography.
On 11 September 2006, the child left the grandparents’ household and moved into a short term foster placement. Although short term, DOCS intended this placement would continue at least until finalisation of these proceedings.
On 19 September 2006 the Federal Magistrate’s Court at Newcastle transferred the proceedings to the Family Court at Newcastle.
The same day, the Crown Solicitor’s Office sent Ms S documents from the Northern Territory Police containing the outcome of their search warrant and interview with the father. From the father’s computer police identified approximately 30,000 images, four-fifths of which were irretrievable. In Detective Senior Constable Q’s opinion, which opinion the father accepts, of the viewable images, the great majority are pornographic. Indeed the father accepts that virtually all of the 30,000 images are pornographic. Police recovered approximately 600 images which Detective Senior Constable Q says: “Depict girls which appear to be under the age of 18, or were posed or incorporated dress or props calculated to give the impression that the girls depicted were under the age of 18 years”. Of the 600 or so images, Detective Senior Constable Q identifies approximately 40 in which the girls: “Are quite obviously under the age of 16 years. These 40 photographs all involve the girls posing in a sexually provocative manner or engaged in sexual acts, with each other or adult males”. Six images are described as depicting “the most severe category of child pornography material”. By this Detective Senior Constable Q means “images which depict children being subjected to torture, cruelty or abuse”. Having seen the photographs[4] I have no difficulty accepting his opinion concerning the gravity and abusive nature of these six pictures or that of the balance the majority depict young women or girls in pornographic poses, a number of which involve the father and in some instances the mother.
[4] Exhibit “K”
The Crown Solicitor’s Office provided Ms S with an additional four retrieved photographs. These comprise one of the child, a friend of the parents’ eight year old daughter K[5] and two of the father’s former girlfriends in their school uniforms. Whether these photographs should be classified as pornographic is a matter to which I will return. Ms S was also given a list of pornographic sites the father accessed. These include sites such as “Itty bitty titties”, “Young porn - do you want it young”, “Young as they come” and “Fresh and pure”. A complete list of the sites relayed to Ms S is included in Detective Senior Constable Q’s hard drive content analysis[6]. Armed with this material, Ms S concluded the father shows a clear sexual attraction to young girls. Believing the father took the photographs of his daughter and K, she opined that his biological tie to the child is not the protection (taboo) that it is for most parents. Unknown to Ms S, it was the mother and not the father who took these two photographs. In a second report dated 28 September 2006[7] Ms S recommended the child’s placement in long term foster care, ideally in circumstances where she could continue contact with the maternal grandparents.
[5] Together comprising Exhibit “G”
[6] Annexure “A” to his affidavit
[7] Exhibit “J”
On 20 September 2006 the mother and father asked DOCS to establish regular contact between the child and each of them, albeit at different times. DOCS offered the father monthly one hour supervised visits and the mother monthly visits of 1.5 hours. While neither parent attended every available visit, the father was much more reliable than the mother. The mother missed a concerning number of scheduled visits, which as the child was expecting to see her was unfortunately distressing.
On 25 October 2006 the child left her then foster placement and moved into temporary, but DOCS hoped, long term foster care. This move was necessitated by the breakdown of the preceding foster placement. Although this failed placement involved relatively experienced foster parents, they reported conflict between the child and another two year old foster child in their care. Rather than risk continuing disruption for the child who had been in their care for a considerable period these foster carers requested DOCS place the child elsewhere. This new foster placement is where the child presently lives. DOCS say this placement appears to be working well and they are cautiously optimistic that it is likely to endure.
On 30 November 2006 the matter was listed for directions during which the father asked to spend more time with the child. Because their time together was so brief, he explained that he was having difficulty establishing any rapport with the child. The Court acceded to his request and made the following orders:
(1)That pending further order the father spend time with [the child] born [in] December 2004 (”[…]”) as follows:
(a)for a period of three hours on 6 December 2006, 3 January 2007 and every second Wednesday thereafter; and
(b)for a period of two hours on each of 13 and 20 December 2006.
(2)That for the purpose of implementing Order 1:
(a)the period of time referred to in 1(a) shall be supervised and take place at the office of the Intervener at [M], NSW or such other place as agreed between the father and the Department of Community Services;
(b)the period of time referred to in Order 1(b) shall be supervised and take place at McDonald’s Family Restaurant, [M], NSW, or such other place as agreed between the father and the Department of Community Services, and the intervener shall make [the child] available to the father at that location.
(3)That the father and mother each give the Child Protection Case Worker not less than 24 hours notice that they will attend the scheduled contact and if they do not give such notice then contact on that occasion is cancelled.
(4)That this matter be listed for final hearing to commence at 10.00 am on 5 February 2007 for 4 days.
(5)That the applicant father file and serve any Amended Application and any Affidavits upon which he intends to rely by 4.00 pm on 22 December 2006.
(6)That the respondent mother files and serves a Response and any Affidavits upon which she intends to rely by 4.00 pm on 22 December 2006.
(7)That the Department of Community Services file and serve an Amended Response and any Affidavits upon which the Department intends to rely by 4.00 pm on 12 January 2007.
(8)That in the event the father and mother wish to file any affidavits in reply, they file and serve same by 4.00 pm on 25 January 2007.
(9)Liberty granted to all parties to apply as to any further trial directions.
(10)The Court notes that the father’s Address for Service is [P].
Until he returned to Darwin in mid February 2007 the father attended every one of these longer contact periods with the child. Notwithstanding their extra time together his relationship with her showed no signs of improvement.
After four hearing days, on 20 February 2007, the father filed a Notice of Discontinuance by which he discontinued all applications. This document was sent by facsimile from C in the Northern Territory.
Contacted by telephone on 22 February 2007, the father informed the Court he has no intention of seeing the child in the foreseeable future. At the end of the hearing, on 22 February 2007, the Court suspended all orders entitling the father to spend time with the child.
The hearing
When the hearing commenced on 5 February 2007, DOCS and the Independent Children’s Lawyer appeared with counsel. The father and mother appeared on their own behalf. In spite of directions and encouragement that she files a Response and affidavits, the mother did not do so. The father filed no material additional to his two page affidavit lodged with his application. He provided a four paragraph, one page affidavit from his then, but now former partner, Ms H. In the lead up to this hearing, I encouraged the father and mother to pursue legal aid and legal advice. The father applied for but was refused legal aid. He was informed his income exceeds means test eligibility guidelines. Unable to afford a lawyer, the father had no choice but to appear on his own behalf. Given the gravity of the issues and nature of evidence, this is unfortunate. The mother decided not to apply for legal aid. Perhaps her stance is best understood by her concession that the evidence DOCS adduced which relates to her is not contentious.
It was immediately apparent that conducting this hearing along traditional adversarial lines involved engaging the parents in a process they were unlikely to manage. Thus, by consent and pursuant to s 69ZM this hearing was conducted in accordance with Div 12A of the Family Law Act 1975 (Cth) (“the Act”).
