IRELAND & MCKINNON
[2013] FamCA 659
•5 September 2013
FAMILY COURT OF AUSTRALIA
| IRELAND & MCKINNON | [2013 ] FamCA 659 | |
| FAMILY LAW – CHILDREN – With whom a child spends time – Where the child was removed from the Mother’s care by the Department of Child Safety in November 2009 – Where the Mother has spent limited time with the child since November 2009 – Where there are concerns for the child’s safety when in the care of the Mother – Child to live with Father – Child to spend supervised time with the Mother | ||
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Ireland |
| RESPONDENT: | Ms McKinnon |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Toomey |
| FILE NUMBER: | BRC | 8813 | of | 2008 |
| DATE DELIVERED: | 5 September 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 18 April 2013 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| FOR THE RESPONDENT: | In person by telephone |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Thiele |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Shultz, Toomey, O'Brien Lawyers |
Orders
It is ordered that
All previous parenting Orders be discharged.
Parental Responsibility
It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of J Ireland born … 2003 (“the child”).
The Father shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of the child, save that the Father shall, prior to making the ultimate decision about any such issue:
(a)use his best endeavours to advise the Mother in writing of the decision intended to be made;
(b) seek the Mother’s written response in relation thereto;
(c)consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)advise the Mother in writing as soon as reasonably practicable of his ultimate decision.
Live With and Time
The child live with the Father.
The Mother spend supervised time with the child:
(a)in the presence of Ms F at times as agreed between the Mother, the Father and Ms F, such time to be, subject to the availability of Ms F, no less than each alternate weekend from 9:00 am on Saturday until 5:00 pm on Sunday; or
(b)in the event Ms F is unable to supervise the Mother spending time with the child as provided for in (a), then at the B Contact Centre or such other contact centre as agreed in writing at any time arranged with the Contact Centre upon the Mother giving the Father at least seven (7) days written notice of her intention to exercise time.
The costs of the supervision of the Mother’s time with the child, in accordance with Order 5(b), shall be borne equally by the parties.
The Mother communicate with the child by telephone between 6:30 pm and 7:30 pm once a week, with the Father to facilitate the call and the Mother be at liberty to telephone the child at any other reasonable time provided she advises the Father of the time when she intends to call.
This Order is sufficient authority for each school or day care facility attended by the child to allow each of the Father and the Mother to undertake parent/teacher interviews and discuss the education of the child, to forward to each of the Father and the Mother copies of all school reports and notices concerning activities to be undertaken by the child, with any documentation provided to either parent to be at the expense of the parent requesting same and to permit the Father and the Mother to attend sporting and other activities.
This Order is sufficient authority for each medical and dental practitioner of the child to discuss and supply to each of the Father and the Mother reports as to the health of the child on an ongoing basis.
The Independent Children’s Lawyer be discharged.
Pursuant to s 65DA(2) and s 62B of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ireland & McKinnon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8813 of 2008
| Mr Ireland |
Applicant
And
| Ms McKinnon |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning the child, J Ireland (“the child”) who is ten years old having been born in 2003. The child’s father, Mr Ireland (“the Father”), and her mother, Ms McKinnon (“the Mother”), seek competing parenting orders in these proceedings. Ms Toomey was appointed as the Independent Children’s Lawyer (“the ICL”) pursuant to s 68L of the Act to independently represent the child’s interests in the proceedings.
The proceedings originally involved the child’s half-sister, Y T, born in 2001 who is eleven years old and whose father is Mr N. Both the child J and Y were removed from the Mother’s care by the Department of Child Safety (“the Department”) in November 2009 at which time the Department became a party to the proceedings. The Department’s involvement is due to sexual abuse concerns in relation to both children involving the Mother’s husband, Mr K, as well as a demonstrated long-standing inability on the part of the Mother to care for her children. The half-sisters were placed in the care of the Father’s parents (the child’s paternal grandparents), Mr and Mrs Ireland Snr who reside in Town B. Since the proceedings were commenced, Y has been placed in the long-term foster care of Mr and Mrs Ireland Snr, and the child J has been placed in the care of the Father, and the Department has withdrawn from the proceedings.
The Mother has six children, including J and Y, from five fathers. At the time of the first family report dated 14 April 2009, Ms D, family consultant, recorded that the Mother’s four other children were all in the care of child protection agencies in Western Australia, New South Wales and Queensland. In the family report dated 22 September 2011, Mr Webb, social worker, outlined the following circumstances in relation to these four children at that time:
·The oldest child, E S (18) was living independently,
·The next child, a girl named L S (16) lived with a relative in Town B (Ms F),
·A boy, Z T (14) was in care in NSW but the Department of Communities in that State was in the process of placing him with Ms F, and
·The next child, R NN (11) daughter of one Mr NN, also lived with Ms F.
The Father has a child from his former marriage to Ms H, A, who is now 18 years old.
Background and Chronology
The Father is 43 years old having been born in 1970. He works as a equipment operator and resides in Town B with the child J. The Mother was born in 1974 and is 39 years of age. She is unemployed but was previously in receipt of a carer’s pension as the carer of her husband, Mr K, and was living in Town V. At the time of the final hearing the Mother had moved to Town U and was receiving a carer’s pension for her care of Mr N, Y’s father.
The parties met in 2001 when the Mother was pregnant with Y. They married in 2002 and as already noted, the child J was born in 2003. The parties separated in 2005 and divorced in 2006. Upon separation, the child remained living with the Mother and the Father spent time with her on what he says was a “fairly flexible basis”. On 7 March 2007, Consent Orders were made for the child to live with the Mother and spend time with the Father for four days one week and three days the next week.
