Hinman and Hinman and Anor

[2019] FCCA 3276

FEDERAL CIRCUIT COURT OF AUSTRALIA

HINMAN & HINMAN & ANOR [2019] FCCA 3276

Catchwords:
FAMILY LAW – Parenting – applicant is the maternal uncle – children are living with him – mother having a long history of drug and mental health issues – father having a long history of drug use and a long criminal history – father presently being held on remand relating to charges including carjacking, holding a knife to the mother’s throat and possession of methylamphetamine – children exposed to incidents of family violence – substantial DHHS involvement – past Children’s Court orders for children to be in the care of the maternal grandparents for 2.5 years – the maternal grandparents then feeling unable to continue to care for children – maternal uncle prepared to care for children.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Lawson v Warren and Ors [2011] FamCA 38
Rice and Asplund (1979) FLC 90–725; [1978] FamCA 84

Applicant: MR HINMAN

First Respondent: MS HINMAN

Second Respondent: MR LUCAS

File Number: MLC 14732 of 2018

Judgment of: Judge Riley

Hearing date: 1 October 2019

Date of last submission: 1 October 2019

Delivered at: Melbourne

Delivered on: 14 November 2019

REPRESENTATION

Counsel for the applicant: Eleanor Mallett

Solicitors for the applicant: Wilkinson Romer and Associates Pty Ltd

Counsel for the first respondent: Ian Duffy

Solicitors for the first respondent: McIntyre & Statton

Counsel for the second respondent: Mark Leach

Solicitors for the second respondent: Pentana Stanton Lawyers

Advocate for the independent children’s lawyer: Danielle Webb

Solicitors for the independent children’s lawyer: Danielle Webb Lawyer

ORDER:

1. The applicant maternal uncle (“Mr Hinman”) have sole parental responsibility for Y born on … 2007 (“Y”) and X born on … 2013 (“X”).

ORDER BY CONSENT:

1. Y and X live with Mr Hinman.

ORDER:

1. Y and X spend time and communicate by telephone or other means with their mother supervised by Mr Hinman, or his nominee, on dates and at times agreed between Mr Hinman and the mother.

ORDER BY CONSENT:

1. In the event that the mother presents as alcohol or drug affected or with a deterioration of her mental health that would be disruptive to Y and X, or either of them, Mr Hinman, or his nominee, be at liberty to terminate Y and X’s time or telephone call with their mother.

ORDERS:

1. Y and X communicate with their father by telephone or video call for up to half an hour once per month, or as otherwise agreed between Mr Hinman and the father, at times to be arranged between Mr Hinman and the prison authorities while the father is in prison, and between Mr Hinman and the father after he is released from prison, with the father to place the calls and Mr Hinman to facilitate the calls.

2. Mr Hinman be at liberty to determine whether any particular call be by telephone or video call.

3. Mr Hinman or his nominee be at liberty to supervise the telephone or video calls, and terminate any particular call after less than 30 minutes if Y and X have had enough.

4. In the event that, prior to or during a call, the father is abusive, offensive, inappropriate or appears drug affected, Mr Hinman be at liberty to:

   (a)terminate any telephone or video call between Y and X and their father; and

   (b)cease any future telephone or video calls pending further order of the court upon the father’s application.

5. If they have not already done so, Mr Hinman and the father forthwith take all necessary steps to enrol in and meet the entry requirements for A Contact Centre in City NN for the purposes of Y and X spending supervised time there with their father.

6. Provided that the father:

   (a)has been released from custody for at least three months; and

   (b)has provided to Mr Hinman one or more hair follicle tests from an accredited laboratory showing that the father has completely abstained from illicit substances for a period of six months;

   (c)provides to Mr Hinman further hair follicle tests each three months showing that the father has completely abstained from illicit substances for the preceding three months;

   (d)has enrolled in A Contact Centre and complied with all of the engagement requirements of that service; and

   (e)refrains from being abusive, offensive or inappropriate and does not appear to be drug-affected,

   then Y and X spend two hours each alternate Saturday with their father under supervision at A Contact Centre for a period of six months.

7. Upon compliance with order 10, and provided that the father continues to provide to Mr Hinman hair follicle tests each three months showing that the father has completely abstained from illicit substances for the preceding three months, Y and X spend time with their father unsupervised each alternate Saturday from 12md until 4pm for a period of six months. 

8. Upon compliance with order 11, and provided that the father continues to provide to Mr Hinman hair follicle tests each three months showing that the father has completely abstained from illicit substances for the preceding three months, Y and X spend time with their father unsupervised:

   (a)from 10am until 5pm each alternate Saturday;

   (b)from 12md until 5pm on Father’s Day;

   (c)from 12md until 5pm on the father’s birthday;

   (d)from 10am until 4pm on Christmas Day in even numbered years;

   (e)from 10am until 4pm on Boxing Day in odd numbered years; and

   (f)as otherwise agreed in writing.

9. If the father is abusive, offensive or inappropriate or appears drug affected, then Mr Hinman be at liberty to cease any further contact between Y and X and their father pending further order of the court upon the father’s application.

10. Changeover occur as agreed in writing between Mr Hinman and the father.

11. Mr Hinman and the father only communicate with each other by email or text message and only communicate with each other about the care and welfare of Y and X or either of them.

ORDER BY CONSENT:

1. Without admitting the necessity for the same, the mother be restrained from enabling or permitting the father to communicate with Y and X, or either of them, by any means.

ORDERS:

1. Y and X have telephone or other electronic communication with members of the paternal family at times and places as agreed between Mr Hinman and the paternal grandmother provided that the paternal family do not permit or allow the father to intrude or take part in this communication without the written consent of Mr Hinman.

2. Mr Hinman be at liberty to terminate any such call in the event of inappropriate language, abuse, or the presence of the father.

3. Mr Hinman notify the father in writing within 14 days of a post office box address to which the father can send letters, cards and gifts to Y and X.

4. The father be at liberty to send letters, cards and gifts to Y and X at the post office box address nominated by Mr Hinman.

5. Mr Hinman be at liberty to examine any letters, cards and gifts the father sends to Y and X or either of them, and to not forward them to Y and X or either of them if he deems the letters, cards or gifts not to be in their best interests.

6. The mother, the father and Mr Hinman notify each other of any serious medical injury, serious illness or hospital admission in respect of Y and X or either of them, as soon as practicable after that event occurs and the mother, the father and Mr Hinman are authorised to speak to any treating medical practitioner or specialist in relation to that event and this order shall serve as authority for same.

7. The mother, the father and Mr Hinman do all things as are necessary to ensure each of them can receive (at their own expense) copies of all newsletters, notices, photographs and other information provided by any school attended by Y and X or either of them.

8. The mother, the father and Mr Hinman be restrained by injunction from consuming alcohol to excess, non-prescription drugs or any illicit substances in the presence of Y and X or either of them or be in any way affected by them while Y and X or either of them for 24 hours prior to and during any period of time that Y and X or either of them are in that person’s care.

9. The mother, the father and Mr Hinman, by themselves and their servants and agents, be restrained from:

   (a)denigrating each other within the hearing or presence of Y and X or either of them;

   (b)discussing any aspect of the family law dispute between the mother, the father and Mr Hinman within the hearing or presence of Y and X or either of them; and

   (c)allowing Y and X or either of them to come into contact with any person engaging in criminal activity.

10. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

(A)Mr Hinman has enrolled at A Contact Centre and agrees to facilitate Y and X, or either of them, spending time with the paternal grandmother and or paternal aunt upon their enrolment at that centre and in accordance with the professional supervision requirements of that service.

(B)Mr Hinman agrees to facilitating telephone and electronic communication between Y and X and the paternal family upon the provision by them of an undertaking to the court not to permit the father to participate in or intrude upon any such communication.

(C)Mr Hinman agrees to attend a family dispute resolution service to discuss the progression of Y and X spending time with the paternal family after their completion of eight supervised visits at A Contact Centre and a positive report of their visits, on the basis that all of the costs of supervision, reports and mediation are to be met by the paternal grandmother.

(D)Upon the father’s release from custody, and provided that he has complied with order 10 above, the mother, the father and Mr Hinman would not oppose, on the grounds of Rice v Asplund, a further application for the father to spend time with Y and X.

(E)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(F)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Hinman & Hinman & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 14732 of 2018

MR HINMAN

Applicant

And

MS HINMAN

First Respondent

And

MR LUCAS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders in respect of Y, born on … 2007, (“Y”) and X, born on … 2013, (“X”). Y is now 11 years old and X is now 6 years old. X is suspected to have a developmental delay.

2. The applicant, Mr Hinman, is Y and X’s maternal uncle.  The first respondent, Ms Hinman, is their mother. The second respondent, Mr Lucas, is their father.  

3. The Children’s Court put Y and X into the care of their maternal grandmother in June 2016. They remained with their maternal grandmother until April 2019.  By that time, the maternal grandmother no longer felt able to care for Y and X.  From April 2019, pursuant to orders of this court, Y and X began to live with their maternal uncle, Mr Hinman.  At the time of trial, Y and X were living with Mr Hinman and his wife and children. 

4. It was common ground that the mother was not able to care for Y and X due to her mental health and drug issues. At the time of trial, the father was being held on remand pending the resolution of a criminal proceeding against him which involved aggravated burglary or carjacking, holding a knife to the mother’s throat and the possession of methamphetamine in 2016.  The father has a long criminal history, and also has drug issues.  The father had been on bail for the 2016 offences, but breached his bail conditions and was returned to prison.  It is not known when the 2016 charges will be finalised.

Consent orders

1. The parties agreed to orders in substantially the following terms:

   a.Y and X live with their maternal uncle, the applicant;

   b.without admitting the necessity for the same, the mother be restrained from enabling or permitting the father to communicate with Y and X, or either of them, by any means; and

   c.in the event that the mother presents as alcohol or drug affected or with a deterioration of her mental health that would be disruptive to Y and X, or either of them, the applicant maternal uncle, or his nominee, be at liberty to terminate Y and X’s time or telephone call with their mother.

Unopposed orders

1. Mr Hinman, the mother and the independent children’s lawyer consented to, and the father did not oppose, orders in substantially the following terms:

   a.Y and X spend time and communicate by telephone or other means with their mother supervised by their maternal uncle, the applicant, or his nominee, on dates and at times agreed between the applicant maternal uncle and the mother;

   b.Y and X spend no time, nor communicate by any means with their father, unless:

   a.he has been released from custody for at least three months; and

   b.he has provided to the applicant maternal uncle a hair follicle test showing complete abstinence from illicit substances for a period of six months; and

   c.he has enrolled in A Contact Centre and complied with the engagement requirements of that service, including completion of a post separation parenting course; and

   d.he does not expose Y or X, or either of them, or the applicant, to abusive language or behaviour; and

   e.the applicant maternal uncle considers in his absolute discretion that Y and X or either of them would be safe and benefit from spending supervised time and/or communicating with their father;

   c.Y and X have telephone or other electronic communication with members of the paternal family at times and places as agreed between the applicant maternal uncle and the paternal grandmother provided that they do not permit or allow the father to intrude or take part in this communication without the written consent of the applicant maternal uncle; and

   d.the applicant maternal uncle be at liberty to terminate any such call in the event of inappropriate language, abuse, or the presence of the father.

Notations by consent

1. The parties also agreed to the court making the following notations by consent:

   a.the applicant maternal uncle has enrolled at A Contact Centre and agrees to facilitate Y and X, or either of them, spending time with the paternal grandmother and or paternal aunt upon their enrolment at that centre and in accordance with the professional supervision requirements of that service;

   b.the applicant maternal uncle agrees to facilitating telephone and electronic communication between Y and X and the paternal family upon the provision by them of an undertaking to the court not to permit the father to participate in or intrude upon any such communication;

   c.the applicant maternal uncle agrees to attend a family dispute resolution service to discuss the progression of Y and X spending time with the paternal family after their completion of eight supervised visits at A Contact Centre and a positive report of their visits, on the basis that all of the costs of supervision, reports and mediation are to be met by the paternal grandmother; and

   d.upon the father’s release from custody, and provided that he has complied with order 4 above, the parties would not oppose, on the grounds of Rice v Asplund,[1] a further application for the father to spend time with Y and X.