At the commencement of the hearing the father advised he seeks orders in accordance with his application filed 28 February 2006. During cross-examination, he explained that he believes the child will be distressed if immediately returned to him and adopted Ms S’s original recommendation for a transition into his care lasting one to three months. In support of his application the father relied upon the following:
·His affidavit filed 28 February 2006 and his oral testimony.
·Affidavit of Ms H filed 9 January 2007 and her oral testimony.
When the hearing adjourned, the father sought and was given leave to call evidence from his mother, Mrs M. Mrs M provided a two page handwritten affidavit and gave oral evidence by telephone from South Australia.
Before the hearing ended the father discontinued his applications. He did so after he and the mother had closed their cases and the only remaining witnesses were Detective Senior Constable Q and Ms S.
The mother provided an unsworn affidavit[8] which runs to three paragraphs. During her lengthy oral evidence, the mother explained she would like to spend time with the child each second Saturday, then alternate weekends and eventually for longer periods during school holidays. When the hearing resumed on 22 February 2007, the anticipated final hearing day, the mother made an oral application for leave to proceed with an application that the child lives with her. Leave was given however the mother’s application to adjourn the hearing was refused. I had no confidence the mother would pursue legal representation or that an adjournment would result in the Court receiving further evidence which may influence the outcome.
[8] Exhibit “A”
On 7 February 2007 the mother submitted a short statement from her then partner, Mr K[9]. Mr K gave oral evidence from his work place.
[9] Exhibit “E”
The Department of Community Services relied upon its Response filed 31 January 2007. The orders DOCS seek are set out below.
(1)That the Minister for Community Services (“the Minister”) have parental responsibility for the child the subject of these proceedings, […], born […] December 2004 (“[…]”), including responsibility for her day to day care and long term care, welfare and development.
(2)That [the child] live as directed by the Minister or the Director-General of the New South Wales Department of Community Services (“the Director-General”) or a delegate of such person.
(3)That [the child] spend supervised time with her father, […], on four occasions each year for a period of two hours on each occasion.
(4)That [the child] spend supervised time with her mother, […], on four occasions each year.
(5)For the purposes of [the child] spending supervised time with [her parents] (“the parents”) (as per orders 3 and 4 above):
(a)a delegate of the Minister or Director-General shall advise each of the parents respectively of the proposed date and time for spending supervised time with [the child] a reasonable time prior to each proposed occasion;
(b)the venue at which supervised time will be spent shall be a venue agreed upon between the parents and a delegate of the Minister or Director-General; and
(c)a delegate of the Minister or Director-General shall be responsible for arranging the supervisor of the time spent between [the child] and each of her parents, including the cost/s of any such supervision.
(6)That [the child] spend time with her maternal grandparents, as agreed between the maternal grandparents and a delegate of the Minister or Director-General.
In support of its position, DOCS relied on the following:
·Affidavits of Ms L filed 6 June 2006 and 31 January 2007 and her oral evidence.
·Affidavit of Detective Senior Constable Q filed 5 February 2007 and his oral evidence.
·Affidavit of Ms C filed 12 February 2007 and her oral evidence.
All parties and the Independent Children’s Lawyers tendered documents.
Ms S gave evidence as the Court’s expert and was cross-examined at length. Because the father did not participate in the final day of the hearing, I explored issues with Detective Senior Constable Q and Ms S arising from his responses to their written evidence. At the end of her cross-examination, Ms S supported DOCS position. Having turned her mind to the mother’s late application that the child lives with her, for the reasons given in her report Ms S did not support the child returning to her mother. Ms S’s written and oral evidence is compelling and carries significant weight. There is one area in which I am more cautious than she is which results from her receiving inaccurate information concerning some photographs. I will deal with this matter later.
The relevant law
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1. The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is 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(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode & Goode (2006) FamCA 136.
The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
The mother’s circumstances
The mother was born in March 1986. She lives alone at W. This home is privately rented for $160 per week and is where the mother has lived for about nine months. In late 2005 the obtained employment as a cleaner at P at S. S is approximately a half hour drive from M. Mondays to Thursdays, inclusive, The mother starts work at 4.00 pm and finishes at 1.00 am. On Fridays she starts work at 3.00 pm and finishes at midnight. A colleague drives the mother to and from work.
Since the mother separated from the father, she has been in five relationships. Shortly after her arrival in M, she started a relationship with Mr E, who is three years her junior. This relationship lasted one month. In a meeting with DOCS officers, workers observed Mr E caring for the child. In December 2005, the mother commenced cohabitation with 19 year old Mr W. They lived together for one month. On 5 March 2006, the mother commenced a relationship with Mr D, two years her senior. This relationship ended in about August 2006
Mr D is friendly with Ms H and her daughter Y. The mother met Y, who was living in a youth refuge, at the same time she met Mr D. When Y’s mother, Mr H, left her partner Mr F, the mother allowed her to move in with her and Y. During a visit to the mother’s home, the father met Ms H with he later cohabited. Ms H and the mother are friends, but not as close as Y and the mother.
On 2 September 2006, the mother met her then partner Mr K. He lives in a home he owns at M. At his next birthday, Mr K will be 27 years old. He works fulltime as a crane operator. Mr K has a two year old son who lives with his mother in M. Mr K regularly visited the mother’s home which he said is usually clean and tidy. He supported her desire to spend more time with the child. The child and Mr K have not met. The mother said Mr K would complement her ability to care for the child, for example by caring for her if the mother needed to work weekends. Although they had not discussed living together the mother hoped and believed their relationship would endure. The mother and Mr K ended their relationship the day after he gave oral evidence.
Approximately four weeks ago the mother met Mr R. They have commenced a relationship but do not live together. Mr R is 27 years old and has three children who live with their mother. He lives in M and is unemployed. Because their relationship is so new, the mother sensibly says she cannot anticipate its future. Suffice to say she enjoys Mr R’s company and is hopeful for their future. If the child lives with her, the mother says she can rely on Mr R’s assistance and his sister in laws, her next door neighbour, nursing experience.
The mother is one of three children born to her father and previous wife. She has two brothers, B who is 23 and a twin D. B and D live in Darwin where her mother also lives. The mother’s parents separated when she was young. At six years of age, the mother’s father obtained custody of the three children. By this time he had repartnered with his current wife, the mother’s step-mother. The mother’s step-mother has three children from two previous relationships. L who is 28 and lives in P, A who is 24 and lives at G and T who is 20 and lives at C. These children lived with the maternal grandfather and his wife and the grandfather's three children. The mother told Dr S she has hated her step-mother. Only now does she realise the efforts her step-mother put into her care. The mother said of her step-mother: “She’s been more of a mother than my real mother”. Concerning her biological mother, the mother said: “My mother is a bitch but she gave birth to me”. The mother explained her mother effectively abandoned the three children and she had no contact with her until she was approximately 11 or 12 years old. She told Ms S that at this age she went to live with her mother in Darwin. Whilst living in Darwin, at age 14, her mother’s then partner, Mr P, allegedly sexually abused her, including forcing sexual intercourse. This continued abuse she says started when at age 12 she visited her mother and Mr P in Victoria.