In June or July 2008, the Mother unilaterally moved to Town V with her new partner Mr T, whom she later married in November 2008. The Father deposes in his affidavit filed 29 September 2008 that on 18 June 2008 the Mother advised him that she was going to Town V. The Father was under the impression the Mother was only going for a short time as she had gone to other destinations in the past for short periods. The Mother left the child with the father on 18 June 2008 and returned to Town B on 26 June 2008 and collected the child.
On 10 July 2008, the Mother again returned the child to the Father’s care and saw the child intermittently before she removed her from school on 19 August 2008 and relocated with her to Town V to live with Mr T.
The Mother alleges that in July 2008 the child began making disclosures of sexual abuse against the Father. The police and the Department were notified of the concerns but did not pursue the allegations.
The Father filed an application in the Federal Magistrates Court (as the Federal Circuit Court then was) on 28 September 2008 seeking orders for the child to live with him because of concerns for her welfare in the care of the Mother.
On 17 November 2008, Federal Magistrate Howard (as his Honour then was) made Interim Orders for the child to live with the Mother and spend time with the Father, with such time to be supervised by one of the Father’s adult relatives.
On 11 February 2009, Registrar Bint made Orders requesting the intervention of the Department in these proceedings and directing the parties to attend upon a family consultant for the purpose of a Family Report.
Ms D, family consultant, interviewed the parties on 6 April 2009. At this time the children J and Y were living with the Mother and Mr T in Town V and the child J was spending supervised time with the Father each weekend and half of the school holidays. The supervision was being provided by the paternal grandmother and paternal aunt, Mrs Ireland and Ms W.
In her family report dated 14 April 2009, Ms D outlined that, despite her report effectively being ordered to assist the Court in determining the risk, if any, to the child in light of the allegations of sexual abuse on the Father, in the course of the interview process, “additional child protection concerns” had arisen “regarding [the child’s] wellbeing and safety whilst in the care of her mother”.
Ms D raised concerns as to the parenting capacity of the Mother and her ability to meet the needs of the child in light of historical child protection concerns and recorded there was good cause for concern about the child’s wellbeing and welfare. She highlighted an issue as to whether the Mother and Mr T posed a risk to the safety of the child in light of allegations that rose during the report processes of corporal punishment; exposure to inappropriate sexual pictures and alcohol misuse.
Ms D’s recommendations were for the Father’s time with the child to be each weekend and without supervision. She further recommended that, if the Court determines the level of risk to the child whilst in the Mother’s care to be high, the child live with the Father and spend time with the Mother each weekend until a final determination is made. Ms D further reported that:
71. … Consideration may need to be given to whether [the child’s] time with her mother should be supervised.
72. It is my recommendation that the Department assess the risk to both [the child J] and [Y] whilst in [the mother’s] care and to take the necessary action to ensure their safety.
Both Y and J were removed from the Mother’s care by the Department of Child Safety on 10 November 2009 following allegations of a sexual nature made against Mr K, the Mother’s then new partner, by Y and the Department’s concern about the Mother’s capacity to parent the children. A 12 month Child Protection Order was made shortly thereafter and the children Y and J were placed with carers for a period before being placed with the child J’s paternal grandparents.
It is not clear on the evidence before the Court as to the timing of the Mother’s separation from Mr T and the commencement of her relationship with Mr K. During the period since the family report interviews were conducted in April 2009 (when the Mother had been married to Mr T) and the Department’s removal of the children from the Mother’s care in November 2009, the Mother separated from Mr T and commenced a relationship with Mr K. The Mother, with the children Y and J, began living with Mr K before the girls were removed from the Mother’s care. She married Mr K in July 2011.
On 30 June 2011, Principal Registrar Filippello made Interim Orders, in accordance with s 69ZK of the Act, that upon the expiration or discharge of the current Child Protection Orders the child J live with the Father and spend supervised time with the Mother once per month at the B Contact Centre or such other Contact Centre as agreed. On 2 August 2011 the Department withdrew from these Court proceedings and the child went to live with the Father.
An updated family report was prepared by Mr W, social worker, who arranged for the Mother to spend supervised time with the child at a contact centre in Town V in August 2011 given that there had been no contact between the Mother and the child for over 12 months at that stage. Mr W recommended in the family report dated 22 September 2011 that the Mother continue spending time with the child at a contact centre where conversation could be supervised. Subsequently the Mother continued to spend supervised time with the child at the contact centre.
In January 2012, the parties participated in a Legal Aid Conference and agreed that supervised contact would conclude and the child would commence spending unsupervised time with the Mother on alternate weekends commencing from 20 April 2012 and half the school holidays commencing in June 2012.
Mr W had planned, by coincidence, to visit Town V and conduct enquiries on the weekend of 20 April 2012. The events of that weekend will be discussed in further detail below, however Mr W summarises what occurred as follows:
2.6 …Unhappily, the visit was cut short because it became clear that, contrary to expectations, [the mother] and [Mr K] had no funds whatsoever for adequate food or activities and had no money to cover [the child’s] return to [Town B]. Also, clear child protection concerns were held by the report writer in relation to [the child] as, on the first morning of her stay (Saturday 21.4.2012) men demanding money from [Mr K] and [the mother] arrived at the house and during the ensuing fracas she ([the child]) resorted to hiding in a bedroom. Consequently, unsupervised contact occurred for one night and it is strongly recommended that this plan be reviewed urgently.