   [1] Rice and Asplund (1979) FLC 90–725; [1978] FamCA 84

Mr Hinman’s proposal

1. In addition, Mr Hinman proposed orders in substantially the following terms:

   a.the applicant maternal uncle, Mr Hinman, have sole parental responsibility for Y born on … 2007 (“Y”) and X born on … 2013 (“X”);

   b.Y and X spend time and communicate by telephone or other means with their mother supervised by their maternal uncle, the applicant, or his nominee, on dates and at times agreed between the applicant maternal uncle and the mother;

   c.Y and X spend no time, nor communicate by any means with their father, unless:

   a.he has been released from custody for at least three months; and

   b.he has provided to the applicant maternal uncle a hair follicle test showing complete abstinence from illicit substances for a period of six months; and

   c.he has enrolled in A Contact Centre and complied with the engagement requirements of that service, including completion of a post separation parenting course; and

   d.he does not expose Y or X, or either of them, or the applicant, to abusive language or behaviour; and

   e.the applicant maternal uncle considers in his absolute discretion that Y and X or either of them would be safe and benefit from spending supervised time and/or communicating with their father;

   d.Y and X have telephone or other electronic communication with members of the paternal family at times and places as agreed between the applicant maternal uncle and the paternal grandmother provided that they do not permit or allow the father to intrude or take part in this communication without the written consent of the applicant maternal uncle; and

   e.the applicant maternal uncle be at liberty to terminate any such call in the event of inappropriate language, abuse, or the presence of the father.

2. The mother and the independent children’s lawyer agreed to Mr Hinman’s proposal.  The father did not.

The father’s proposal

1. In addition to Mr Hinman’s proposals that the father consented to or did not oppose, the father proposed:

   1.That the Maternal Uncle and the Father have equal shared parental responsibility.

   2.That the children live with the Maternal Uncle.

   3.That the children spend time and communicate with the Father as follows:

   a)Whilst in custody as follows:

   i.      On one occasion per week via telephone; and

   ii.     On one occasion per month with the Maternal Uncle taking the children to visit the Father.

   b)Once released from custody as follows:

   i.      On two occasions per week via telephone;

   ii.     Each alternate Saturday for a period of three hours with such times to be supervised by an agreed supervisor for a period of 6 months;

   iii.     Should the parties fail to agree on a supervisor, then the Maternal Uncle and the Father shall do all such acts and sign all such documents to enrol at an agreed Supervised Contact Centre, and the Father shall spend time with the children each alternate Saturday on times as directed by the agreed Supervised Contact Centre for a period of 6 months;

   iv.     Thereafter the Father shall spend unsupervised time with the children on each Saturday from 12.00pm until 4:00pm for a period of 3 months;

   v.      Thereafter the Father shall spend time with the children on each Saturday from 12.00pm until Sunday 2:00pm;

   After the completion of order 3 b) ii.

   vi.     On Father’s Day from 12.00pm until 5.00pm;

   vii     On the Father’s birthday from 12.00pm until 5.00pm;

   viii.   On Christmas as follows:

   (a)In even numbered years from 5.00pm on Christmas Eve until 2.00pm on Christmas Day;

   (b)In odd numbered years from 4.00pm on Christmas Day until 2.00pm on Boxing Day.

   4.     Changeover to occur as agreed between the parties in writing.

   5.The Maternal Uncle and the Father communicate with each other by email or text message about the children’s care and welfare only.

   6.That the parties notify each other of any Serious Medical Injury, Serious Illness or Hospital Admission in respect of the child, as soon as practicable after that Serious Medical Injury, Serious Illness or Hospital Admission occurs and both parties are authorised to speak to any treating Medical Practitioner or Specialist in relation to that Serous Medical Injury, Serious Illness or Hospital Admission and this Order share serve as Authority for same.

   7.That the parties do all things as are necessary to ensure each of the parties can receive (at their own expense) copies of all newsletters, notices, photographs and other information provided by school and the Father be named and registered as an emergency contact at the child’s school with the Mother to attend to this within 28 days.

   8.The parties and their families shall be entitled to attend all school functions to which parents are normally invited.

   9.That the parties be restrained by injunction from consuming alcohol to excess, non-prescription drugs or any illicit substances in the presence of the children or be in any way effected by them whilst the child is in that person’s care or control, 24 hours prior to or during any period of time the child is in their respective care.

   10.    The parties are hereby restrained by injunction from:

   (a)Denigrating each other within the hearing or presence of the children, either personally or through their servants or agents;

   (b)Discussing any aspect of the Family Law Dispute between the parties, within the hearing or presence of the children, either personally or through their servants or agents;

   (c)Allowing the children to come into contact with any person engaging in criminal activity.

   11.    All extant applications be dismissed.

   NOTATION:

   A.That the Father be at liberty to bring an Application before this Honourable Court once he is released from custody and his circumstances have changed, without being restricted by the principles of Rice v Asplund.

Issues in dispute

1. Consequently, the principal issues in dispute were:

   a.whether Mr Hinman should have sole parental responsibility or whether he and the father should have equal shared parental responsibility; and

   b.the arrangements for Y and X to spend time with their father while he is in prison and after his release.

2. There were various uncontroversial orders proposed by the father that Mr Hinman agreed to or did not oppose during cross-examination. They are discussed further below.

Material relied on

1. Mr Hinman relied on:

   a.his affidavits affirmed on:

   i.      20 December 2018;

   ii.     24 February 2019;

   iii.     5 March 2019;

   iv.     17 September 2019;

   b.the affidavit affirmed by his mother, Ms C, on 5 March 2019;

   c.the affidavit affirmed by his father, Mr D, on 5 March 2019;

   d.the notice of risk filed on 20 December 2018;

   e.the further amended initiating application filed on 17 September 2019;

   f.the family report dated 27 August 2019 prepared by Ms E; and

   g.the Department of Health and Human Services (“DHHS”) report dated 8 February 2019 (“the DHHS report”).

2. Mr Hinman was cross-examined.  His mother and father were not required for cross-examination.  As their evidence was unchallenged, I accept it.  The father initially indicated that he wished to cross-examine Ms E, but at the end of the trial indicated that he did not wish to do so.  As such, I accept Ms E’s unchallenged evidence as set out in the family report.

3. The first respondent mother relied upon her affidavit affirmed on 24 September 2019.  No one wanted to cross-examine the mother, so I accept her unchallenged evidence as set out in her affidavit.

4. The second respondent father said in his outline of case that he relied on:

   a.the affidavit affirmed by Mr Hinman on 20 December 2018;

   b.the notice of risk dated 20 December 2018 by Mr Hinman;

   c.the affidavit affirmed by Mr Hinman on 24 February 2019;

   d.the affidavit affirmed by Mr D on 5 March 2019;

   e.the affidavit affirmed by Ms C on 5 March 2019;

   f.the affidavit affirmed by Mr Hinman on 5 March 2019;

   g.the further amended initiating application dated 17 September 2019 of Mr Hinman;

   h.the affidavit affirmed by Mr Hinman on 17 September 2019;

   i.the response of Ms Hinman filed on 24 September 2019;

   j.the affidavit affirmed by Ms Hinman on 24 September 2019;

   k.the notice of risk dated 24 September 2019 by Ms Hinman;

   l.the response of Mr Lucas filed on 25 September 2019;

   m.the affidavit affirmed by Mr Lucas on 24 September 2019; and

   n.the notice of risk dated 25 September 2019 by Mr Lucas.

5. The independent children’s lawyer relied on:

   a.the DHHS report; and

   b.the family report dated 27 August 2019.

6. Following the trial on 1 October 2019, and before the orders and these reasons were prepared, DHHS provided to the court a report dated 15 October 2019 in relation to the father’s notice of risk filed late on 25 September 2019.  That report was provided to the parties.  No one sought to reopen on the basis of that report.  In any event, it does not add anything of significance to the previous DHHS report. Consequently, the court has had no regard to it.  Obviously, if any further applications are filed in relation to Y and X, the court may take into account the report dated 15 October 2019 at that stage.

The mother’s unchallenged evidence

1. The mother said in her affidavit affirmed on 24 September 2019 that:

   1.I am the first respondent mother in this proceeding.

   2.I was born on … 1975 and am aged 44 years. I am unemployed and am in receipt of Newstart Allowance.

   3.I lived in a domestic relationship with the father Mr Lucas from 2000 until we separated in 2015. There are two children of that relationship Y aged 12 and X aged 6. After separation I moved to Victoria with the children. The father remained in Queensland.

   4.My relationship with the father was one of extreme family violence and drug use. This worsened following the father suffering serious injuries in a car accident in 2016. I obtained an Intervention Order which expires on 19 July 2020. Now produced and marked with the letters H1 is a copy of that intervention order.

   5.I suffered a serious mental breakdown in 2016 and realised I could not care properly for the children and I accordingly left them in the care of my parents. My life then deteriorated further and I became homeless. I was in difficult circumstances for some time. However, in early 2018 I was able to find crisis accommodation and my life began to change for the better.

   6.I began psychological counselling and treatment at Region G Health in City OO. I now receive prescribed medication being Olazapine and take this regularly. I continue to see a psychologist on a fortnightly basis. I am now living in a home which is modern and has all facilities and I am settled and enjoying my life again.

   7.With my brother, Mr Hinman’s help, I have been able to see the children and have enjoyed weekly phone calls with them.

   8.I have read the Amended Further Initiating Application of the Applicant and agree with the orders sought in that application. I have also read the Family Report dated 27 August 2019 and agree with the recommendations in that report.

2. That evidence was not challenged and I accept it.

Chronology

1. The father was born on … 1978. He is now 40 years old.

2. The mother was born on … 1975, and is now 44 years old.

3. On … 1996, the father, when he was 17 years old, first came to the attention of the police.  He was suspected of a street offence and hindering an officer but the matter was dealt with by way of a formal caution.  The New South Wales police created the following report:1

   ABOUT 2.42PM ON SUNDAY THE …, 1996 A GANG OF YOUNG PERSONS RIDING SKATEBOARDS AND PUSHBIKES WERE OBSERVED BEHAVING IN A RECKLESS MANNER WITHIN … PARK, TOWN J. ONE YOUTH WAS SEEN TO JUMP OFF HIS MOVING CYCLE AND ALLOW ITTO CAREER OUT OF CONTROL THROUGH THE PARK ALMOST COLLIDING WITH ADULT AND CHILDREN WALKING ALONG A PATH. …… …… APPROACHED THIS YOUNG PERSON AND WHILST SPEAKING TO HIM ABOUT HIS ACTIONS, THE GROUP COMPRISING OF BOTH MALE AND FEMALE JUVENILES GATHERED AROUND. THE POI COMMENCED TO CONTINUALLY INTERRUPT THE OFFICER, CHALLENGING HIS AUTHORITY AND POWER TO SPEAK TO THEM ABOUT THEIR ACTIONS. THE POI WAS TOLD TO STAY OUT OF THE CONVERSATION. HE REPLIED WITH ABUSIVE LANGUAGE DIRECTED AT THE …… THE SENIOR CONSTABLE APPROACHED HIM AND REMOVED HIM FROM THE GROUP AND COMMENCED TO ESCORT HIM TO THE POLICE STATION. WHILST WALKING THROUGHTHE PARK THE POI COMMENCED TO STRUGGLE TRYING TO BREAK AWAY FROM THE OFFICER. HE WAS RESTRAINED, CONTROLLED AND SECURED THEN ESCORTED TO THE POLICESTATION. IT WAS ASCERTAINED THAT HE WAS AGED 17 WITH NO PREVIOUS POLICE MATTERS. HIS MOTHER, …… WAS SPOKEN TO AND ADVISED THAT SHE WAS ALSO HAVING TROUBLE WITH HER SON BECAUSE OF HIS ATTIUDE AND BEHAVIOUR. SHE HAS IN FACT ADVISED HIM THAT HE WILL HAVE TO LIVE ELSEWHERE IF HE DOES NOT START TO ACT IN A PROPER MANNER. THE YOUNG PERSON WAS FORMALLY CAUTIONED.