The maternal grandparents told Ms S that the mother resided with them until she “did a runner” at aged 15 or 16. When the mother went to her mother, she was living in Victoria. When her father applied for a recovery order, the mother said she did not wish to return to her father because her older brother, B, had sexually assaulted her. A few weeks later she withdrew this allegation.
In her interview with Ms S, the mother said that the child was her first pregnancy and only child. However, in a September 2005 interview with FAYS, the mother said she has another daughter, E, who was then six years old. In her oral evidence, the mother says she gave birth to E in January 1999, shortly before her thirteenth birthday. The mother says she was attending a State school called “[N]” at H and that none of the school staff saw she was pregnant. At the time she says she was admitted to hospital for her baby’s delivery, her mother was admitted to hospital in relation to her pregnancy. The mother’s mother allegedly delivered a still born baby and the mother gave birth to E. With the delivery doctor’s cooperation and the assistance of hospital staff, the mother said birth records were altered to show her mother gave birth to E and her baby was still born. The mother could not name the hospital where E was born. E lives with the maternal grandmother who she knows as her mother. The mother says that upon her mother’s death, she will tell E the truth about her parents.
I expressed reservations about the veracity of the mother’s evidence concerning E’s birth. Without doubting the veracity of her claims concerning sexual abuse by Mr P, who sexually abused his son, it almost beggared belief that in this day and age, with the governance and child protection accountabilities of public hospitals, medical and other staff would cover up a 12 year old giving birth or swap a live for a stillborn baby. I had no difficulty tentatively accepting Ms S’s opinion that the mother’s claims are “outside the range of normal deception and represent quite severe emotional disturbance”.
When the hearing adjourned on 7 February 2007 I commented to the mother that the nature of her allegations concerning the behaviour of hospital staff was so serious I felt obliged to pursue the issue. Thus DOCS were invited to issue subpoena for documents which could shed light on the circumstances surrounding E’s birth. When the hearing resumed on 12 February 2007 I returned to this issue and warned the mother about the possible consequences of perjured evidence. Eventually the mother said her evidence concerning E’s birth was false. For reasons only she can understand, the mother started this lie which felt compelled to bring to these proceedings. So that it is clear the child is the mother’s only child.
Concerning her family, the mother says her father treats her like “crap”. Presently, she has little contact with her father or step-mother. Concerning her mother, the mother occasionally speaks with her by telephone. She says her mother “is not all there” and failed to protect or support her when Mr P sexually abused her. Of her relatives, the mother is closest to her twin. He was taken into care aged 10 years and appears to have endured a similarly difficult childhood. I do not know what support and guidance this young man is able to give to his sister. Nonetheless the mother says if the child lives with her, her family will be her main supports. Given her description of these relationships it is likely any support will be short lived and last only until the next falling out.
Prior to the child’s birth, the mother occasionally used marijuana but no longer does. She rarely consumes alcohol. He mother feels positive about her life and feels she is gaining control of it and personally progressing.
The father’s circumstances
The father was born in South Australia in November 1977. When the hearing commenced the father lived with Ms H in rented premises at P. Ms H met the father in September 2006. They commenced cohabitation in December 2006. Two of Ms H’s children, Y who is 16 years old and R who is two years old, lived with them. Ms H is a fulltime homemaker and parent, presently receiving Centrelink Supporting Parents Benefit and Family Tax payments.
In M, the father worked fulltime as a Console Operator at a Service Station. On Sundays, he worked from 6.00 am until 12.00 noon and on Mondays from 12.00 noon until 6.00 pm. He had two other shifts, being 12.00 midnight until 6.00 am and 6.00 pm until 12.00 midnight. When working these shifts, he worked two shifts commencing at 12.00 midnight followed by two shifts commencing at 6.00 pm. The Service Station where the father worked is approximately three kilometres from his home.
Since leaving school in Year 11, the father has had one short period of unemployment. After completing three TAFE courses, the father has basically been in regular fulltime employment. He has worked in a variety of positions and locations. These include as an industrial cleaner, in mines, in a shop and with petrol companies. Academically, the father struggled with school and did not enjoy it. During the hearing he was articulate, polite and poised.
The father is the middle child of his parent’s three children. His older brother M is married with one child and resides in Adelaide. His younger brother C lives with his fiancée in Queensland. The father has a good relationship with M and following an altercation at a 21st birthday party, a poor relationship with C. In 2000, at aged 49 years the father’s father died. In 2004, his mother remarried. The father’s mother resides with her husband in T. T is a town of approximately 600 people in South Australia. This is where the father grew up and is approximately a two hour drive from Adelaide.
The father and his mother have a close relationship. His mother gave short evidence confirming her support for the father’s withdrawn application that the child lives with him. In her view, her son has been poorly treated by welfare authorities in the sense she believes he has been ignored and his desire for contact with the child thwarted. On the Wednesday of this hearing, two days before she was due to return to South Australia, the father’s mother spoke with Ms C and asked to see the child. Ms C undertook to arrange this if possible and told the father’s mother she would call her back. When she had not heard back from Ms C, on Friday afternoon the father’s mother telephoned her. Ms C was unavailable and the father’s mother was told another DOCS worker would call shortly. When nobody called her, the father’s mother left for South Australia. There is no evidence Ms C took any steps to facilitate contact between the child and her paternal grandmother and I infer she did not. As the paternal grandmother and the child had not seen each other since September 2005 and the opportunities for contact are extremely rare, from the child’s perspective, this is a lost opportunity. Responsibility for this rests with both the paternal grandmother and Ms C. Knowing the child is in foster care, once the paternal grandmother decided she would be in M and Newcastle she could have given Ms C advance notice of her desire to see her grand-daughter. Without adequate notice, the paternal grandmother should have anticipated she might have difficulty seeing the child.
The father intends to continue fulltime employment. As a Console Operator in Darwin, he works five days per week, Mondays to Fridays, from 9.00 am to 6.00 pm. Within approximately six months, the father said he would return to Darwin with the child. As it transpires he has returned without her. Wherever he lives, the father intends to work fulltime and says he is reliant upon others for significant aspects of the child’s care. He has no intention of himself taking on her full time day to day care. The father proposed Ms H would be primarily responsible for the child’s day to day care. He said if that relationship failed he would find another partner who would assume primary day to day of the child.
Because of her potentially pivotal role in the child’s life, Ms H’s circumstances required careful consideration. Ms H is 34 years old. She has six children by three fathers. In her affidavit she disclosed two children. Y’s father is Mr S. When they separated, Y remained in Ms H’s care and formed part of the household she established with her next partner, Mr H. In late 1994, Y visited her father in Queensland. Mr S kept Y and she remained in his care until January 1996 when it was discovered he sexually assaulted her. The Queensland child welfare authority removed Y and she lived in out of home care until December 1997. Ms H did not see Y from late 1994 until Christmas 1996. There is no evidence that during this period Ms H made any attempt to retrieve Y and I infer she did not.