The Father filed an Application in a Case on 10 May 2012 seeking orders for “full control” of the child and for the Court to “limit the access of [the child’s] Mother”.
On 26 June 2012, Principal Registrar Filippello made Interim Orders that the Mother spend time with the child in the presence of Ms F at times as agreed between the Mother, the Father and Ms F.
The Father’s oral evidence at the final hearing on 18 April 2013 was that the Mother had seen the child only twice since about May 2012 or “sometime” last year.
These Proceedings and the Parties’ Ultimate Proposals
On 28 March 2013, the Mother filed a request to attend the final hearing on 18 April 2013 by electronic communication stating her reason for being unable to attend in person as, “I am a full time carer and I live in [Town U]”.
At the beginning of the hearing on 18 April 2013, the Mother gave oral evidence for me to determine if she could appear by telephone for the final hearing. The following exchange in relation to the Mother’s circumstances took place:
HIS HONOUR: … I have the request to attend by electronic communication filed on your behalf on 28 March 2013. [THE MOTHER]: Yes. HIS HONOUR: All it tells me is in terms of the reason you are not here in person – it simply says ‘I’m a full time carer and I live in [Town U]’. [THE MOTHER]: Yes HIS HONOUR: First, who are you a carer for? [THE MOTHER]: --- [Mr N]. … HIS HONOUR: So, do you live with [Mr N] do you? [THE MOTHER]: Yes. HIS HONOUR: Do you live with anybody else? [THE MOTHER]: No. HIS HONOUR: So what you are now separated are you – from [Mr K]? [THE MOTHER]: Yes, I am --- Yes. HIS HONOUR: And when did you move to [Town U]? [THE MOTHER]: On the 28th --- the 28th of December last year. HIS HONOUR: Right. And why did you move to [Town U]? [THE MOTHER]: Because there was domestic violence and allegations of sexual interference with my daughter [Y]. HIS HONOUR: In respect of [Mr K]? [THE MOTHER]: Yes, yes. HIS HONOUR: So [Mr K] was being domestically violent to you was he? [THE MOTHER]: Yes he was. HIS HONOUR: And you were concerned about him being sexually abusive to [Y]. Is that right? [THE MOTHER]: Yes, that’s what I’ve heard yes. HIS HONOUR: Well, I understand why those things may lead you to separate from [Mr K] --- why did you move to [Town U]? [THE MOTHER: To get away from all the problems and that --- and also the drugs. HIS HONOUR: So did you move to [Town U] with [Mr N]? [THE MOTHER]: Yes I did. HIS HONOUR: Alright, well just so I understand it, do you seek the Court to make any orders? [THE MOTHER]: In regards to the children, I would like to get [J] and [Y] back. HIS HONOUR: Well, [J’s] the only child the subject of these proceedings. [THE MOTHER]: Yes, yes. And I don’t like that they are withholding [J] from me, they’re not giving me contact with [J] or anything. I’ve had no recent phone calls from the child. HIS HONOUR: Well, that’s a different issue. Are you actually seeking an order that [J] live with you? [THE MOTHER]: Yes I am. ... HIS HONOUR: And in the alternative if she continues to live with her father, what time or contact orders do you seek. [THE MOTHER]:
Well I wish to have half holidays with [J] and telephone contact and stuff like that.
The Mother was given leave to appear at the hearing by telephone given the circumstances in which she wished to participate was limited to her providing submissions at the end of the hearing.
At the conclusion of the hearing, the ICL sought the orders set out in the ICL’s Case Information Document filed 19 March 2013 save that priority between the Mother being supervised by the Contact Centre and being supervised by Ms F change and that the supervised time the Mother spends with the child be as agreed between the parties and Ms F but no less than alternate weekends. The ICL also sought to include the order sought by the Father that the Mother communicate with the child by telephone at any time the Mother chooses to call. Thus, the orders sought by the ICL are, in summary, that:
·The child live with the Father;
·The Father have sole parental responsibility for the child;
·The Mother spend time with the child in the presence of Ms F at times as agreed between the Mother and the Father and Ms F but no less than alternate weekends from 9:00 am Saturday to 5:00 pm Sunday;
·In the event Ms F is unable to facilitate the Mother’s time with the child, the Mother spend supervised time with the child at the B Contact Centre or such other Contact Centre as agreed in writing at any time arranged with the Contact Centre upon the Mother giving the Father at least seven days written notice of her intention to exercise time; and
·That the child communicate with the Mother by telephone on one occasion per week with the Father to facilitate the call and at any time that the Mother seeks to telephone the child.
The Father agreed with the orders sought by the ICL save for the Father facilitating a phone call once a week between the Mother and the child. In relation to communication between the child and the Mother, the Father sought that the order provide for the Mother to make a time to ring and the Father have the child available to answer the phone, rather than the Father being required to make the arrangements. The Father further sought an order that Mr N “have nothing to do with [the child]”.
The Mother disagreed with any order relating to Mr N having no contact with the child on the basis that “he’s caused no harm to her at all”. She maintained the orders she sought at the beginning of the hearing for the child to live with her. In the event that the child lives with the Father, the Mother was opposed to supervision of her time with the child. The Mother indicated she had no difficulty with arranging a time with the Father for her to telephone the child.
Statutory Framework
Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, 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 (s 61DA(4)).