   1 The typographical errors in this report and in the police reports set out below are in the originals.

4. On … 2000, the father was charged with possession of explosive or dangerous goods on … 2000.  He was sentenced on … 2000 and required to pay a fine of $100, and court costs of $60.

5. In about 2000 or 2001, the mother and father’s relationship commenced.  At that stage, the father was about 22 years old and the mother was about 25 years old.

6. On … 2002, the father was suspected of a traffic offence.  At that point, he was about 24 years old. The New South Wales police created the following report:

   About 9pm on Thursday the …, 2002 Police were patrolling M Street, Town J where the Defendant was observed driving motor vehicle …… a white Motor Vehicle H west along Town J lane. … Police stopped the Defendant vehicle approaching the …… had also exited his vehicle. He was spoken to and asked to produce his drivers licence where he produced a current New South Wales P1 licence. He was then submitted to a roadside breath test which was positive. He was subsequently arrested and conveyed to the Mobile RBT bus … where he underwent a Breath Analysis which returned a reading of 0.045 grammes of Alcohol in 100 millilitres of Blood. … Although the Defendant’s blood alcohol reading was low he appeared to be well effected by the alcohol and or drugs.

7. The police records indicate that the father was charged on … 2002 for drink driving while a probationary driver on … 2002. On … 2002, he was fined $300, required to pay costs of $60, and disqualified from driving for six months ending on … 2002. 

8. On … 2002, the father was suspected of driving while disqualified and other traffic offences.  At that point, he was still about 24 years old.  The New South Wales police created the following report:

   About 4.28pm on Tuesday the … 2002, The defendant drove a white Motor Vehicle H Queensland registration … The unmarked police vehicle checked the defendants speed at 75KPH in the 60KPH area. … The defendant produced a red Provisional Drivers licence number …… police asked why the defendant was not wearing any P plates on the front or rear of the vehicle, he replied, “I haven’t got around to putting them on”. Police asked if he still resided at the address on his license, which he said, “Yes”. Police carried out a licence check which revealed the defendants NSW drivers licence status was disqualified from the … until the … 2002, due to a Special Range P.C.A offence. Police returned to the defendant and asked what happened with his drink driving offence. He said, “I went 0.045, I adjourned the court date, but I didn’t make it cause of work or something, The court sent me others papers when I adjourned it so I was waiting for a reply”. Police again asked if he resided at the address on his licence, which he said, “No, I used to live there so I get my mail sent there cause my old flats mates still live there”. The defendant then supplied his correct address, and was issued with a Field Court Attendance Notice for Disqualified Driver, to appear at the Town J Local Court on the … 2002. The defendant was cautioned for exceeding the speed limit, supplying a false home address, and for having an obscured number plate. The defendants drivers licence was confiscated and he was informed not to drive. ...

9. The father was cautioned, rather than charged, for driving 15 kilometres per hour over the speed limit, supplying a false home address and having an obscured numberplate.  However, he was charged on … 2002 for driving while disqualified on that same day.  On … 2002, for the offence on … 2002, the father was fined $500, and disqualified from driving for two years, ending on … 2004.

10. On … 2002, the father was suspected of again driving while disqualified. The New South Wales police created the following report:

    About 5.55pm on Thursday … 2002, Highway Patrol Police attached to Town J put a radio message over, in relation to a Motor Vehicle H, registered number……), and that the owner was a disqualified driver. … On stopping, Police observed the driver, and front seat passenger to switch seats. . Police then went to the passenger side of the vehicle and opened the door, and the defendant was spoken to. He initially told Police he was not driving the panel van. He admitted he was the owner of the vehicle. He was arrested for Disqualified Driver. … The defendant then admitted to driving the panel van. …

11. On … 2002, the father was given a two year good behaviour bond for the offence on … 2002, and disqualified from driving for a further two years from … 2004 until … 2006.

12. In 2004, the mother obtained an intervention order against the father in New South Wales.

13. On … 2004, when the father was about 26 years old, he was suspected of assaulting a male person with whom he and the mother were sharing a house.  However, the police did not pursue the matter. The New South Wales Police created the following report:

    …The Victim, …has lived at the address with the accused person, LUCAS and LUCAS girlfriend………for the past four months. . On Friday the … 2004, the victim returned home at ... around 4pm. Where the accused person was drinking alcohol in the lounge-room with his friends…… and LUCAS’ younger sister……and three of her friends. . The victim joined the accused person and his friends in the lounge room, at around 8.30pm the victim and the accused person started having a verbal argument in relation to the victims disgust of the accused’s younger sister and her friends consuming alcohol at the premises and returning to the house at all hours during the night. . During the verbal argument…and her friends left the house. A short time later the victim had attempted to leave the house via the front door. It is alleged that the accused person asked the victim, “Are you going to call the cops?” The victim replied, “Yes.”. With answering the question, the accused person grabbed the victim by the back of his hair and pulled him down causing him to fall onto the floor in the front entryway of the house. As a result the victim received pain to his left elbow and a small cut to his right foot. . The victim got up and walked out of the house walking towards … Road, with the accused person following him for about 20 metres still yelling out abuse towards the male. The victim walked to Q's Store located on … Road Town J, where he contacted police via a public phone. . The victim has returned to the house due to his concerns in relation to his property. Upon arrival the victim noticed that no-one was home. The victim entered the garage of the house and started packing up his property. The victim alleges, about ten minutes later the accused persons has returned home and entered the garage. .It is alleged that the accused entered the garage saying to the victim, “You are a fucking cunt for going to the coppers.” It is alleged the accused picked up a red fibre-glass hand spear with five barbed prongs, and stepped towards the victim thrusting the hand-spear with both hands towards the victim. . The accused jabbed the hand-spear towards the victim three times with the third one connecting with the victim to his left side, stomach region. The hand-spear did not puncher the skin so the victim did not know immediately that he had been hit. The accused left the garage via the internal garage door, dropping the hand-spear on the ground as he left. . The victim has noticed a sharp pain to his stomach region and then noticed a red ring with bluish coloured little circles. The victim rode his bicycle to the Town J hospital, where the wound was treated with benadine and the victim given panadol. . The victim attended the Town J Police Station and a statement was obtained. The victim was advised to find another alternative place to stay, to which he declined and he returned to…… On Saturday the … 2004, at 7.50pm police attended…… At the location the accused was cautioned, arrested and conveyed to the Town J Police Station, where he was introduced to the Custody Manager. The accused elected to undertake in an electronically recorded interview in relation to the incident. . During the recorded interview the accused made full admissions in relation to grabbing the victim, …by the hair and pulling him onto the ground, however, the accused stated that … had him pinned up against a wall and it was the only way to get…off him. The accused totally denied all the allegations in relation to the hand-spear. He stated that he left the house at the same time as … and returned a short time later, and he did not even known if … was there at the time. The accused stated that he only remained at the house for a short period of time before leaving to attempt to find his girlfriend. . The accused stated that he does own a red fibre-glass hand spear that is usually kept in the garage, But, state that…was the last person to use the hand-spear earlier in the week and he does not know where…would have placed the hand-spear after he had used it. . Due to conflicking versions, the accused was not charged for the assault. Police released him with the intention of making further inquires with the witnesses present during the first allegation of assault to verify actually events. . As the accused only know the witnesses to the first allegation of assault as …, he was informed that police need to speak to his friends about the matter to clarify what has occurred. He was told to notify police with their proper names or inform his friends concerned to contact Town J police. . The victim was contacted and informed of the situation, he was happy with the response and was understanding of the situation. The victim was still residing at …with the accused, however, he was advised if he had concerns for his safety a AVO would be an option, to which he declined . Police continually contacted the accused to get information about the alleged witnesses. Police contacted his mobile phone, which was never answered and messages were left for him to contact police. Police also attended his address on a couple of occasions to speak to the accused, he was never home but messages were left with his partner for him to contact police. It appeared that the accused was avoiding police. . To date, police are unable to track down the alleged witnesses to the first incident of assault to clarify the events. . Police also experienced trouble in contacting the victim in the matter to inform him of what was occurring in regards to the alleged assault. On Sunday the … 2005, the victim was finally located camping in scrubland in the Town J area. . Advise was sought from Detectives attached to Town J and supervisors in regards to this incident, it was advised that due to the conflicting versions from the accused and the victim and with no independent witnesses versions to the assault, it is unlikely a ruling could be made due to the conflicting versions. .  

14. On … 2005, the father was suspected of assaulting the mother.  The New South Wales police created the following report:

    POI: Mr Lucas……. . Victim: MS HINMAN (……) . FACTS.. The accused, Mr Lucas and victim MS HINMAN reside together at …… …… …… …… They have been involved in a relationship for the past five years. . It is alleged between 3am and 5am on Wednesday … 2005, the accused return home and approached the victim who was sleeping in their bedroom. The accused woke the victim and a conversation took place relating to their recent relationship troubles. The victim states the accused was extremely drunk. The accused sat on top of the victim whilst she was lying in bed. The victim felt no point in struggling against the accused due to his strength and allowed him to talk. A relative in the house heard the accused and victim and approached the two and intervened. The victim asked for the accused to get off her and stated that she wanted leave. . The accused got off the victim and she gathered some belongings and left the house. . As the victim walked away from the house along the street, she saw the accused chasing her. The accused caught up to the victim and began screaming at her. The two argued. The accused grabbed the victim by the hair and dragged her along the street. This action resulted in the victim hitting her head on the ground. The accused punched the victim about 6 times to her body. The accused kicked her to the ribs a couple of times and kick her to the face. The victim managed to get away from the accused and ran to a nearby friends house. The victim was taken inside by the friend. . The accused followed the victim to the friends house and attempted to explain his actions. The accused was persuaded to leave by a occupant. A short time later the accused returned and began banging on windows and yelling. This persisted for some time. The victim remained inside in company with a friend. . As a result of the incident the victim has sustained significant bruising to her left eye, with her vision slightly affected. She has a number of grazes on her knees and elbows. ... The victim has fears for her safety and is scared the accused may hurt her again. . ... An Apprehended Violence Order applied for by Police.

1. The father was charged on … 2005 with assault occasioning actual bodily harm on … 2005. On … 2005, in respect of that offence, he was given a 12 month good behaviour bond and ordered to pay costs of $65.

2. On … 2006, Mr Hinman married his wife Ms B.

3. On … 2007, the father was suspected of drug possession. New South Wales police created the following report:

   About 5.00pm on Wednesday the … 2007 the accused … Vehicle was stopped for the purpose of submitting the driver to a random breath test. The driver submitted to a random breath test that returned a negative result. . Whilst speaking to the accused police could smell what appeared to be Cannabis coming from with in the vehicle. Police conducted a search of the accused and his vehicle. During this search police located a plastic resealable bag containing Cannabis in the accuseds left hand pants pocket. . The accused made full admissions to the possession of Cannabis for his own personal use. ……

4. The outcomes provided by the New South Wales police do not seem to coincide with this incident.  They indicate that, on … 2007, the father was charged with, on … 2007, two counts of possessing a prohibited drug, possessing a prohibited plant and possessing equipment for administering prohibited drugs.  On … 2007, the father was ordered to pay fines totalling $300, and costs totalling $210 in relation to those offences. 