Ms H has two daughters by Mr H, V who will be 15 in November 2007 and K who will be 13 in July 2007. In June 1996, Mr and Ms H separated. Mr H told Ms H he did not believe she was able to care for their daughters and at his insistence the children remained with him. Mr H and the children left NSW and moved back to Brisbane. Ms H has not seen her daughters since. Although Mr H told her he would resist any request to remove the children from Queensland, Ms H has not taken the obvious step of arranging contact with her daughters in Queensland. This is notwithstanding her mother resides in Brisbane and apparently has contact with V and K. There is no evidence Ms H has commenced any proceedings so as to establish contact with V and K. I infer she has not.
As her next born child’s birth date reveals, not long after Ms H separated from Mr H, she established a relationship with her next partner, Mr F. Ms H has three children by Mr F. They are D who will shortly be nine, W who will be seven in November 2007 and two year old R. During their relationship, Mr F worked fulltime and Ms H cared for the home and children. About six months before their separation, following a dispute with Mr F, Y left their home and moved into a children’s refuge. Y remained in the refuge until she moved in with the mother. She stopped attending school and is receiving a Youth Allowance. Ms H agrees with the father’s evidence that Y plays a significant role in R’s care.
From 3 December 2006 the father included Ms H, Y and R in each of his visits with the child. He agrees with the supervisor’s reports that the child relates well to Y and R. Concerning Ms H, he says she seems scared of attachment with children and scares her children by screaming at them. The father says he encourages Ms H to interact more with her children. In his opinion, Ms H is anxious and uptight with her children. During her four visits with the child, on one occasion Ms H was loud and aggressive following an altercation in the shopping centre with a former friend. On another she was loudly aggressive towards the father, with her behaviour compromising the visit. On a third, she complained that the child was more interested in Y and said she did not think she would bother visiting the child again. She was simply jealous that the child reacted positively with Y but not her. As Y made an effort to engage the child, which Ms H did not, the child’s more positive response to Y is easily understood.
Because the father proposed returning to Darwin, Ms H was questioned concerning her intentions. She said she would move to Darwin and planned to take Y and R with her. This raised an issue concerning the effect on her sons if weekend contact with their mother and sisters ceased. Ms H said provided she could telephone her sons and see them during school holidays they and their sisters would be unaffected. She was unconcerned that moving to Darwin involved a dramatic reduction in the amount of time she spends with her sons. This evidence, put in context of Ms H’s contact with all of her children, strongly suggests she has poor attachments to her children. One of the critical issues Ms S raises in her first report is abnormalities in the child’s attachment behaviour. The child is identified as carrying the “scars” of previous emotional abuse and is seen as having a chronic need to settle into a stable, predictable and loving long term environment. Ms S says: “She will need to have a carer who is gentle and empathic to her history and understands her behaviours”.
The father and mother had no reservations concerning Ms H’s ability to assume primary responsibility for the child’s day to day care. At best their stance reveals each has a rudimentary understanding of the child’s needs and their judgment concerning delegation to others for meeting these needs is lacking. It should have been clear to both of them that with her poor attachment to her own children, Ms H is highly unlikely to attach to the child or provide her with the environment she needs.
Determining the child’s best interests
Since December 2005 the father and child have spent little time together. Twice the father has returned to Darwin with the intention of “getting on with his life” without the child. By his Notice of Discontinuance, most recent return to Darwin and his oral evidence, the father has made it as clear as anyone possibly could, that he does not seek to have a relationship, let alone a meaningful relationship with his daughter. Thus, s 60CC(2)(a) considerations relating to the father do not arise.
Between 11 January 2006 and 22 February 2007 the mother relinquished the child’s care to others. Occasionally she contemplated resuming the child’s care but did nothing to progress this possibility. Overwhelmingly her stance has been that the child’s interests were best met by others caring for her. The mother has not seen the child more frequently than monthly and for periods has not seen her for at least two months. When the child lived with the maternal grandparents, the mother had the opportunity for free and easy contact with the child, if she sought it, daily. Once the child went into State foster care, DOCS required greater structure, but proffered one and a half hours contact monthly. The mother failed to attend a number of scheduled visits. When she did attend, the child usually reacted positively to her, wanting affection and cuddles throughout their visits. This did not occur when the step-grandmother was present, basically because the child was in the presence of someone to whom she is close. When the child was taken to the contact venue and the mother failed to arrive, she became distressed, crying and calling out for her mother. It is not clear whether the child anticipated seeing the maternal grandparents. As she refers to both as “Mum” she may actually have anticipated seeing the step-grandmother. Because of the child’s distress when her mother did not arrive the Court imposed an obligation that the mother confirm no later than 24 hours in advance of each scheduled visit that she would be there. In the absence of confirmation, the visit was cancelled and the child spared distress at her mother’s failure to attend.
This history reveals that for the last 13 months the mother has given little regard to her relationship with the child.
The mother now says she wishes to have a meaningful relationship with her daughter and that unless orders are made that the child lives with her, this will be defeated. Whilst I accept that if orders are made as DOCS seek, the child will be denied the benefit of a meaningful relationship with either of her parents, I am far from satisfied that if orders are made in accordance with the mother’s oral application, the child will have a meaningful relationship with either her mother or father. This is an issue I will return to when discussing s 60CC(3)(b).
Section 60CC(2)(b) constitutes one of the pivotal issues in the case. Whether living with or spending time with either parent, I must consider the need to protect the child from physical and psychological harm and from being subjected to and exposed to abuse, neglect and family violence. This issue is intrinsically linked to the nature of her relationships with her parents.
The mother agreed that whilst the parties cohabitated, the child twice attended hospital with injuries she received during domestic violence incidents. She agreed with the father, that the May 2005 incident arose following her disclosure she was having sex with his employer. The father and mother said the father gave the mother a tap across the back of her head whilst the mother was holding the child. The marks to the child’s body described earlier are inconsistent with their evidence. If their evidence is correct, there is no reason for the child to have marks on her body. The marks on the child suggest a more severe domestic violence incident between her parents and that for the purpose of this hearing, the father and mother saw advantage in withholding its true nature from the Court.
Both parties’ conduct on 8 September 2005, when the child was pulled between them and finally dropped, is reprehensible. Neither parent expresses remorse about the incident, and simply blames the other for the child’s injuries. While I accept their evidence that there was little physical violence in their relationship, it appears when serious arguments developed the child was directly involved and physically abused. There is no evidence of violence in any of the mother’s five post separation relationships, nor in the father’s relationship with Ms H. Although it is probably too soon to be certain, it may be that the risk of family violence was connected to the particular nature of the parent’s relationship. In different relationships the risk of family violence appears much less.
The mother agreed with her step-mother’s account of the child’s behaviour when she was in their care. She agreed:
·When the child arrived from South Australia she had severe nappy rash, which was “bleeding and red raw”.
·When the child first came, she had no routine. If she fell asleep on the floor, the mother left her there.
·At first the child would not sleep in her bed during the day as she was used to sleeping in a pram.
·The child had severe temper tantrums. She would scream to the point of vomiting and pulled her hair out. Sometimes she head banged, without feeling any pain. This behaviour improved over months.
·Over months, the child started to eat and sleep well.
·The child does not have a normal pain reaction. Even now if she walks hard into a wall or falls over and hits her head hard, she does not cry and gets on with what she is doing.