Relevant issues and s 60CC considerations
Much of the preceding discussion already resonates with one or more of the s 60CC considerations but particularly the primary consideration of the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As already noted the Mother has a significant history with the Department in relation to the protection of her children with all being in long-term care or having been subjected to Department Orders.
Concern was raised about the Mother’s parenting capacity and the safety of the child by Ms D in the first family report dated 14 April 2009. The child was removed from the Mother’s care by the Department in November 2009. Since this time the Mother has spent only supervised time with the child, bar one occasion of unsupervised time on 20 April 2012.
Mother’s last unsupervised visit with the child
The weekend commencing on 20 April 2012 raises concerns for the Mother’s ability to care for the child if she were to live with her or spend time with her without supervision. Mr W outlines that event in his report as follows:
20 4 2012 (6.00pm) – Home visit [Town V] – Interview [the mother] and [Mr K] and [J], subject child.
(1 hour)
I called in to check that [the child] was OK following her journey in … (a friend of the Mother’s) car and that she was settled for the evening with her mother and [Mr K]. They had decided to go to [the] beach at 10 am the next day and it was agreed that I would meet them and be able to talk with [the child].
21 4. 2012 (10.30 am) – Home visit [Town V] – Interview [the mother] and [Mr K] and [J], subject child.
(3/4 hour)
As they were not at the beach I went to the house to find the doors and windows closed. It did not look as though anyone was home. It was only after I identified myself that I heard sounds and they opened the door. [Mr K] was sitting on the floor looking through a pile of CDs. [The mother] said all was well, however, I sensed that she was being untruthful.
I spoke to [the child] in the back room out of [the mother] and [Mr K’s] hearing. She told me that there had been trouble that morning. Two men had come demanding money. There was a lot of yelling. She hid in a bedroom. Later [Mr K] and [the mother] went to Cash Converters to pawn stuff as one of the men was coming back. He did come back and she understood that [Mr K’s] wallet and mobile phone have now gone and they have no money for anything, including the bus fare to return her to [Town B] tomorrow.
I reassured [the child] that I would look into what had happened and ensure that she was safe. She told me that her dad had told her she could go to [Mr X] and [Ms X] if she had to but in fact [Mr X] had been one of the men at the house that morning and there had been shouting. However, she still said she felt Ok about going to [Ms XX] and [Mr X] if she felt the need as her father had said so.
I then spoke to [the mother]. She assured me that all was well and claimed there were no problems. When I said I didn’t believe her and that one way or another I intended to find out what had happened, she then confessed. She still minimised the incident saying it was “only some raised voices” but informed me that;
·[Mr MM] and [Mr X] came to the house separately wanting money to repay debts.
·They later came back after [Mr K] had been to Cash Converters and there were raised voices.
·[Mr MM] took his fishing rod. [Mr MM] is a friend of [Mr N]. He lives at … and rides a push bike and has a beard. They hope to buy a car … from him.
·All the money they had to look after [the child] for the weekend and to buy the return bus ticket “all went missing” when [Mr X] and [Mr MM] were at the house. However, she was not blaming [Mr X] – but said [Mr MM] probably took [Mr K’s] wallet and mobile phone.
[The mother] agreed that it was not a good start for overnight stays by [the child]. I told her that I was concerned. I put it to her that caring for children means one must have sufficient money. I noted that she has no money for credit on her phone, she could not afford to pay her share of the [contact centre] fee, which was only $25 a month and she has obviously not put any money aside to cover expenses of having [the child] this week-end. They were relying totally on [Mr K’s] Centrelink money – which he got this morning and it has now gone. I asked: In circumstances like this how did she think she could care adequately for [the child] fortnightly, let alone have her for half the school holidays in June? She was sure she could.
….
I tried to clarify the morning events still further. [The mother] then said that [Mr X] wasn’t involved in the raised voices and [Mr MM] had come to get “his payment for the car”…
[Mr K] then explained that the reason he was going through their CDS when I arrived was to find some to take to Cash Converters for money to buy [the child’s] bus fare. He was stressed because they had to buy the ticket by 1pm that day (2 hours away). I suggested that we phone [the father] and ask him to come and get [the child]. [Mr K] said he thought that would be “the safest option”. [The mother] nodded.
21 4 2012 Telephone call to [Mr Ireland] – [the child’s] father (5 mins)
[The father] explained that he was at work and his mother was looking after [Y]. I told him that I thought it best for the contact to be cancelled on this occasion and the plan reviewed. He said he could drive down tonight to get [the child]. I explained that my wife, …, happened to be with me that morning and that we thought it best to drive [the child] to [Town B] there and then. [the father] gratefully agreed.
…
21 4 2012 - Home visit to [Town V] interview [the mother] and [Mr K] and [J], subject child. (10 mins)
My wife and I then went to the house, just as [the mother], [Mr K] and [the child] arrived back from Cash Converters. … As soon as I mentioned that [the father] was agreeable or (sic) us to drive [the child] back to [Town B], [the mother] took her inside to get her things. They seemed relieved.
[The child] needed to be prompted to say goodbye to [Mr K] and [the mother] and readily climbed into our car. [Mr K] and [the mother] went inside and closed the front door. They did not wave good bye to [the child].
Mr W also records on 12 April 2012, the paternal grandmother was interviewed by telephone and had raised concerns on that occasion that she was concerned that the Mother and Mr K were still using illicit drugs and “has heard that a tall man named [Mr MM] supplies them with drugs. He goes to the house on a bike, apparently.”
I accept the accuracy of Mr W’s reporting of these relevant events and circumstances and I accept his opinions and evaluations of them.