5. On … 2007, Y was born.

6. On … 2008, the father was suspected of having stolen goods on his premises. The New South Wales police created the following report:

   the … 2008 and 7.30am on the … 2008 unknown persons have stolen two large ocean kayaks from a trailer outside…There was numerous kayaks on the trailer at the time and appears the rope tieing the kayaks down was cut with a knife. . The Kayaks are … brand … in colour, 3.7metres long and about 32 kg in weight. Each kayak costs $880 and are relativeley new. There is only about 16 kayaks of this type in Australia. . The Kayaks are owned by … which runs daily tours from Town J. . Part owner of the company attended Town J bay Police Station and reported the incident. . Police attended the area where the kayaks were stolen with the owner. Police attended an address about 200 metres away from where they were stolen from at ... Police spoke to a female occupant at the address and gave police permission to look in the rear yard. . Police found the Kayaks leaning up against the brick unit with no damage to them. Police spoke to another occupant, Mr Lucas. He apparently is the only male at the address. He lives there with an older lady and his de-facto and 2 month old child. At this stage LUCAS denied any knowledge of the kayaks and has not seen them before. . In the driveway of the unit is a vehicle with a trailer attached containing house items. LUCAS was questioned about this and he stated he is moving with his de-facto and child to …. Police believe LUCAS would have taken the kayaks with him as he could not use them in Town J due to everyone knowing them. . The kayaks were photographed in situ and returned to the owners at the unit due to their size. LUCAS yet to be spoken to formally about the incident.

7. The father was charged on … 2008 with having stolen goods on his premises.  On … 2008, he was ordered to pay a fine of $750 and costs of $70 for that offence.

8. On … 2010, the father was suspected of drink driving. The New South Wales Police created the following report:

   About 8.13pm, Monday … 2010 police were patrolling N Street, Town R. At that time police stopped motor vehicle registration number …… a Motor Vehicle S. Police spoke to the driver, Mr Lucas and subjected him to a roadside breath test. The test returned a positive reading and the accused was placed under arrest and conveyed to Town R Police Station for the purpose of a breath analysis. .. The breath analysis returned a reading of 0.070 grammes of alcohol per 100 millilitres of blood. ….

9. On … 2010, the father was charged with drink driving on … 2010.  On … 2010, in respect of that offence, he was fined $500, ordered to pay costs of $76, and disqualified from driving for six months commencing on … 2010.

10. On … 2010, Mr Hinman’s first child, PP, was born.

11. On … 2013, X was born.

12. On … 2013, Mr Hinman’s second child, QQ, was born.

13. On 10 April 2014, the first known child protection report in respect of Y or X was made to DHHS. The DHHS report said that:

    There are numerous child protection reports made in both Queensland and Victoria for Y and X. The first known report was made on 10 April 2014 and [the] father perpetrating violence towards [the] mother by pinning her to the ground and pushing her face into a tiled floor in an attempt to get her phone. The police applied for a domestic violence order as it was assessed [the] mother acted protectively and that this was an isolated incident.

14. At the end of 2014, the mother relocated from New South Wales to Melbourne with Y and X.

15. On 19 May 2015, the father was suspected of perpetrating family violence against the mother. Y and X were present. A Victoria Police LEAP report states that:

    THE AFM AND THE RESPONDENT WERE IN A RELATIONSHIP FOR APPROXIMATELY 8 YEARS. THE REALTIONSHIP ENDED 8 MONTHS AGO. THEY HAVE TWO CHILDREN TOGETHER. BOTH CHILDREN WERE PRESENT AT THE HOUSE AT THE TIME OF THE INCIDENT. THE RESPONDENT LIVES A TRANSIENT LIFESTYLE, TRAVELLING BETWEEN NSW AND QUEENSLAND. ON OCCASION HE WILL ARRIVE IN VICTORIA TO SEE HIS TWO CHILDREN. ON THIS OCCASION THE RESPONDENT ARRIVED ONE WEEK AGO AND HAD BEEN STAYING WITH THE AFM DURING THIS TIME. THERE HAD BEEN NO INCIDENTS DURING THE WEEK. THE AFM STATED THERE HAD BEEN TWO PREVIOUS INCIDENTS BETWEEN THE COUPLE, ONE IN NSW AND A SECOND IN QLD. BOTH HAD BEEN THE SAME AS ON THIS OCCASION WHERE THE RESPONDENT BECOMES OVERLY POSSESSIVE OF THE AFM AND A MINOR ASSAULT HAS OCCURRED. IT WAS DUE TO THE RESPONDENTS POSSESSIVE BEHAVIOUR THAT LED TO THE BREAKDOWN OF THE RELATIONSHIP. ON THIS OCCASION THE RESPONDENT HAS BEGAN QUESTIONING THE AFM IN RELATION TO HER PAYING BILLS. THE RESPONDENT HAS DEMANDED THE AFM HAND HIM HER MOBILLE PHONE SO HE COULD CHECK HER BANK ACCOUNT PAYMENTS. THE RESPONDENT HAS GRABBED THE AFM BY THE NECK AND THE AFM HAS THROWN HER PHONE AND CAR KEY ON THE FLOOR. THE RESPONDENT HAS PICKED THEM UP AND LEFT THE PREMISES, RIDING AWAY ON A PUSH BIKE. … DUE TO THE AFM STATING SHE WAS EXHAUSTED, TWO YOUNG CHILDREN PRESENT AND THE LATE HOUR, THE AFM STATED SHE WOULD MAKE A STATEMENT THE FOLLOWING DAY. THE AFM CLAIMED SHE WAS NOT IN FEAR OF THE RESPONDENT RETURNING AS SHE HAD SECURITY LOCKS ON THE DOORS AND HE WOULD NOT BE ABLE TO GAIN ENTRY TO THE PREMISES. FORMAL REFERRALS SUBMITTED FOR BOTH PARTIES AND DHS NOTIFIED IN RELATION TO THE CHILDREN.

    …

    … ATTENDED AFM’S ADDRESS ON 21/05/15 AT 2035HRS TO TAKE A STMT FROM AFM – S/T MS HINMAN – REFUSED TO MAKE A STMT AND STATED THAT HER EX PARTNER HAD LEFT TO GO BACK TO QLD SO SHE DIDN’T WANT TO MAKE A STMT AS HE WAS NO LONGER IN VICTORIA.

16. The police appear to have taken no further action in relation to the incident on 19 May 2015.  On 21 May 2015, DHHS report recorded that:

    a family violence report was received in relation to father demanding mother's mobile, grabbing her by the neck and throwing her phone and car keys on the floor. Father left the home and police were not able to locate him. The case was presented to the L.17 Project Triage meeting and was assessed that the case could be managed within the community and did not require ongoing child protection involvement and the case was closed.

17. On 22 August 2015, the father was suspected of using counterfeit bank notes. The New South Wales police created the following report:

    LOCATION Shopping Centre at Town T City INFT …… …… …… …… POI Mr Lucas ………POI 2 Unknown Female At 9.30am on Sunday 23rd August 2015, police attended the location following reports of a Fraud using counterfeit money.  Police spoke with the informant who produced 6 x $50 notes and 2 x $100 notes all of which were counterfeit currency. A total of $500 dollars was used in the offence. Police were shown footage of the incident where at 14.28pm on Saturday 22nd August 2015, the POI has purchased an I Pad Mini for $369 using the counterfeit money then at 14.31pm purchased a … bluetooth speaker unit for $249. At 16.53pm the same date POI 2 returns the I Pad Mini using the receipt given to POI 1 and receives $369 back from the cashier cleaning the money. At 17.08pm POI 1 returned the … bluetooth speaker and received $249 from the cashier of clean money. As this transaction was taking place the informant who was investigating the counterfeit money has noticed POI 1 from the video and the receipt and questioned him in relation to the currency. POI 1 denied knowledge of the counterfeit currency. The informant was able to obtain the POI’s details from a drivers licence which he produced to receive the refund. Police are unable to locate the POI’s at this time. ...

18. The police do not seem to have laid any charges in respect of the events on 23 August 2015.  On 26 August 2015, the father was again suspected of using counterfeit bank notes. The New South Wales Police created the following report:

    Location: Woolworths Town L Shopping Centre, Town L Property: 4 x $50.00 (counterfeit currency) Approximately 18.25 Wednesday 26th August 2015, Woolworths contacted Police in relation to counterfeit notes. … The lost prevention officer informed Police that the Currency Counter detected the counterfeit $50 notes. Police were provided with CCTV footage of the alleged suspect.

    …

    Around 5.00pm Friday 28th August, 2015 Police received a phone call from Woolworth’s staff member stating that the male person view on the CCTV, was in the store attempting to return the items purchased with the fraudulent money. … Police asked LUCAS if he was carry any cash especially fifty dollar notes. LUCAS produced $950.00 all in fifty dollar dominations. … The notes did not appear to be fraudulent. Police called Town L Police station and spoke with the supervisor who confirmed the male had outstanding Queensland Warrant. … At this stage Police have insufficient evidence to start proceedings against LUCAS.

19. It appears that the police took no further action regarding the alleged use by the father of counterfeit currency.  As no one subpoenaed the Queensland police records, it is unclear what the outstanding Queensland warrant may have related to.

20. In relation to an incident on 14 December 2015, the DHHS report said that:

    A further family violence report was received on 14 December 2015 due to concerns for the children being exposed to family violence between the parents. The incident was reported to be verbal in nature and resulted when mother wanted father to move his car. When police attended the parents reported that they were going through some difficulties and considering separation. The matter was followed-up with Child First who advised that the case had been closed due to non-engagement. This incident was assessed as not placing the children at significant risk of harm.

21. At Easter 2016, which fell in late 27 March 2016, the father took Y and X to visit his mother in Queensland.  On 10 April 2016, the father was involved in a serious single car accident near Town L in New South Wales. He was the driver. Y was in the car with her father.  The father suffered a fractured vertebra, but no spinal cord damage.  Y was not injured. The New South Wales police report said that:

    About 7.05am Sunday 10th April, 2016 driver of vehicle … has crossed to the incorrect side of the road and left the western kerb and into a table drain and up an embankment where the vehicle rolled one and a half times. During the rolling the vehicle has collided with … a barb wire fence. At the time of the accident LUCAS’ 8 year old daughter Y Hinson-Lucas was also in the vehicle. …

22. The DHHS report said in relation to the car accident that:

    During the Easter holiday father took Y to Queensland to see the paternal family. However, they did not return on the Friday as arranged and mother became concerned because Y had to return to school and father was providing various reasons why they did not return. On the Sunday, mother received a call that father and Y had been in a car accident whereby the car rolled and they were admitted to hospital. Father is reported to have sustained a head injury and broken neck. Y had no injuries. Mother made several attempts to arrange to collect Y but father is reported to have been evasive. When mother contacted the hospital she was informed that father had self-discharged. Mother felt the car accident has been a cause to his increasingly difficult behaviours. Mother met Y in Queensland and they returned to Victoria. On returning home, mother observed the front door to be open and the whole house, other than the children's rooms, had been tipped upside down, things were stolen. Mother reported that she went to her car and father jumped out at her. She had a knife in her hand and told him to stay away. He asked mother for money and informed her that he was scoring drugs and had done a bad deal. Mother became aware that father had installed spyware on her phone to track her whereabouts.

23. On 14 April 2016, the father was suspected of attending the mother’s house and having a verbal altercation with her. A Victoria Police LEAP report stated that:

    … ON 14/4/16 AT APPROX. 2100HRS, RESP HAS ATTENDED AT AFM’S HOUSE  … AFM AND RESP HAVE BEEN INVOLVED IN VERBAL ARGUMENT OVER INCIDENTS THAT HAVE OCCURRED OVER THE PAST WEEKS AND PROPERTY THAT THE RESP WANTED TO COLLECT FROM THE AA. RESP HAS ATTENDED UNANNOUNCED. … EVENTUALLY CONFIRMED WITH AFM THAT TONIGHT’S INCIDENT WAS VERBAL ONLY INCIDENT WHERE THE RESP HAD LEFT WITH SOME OF HIS PROPERTY WHEN TOLD TO BY THE AFM.