·When the child first came, she would scream whenever she was put in a car and scream for hours. She now loves car trips.
·The child’s speech is delayed.
·The child’s responses to separation from familiar caregivers are diverse. For example she immediately went off without distress to stay with a respite carer (stranger) she did not know and loved it. At other times she cries if separated from the maternal step-grandmother. The child did not react when her mother was leaving.
The mother agrees that DOCS’ descriptions of bruising on the child whilst in the mother’s exclusive care, are accurate. She denies causing these bruises. I am not in a position to determine causation. However, even if the mother is not directly responsible for inflicting these injuries, the variety and severity of bruising is well beyond normal childhood scrapes. At best, the extent of the bruising demonstrates the child was unsupervised and her physical safety neglected. It is also feasible she has been physically abused by someone other than her mother in circumstances where the mother failed to keep the child safe.
Ms S’s observation of the mother and child is instructive. The maternal grandparents brought the child into the room. The child required repeated encouragement from her step-grandmother before she approached her mother. After returning to the step-grandmother a number of times, she put her on the floor next to her mother. When the step-grandmother said she was going out for a little while, the child immediately hung onto the step-grandmother’s leg. Eventually she was able to disengage and the mother was able to engage her child in play. When the child needed her nappy changed, Ms S says: “[The child] lay down spontaneously and instantly on the floor, then was perfectly still, while [her mother] changed her nappy quite confidently”. When the session finished, the child rushed to the door without saying goodbye to her mother.
By reference to the child’s history and Ms S’s observations, Ms S concludes most likely because of the mother’s treatment of her, the child still carries signs of physical abuse and neglect. These are self damaging behaviour in the form of head banging and hair pulling. Neglected children develop these behaviours in effect as self stimulatory behaviours following prolonged and substantial neglect. Pain insensitivity to injury or pain agnosia is commonly seen in infants who have become enured to abusive situations. Extreme self protective behaviour in specific situations. For example, instant and spontaneous response to a nappy change, then lying perfectly still during it. Ms S describes the child’s behaviour as very abnormal, especially for a child as active as her. She says:
“[The child’s] extremely obedient behaviour in this specific situation is likely the result of early memories of being punished during this procedure. It is a common response seen in previously abused children when they are placed back in a specific situation which arouses fear in them”.
The mother says if the child returns to her, she will accept guidance from her family and friends concerning her care. She offers to complete a parenting program. The mother has previously made these or similar offers, but failed to follow through. She did not complete an anger management program, nor attend the family care centre, abide directions of DOCS workers or accept guidance from the maternal grandparents or refuge workers. Even if these types of supports and programs addressed the high risk to the child of neglect and abuse in the mother’s care, the prospect that she will complete identified programs and accept support on a continuing basis is remote. This is a finding which attracts significant weight.
When the father gave evidence in chief, I encouraged him to answer in detail the evidence concerning his interest in and possession of pornography. In the context of his desire to have the child live with him this was one of the pivotal issues in the proceedings. For the best part on a day the father gave his version of matters recounted in the DOCS officers’ affidavits, Detective Senior Constable Q’s affidavit and Ms S’s report. He was then cross-examined at length. The father was aware the Court afforded him an opportunity not only to answer this material but also to directly challenge these witnesses through cross-examination. As to the latter he chose not to do so. Although the father discontinued his application, DOCS continued its application for orders in accordance with its Response. Thus it is necessary to consider the evidence concerning the father’s interest in pornography. Of the 30,000 pornographic images the overwhelming majority are images of women who are 18 and over. There are, however, a considerable number which appear to be of under age girls. The father said these 30,000 images were viewed over three years. However Detective Senior Constable Q was able to date the images to the period commencing 28 May 2005 and ending 31 May 2006. The computer stores 30,000 images and as it reaches its capacity the oldest images are deleted in favour of storing recently viewed images. Storing does not mean deliberately saving an image or document onto a computer. A computer automatically saves all images which are viewed onto its hard drive in temporary internet files. This process can be thwarted but in the father’s case it was not.
The father said he viewed pornography when he was not in a relationship. This is not true. He viewed pornography throughout his relationship with the mother. In relation to the sites he visits the father said all are legal and all display certification which says the women are 18 and over. He pays particular attention to the certification and is concerned to ensure he does not engage in illegal viewing. Detective Senior Constable Q understands some sites display this type of certification. However, in Australia there is no system for certification and he doubts the father is frank in saying that all sites he visits are certified. He agrees with the father that all the sites listed in his hard drive analysis report are legal commercial sites. Users pay for access using a credit card.
Both Detective Senior Constable Q and Ms S regard many of the images they viewed as depicting a significant number of pre-pubescent girls. I agree that many of the photographs appear to be of girls whose breasts are barely developed, are slight and without pubic hair. However, excluding the six worst category of images it is difficult to be certain these are images of young girls, or as the father says women 18 and over who appear younger. Detective Senior Constable Q says the images are barely legal. This means that the sites and images are legal. This suggests the father is interested in women who appear to be young girls perhaps not in young girls themselves. If it is the latter, he appreciates the social, moral and legal taboo of his sexual preferences and has found a way to deal with his sexual preference which does not breach these rules. This suggests he presently has the discipline to resist under age pornography as a means of sexual gratification but this may not always be so.
The six images require specific consideration. These comprise images of:
a)a girl aged between five and 10 with a black eye and penis shoved in her mouth. She looks sad and frightened.
b)A girl aged between eight and 12 with her hair in pig tails. She is posed reclining and exposing her chest. Written in blue across her chest are the words “happy father’s day”.
c)An adult male penetrating a girl aged between 12 and 16 years. The girl is on a bed and an adult female is watching. It is apparently supposed to represent a father, mother and daughter scene.
d)An adult male ejaculating into the mouth of a screaming 12 to 16 year old girl.
e)A girl aged between 12 and 16 years has her head held in place by a hand on top of her head while her mouth is being pulled apart with a second and third hand from each side of her face. The girl has a look of fear and pain on her face.
f)A young girl aged between eight and 12 years is being anally penetrated by an adult penis. She has a look of pain on her face.
The father says he did not view these images and that he only became aware they were located in his temporary internet files when Detective Senior Constable Q reported upon the results of the search warrant. He says someone else must have used his computer to view these images while he was absent. He and the mother are adamant there was no password on the father’s computer and provided a list of flatmates who used it during the relevant period. Detective Senior Constable Q confirmed the absence of a password and said there were no firewalls on the computer to protect it from receiving unsolicited child pornography. The significance of the later is the father says another explanation is that these six images were possibly received as “pop ups”, that is when visiting other pornographic sites unsolicited images are received to entice the viewer to visit the “pop up” site. Detective Senior Constable Q is aware of “pop ups” but says these are links to a site and in order for an image from the pop up site to be stored into a temporary internet file the link must be followed and the site accessed. Thus merely receiving the pop up does not explain the six images on the father’s computer.