It is notable that upon receiving a notification that the child may be starting to spend unsupervised time with the Mother, the Department became involved. The Magellan Report prepared by the Department in June 2012 outlines that the Father was interviewed by Department officers on 3 May 2012 and he stated that he was not sure why the previous parenting Orders had changed but that as the ICL had agreed to the new parenting arrangement, he did too.
The Father indicated to the Department that he had significant concerns for the child’s safety in regards to spending unsupervised time with the Mother. On 3 May 2012, Department officers contacted the Mother to discuss the notified concerns and asked whether she would be willing to agree to a Safety Plan to forgo her scheduled weekend contact with the child that weekend pending the Department conducting an investigation and assessment. The Mother was not willing to do so. The report states further:
For this reason on 4 May 2012 an application was filed in the [B] Childrens Court for a Temporary Assessment Order directing that the mother not have contact with [the child] direct or indirect without a departmentally approved person present. This order was granted on the same day and expired on 10 May 2012.
The Father contacted the Department on 14 May 2012 and stated that he had been advised that the consent orders from January 2012 had not been sealed by the Court therefore he did not have to make the child available for contact. The Father indicated he would not allow the child to attend unsupervised visits with the Mother and would notify the Mother of this. The Father told the Department he was going back to Court to seek an order that contact be supervised.
The Department recorded in the Magellan Report of June 2012 that the investigation and assessment was ‘Unsubstantiated – Child Not in Need of Protection’. The Magellan Report records that the child was not at an unacceptable risk of future harm on the basis that the Father had stated he will not be agreeing to any further orders that allow unsupervised contact. The Father was assessed as being willing and able to provide for the child’s ongoing care and protection and a decision was made that no further departmental intervention was necessary whilst the child remained living with the Father and was not having any unsupervised contact with the Mother or stepfather.
In relation to the risk factors identified for the child, the Department recorded:
There is an extensive child protection history for the mother and all of her children….[Child Protection] concerns include physical and sexual abuse, excessive discipline, unhygienic living conditions, parental drug use and domestic violence.
The mother has no insight into the [Child Protection] concerns and states that the reason her children are in care is because the department is ‘out to get her’, or because [Child A] is a liar, or because she was in an abusive relationship and was held responsible for the actions of her partners. This lack of insight into the [Child Protection] concerns placed [the child J] at risk because the mothers (sic) lack of understanding indicates that the [Child Protection] concerns that resulted in the children coming into care would still exist…
In the most recent family report dated 27 April 2012, Mr W opines that there are “several unresolved and serious concerns” relating to the Mother and Mr K, many of which are relevant to the s 60CC considerations. These concerns were grouped in his report as:
·illicit drug use and dubious associates;
·sexual abuse concerns; and
·standard of care and parenting ability.
The Mother agitated at the final hearing that she has left Town V to “…get away from all the problems and that…and also the drugs” further expanding in cross-examination it was to get away from the drugs used by “everyone that [Mr K] had in the house” and the domestic violence with [Mr K]. However there are still unresolved concerns given the Court has no evidence of the Mother’s current situation apart from that she is residing with Mr N and her son Z which only raises further cause for concern.
In relation to the Mother’s own drug use, she failed to comply with the random urine testing that was requested following the Legal Aid conference in January last year. The Mother admitted in cross-examination that it has been only three and a half to four months since she had last used cannabis despite her having adamantly denied using drugs in previous family report interviews. The Mother acknowledged in cross-examination that drugs had been a problem with Mr K “since [Mr K] and I moved into the house four years ago”. In the family report dated 22 September 2011, Mr W records, “[The mother] and [Mr K] asserted that drugs and alcohol were no longer part of [the mother’s] life – not for the past two years.” When asked in cross-examination whether at the time of Mr W’s preparation of the family report she was concerned about the use of drugs in the house the Mother replied she was. When asked whether the Mother had told Mr W that this was a concern, the Mother stated, “No, because everybody else told Mr [W]”. I find that the Mother has historically made false denials concerning her use of drugs and that she is not a credible witness.
Mr W had concerns when he found out that Mr N had been staying with the Mother and Mr K in Town V. Mr W outlines in his report of 27 April 2012 in relation to his visit at the Mother and Mr K’s home on 20 April 2012 (at page 18):
While pointing out their bedroom to me I noted a box of Nexium 40mg tablets by the bed and asked who was prescribed to take them. They (the Mother and [Mr K]) said that they belonged to [Mr N] – he was living there and had left them behind. I asked when he had been living there? [The mother] said: “He came here for a couple of days”. I said I wanted the truth – how long had he been living there? [The mother] said he arrived on Boxing day and stayed a couple of days but [Mr K] said he had been there a bity (sic) longer than that. [Mr K] then said he had been there for 3 months. I said: “So, in fact he has only recently left!” They agreed.
I asked if there had been a fight when [Mr N] left. Both spoke at once stating that there was a fight between [Mr N] and another man that didn’t involve them.
I asked [the mother] why she had said he had only been there a couple of days when he had in fact been there for three months? She said that when he came he said he was only going to stay a couple of days. She then added that while he was living there in their house she “had nothing to do with him” as they don’t get on. I asked why he stayed so long? They said it was because he has so many health problems, such as diabetes, and that [the mother] was paid by Centrelink as his ‘carer’. I said: “So you were paid to be his carer but you had nothing to do with him…?” [Mr K] said “Well they did talk a bit…but he suddenly left at 4am one morning”. I said: “I understand he is what you might call ‘trouble’ isn’t he? They both said yes. I asked why, if he is ‘trouble’, they would have him here in their house for 3 months? They said it went OK until his friend [Mr MM] started coming.