24. It appears that the police took no further action in relation to the events of 14 April 2016.

25. On 15 April 2016, the father was suspected of perpetrating family violence against the mother. X was present. A Victoria Police LEAP report stated that:

    … THERE ARE NO IVO’S BETWEEN THE PARTIES. ON 15/04/2016 AT ABOUT 2127 THE AFM WAS AT HOME WITH HER TWO CHILDREN WHEN THE RESP HAS ARRIVED. THE AFM AND RESP HAVE BEGAN TO HAVE AN ARGUMENT AND THE RESP HAS TRIED TO TAKE THE AFM’S MOBILE PHONE AND CAR KEYS. THE AFM HAS TRIED TO STOP THE RESP AND THE RESP HAS HIT THE AFM IN HER FACE. THE YOUNGEST CHILD WITNSSED THE ASSAULT. IN ORDER TO ESCAPE THE RESP THE AFM HAS CLIMBED ONTO THE ROOF OF HER HOUSE AND SCREAMED FOR HELP AND FOR SOMEONE TO CALL POLICE. THE RESP THEN TOOK THE AFM’S PHONE, CAR KEYS AND MONEY BEFORE LEAVING THE ADDRESS. THE AFM CALLED POLICE AND THEN CALLED HER FATHER WHO ATTENDED A SHORT TIME LATER. ON POLICE ARRIVAL THE AFM WAS VERBALLY ABUSIVE TOWARDS POLICE AND EXTREMELY UNCOOPERATIVE. POLICE OBSERVED THE AFM BLEEDING FROM HER NOSE AND THE AFM STATED TO POLICE THAT THE RESP HIT HER BEFORE LEAVING THE ADDRESS ON FOOT. THE AFM WOULD NOT ENGAGE IN CONVERSATION WITH POLICE AND DECLINED REQUESTS TO ELABORATE OR PROVIDE A STATEMENT, INSTEAD CHOOSING TO LEAVE. … POLICE HAVE EXTREME CONCERNS FOR THE WELFARE OF THE AFM AND HER TWO CHILDREN.  POLICE BELIEVE THE RESP BEHAVIOUR WILL CONTINUE TO ESCALATE WITHOUT INTERVENTION.  … POLICE BELIEVE IMMEDIATE ACTION BY WAY OF AN APPLICATION AND WARRANT IS NECESSARY. (emphasis added)

26. On 17 April 2016, the father was suspected of perpetrating family violence against the mother. Y and X were present.  The father left the premises, taking X with him.  X was then three years old. X was not recovered until 2 May 2016.  A Victoria Police LEAP report stated that:

    ON SUNDAY 17/04/2016 AT APPROXIMATELY 11.30 AM THE RESP HAS ATTENDED THE AFM’S HOME. THE AFM, HER TWO CHILDREN, AND HER FATHER WERE HOME AT THE TIME. THE RESP HAS ENTERED THE HOUSE VIA THE BACK SLIDING DOOR BY UNKNOWN MEANS. THE AFM AND HER FATHER TOLD THE RESP TO LEAVE THE PREMISES, HOWEVER HE SAID HE JUST WANTED TO SEE HIS KIDS AND THEN HE WOULD GO. THE ARGUMENT CONTINUED TO ESCALATE AND THE AFMS DAD TOLD THE RESP HE WAS GOING TO CALL POLICE. WHEN THE AFMS FATHER WENT TO CALL POLICE THE RESP HAS GRABBED THE AFMS FATHER BY THE THROAT AND THEN TWISTED HIS ARM UP BEHIND HIS BACK. THIS WAS WITNESSED BY THE AFM AND THEY CONTIUED TO ARGUE AND THE AFM TOLD HIM TO GO. THE ACCUSED THEN LEFT HE PREMISES WITH THEIR 3 YEAR OLD CHILD. (emphasis added)

27. A further Victoria Police LEAP report for 17 April 2016, in which the mother’s father was described as the AFM, stated:

    AT 12.15 PM SUBURB RR POLICE ATTENDED THE ADDRESS … [THE MOTHER] WAS EXTREMELY UNCOOPERATIVE AND TOLD POLICE TO LEAVE AND THAT THEY WERE DOING NOTHING TO HELP HER. [SHE] WAS LOUD AND ABUSIVE TOWARDS POLICE AND SAID SHE WOULD DEAL WITH THINGS HERSELF. POLICE SPOKE TO [HER] FATHER AND TWO NEIGHBOURS IN RELATION TO THE MULTIPLE INCIDENTS THAT HAVE OCCURRED OVER THE LAST FEW DAYS. THE AFM WISHED TO PROVIDE A STATEMENT TO POLICE IN RELATION TO THIS INCIDENT. EVENTUALLY POLICE WERE ABLE TO REASON WITH THE AFMS DAUGHTER AND CONVINCE HER THAT IT WAS IMPORTANT THAT SHE MAKE A STATEMENT IN RELATION TO THIS MATTER, AND THE MATTER FROM 15/04/2016, AS IT IS CRUCIAL FOR THE POLICE INVESTIGATION. THE AFM AND HER FATHER ATTENED SUBURB RR POLICE STATION TO MAKE THEIR STATEMENTS.

    ...

    POLICE BELIEVE THE LIKELIHOOD OF FURTHER FAMILY VIOLENCE INCIDENTS ARE HIGH. (emphasis added)

28. On 20 April 2016, DHHS had a meeting regarding Y and X. The DHHS report said that:

    The case was again presented at the L.17 Project Triage meeting on 20 April 2016 and it was noted that O Street had history with the family since 2015 and that 3 L.17s were received in April 2016. The first related to a verbal argument on 14 April 2016; the second occurred on 15 April 2016 when father attended mother's home and tried to take her mobile phone and car keys. When mother tried to stop father he reportedly hit her in the face and X was exposed to this. The Police attended but father had left. Mother was observed to have a bleeding nose but she would not engage with police or make a statement. Police applied for a warrant due to concerns that father's behaviours will continue to escalate without intervention. On 17 April 2016 the father again attended the mother's home. The mother and maternal grandfather asked him to leave, but he refused stating he wanted to see the children. An argument ensued and resulted in father physically assaulting the maternal grandfather by grabbing him by the throat and twisted his arm behind his back. The father then left taking X with him. Mother is reported to have been uncooperative with the police when they arrived. Police noted that the likelihood of violence by the father was high.

29. On 28 April 2016, an interim intervention order was made against the father for the protection of the mother.

30. DHHS received a further report on 30 April 2016.  The DHHS report said in relation to that report that:

    The current report was received on 30 April 2016 raising concerns for the children in the care of their mother as father was continually attending the home and that there was a gun safe in the home (implying a firearm may be used - neither parent had a license for a firearm). Further the father had taken X into his care from the mother's home and had not returned him for three weeks. Father's phone was traced to Town SS in New South Wales.

31. On 1 May 2016, the father was suspected of breaking into the mother’s house at about 3.30am.  A Victoria Police LEAP report stated that:

    ON THE 1/05/2016 AT ABOUT 0330AM THE AFM WAS AT HOME IN BED WHEN SHE HEARD A KNOCK AT THE REAR GLASS DOOR, WHEN SHE GOT UP SHE HEARD IT AGAIN AND CALLED OUT. THE RESP ANSWERED AND ASKED TO BE LET IN. THE AFM IMMEDIATELY CALLED 000 TO GET THE POLICE TO ATTEND KNOWING THAT POLICE WERE LOOKING FOR THE RESP. THE AFM TOLD THE RESP THAT SHE WAS UNLOCKING THE FRONT DOOR, WHILST UNLOCKING THE FRONT DOOR THE RESP CAME INSIDE THE HOUSE VIA THE UNLOCKED GARAGE DOOR. THE RESP TOLD THE AFM NOT TO CALL 000 AND TRIED TO GET THE AFM’S PHONE. THE AFM RAN OUT INTO THE STREET VIA THE FRONT DOOR AND YELLED TO NEIGHBOURS TO CALL 000. THE AFM THEN TRIED REMOVING HER 3 YEAR OLD SON FROM THE RESP’S CAR AS HE WAS IN THE BACK SEAT. THE RESP STOPPED THE AFM FROM TAKING THEIR SON AND HE TOOK HER MOBILE PHONE. THE RESP THEN GOT INTO HIS VEHICLE AND LEFT BEFORE POLICE ARRIVED. THE RESP WAS IN A CAR ACCIDENT 3 WEEKS AGO AND HAS SUFFERED A FRACTURED SKULL, FRACTURED VERTEBRAE AND OTHER SERIOUS INJURIES. HE WAS MEANT TO HAVE 6 WEEKS OF TREATMENT BUT AGAINST DOCTORS REQUEST DISCHARGED HIMSELF.

    ON POLICE ARRIVAL THE AFM’S 8 YEAR OLD DAUGHTER WAS ASLEEP IN BED AND DIDN’T HEAR THE EVENT. THE AFM WAS SMOKING CANNABIS AND DRINKING BUNDABERG RUM ON POLICE ARRIVAL. THE AFM WAS VERY INTOXICATED, VERBALLY AGGRESSIVE AND RUDE TO POLICE. (POLICE DIDN’T OBTAIN A STATEMENT ABOUT THE EVENT DUE TO HER INTOXICATED STATE)

    THE AFM’S FAMILY WERE CONTACTED AND THE AFM AND HER DAUGHTER HAVE GONE TO STAY WITH THEM UNTIL THE RESP IS LOCATED. … A SAFE CUSTODY WARRANT IS BEING APPLIED FOR IN RELATION TO THE CHILDREN. THERE WERE NO THREATS, ASSAULTS IT WAS A VERBAL ARGUMENT ONLY. THE IVO HASN’T BEEN SERVED YET SO THERE IS NO BREACH OF IVO. POLICE BELIEVE THE LIKLIHOOD OF FURTHER FAMILY VIOLENCE INCIDENTS ARE HIGH.

1. On 1 May 2016 at about 7.30am, a member of the public called the police after finding X crying and alone in a street in Suburb TT.  The DHHS report said about this incident that:

   On 1 May 2016 a member of the public had observed X with his father. The person was concerned about X's appearance as he was standing alone in the street in Suburb TT crying with no shoes and was cold. The person approached X and, while talking to him, [the] father appeared. He presented as substance affected and appeared to be carrying something in his hand that could have been a weapon.

2. The Victoria Police LEAP report about this incident said that:

   AT ABOUT 0730HOURS ON THE 1/5/16 POLICE RECEIVED A CALL FROM THE PUBLIC IN RELATION TO A YOUNG BOY WALKING ON … SUBURB TT, CRYING, COLD AND WITH NO SHOES ON LOOKING FOR HIS FATHER. THE FATHER WAS LOCATED AND THE BOY GIVEN BACK. THE MEMBER OF THE PUBLIC CALLED 000 TO ADVISE THEM OF HER CONCERN FOR THE BOY AS THE FATHER APPEARED INFLUENCED BY DRUGS. ENQUIRIES REVEAL THAT THIS WAS X AND THE ACCUSED. ...