Other than the mother there is no evidence that any of the people with whom the father lived during the period May 2005 to May 2006 had any interest in pornography. Her interest was no where nearly as extensive as the father’s. The combination of his greater and continuing interest in pornography, including viewing images of girls who look younger than 18, that from separation he lived alone, his detailed knowledge of the legalities of internet pornography and his lack of candour concerning the duration and circumstances of his accessing pornography persuade me that the father accessed sites where he viewed these six images. An issue which must be considered is the significance of these six images in the context of the 6,000 which were retrieved. This equates to .001% of the pornographic images. Such a small number suggests the father wanted to view child pornography but when he looked it was either not to his liking or he stopped because it is illegal. If it is the latter this suggests he presently has the discipline to resist child pornography as a means of sexual gratification but this may not always be so.
Ms S regards the two images of the child and K as sexually provocative. The child is six months old, lying on her back in a bath surrounded by bubbles and covered with two face cloths. In Ms S’s opinion the placement of the face cloths draws attention to those places. “Thus, the placement of objects in this way could be seen as quite sexually titillating for an observer.” She regards the bath water as abnormally shallow, designed “to expose the children’s bodies to a maximum level for photographing.” Ms S repeatedly emphasises her concerns about an adult male taking the photographs. Listening to the mother, however, I accept her evidence she took the photographs and positioned the cloths for modesty. The bath water is not too shallow but rather consistent with not over filling a bath when a young child is bathing.
K was photographed in the child’s parents’ home. Her mother was present and the mother offered to take a photograph while K is bathing. K is seven. She is lying back in the bath, with her hands behind her head, mouth open, legs apart and cloths draped over her chests and groin area. The mother says K is washing her hair and neither she nor K’s mother is concerned by the photograph. Whatever K was doing in the bath, I agree with Ms S the photograph is “quite sexually provocative” and an unusual and inappropriate photograph for a child K’s age. This photograph, combined with the mother’s viewing of the sites on Detective Senior Constable Q’s hard drive analysis report, her participation in pornographic photographic sessions with friends and the father suggests she lacks judgment concerning appropriate sexual boundaries vis- a vis young people. I do not mean to suggest she is sexually attracted to young people but that she does not appreciate where to draw an appropriate line. In my view she needs professional guidance in order to better understand her responsibilities as an adult.
In coming to her opinion that the father presents an unacceptable risk of sexual abuse to his child, Ms S relied heavily upon her belief he has already sexually exploited the child and K. As the above findings reveal in this instance she is mistaken. However this is not the end of the issue. Ms S agreed with my suggestion that internet pornography is a relatively new phenomenon. I asked her whether she knows of any studies which identify a link between viewing pornography and behaving in the manner depicted in the pornographic pictures. For example, whether there is any reported nexus between viewing images of people who appear to be under 18 and desiring to or engaging in sexual acts with people under 18. Ms S is unaware of any such research or nexus. However she makes the valid point that in a risk assessment exercise such as this, the entire constellation of factors indicates an increased risk than if none or only some of the factors were present.
Thus although I am not as strongly satisfied as Ms S is that the father is sexually attracted to young girls, there is a reasonable possibility that he is. Although the evidence does not establish he has or would be sexually attracted to the child, I remain concerned that he and the mother do not fully appreciate the importance to a child’s healthy development of an absolute taboo surrounding sexually provocative dealings with adults. Even if limited to photography in their unsupervised care I consider the child may be at risk. These findings carry significant weight.
As a consequence of the above findings the presumption of equal shared parental responsibility does not apply
Additional considerations
By s 60CC(3)(a) where a child has expressed views about its welfare, the child’s views must be considered together with any factors the Court feels are relevant to the weight given to the child’s views. The child is too young to have any views concerning the outcome of these proceedings.
By s 60CC(3)(b) I am required to consider the nature of the child’s relationship with each of her parents, grandparents and other significant people. In his session at Ms S’s office and every supervised DOCS contact occasion, the father was appropriate with the child and tried hard to engage her. He met with varying degrees of success, but on each occasion remained gentle and attentive to her. In these interactions the father demonstrated the potential for appropriate parenting. The child’s resistance to him is significantly driven by his lack of involvement with her. The father concedes that whilst the parties cohabitated, he worked fulltime and often six days a week. He regarded the mother as carrying overwhelming responsibility for the child’s care. When he was at home he was tired and rarely involved himself in his child’s care. Basically, the father saw his role as providing for his family financially and correcting the mother’s behaviour when he felt the child was being neglected. Thus, although he was part of the first nine months of her life, the child experienced little nurture or care from her father.
At separation, the father abandoned any notion of continuing his relationship with the child. Once the child moved into DOCS care, he knew arrangements could be made for him to see her if he came to New South Wales. As he has no family ties or strong friendships in Darwin, his decision to remain in Darwin until August 2006 suggests he prioritised his own needs over the child’s. Quite simply he could have spent time with the child much sooner if he had moved closer to her.
Between August 2006 and mid-February 2007 the father took every opportunity to see the child and notwithstanding increasing the amount of time she has spent with him, she is indifferent to him. The father has again walked out of the child’s life. I infer in doing so he has decided that theirs is a relationship which he sees no utility in pursuing. I am satisfied the child and her father have a poor relationship which, because of her father’s lack of commitment to it, is unlikely to improve.
DOCS submit that the child should spend time with the father. Their rationale, which is supported by Ms S, is that through occasional supervised visits, the child will at least have knowledge of her father and in an identity sense, know her parents. The problem this is designed to avoid the yearning often seen in adopted children to know who and where they come from. Ms S says this identification type contact will contribute to the child’s long term emotional and psychological well being. I accept this is correct and agree that orders which enable the child to see the father four times a year for two hours on each occasion will meet this purpose. History suggests, however, although I will make provision for it, it is unlikely the father will regularly avail himself of the opportunity to see the child. So as to avoid the distressing consequences for the child and her carers being readied to see her father only for him to fail and arrive I agree with DOCS submission that if the father allows six months to pass without making arrangements to see and seeing the child, then any order for him to spend time with her will be discharged. In these circumstances, it will be a matter for the father and DOCS to negotiate any future contact. If they are unable to agree, the father may bring an application to a court exercising jurisdiction under the Act.
I have already made findings touching upon the child’s relationship with her mother. This relationship is more complex than the child’s relationship with her father. There is no doubt, that for the first nine months of her life, the mother was primarily responsible for the child’s care. She was 18 years old when the child was born and living in Adelaide where she had neither family nor friends. As a consequence of her own childhood in which she was probably neglected and abused, Ms S believes the mother may have a personality disorder. She describes the mother as presenting as an “abused child grown up” with significant deficits in her attachment and personality development. Neither the father nor his family members appreciated the mother’s difficulties managing the child’s care virtually alone. As I earlier found, Ms S concludes the child shows abnormalities in her attachment behaviour consistent with disorganised attachment. She says:
“Disorganised attachment behaviour develops in the first year of life, in response to a caregiver who is emotionally chaotic in relation to the child, being widely inconsistent in the care/attitude towards the child. The infant, in response, forms an attachment to the primary caregiver in which she simultaneously loves and fears the caregiver. [The mother’s] reported behaviours to her baby and her personality style are typical of the characteristics of mothers whose babies develop disorganised attachment. Disorganised attachment in infancy/toddlerhood is serious, as it can lead to later significant behavioural/emotional/personality problems, the most common of which is the development of borderline personality disorder in adulthood”.