As Mr W notes in his report (at [5.6]), Mr MM is the person who:
… turned up at the house demanding money on the first morning of [the child’s] planned weekend stay, causing a fracas and, allegedly, the disappearance of all the money [the mother] and [Mr K] had planned to use to cover the costs of [the child’s] visit. Persons interviewed stated emphatically that they know him to be involved in illicit drug use.
In cross-examination, the Mother was asked about the interviews with Mr W, particularly in light of the fact she was now living with Mr N, being paid as his carer and had actually, she says, moved with Mr N to live in Town U.
The Mother said that Mr N had been living there for three months at the time of Mr W’s interview and she could not recall telling Mr W that he had been there only a couple of days. The Mother gave evidence that she did not say to Mr W that she had nothing to do with Mr N. She also denied agreeing that Mr N was “trouble”. The Mother gave evidence that she recalls, “[Mr K] saying something like that but I didn’t.” When asked why she then did not disagree with Mr K’s statement in front of Mr W, the Mother replied, “I did, I did disagree with [Mr K] in front of Mr [W]”. When asked whether she asked why Mr K thought Mr N was trouble, the Mother replied, “I did that too. I asked why and he said it was because[Mr N] causes a lot of problems. And I said that is not true.” The Mother gave evidence that she was “up front” with Mr W and had no idea where he got the information recorded in his report that asserts otherwise. I do not accept the Mother’s evidence. I accept the accuracy of Mr W’s reporting.
In relation to concerns about Mr N, the following was recorded in Mr W’s report dated 27 April 2012 (at [5.6]):
…family members on both sides and two independent persons interviewed all believe that she (the Mother) is again using and that this is seriously effecting (sic) her health. Clearly she and [Mr K] have allowed [Mr N], the father of [Y] and allegedly a drug user, to live in her house for three months and until recently. She acknowledged to the writer that [Mr N] is ‘trouble’ and she attempted to conceal the fact that he had been living there from the writer.
The Mother admitted in cross-examination that Mr N had a long history of drug abuse but gave evidence that he was not using drugs now. The Mother stated Mr N had not used drugs for quite some time now and that in fact, he was drug tested over at the business were he “works part-time”. When questioned about why then she received a carer’s allowance for Mr N, if he was working the Mother went on to say that he was not working now as he had an operation recently but later stated she had been getting the carer’s pension since last year and acknowledged Mr N had not worked since last year.
The Mother denied in cross-examination that Mr N had a propensity to be violent and intimidating. Exhibit 1 in these proceedings is a Child Concern Report by the Department dated 16 November 2007 which outlines that police attended the Mother’s home in relation to an incident of verbal domestic violence between Mr N and the Mother.
The Mother gave oral evidence that Z N was also living with her and had been there for four days at the time of the hearing having run away from his foster carers in New South Wales due to being mistreated. The ICL submits this is yet another unknown in relation to the Mother’s circumstances with Z having a troubled past.
In relation to the allegations made by Y regarding Mr K the Mother had, at the time, adamantly denied such abuse had occurred and called Y a liar. The Mother’s affidavit filed 3 October 2012 records:
3. In reguards (sic) to the sexual allegations against my husband Mr [K] made by my daughter [Y] the Department of Communities services have no evidence of risk of harm to both my children [J] and [Y] by my husband Mr [K].
4. The police have interviewed my husband Mr [K] and no charges have been laid.
5. I would like to have both my daughters’ (sic) [J] and [Y] returned to my care with my husband Mr [K] and I want all departmental orders squashed due to not showing me any evidence of the sexual allegations against my husband Mr [K].
Mr W discussed the sexual abuse concerns relating to Mr K in the most recent family report dated 27 April 2012 stating they were a significant aspect of the grounds which the Department relied upon in removing the children J and Y from the Mother’s care. Mr W records:
5.8 …Indeed they were the trigger for their (the Department’s) intervention. Yet, they have never been resolved. It is understood that the Department’s placement of [the child] with [her father] and her release from care was based on their assessment that [the father] would not permit unsupervised contact by [the child] with [Mr K]...
5.9 [Mr K] informed the writer on 21. 4. 2012 that he is distressed because various people in [Town V] continue to accuse him of being “a paedophile” and he is distressed by this. He did not elaborate but it seemed that he was not only referring to people who know of the matters involving [J] and [Y]. It was beyond the scope of this report to pursue that matter.
5.10 As mentioned in the last report, [Mr K] and [the mother] were both sexually abused as children. [Mr K] has sought counselling but [the mother] is still troubled by her past to the extent that she admits the subject causes her to lose her objectivity. It seems that the subject is something of an obsession with her and her unfounded allegations that the girls claimed [Mr Ireland], [the child J’s] father, abused them in this way may be explained in part by this. The concern that she also enticed [Mr N] to falsely give sworn testimony (that he also heard the girls make this claim against [the father]) and that over several months she tried to get both girls to tell other people the same story is of considerable concern. In the writer’s opinion, unsupervised contact by [the mother] with [the child J] (or [Y]) is unwise.
The Mother gave evidence in cross-examination that that she now supports Y’s allegations made against Mr Kr. Her explanation for a change in view was:
Well I just didn’t believe it at first, but then I thought about it and thought about it and kept thinking about it. And made the decision to get out of there.