3. By the time the police arrived, the father and X had disappeared.

4. A further Victoria Police LEAP report in respect of 1 May 2016 indicated that the father was suspected of attempting to break into the mother’s house for a second time on 1 May 2016, at about 10.30pm.  The report said that:

   AT 2230 01/05/2016, THE OFFENDER HAS BROKEN INTO PREMISES BY RIPPING PALINGS OFF THE REAR FENCE ... THE OFFENDER HAS ATTEMPTED TO JEMMY OPEN A DOOR TO THE GARAGE AT THE REAR OF THE PROPERTY USING A SCREWDRIVER LIKE IMPLEMENT. … ACCESS WAS NOT OBTAINED BY OFFENDER AND THE DOOR REMAINED LOCKED. THE OFFENDER … THEN PROCEEDED TO WALK AROUND THE HOUSE BUILDING AND WAS BANGING ON THE WINDOWS WITH A METAL TORCH … BEFORE SMASHING A FRONT OF HOUSE WINDOW. …  AS THE OFFENDER PROCEEDED AROUND THE CIRCUMFERENCE OF THE HOUSE BANGING ON ALL THE WINDOWS AS HE WAS HEARD TO BE YELLING AT THE VICTIM, MS HINMAN, MAKING THREATS TO KILL HER. OFFENDER DECAMPED IN UNKNOWN DIRECTION … VICTIM IN STRONG EMOTIONAL TRAUMA FROM INCIDENT AS HOUSE IS HER NATURAL FATHER’S HOUSE AND SHE WAS THERE WITH HER BROTHER MR HINMAN ALSO.

   …

   WHEN POLICE ARRIVED NEITHER PARTIES WERE PRESENT. THE RESP HAD FORCED ENTRY TO THE HOUSE THROUGH THE GARAGE AND SPRAY PAINTED OFFENSIVE COMMENTS ON THE AFM’S PROPERTY. …

5. On 2 May 2016, the father was arrested in Town UU, and initially remanded until 3 May 2016 and then further remanded until 29 June 2016 because his bail of $200,000 had not been paid. X was recovered and returned to his mother on 2 May 2016.

6. The DHHS report noted that:

   X was located on 2 May 2016 with his father in Town UU and he was returned to his mother's care, with the safety plan that mother and the children staying at the maternal grandparent's home. Whilst at the maternal grandparent's mother would often leave the home taking one of the children with her. On one occasion a friend of mother's called the grandparents informing mother had left her there and not returned. On 6 May 2016 mother left the maternal grandparent's home without the children and did not return [until 16 June 2016]. She was not contactable during this time.

   On 3 May 2016 mother was interviewed in relation to the protective concerns she reported a long history of violence perpetrated by father towards her. She reported that he displayed violent and controlling behaviours to the point mother feared for her life. Mother moved to Suburb TT from Town P in March 2014. Father remained in Queensland and would visit once every couple of weeks. Mother reported that father appeared to be taking responsibility and wanted to play and active role in the children's lives. … Mother described another incident where father returned to her home and violently beat her, which the children were exposed to. Mother reported that she felt that she would die and described how father was stomping on her head and she had the sole mark from his shoe; he was also strangling her and mother gave him her phone and car keys so he would leave. Mother used this time to escape and fled to the roof of the house. Whilst on the roof father stole mother's purse and tobacco.

7. On 1 June 2016, the mother’s father, Mr D, applied for an intervention order against the father. It is unclear whether an intervention order was made.

8. On 14 June 2016, DHHS issued proceedings in the Children’s Court of Victoria. Y and X were placed into the care of Ms C, their maternal grandmother. DHHS report said that:

   A Protection Application was issued on 14 June 2016 and the children were placed on an IAO to Suitable Persons (maternal grandparents). Mother did not make contact with the children until 16 June 2016.

   1.Father was incarcerated during this time but the parents reported they remained in a relationship. When father was released and mother stayed at the paternal great aunt's home, which was in breach of the IVO. Father was again arrested on 30 June 2016. Mother was also arrested around this time and charged with attempting to pervert the court of justice.

   2.The children have frequently disclosed incidences of family violence, fears of their father and were experiencing nightmares.

9. A final intervention order against the father and protecting the mother was made on 27 June 2016.

10. On 4 October 2016, the father appeared before the Suburb U Magistrates Court on the following charges:

    a.theft, two counts;

    b.make threat to kill;

    c.intentionally damage property;

    d.enter building to commit offence – damage;

    e.burglary;

    f.unlawful assault;

    g.commit indictable offence whilst on bail;

    h.contravene family violence intervention order;

    i.go equipped to steal/cheat;

    j.possess methylamphetamine;

    k.theft from shop (shopsteal);

    l.intentionally damage property;

    m.unlawful assault;

    n.fail to give name/address – property damaged; and

    o.careless driving of a motor vehicle.

11. In relation to those charges, the father was convicted and:

    a.imprisoned concurrently for 141 days, which was time served;

    b.given a community corrections order for 12 months;

    c.required to undergo 12 months treatment and rehabilitation consisting of  assessment and treatment (including testing) for drug abuse or dependency and any other treatment and rehabilitation as directed including, if available, a men’s behaviour change program;

    d.fined an aggregate of $750.00; and

    e.his seized drugs and instruments were forfeited and destroyed.

12. On 2 November 2016, the mother and father attended a DHHS office demanding to see Y and X. The DHHS report said about this incident that:

    On 2 November 2016 mother attended the DHHS office with father demanding to see the children. When this was not successful she left the building and proceeded to a nearby nature strip where she began to self-harm. The police and ambulance arrived and took her to the V Hospital. Mother reported being pregnant around Christmas 2016 and was observed to have attended a festival with father where they were alleged to use substances.

13. On 11 or about November 2016, the mother reported the father to the police for carjacking. The mother alleged that the father held her at knifepoint and punched her in the face when she would not hand over her keys. The father was charged and is currently in custody on remand pending a trial for this and other offences.

14. During January 2017, the DHHS report said that the following occurred:

    On 8 January 2017 mother reported ongoing stalking from father and that he was self-harming. He had sent her a photo of him in a public toilet with several bottles of alcohol and a box cutter, with the photos showing cuts to his arm and neck. The police were unable to locate father.

    After contact between mother and the children on 9 January 2017 father is reported to have waited for mother to return to her car and smashed her car window and steal her handbag. Mother was referred to refuges, housing services and family violence support; however, her engagement was poor and inconsistent.

    Mother further reported on 23 January 2017 that father has 'torched' her car that had all of her belongings in it. However, father later reported that he was not in the state during this incident.

15. On 14 February 2017, the mother had a miscarriage at her friend’s home. The DHHS report said the following regarding this incident:

    Mother had a miscarriage on 14 February 2017 at a friend's home. Mother left the home 2 hours after the miscarriage and did not return for the foetus. Mother is reported to have called the baby 'Welfare' and posted on social media that 'Welfare' has gone. Mother's friend reported that mother did not seek medical attention and was on a cocktail of prescription drugs. At this time the Father had disengaged with child protection and would not disclose where he was living because he was concerned that this information would be passed onto police (he had breached his corrections order and there was a warrant for his arrest).

    Mother has reported having depression and taking Zoloft. She has disclosed using ice with the father. Mother reporting using ice as a teenager but recognised that she now had other priorities with her children.

    Father has reportedly engaged with a psychologist in NSW and commenced screens.

16. In or around May or June 2017, the father commenced supervised time with Y and X, pursuant to Children’s Court orders.

17. During June 2017, the DHHS report said that the following occurred:

    On 1 June 2017 mother made contact with psychologist Ms W from Psychology. They planned to attend the GP to obtain a mental health plan but mother failed to attend this appointment.

    On 15 June 2017 mother called child protection to confirm contact. During this call mother sounded upset and stated that 'today will be my last visit... I'm giving up'. On 19 June Region F Mental Health contacted child protection as mother had presented with vague plans to kill herself and was making worthless comments. She was taken to the service by police after they attended an altercation between her and a friend. The clinician involved believed that mother's behaviours may be a result of her substance misuse. Mother is reported to have confirmed regular cannabis and ice use.

    Mother is also reported to have a diagnosis of bipolar. Mother was discharged on 21 June 2017 but did not seek after care.

    During this time it was reported that the Father had engaged with anger management.

18. On 10 July 2017, the Children’s Court Clinic completed a parenting assessment of the mother. The DHHS report said that:

    Clinical Psychologist, Dr Z, recognised the mother has strong love for her children, however, her mental health difficulties undermine her capacity for look after the kids.

    A Case Plan meeting was scheduled on 4 September 2017 but mother did not attend. The decision was made not to reunify the children with their mother. Father reported he seeks reunification with the children to move to NSW where they can also be supported by the paternal family. On 14 December 2017 maternal grandmother reported that she was partially agreeable to the case plan but does not think either parent should be considered for reunification with the children. Child protection changed its disposition to a Care by Secretary Order to allow further assessment of the father, assessment of the maternal uncle and the paternal aunt.

19. On … 2017, the father was charged with:

    a.fraudulently use plate - uniquely ID;

    b.attempted theft of a motor vehicle;

    c.intentionally cause injury;

    d.assault with a weapon;

    e.attempted armed robbery;

    f.possess drug of dependence; and

    g.possess methylamphetamine.

20. The father was in remand from … 2017 until … 2018 in relation to those charges.  After breaching bail, he was returned to prison in … 2019 and is currently on remand in relation to the … 2016 charges.

21. On 23 April 2018, Child Protection Senior Practitioner, Mr AA, met with the father. The DHHS report regarding that meeting said that:

    Father was remanded from … 2017 to … 2018. Child Protection Senior Practitioner Mr AA met with the father on 23 April 2018 and he during this visit the father minimised the protective concerns. The father further expressed he wants the case plan to consider him for reunification. Mr AA's assessment is that he has not addressed the protective concerns within the timeframes that meet the children's needs, plus he has had limited contact with the children over the past 2 years.

22. On … 2018, the father was suspected of being in possession of 0.24 grams of methylamphetamine and 0.84 grams of buprenorphine.  Charges were laid.  The father said in cross examination that he pleaded guilty to the charges. It was unclear what, if any, penalty he received. The New South Wales police created the following report:

    … About 10:30pm on … 2018 the Accused was travelling south, along BB Street in his mothers vehicle …  Police approached the drivers door of the vehicle ... Police observed the Accused appeared nervous and had a black eye and recent stitches above his right lip. When asked about his injuries the Accused replied reluctantly “na it was nothing just a disagreement in Town L on Friday night”. … Police asked the Accused his reasons for being in the area and he replied “I’m going back to Melbourne I’m moving out I got no where to live really”. Police conducted checks on the details provided by the Accused which revealed he had two outstanding warrants, one in Victoria and one in Queensland. The Accused was also on conditional bail in Victoria which was suspended due to an interstate family funeral. … A short time later Police located a clear resealable bag containing white crystals, a clear resealable bag containing ten small tin foil tabs and a used ice pipe were located in the roof console. The Accused was immediately arrested and cautioned to which he replied “yeh yeh I got bail in Victoria so I guess I’m not getting out:. When asked what the contents of the bags where the Accused replied ‘ice’ and ‘those tabs are bup I got addicted to it in jail and I just brought them in Town R before I left”. … The Accused declined to participate in an electronically recorded interview in relation to the allegations stating “na I’m tired I’ll just plead guilty”. …

23. Also on 30 April 2018, the maternal grandfather reported that the father had breached an intervention order protecting Y and X.  The police considered it to be a technical breach only. A Victoria Police LEAP report notes that:

    THE RESP AND AFM (AGED 10 YEARS) ARE FATHER AND DAUGHTER RESPECTIVELY. THE AFM AND HER BROTHER (AGED 5 YEARS) CURRENTLY RESIDE WITH THEIR GRANDPARENTS IN SUBURB EE. THE GRANDPARENTS HAVE BEEN GRANTED CUSTODY FOR THE APPROXIMATELY THE LAST TWO YEARS DUE TO THE RESP AND HIS EX PARTNERS DRUG ABUSE AND FAMILY VIOLENCE RELATED ISSUES. A CURRENT DHHS INTERIM ACCOMMODATION ORDER EXISTS AS WELL AS AN ACTIVE AND SERVED INTERIM IVO WITH FULL CONDITIONS. CONTACT IS ALLOWED BETWEEN THE RESP AND THE CHILDREN, BUT ONLY UNDER DHHS SUPERVISION.