In their observed interactions with Ms S and during supervised contact, the child accepted and also rejected her mother. She was both distressed when the mother failed to arrive whilst on other occasions indifferent to her departure. She sought comfort from the mother and also refused to have anything to do with her. In a child of this age, with the mother’s history of early primary care, these behaviours reveal a troubled and tenuous relationship between mother and daughter. For their relationship to improve the mother must make the child her priority. For the last 13 months she has failed to do so and the probability is their relationship is irreparably harmed. Ms S says: “While her mother is a familiar figure to her ([the child]), she does not show strong attachment to her. This is likely due in large part to the poor quality of care and poor attachment climate offered previously by [the mother] to her daughter and, secondary to the intermittent nature of their contact over the last six months”. Contact has continued to be intermittent. In spite of the mother’s heartfelt and, at the time, genuine protestations that in future she will put the mother’s interests first, I am far from persuaded that she is capable of doing so. This means, that if the mother resumes the child’s care, her attachment needs will not be met and her unhealthy, emotionally deprived relationship with the mother almost certainly not improve. As the child’s relationship with her mother would become her closest relationship and the relationship which underpins her sense of security this would have disastrous consequences. Even if orders are made in accordance with the mother’s oral application, the child will not enjoy a healthy or meaningful relationship with her mother.
DOCS propose that the mother spend time with the child at the frequency, duration and under the same conditions proposed for the father. Their rationale is the same. For the reasons given above vis-à-vis the father, I am satisfied such an order in the mother’s favour is appropriate. Although she is available to spend significantly more time with the child, this is highly likely to disrupt the foster placement. It also sets the child up for routine disappointment when her mother fails to arrive. No less importantly it would ignore the mother’s inability to keep the child safe or provide for her physical and emotional needs, even during limited periods.
In foster care, the child continues to spend alternate Saturdays with the maternal grandparents. During the report process, the child related warmly and happily to the maternal grandparents. She accepted their guidance and particularly sought comfort from her step-grandmother. Although they discouraged her from doing so, the child calls her grandparents mum and dad. Of the possible options, Ms S considered long term placement with the maternal grandparents as the ideal solution for the child’s predicament. With that option unavailable, Ms S says it is essential that the child maintains regular contact with the grandparents, who she considers her psychological parents. DOCS and the child’s foster parents strongly support her relationship with the grandparents. Given the mother’s volatile relationship with the grandparents, there is real uncertainty that if the child lived with her mother she would permit or encourage the grandparents’ continuing relationship with her daughter. Jeopardising the child’s relationship with the grandparents’ increases the risk for the development of attachment and personality difficulties in later life. This finding weighs strongly in favour of the Intervener’s position.
By s 60CC(3)(c) I am required to consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Although she has not previously done so, the mother says that if the child lives with her she will encourage regular contact between the child and her father. If he lives nearby, she is content for him to see the child on alternate weekends and during school holidays. Initially, because the child has such a poor relationship with the father, the mother says she will be present when they are together. Not because she has concerns about the father, but to ensure the child is comfortable and settled with her father. The mother rejects any suggestion the child’s contact with her father should be supervised. She does not believe he would harm the child and is unconcerned about the nature and extent of his pornographic interests. In circumstances where the father does not seek to maintain a relationship with the child, the mother’s willingness to facilitate a relationship is effectively irrelevant. Its only significance is whether by being favourably disposed to so do, the mother demonstrates an inability to adequately protect her daughter. Her point blank refusal to even contemplate the possibility that Ms S’s concerns about the father might be credible is instructive on the point. Although I have ultimately decided that the evidence is not as compelling as Ms S suggests, her evidence is worrying and should have given the mother pause. The mother’s response to this issue reinforces her inability to assess risky situations and thus adequately protect her daughter.
Section 60CC(3)(d) concerns the likely effect of any change in the child’s circumstances including separation from his or her parents, child or other person with whom the child has been living. The child’s foster parents did not give evidence. Evidence concerning this placement was primarily provided by Ms L. Her foster parents are a married couple in their late forties. Their children are grown and the child is the only toddler in their family. The foster parents have told Ms L that the child is settling in well and is now part of the family. Both foster parents are willing to continue to care for the child and evince a strong commitment to her. They have a good working relationship with the grandparents and ensure the child spends every second Saturday with the grandparents. Recently the foster parents and the grandparents agreed the child will soon be ready for overnight contact with her grandparents. The reason overnight contact is not presently happening is to maximise the child’s ability to attach to her foster family. Presently, longer stays with the grandparents’ are likely to be confusing for the child and slow the rate at which she adjusts to and accepts her foster placement. Excluding respite care, this is the child’s sixth family. For a child not yet three years of age, imposing a seventh change in her living arrangements would be catastrophic. Even when this involves returning to an earlier carer. In the short and long term further change will almost certainly result in significant emotional and psychological harm. The child’s short and long term interests require stability not more change. The application of the subsection strongly favours the Intervener’s application.
The child and her mother live in the M area and there are no practical difficulties concerning regular contact. Because the father does not seek to spend time with or communicate with the child, s 60CC(3)(e) issues do not arise.
Section 60CC(3)(f) requires an assessment of the parties parenting capacity. Earlier in these Reasons I have made findings concerning this topic which do not require restating. Ms S assessed the father as having the capacity to be a “good enough” parent. In making this assessment, Ms S accepted the father’s protestations concerning his commitment to the child’s welfare. It was before the material from the Northern Territory police was given to her. While the father may have potential viz a viz child rearing, Ms S now says he lacks commitment and thus capacity to parent the child. With these sentiments I agree
As I have previously explained, the mother lacks commitment to the child and the capacity to meet her physical, psychological and emotional needs. For the indefinite future this is unlikely to improve.
The child’s foster parents are caring for her competently and there are positive signs she is attaching to this family. The child attends day care on Monday and Friday where she is doing well. Her speech is improving as is her behaviour. These indicators support DOCS’ contention that these particular foster parents have the capacity to meet the child’s physical, emotional and intellectual needs. This is a finding to which I attach considerable weight.
Section 60CC(3)(g) and (h) issues do not arise.
Section 60CC(3)(i) requires the Court to consider the parent’s attitudes to the child and to the responsibilities of parenthood. Prior to separation, the father played little role in the child’s care and basically delegated his parental responsibility to the mother. Since separation the father has delegated his parental responsibility to others. He has not contributed towards the child’s financial support since separation. Notwithstanding his allegations to FAYS and DOCS, as well as to the Court that he regards the mother as an inadequate mother, he says the child should live with her. His stance cannot be reconciled with his evidence and prior complaints. With respect to the father, it provides another example of his immature attitude towards his parental responsibilities. Perhaps the significance of the father’s Notice of Discontinuance is that it represents his realisation that he is not yet ready to be a parent. Into the future, I have no confidence that the father will responsibly exercise his parental responsibility. There is too great a risk, that where his and the child’s interests diverge, the father will prioritise his own.