…because of the way he was acting…kept talking about it. Like he kept trying to tell me that he didn’t touch her.
There are clear historical issues surrounding the Mother’s inability to protect her children from harm which include her adamant denial of any risks to the girls from Mr K at the time they were removed from the Mother’s care by the Department. The Mother is currently living with Mr N who is a man of concern and she has not provided any evidence as to her current circumstances, including no evidence to support her assertion that she is no longer using drugs. Mr W states in his family report dated 27 April 2012 (at [5.12]) that the Mother “…appears to have such difficulty telling the truth that little credence can be placed on what she says”. I accept Mr W’s conclusion.
In relation to the Father and the primary consideration of the need to protect the child from harm, the Father denies the sexual abuse allegations and states that it was not until he made an application to the Court seeking time with the child that such allegations arose. The Father stated these allegations were motivated by the Mother’s attempt to “stall the legal proceedings” and to “get more time with [the child]”.[1] I accept the Father’s evidence.
[1] Family Report by Ms D dated 14 April 2009.
The Mother stated in cross-examination that she was no longer pursuing the allegation that the Father had sexually abused the child. Regardless, Mr W writes in his family report dated 22 September 2011:
7.1 It seems reasonable to conclude, as stated in the Synopsis above, that allegations of a sexual nature made by the mother against the father in relation to the subject child appear to be unfounded. Moreover, there is concerning evidence that she (the Mother) has tried to dupe others into making false statements in an effort to give some substance to her claims. The writer’s firm opinion is that she has been untruthful during the preparation of this report.
7.3 It is also reasonable to conclude from all the enquiries made that the child [J] is appropriately placed with her father, is safe and well cared for there and has the support of a loving and responsible extended family.
The Mother denied recalling ever being told by Mr W that Mr N had admitted making his false testimony as a favour to the Mother.
I find the allegations against the Father to be groundless. I find that the Mother is a witness devoid of credit quite prepared to advance allegations she knows to be groundless.
In relation to the primary consideration of meaningful relationship (s 60CC(2)(a)) and the additional consideration of the nature of the relationship of the child with the child’s parents and other persons (s 60CC(3)(b)), there is limited evidence before me of the child having a meaningful relationship with the Mother at present. The child has seen the Mother approximately two times in the past year. The child has a clear resistance to speaking to the Mother on the telephone.
Mr W records in the last family report:
5.14 Moreover, when she (the Mother) does have contact with [the child] her interaction with her needs constant prompting. From the writer’s personal observation and the reports of others present during contact in different settings it seems likely that a minimal level of bonding was developed by [the mother] and the attachment by [the child] towards her mother is poor. [The child], fortunately, has many other adults in her life with whom she appears to have developed a secure attachment.
The child not only has a meaningful relationship with the Father but there are other persons in her life with whom she has a significant relationship. In particular, the paternal grandparents have a significant role in her life given they were her carers for a period of time following her removal from the Mother’s care. The paternal grandmother currently collects the child from school each day and cares for her, along with Y, until the Father finishes work.
The child Y lives with the paternal grandparents and attends the same school as the child J. The half-siblings see each other every day when collected by the paternal grandmother. There have been issues with sibling rivalry between the children given the Mother’s favouritism of the child J when the girls were living with her. The Mother’s favouritism was causing an unhealthy sibling rivalry between the half-sisters which Mr W records as having had a negative impact on both girls.
Mr W records in his family report dated 22 September 2011:
I asked if she (Ms F) knew whether [the mother] made any efforts to see [Y]. She didn’t think she had – apart from one occasion arranged by DoCS at their office – but [the mother] had only made it in time to spend 15 minutes with [Y]. She noted that [the mother’s] favouritism towards [the child J] is very apparent to all. This is not good for [Y] or [J]. [Y] thinks she is not loved by her mother and [J] thinks she is special and is favoured.
The emotional effect of this on [the child J] is quite marked. On this point [Ms F] told me about an incident [the maternal grandmother] told her about where [the mother] gave [the child Y] a “Royal Flush”. This was a couple of years ago before the girls were removed by DoCS. [Y] wanted to go to the toilet but [the mother] told her to hold on. [Y] wet her pants. [The child J] seemed to delight in telling [the mother] and getting [Y] into trouble. [The mother] took [Y] to the toilet – put her head in the bowl and flushed the toilet. [The child J] laughed and thought it was funny. That’s the kind of thing. That kind of favouritism is really awful for [Y] and not good for [J] either.
Mr W further reports that the paternal grandmother stated:
[The child J] used to play on the fact that [the mother] so obviously favoured her. She used to tell tales and try to deflect blame onto [the child Y] – and got away with it all the time when they both lived with [the mother]. [The paternal grandmother] doesn’t blame [the child J] for this but they have talked about it and [the child] has stopped doing it. The relationship between the two sisters has now improved. They still goad each other from time to time but are protective of each other.
The family report writer also spoke to the maternal grandmother who confirmed that the “Royal Flush” incident did occur. The maternal grandmother supported the view “that over many years now [the mother], despite her denials, clearly favoured [J] and encouraged her to belittle [Y]”. She said “It was sad to see [J] being so nasty to [Y] but she was simply mimicking her mother”.
Mr W outlines in his updated report dated 27 April 2012:
5.15 Apart from all of the above, the long standing issue of [the mother’s] favouritism of [J] and her denigration of [Y] is relevant to the question of contact as it appears to be aggravating the situation. It is understood that the Department of Child Safety has tried to arrange contact for [Y] with her mother but they have had little success. [The mother] attended once but was late and, instead of enjoying 1 ½ hours as planned, she had to leave after 15 minutes to catch a train.