    ON 29/04/18 AT APPROXIMATELY 1715 HRS, THE RESP’S SISTER (KNOWN AS MS DD) CONTACTED THE AFM’S GRANDFATHER (R/P) ON THE HOME PHONE. MS DD HAS A GOOD RELATIONSHIP WITH THE AFM AND HER BROTHER AND WILL GENERALLY CALL THEM TO TALK ON SUNDAY EVENINGS. ON THIS OCCASION THE R/P ANSWERED THE PHONE AND PUT IT ON LOUDSPEAKER. THE R/P HANDED THE PHONE TO THE AFM WHO HAD A BRIEF CONVERSATION WITH MS DD. AFTER ABOUT A MINUTE INTO THE CONVERSATION, THE RESP BEGAN SPEAKING TO THE AFM ON THE PHONE. THIS WAS OVERHEARD BY THE R/P WHO WAS SITTING BESIDE THE AFM. THE RESP WAS SAYING THINGS SIMILAR TO, “I LOVE YOU” AND “I MISS YOU”. THE RESP’S YOUNGER SON HEARD HIS FATHER ON THE PHONE AND ATTEMPTED TO GRAB THE PHONE FROM THE AFM SO THAT HE COULD TALK TO THE RESP. IN DOING SO THE PHONE CALL WAS ENDED.

    APPROXMINATELY FIVE MINUTES LATER, THE HOUSE PHONE CALLED AGAIN. THE R/P ANSWERED THE CALL AND SPOKE TO THE RESP. THE RESP ASKED TO SPEAK WITH THE AFM. THE R/P ADVISED HE RESP THAT HE WAS NOT ALLOWED TO TALK TO HER HOWEVER THE AFM SNATCHED THE PHONE FROM THE R/P AND BEGAN TALKING TO THE RESP. NIL ABUSE OR CONFLICT BETWEEN THE AFM AND RESP. TECHNICAL BREACH ONLY. A FULL FINAL IVO HAS BEEN ISSUED HOWEVER NOT YET SERVED ON THE RESP. THIS INCLUDES THAT SAME CONDITIONS AS THE INTERIM ORDER. THE FAMILY LAW COURT ORDER DOES NOT ALLOW THE RESP TO HAVE PHONE CONTACT WITH THE AFM OR HER BROTHER.

24. In relation to events during May 2018, the DHHS report said that:

    A Family Led Decision making meeting took place on 15 May 2018. During this meeting the Father reported that he wants the case plan to consider him for reunification. It was agreed that there would be parallel planning in place for permanent care assessments of the maternal uncle, paternal aunt and paternal grandmother.

    Previously the maternal family have consistently presented as being resistant to the father having contact with children and this has not been based in the children's experience, but rather on their lack of trust of the paternal family and their fear of Mr Lucas. The maternal family has also been concerned when the mother has left items for the children outside of the home, despite not trying to make contact with them or the children. Often the items left by the mother have not been age appropriate.

    The paternal family's focus has been on wanting contact with the children, of wanting them to be in their care, and raising some initial concerns about the MGP's age and therefore their capacity to care for the children. However significant progress was made at the Family Led Decision Making meeting on 15/05/18, with maternal and paternal family members seeing that they have a shared goal and plans being made for communication between the family members.

    The father completed a Supervised Urine Drug Screen ('SUDS') on 22 May 2018 which was positive for Methamphetamine and Amphetamine, yet further completed a which were clear off illicit substances.

    Assessment's Australia conducted two Permanent Care Assessments on 28 May 2018 for Ms CC [the paternal grandmother] and on 29 May 2018 for Ms DD [the paternal aunt]. The full permanent care assessments can be seen attached. Out of these assessments Ms CC was approved to be a permanent Kinship Carer for Y and X and Ms DD as an appropriate Respite Carer.

    Child Protection completed a Permanent Care Assessment of Mr Hinman and his wife Ms B, which concluded that they have the capacity and wish to care for Y and X long term and they are capable of being the permanent carers of the children.

    (errors in original)

25. On 19 July 2018, a final intervention order was made against the father for the protection of the mother.   The father was not in court when the order was made.  It was expressed to last for two years.

26. On … 2018, the father appeared before the Melbourne Magistrates Court on the following charges:

    a.contravene community correction order on …2016;

    b.possess methylamphetamine;

    c.theft-from shop (shopsteal);

    d.intentionally damage property four counts;

    e.unlawful assault two counts;

    f.theft two counts;

    g.make threat to kill;

    h.enter building to commit offence –damage;

    i.go equipped to steal/cheat;

    j.burglary;

    k.commit indictable offence whilst on bail; and

    l.contravene family violence intervention order.

27. The charges were found proven, and the father was convicted, fined an aggregate of $1,000.00 and ordered to pay costs of $124.30.

28. On 21 August 2018, a further Children’s Court Clinic assessment was completed. The DHHS report said that:

    A further Children's Court Clinic Assessment was ordered and was completed on 21 August 2018 in relation to the dispute around whom would be the most appropriate Permanent Carer for Y and X. Dr Z, reported that Ms CC would be the most appropriate due to her not currently having any children in her care and would be able to give full attention to the children, however noted that Ms CC lacks insight into the concerns around her son, the father and would advise ongoing monitoring by Child Protection to ensure the children's ongoing safety and well-being.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. In his proposed orders, the father said that Mr Hinman should bring Y and X to the prison to visit him.  Mr Hinman lives in City NN.  The father is in prison in Town CCC.  According to Google maps, it is a two hour drive each way.  That is a significant burden for Y and X, and a significant burden and cost for Mr Hinman.    

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The mother conceded that she has no capacity at present to provide for the needs of Y and X.

2. The father maintained that he would have the necessary capacity, once he is released from prison.  As the father’s likely release date is presently unknown, this is a somewhat hypothetical question.  However, the father’s past history indicates that, if he is affected by drugs, he is likely to neglect the basic needs of Y and X.  

3. The maternal grandparents did a good job caring for Y and X for 2.5 years, but now concede that they are not physically able to continue to do so.

4. The paternal grandmother, on her application, was joined as a party to the proceeding, but was removed on the next court date when she did not attend court.  She made another application to be joined as a party, but did not attend on the return of that application.  As a result, her second application was dismissed for non-appearance.  In these circumstances, where the paternal grandmother is unable to attend court as required, I consider that she has a limited capacity to consistently provide for Y and X’s needs.

5. Mr Hinman is doing an admirable job in caring for Y and X.  He and his wife are providing for all their needs, including by facilitating time with their mother, and being willing, subject to certain conditions to facilitate time with their father.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The parents both obviously have a lifestyle that involves drug use.  The mother has mental health issues.  The father has a long history of criminal activity, including drug use, crimes of violence and property crimes.

2. Unsurprisingly, X appears to have a developmental delay. 

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Both parents have prioritised their drug use over their responsibilities as parents.  The father, in particular, seems to want to experience the joys of parenthood, without being willing to fulfil the basic responsibilities of parenthood, such as sparing the children exposure to violence and drug use. 

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. This has been set out in detail above.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)      any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter

1. This has been discussed above.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It is unclear what such an order would be.  Mr Hinman, the mother and the independent children’s lawyer were very keen for this matter to be finalised, as it has already cost Mr Hinman a great deal of money.  All parties contemplate a notation allowing the father to bring further proceedings, without being barred by Rice v Asplund, if he is able to demonstrate that he has changed his ways.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. There are no other relevant facts or circumstances.

Parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. The statutory presumption of equal shared parental responsibility is rebutted in this case.  There has clearly been family violence, on many occasions.

3. The father wants equal shared parental responsibility with Mr Hinman.  In circumstances in which Mr Hinman has gone to extraordinary lengths to care for the father’s children, and the father has repaid him by sending an abusive text on 1 March 2019, and an offensive text on 21 May 2019, I do not consider that equal shared parental responsibility is viable.

4. In addition, when asked to make a joint decision and allow Y and X to have a holiday in Country VV with the maternal family, the father was obstructive, forced Mr Hinman to make an application to court (with all the cost that entailed) and said that he refused because they would not let us have a holiday with Y and X.  Even if true, this is childish thinking, and not at all child focussed.  Obviously, Y and X would have had a great time in Country VV.  The father’s allegations about the maternal grandfather being abusive were implausible and were not pressed at trial. I reject them.

5. The fact is that Mr Hinman did facilitate Y and X spending time with the paternal family in Town R in January 2019.  The problem from the father’s point of view was that he was not allowed to attend that holiday.  That was not Mr Hinman’s fault.  It was a condition of the father’s bail that he not leave the State of Victoria.

6. One way or another, I consider that the father is not capable of making joint decisions with Mr Hinman in Y and X’s best interests.  When given the opportunity to jointly make a decision in relation to the holiday in Country VV, the father was spiteful rather than child-focussed.  He has damaged his relationship with Mr Hinman by sending at least one abusive and one offensive text message.

7. In these circumstances, it is in Y and X’s best interests that Mr Hinman have sole parental responsibility for them.

Equal or substantial and significant time with each parent

1. As the parents in this case will not have equal shared parental responsibility for Y and X, it is unnecessary to consider whether they should spend equal time, or a substantial and significant time, with each parent pursuant to subsections (1) to (5) inclusive of s.65DAA of the Act. In any event, at this point, none of the parties proposed that the mother or father spend such time with Y and X.

Y and X’s time with their mother

1. Mr Hinman, the mother and the independent children’s lawyer all agreed to the following proposed order for Y and X to spend time with their mother:

   Y and X spend time and communicate by telephone or other means with their mother supervised by their maternal uncle, the applicant, or his nominee, on dates and at times agreed between the applicant maternal uncle and the mother.

2. The father did not oppose that proposed order.  Interestingly, the father’s proposed orders were entirely silent on Y and X’s time with their mother.

3. In my view, the order proposed by Mr Hinman is in Y and X’s best interests. It will enable them to maintain their relationship with their mother, with appropriate safeguards in place.

Y and X’s time with their father

1. The father proposed that Y and X spend time with him once per month while he remains in prison, with Mr Hinman to facilitate the visits. 

2. The father relied on Lawson v Warren and Ors [2011] Fam CA 38. In that case, a mother was in prison for up to seven years. Orders were made for a nine year old child to live with the paternal grandmother, spend time with the maternal great grandmother, and spend time with the mother as agreed between the mother and the maternal great grandmother, subject to the permission of the prison authorities. In Lawson, the mother and the maternal great grandmother clearly had a good and respectful relationship, and the maternal great grandmother was happy to take the child to the prison to visit her mother.

3. The present case is quite different. The father has been abusive, offensive and spiteful towards Mr Hinman.  Mr Hinman is not happy to take Y and X to the prison to visit their father.  Moreover, facilitating visits to the father in prison would be costly and burdensome for Mr Hinman. The round trip would take about four hours.  Mr Hinman is already putting a lot of time, effort and money into caring for the father’s children, while also caring for his own children and his wife.  It seems to me that it is in Y and X’s best interests that Mr Hinman be able to concentrate on caring for them, without having to deal with the additional burden of such long trips.  Also, as mentioned above, X was very clear that he did not wish to visit his father in prison.   Prisons are notoriously unpleasant places, and are not ideal environments for children. 

4. I do not consider that the father’s proposal for prison visits is in Y and X’s best interests. The detriments of such visits, in all the circumstances of this case, outweigh the benefits to Y and X of seeing their father.  Of course, the paramount consideration for the court is Y and X’s best interests, not the father’s wishes.

5. Secondly, the father proposed that Y and X spend time with him by telephone on one occasion per week while he is in prison, and twice a week after his release from prison.  This was opposed by the other parties, basically on the grounds that it would be too disruptive for Y and X. 