Whatever difficulties she may have encountered along the way, until separation, the mother did her best to fulfil her parental responsibilities for the child. Post separation, however, her motivation appears to have failed her and until the mother relinquished the child’s care, the child’s interests increasingly gave way to her mother’s. With the grandparents, the mother and child had a safe, appropriate and supportive living environment. The grandparents were keen to help the mother with the child’s day to day care and provide her with the support she needed to eventually establish her own home and provide for the child. The mother’s failure to heed their advice and accept their support, provides another example of her unreadiness for parenthood. The mother’s failure to abide DOCS sensible guidance and avail herself community support reveals either a lack of insight into her inability to meet the child’s needs, or a disinclination to do anything useful to address the situation. If the mother truly acknowledged her parental responsibility for the child, she would have maintained contact with a youth support worker, attended doctors as DOCS requested, attended the family care centre, and engaged rather than rejected DOCS support. By the time the mother signed the first temporary foster care agreement, she was probably beginning to realise that she was not ready for parenthood. With the second agreement, she evinces a clearer appreciation that she was unable to meet the child’s day to day needs. In these circumstances, her decision to cooperate with the child’s fostering represents an effective and appropriate exercise of her parental responsibility. The mother’s recent change of heart, however, in the context of failing to maintain regular contact with the child or take steps to improve her parenting capacity so as to avoid repeating the difficulties she had with the child until she relinquished her care, suggests real inability long term to appreciate and promote the child’s needs and thus meet her parental responsibility to her daughter.
Since the child has been in DOCS care there is no evidence she ahs been exposed to family violence and I infer she has not.
I have already made findings concerning family violence between the child’s parents. I am concerned that neither the father nor the mother has been fully frank concerning violence in their relationship. The situation is not so clear that I could find one party was predominantly the aggressor and the other a victim. Whatever violence occurred during the parent’s relationship, it appears each must accept a degree of responsibility for events which unfolded. Of particular concern, is their mutual culpability in two incidents which resulted in injuries to the child. Both parents trivialised the significance of these events and neither is mature enough to acknowledge that it is purely luck that the child was not even more seriously injured. Before either parent could spend further unsupervised time with the child, they must demonstrate that they can do so without exposing her to an unacceptable risk of violence. In order to do so, each will need to complete an anger management or similar program. The purpose of which is to provide the parents with information concerning family violence and its impact upon children and preventative strategies which will minimise the risk of further occurrences. If not in their relationship with each other, perhaps in the parties relationships with others.
There are no family violence orders.
Parenting orders are never final in the sense that children and their parent’s circumstances change and arrangements may need to alter as a consequence. Ideally, Courts make parenting orders that minimise the prospect of further litigation. Ms S and Ms C both acknowledged the risks involved in long term foster care. By this, each is referring to the risks involved in foster placement breakdown. The child’s failed foster placements are evidence that even when young children are put into care, successful placement is not assured. In the child’s circumstances, her disorganised attachment and difficult behaviour has been confronting to her carers and contributed significantly to the placement breakdowns. Her current carers, however, are aware of these earlier difficulties. It appears a combination of knowledge acquired through the child’s earlier experiences in foster care, as well as the child’s improved behaviour, makes the prospects her current placement will endure higher than any preceding placement. Compared to all other options, the child’s current foster parents have the best opportunity to provide her with an appropriate and enduring home. For reasons explained earlier, I am strongly satisfied that the mother is unable to meet the child’s physical, emotional and psychological needs and that because of her compromised commitment to her daughter, this arrangement is likely to fail sooner than later. In these circumstances, further litigation is almost certain. In the Minister’s care, further litigation because of placement failure is a possibility but far from certain. If arrangements for the child to spend time with her parents are ordered as DOCS suggests, there is a reasonable prospect of further litigation. Either because one or other of the child’s parents will improve his or her situation and seek to have greater involvement in her life, or alternatively one or both of her parents will fail to maintain even the limited contact DOCS suggest and after the orders expire, seek further orders. I take these risks into account.
There is considerable overlap between ss 60CC(3)(c), (f) and (i) and s 60CC(4) and s 60CC(4)(a). I have already made findings concerning the extent to which each of the parties have fulfilled or failed to fulfil their parental responsibility. Rather than restate these, it is sufficient to sadly acknowledge each parent has seriously failed to participate in making decisions about the child’s long term care, to spend time with her and maintain effective communications with her. Since the child has been in foster care, neither party has contributed to her financial support.
Conclusion
As I have earlier found the presumption in favour of equal share parental responsibility does not apply.
The Intervener seeks an order the effect of which is to give long term parental responsibility to the Minister. In turn, the Minister will delegate effective exercise of this responsibility to child protection workers within the Department of Community Services. Subject only to my concern that DOCS did not early enough seek to include the father in major decisions concerning the child’s care, they have demonstrated a continuing commitment to her welfare and an ability to make sound long term decisions. Regrettably, her parents have not and in my view are unlikely to acquire the degree of insight and focus on the child’s best interests which are needed for proper exercise of long term parenting responsibility. The only viable option is to effectively extinguish the father and mother’s parental authority for the child and vest it in the Minister.
I am conscious that the effect of placing the child in the Minister’s care is that she will live in state foster care. Without repeating my earlier findings, such an outcome is the best outcome of the available options. Her parents lack the capacity and commitment to care for her or acquire the parenting skills which in the long term terms will better equip them to do so. The child’s disturbed history of care has damaged her emotionally and resulted in disorganised attachment. If long term and irreparable damage to her emotional and psychological well being is to be avoided she must live with people who have the characteristics referred to in Ms S’s evidence. Neither of the child’s parent’s have the skills or characteristics needed if she is to recover from her emotionally disturbed start to life or to keep her safe. In these circumstances the child’s short and long term interests require she lives in state foster care.
The effect of this will be that the child has little future relationship with her parents. The combination of risks involved in her parents care, even if for limited periods, and the need to maximise the child’s ability to fully participate in and attach to her new family requires limited contact with her parents for identification purposes alone. There is a nexus between this outcome and the child’s relationship with the maternal grandparents. Her grandfather and step grandmother give the child an additional point of reference in an identity sense. She is biologically connected to her maternal grandfather and knows him and his wife as her direct grandparents. As these relationships will continue, the child’s connection to her biological identity is stronger than might otherwise have been the case. The maternal grandparents are parties to these proceedings but have taken no part in this hearing. They are aware of DOCS application for orders concerning them and present no opposition to the order sought. Because I consider the child’s long term emotional well being is promoted if orders as DOCS propose are made to ensure the grandparents’ continued relationship with the child I will order accordingly.
Finally, in the event the child’s present placement fails, DOCS must advise her parents of this change in her circumstances as soon as possible. Each can consider what action, if any, they may wish to take.
For these reasons I make the orders identified at the start of this judgement.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 9 March 2007.
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HENNESSY & RHYS
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Judicial Review
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Natural Justice
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