6. When the father appeared in the background of the video call in January 2019, and Mr Hinman terminated the call, Y and X were very upset for some time, and X resumed urinating next to the toilet rather than in the bowl.  That seems to have been because the call was terminated, rather than because of anything that the father said or did during the call.  When Y and X spent time with their father in January 2019 at Town R, there was no suggestion that he did not behave appropriately towards them, other than, arguable, by sharing a sofa bed with X.

7. In my view, it is in Y and X’s best interests to occasionally communicate with their father by telephone or video call, supervised by Mr Hinman.  Half an hour, once a month, would not be unduly burdensome for Mr Hinman, would give the father a chance to prove that he is genuine and can act with good will, and would promote the connection between the father and Y and X.   Whether the call was by telephone or video would need to be at Mr Hinman’s discretion.  Video calls would probably not be possible while the father is in prison, and would not be a good idea in that context anyway.

8. Mr Hinman would need to be at liberty to terminate the call and suspend all future calls, in the event that the father appeared drug affected, or was abusive, offensive or otherwise inappropriate. Clearly, the only sentiment the father should be expressing to Mr Hinman is gratitude.  (The father appears to blame Mr Hinman for the father not being able to see his children.  However, the father ought to reflect on how his own conduct has led to his present circumstances.)

9. While there is a risk that the telephone or video calls would cause some disruption to Y and X, I consider that those risks are outweighed by the benefit of them maintaining their relationship with their father, with whom they appear to enjoy spending time.

10. The father also opposed Mr Hinman’s proposal for after the father is released from prison.  Instead, the father proposed that Y and X spend time with him, once he is released from custody:

    Each alternate Saturday for a period of three hours with such times to be supervised by an agreed supervisor for a period of 6 months[.]

11. The father’s proposal for an agreed supervisor is delusional.  The father cannot expect Mr Hinman to personally supervise his time with Y and X for three hours, in circumstances where the father has been abusive, offensive and spiteful towards him. The father cannot expect his family to be agreed supervisors, where they have facilitated his non-compliance with bail conditions and court orders.  The father cannot expect a professional supervisor to be agreed, even at the father’s cost, where such supervisors would oversee contact in an insecure environment, and the father in the past took X without the mother’s permission and kept him for over two weeks until the father was arrested.  There are no other viable options for supervision, other than a contact centre.

12. That seems to have been contemplated by the father, as his fall back position was:

    Should the parties fail to agree on a supervisor, then the Maternal Uncle and the Father shall do all such acts and sign all such documents to enrol at an agreed Supervised Contact Centre, and the Father shall spend time with the children each alternate Saturday on times as directed by the agreed Supervised Contact Centre for a period of 6 months;

13. As Y and X are presently living with Mr Hinman in City NN, the contact centre should be A Contact Centre, as that is closest to them and would be the least burdensome for them and Mr Hinman.

14. Mr Hinman told the court that he has already enrolled in A Contact Centre.  The father had previously been unwilling to do so, but indicated during the trial that he would, if he could get help from his lawyers.  It is in Y and X’s best interests that there be an order that Mr Hinman and the father enrol with A Contact Centre forthwith, if they have not already, for the purposes of Y and X spending supervised time there with their father.

15. Mr Hinman, the mother and the independent children’s lawyer noted that, as well as enrolling, A Contact Centre has additional entry requirements, such as completing a post-separation parenting course.  Obviously for the enrolment to be effective, the father would have to comply with any such requirements.  He should ascertain A Contact Centre’ entry requirements, and ensure that he meets them, as soon as possible.

16. The second part of the father’s proposed order for after his release from prison was that he immediately start to spend supervised time with Y and X for six months at the contact centre.  The father did not specify anything in his proposed orders about having a hair follicle test before spending time with Y and X.  However, at the trial, he indicated that he was willing to have such a test.  He said that it should be sufficient for him to have the test as soon as he was released from prison.  He said that drugs are available in prison, but he said he has not been using them and would not, after his release.

17. Mr Hinman, the mother and the independent children’s lawyer all opposed the father’s proposed order and instead proposed that:

    Y and X spend no time, nor communicate by any means with their father, unless:

    i.he has been released from custody for at least three months; and

    ii.he has provided to the applicant maternal uncle a hair follicle test showing complete abstinence from illicit substances for a period of six months; and

    iii.he has enrolled in A Contact Centre and complied with the engagement requirements of that service, including completion of a post separation parenting course; and

    iv.he does not expose Y or X, or either of them, or the applicant, to abusive language or behaviour; and

    v.the applicant maternal uncle considers in his absolute discretion that Y and X or either of them would be safe and benefit from spending supervised time and/or communicating with their father.

18. Mr Hinman, the mother and the independent children’s lawyer argued that the father should produce hair follicle tests showing complete abstinence for a period of six months, including three months after his release from custody.  They argued that was necessary, because the father might be drug free while in prison, but revert to his old habits while trying to re-establish himself in the community.  I accept that submission.

19. I consider that it is in Y and X’s best interests that, before they start spending time with their father at A Contact Centre, he should be required to produce to Mr Hinman the results of a hair follicle test from an accredited laboratory showing complete abstinence from all illicit substances for the preceding six months, including three months after his release from custody.  It would obviously be very difficult for Y and X to see their father drug affected, and to have their time with him terminated for that reason.

20. Subject to the provision of such test results, I consider that it is in Y and X’s best interests to commence spending time with their father at A Contact Centre.  The father proposed that the contact be on alternate Saturdays.  I presume that is because he plans to return to New South Wales and work during the week.  The other parties did not indicate any difficulty with alternate Saturdays.

21. A Contact Centre has professional supervisors, who are well able to assess whether people are drug-affected or are behaving inappropriately.  Under their own protocols, they will terminate contact in the event of anything untoward occurring.  In addition, I consider that it is in Y and X’s best interests for Mr Hinman to be authorised to terminate contact, pending further order on the father’s application to the court, if the father is abusive, offensive, inappropriate or drug-affected.

22. I also consider that it is in Y and X’s best interest that the father continue to produce hair follicle tests every three months showing complete abstinence for the preceding three months.  This is a somewhat burdensome requirement, but the father’s history makes it necessary.

23. The father proposed that the supervision at A Contact Centre last for six months.  Mr Hinman, the mother and the independent children’s lawyer did not make any proposals for what should happen after A Contact Centre has supervised for a period of time.  Obviously, A Contact Centre will not supervise for ever.  There needs to be some arrangement for the period after a reasonable amount of time of supervision at A Contact Centre.

1. I consider that six months supervision at A Contact Centre is sufficient, provided that the father continues to provide hair follicle tests, and provided that he is not abusive, offensive, inappropriate or drug-affected.

2. After six months supervision, the father proposed that:

   iv.Thereafter the Father shall spend unsupervised time with the children on each Saturday from 12.00pm until 4:00pm for a period of 3 months;

   v.Thereafter the Father shall spend time with the children on each Saturday from 12.00pm until Sunday 2:00pm; [and]

   …

   vi.On Father’s Day from 12.00pm until 5.00pm;

   viiOn the Father’s birthday from 12.00pm until 5.00pm;

   viii.   On Christmas as follows:

   (a)In even numbered years from 5.00pm on Christmas Eve until 2.00pm on Christmas Day;

   (b)In odd numbered years from 4.00pm on Christmas Day until 2.00pm on Boxing Day.

3. Mr Hinman, the mother and the independent children’s lawyer implicitly opposed that, as they made no proposals for the period after supervision at A Contact Centre ceased.  In a notation, it appears that they contemplated no unsupervised time, without a further application to the court. That seems to me to be unnecessary, if the father provides three monthly hair follicle test results, and if time can be terminated pending further court order upon the father’s application to the court in the event of anything untoward occurring.

4. I note that the family consultant recommended that Y and X spend no time with the father until he showed evidence of behavioural change, drug abstinence, and abstinence from criminal activity.  It seems to me that the requirement for three monthly hair follicle tests, and Mr Hinman being entitled to terminate contact in the event of the father’s untoward behaviour, adequately meets the family consultant’s criteria.

5. I consider that the father’s proposal of weekly time is too much, and his proposal to commence overnight time after only three months of unsupervised time is too soon. 

6. In my view, it is in Y and X’s best interests to spend unsupervised time with their father, after six months at A Contact Centre, and subject to the conditions previously mentioned, for a period of six months on alternate Saturdays, from 12md until 4pm.  After that, in my view, it is in Y and X’s best interests to spend unsupervised time with their father, subject to the conditions previously mentioned, from 10am until 5pm each alternate Saturday, and from 12md until 5pm on Father’s Day and the father’s birthday, and from 10am until 4pm on Christmas Day in even numbered years and from 10am until 4pm on Boxing Day in odd numbered years.

7. I am not prepared to make any orders for overnight time at present, although I will make an order for such further or other time as is agreed between Mr Hinman and the father.  If all goes well, Mr Hinman may agree to overnight time.  Alternatively, the father can bring an application to the court.

Contact with the paternal family

1. Mr Hinman, the mother and the independent children’s lawyer all agreed to orders substantially in the following terms:

   a.Y and X have telephone or other electronic communication with members of the paternal family at times and places as agreed between Mr Hinman and the paternal grandmother provided that they do not permit or allow the father to intrude or take part in this communication without the written consent of the applicant maternal uncle; and

   b.Mr Hinman be at liberty to terminate any such call in the event of inappropriate language, abuse, or the presence of the father.

2. The father did not oppose those orders.  It seems to me that they are in the best interests of Y and X, as they will enable contact between them and their paternal family.

Additional orders

1. The father also proposed the following additional orders, which were not opposed:

   5.The Maternal Uncle and the Father communicate with each other by email or text message about the children’s care and welfare only.

   6.That the parties notify each other of any Serious Medical Injury, Serious Illness of Hospital Admission in respect of the child, as soon as practicable after that Serious Medical Injury Serious Illness or Hospital Admission occurs and both parties are authorise to speak to any treating Medical Practitioner or Specialist in relation to that Serious Medical Injury, Serious Illness of Hospital Admission and this Order share serve as Authority for same.

   …

   9.That the parties be restrained by injunction from consuming alcohol to excess, non-prescription drugs or any illicit substances in the presence of the children or be in any way effected by them whilst the child is in that person’s care or control, 24 hours prior to or during any period of time the child is in their respective care.

   10.The parties are hereby restrained by injunction from:

   (a)Denigrating each other within the hearing or presence of the children, either personally or through their servants or agents;

   (b)Discussing any aspect of the Family Law Dispute between the parties, within the hearing or presence of the children, either personally or through their servants or agents;

   (c)Allowing the children to come into contact with any person engaging in criminal activity.   

2. Those proposed orders are uncontroversial and in Y and X’s best interests.  They will be made as orders of the court.

3. The father also proposed that:

   7.That the parties do all things as are necessary to ensure each of the parties can receive (at their own expense) copies of all newsletters, notices, photographs and other information provided by school and the Father be named and registered as an emergency contact at the child’s school with the Mother to attend to this within 28 days.

   8.The parties and their families shall be entitled to attend all school functions to which parents are normally invited.

4. The proposed order regarding school newsletters and so on is uncontroversial and will be made as an order of the court.  The balance of the father’s proposed order 7 appears to be have been taken from a template.  It is not in Y and X’s best interest that their father be an emergency contact.  In any event, it is not for the mother to organise emergency contacts, as she will not have parental responsibility. It is not at this stage in Y and X’s best interests that the father or his family attend school functions, given the restrictions on them spending time with Y and X. There will be an order regarding school newsletters and so on. 

5. In addition, Mr Hinman indicated in cross-examination that he was agreeable to an order permitting the father to send Y and X letters, cards and gifts, provided that Mr Hinman was able to vet them before delivering them to Y and X.  Mr Hinman said that he maintained a post box for that purpose.  It seems to me that it is in Y and X’s best interests that their father be able to communicate with them in that way.  There will be orders accordingly.

I certify that the preceding two hundred and sixty eight (268) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:         14 November 2019