5.16 During the preparation of both reports the writer has been informed by many that [the mother’s] favouritisms for [J] over [Y] has been damaging to both girls. Throughout her younger childhood living with [the mother], [J] adopted her mother’s critical and mean attitude towards [Y] and this has worsened lately as [J] has been taken to see her mother but [Y] as (sic) not.
However, the evidence from the Father, which I accept, is that whilst the sibling rivalry is still a problem it is not as much of a problem as it was in the past when the child J was living with her mother.
The child also has a relationship with another of her half-siblings, R, who lives with Ms F. It is noted in Mr W’s family report dated 22 September 2011, that:
[The child] appeared to enjoy the visits at … ([Ms F’s] residence), however, it seemed clear to [Ms F] that she was more excited to see her sister [R], who lives with [Ms F], than her mother.
The Father has shown a clear willingness to facilitate the child maintaining a relationship with the Mother including driving the child to the Contact Centre in Town V and paying for the costs of these visits (s 60CC(3)(c)). The Father drove the child to Town V every month following the August 2011 visit, as the B contact centre was not running at this time. The Father paid the whole cost of the transport to Town V and his half of the contact centre fee. The Mother did not contribute to the costs of the visits nor pay her fee for the contact centre. Mr W states in his second family report dated 27 April 2012, that were the fee not waived it is believed the Mother would not have attended the visits at all. Mr W notes that in his conversation with staff at the contact centre on 20 April 2012 he was told that the staff thought it necessary on several occasions to telephone the Mother prior to visits to encourage her to attend and the Mother only agreed to attend once her half of the fee was waived.
The Father gave oral evidence that he tries to facilitate the child communicating with the Mother but the child is often resistant to contacting her. I accept his evidence.
The Mother has not shown a willingness to facilitate the child’s relationship with the Father whilst the child was living with her in the past. The Mother unilaterally moved to Town V with the child and there is evidence to suggest that she coached the child into making disclosures of sexual abuse against the Father.
The child has lived with the Father for two years now, spending minimal time with the Mother since being removed from her care in November 2009. The Father is her primary caregiver. Apart from the unsuccessful attempt at an unsupervised weekend visit in August 2012, the child has not spent unsupervised time with the Mother since 2009.
The significant issues concerning the Mother’s capacity to care for the child have already been addressed above, including the possibility that she is still using drugs. The Department have raised issues of hygiene and Ms D raised issues of children in the Mother’s care being exposed to inappropriate language and sexual behaviour. As Ms D reported in the first family report dated 14 April 2009:
63. Whilst, there is limited information about the grounds on which these children (the Mother’s four older children) were removed from their mother, it is fair to assume that it was significant enough to warrant such an intrusive level of intervention. Child protection agencies do not take such action lightly. Based on my extensive experience in child protection, it is very likely that state child protection agencies would have significant concerns about [the mother’s] ability and willingness to protect her children, and her parenting capacity.
Mr W records in the last family report dated 27 April 2012:
[The mother] has very limited daily living skills. She and [Mr K] are reportedly without funds for food or general necessities. Perhaps their money is dissipated because of drug addictive behaviours but for whatever reasons they had not put anything aside to cover the costs of having [the child] for the week-end other than [Mr K’s] Centrelink payment drawn down the day after she arrived. They borrow from neighbours for incidental things and are ‘always without money’. The fact that she paid nothing at all toward the [contact centre] fees for over 5 months seems indicative of the priority she allocates having contact with [the child].
In relation to the Father, Mr W records in his last report dated 27 April 2012 that:
There are no issues of concern regarding the father’s care of [the child]. He has a well-connected and supportive extended family in [Town B] and [the child] has many healthy and worthwhile family connections with members of both sides of her extended family in [B].
I accept Mr W’s assessments and opinions.
Balancing of best interests considerations
I have not specifically addressed all subparagraphs of s 60CC(3) of the Act but have considered all relevant factors. On balance I am satisfied that overall consideration of the statutory considerations leads to the conclusion that the child’s best interests are served by her living with the Father and spending supervised time with the Mother. In summary, I find that the Mother’s parenting capacity is compromised for the reasons already outlined. On top of everything else, she elected to relocate to Town U. In comparison, on all the independent evidence and his own evidence, which I accept, the Father is capable of and does provide adequately for the child’s physical, intellectual and emotional needs.
It is noted that, as was submitted by the ICL, given the position of the Department in the past, and particularly the concerns raised in the most recent Magellan Report, it is highly probable the Department would intervene if it were ordered that the Mother have unsupervised time with the child. In any event, I am satisfied that such an order would be contrary to the child’s best interests.
Parental Responsibility
It is abundantly clear in this case that the parents are not able to effectively communicate nor discuss or resolve issues. The Father gave evidence that he would not be able to talk with the Mother without “being in conflict” and having arguments. The Mother has now moved to Town U and did so without consulting the Father. In short, I consider that an order for equal shared parental responsibility would more likely than not produce further conflict between the parents. In my view, having regard to the best interests of the child, an order for equal shared parental responsibility would not be in her best interests. I am satisfied that an order for the Father to have sole parental responsibility is in the child’s best interests.
The Father supports an order that he inform the Mother of decisions and I will order that he consult with her before making such decisions.
Determination of parenting orders
I find that the ICL’s proposed orders best meet the best interests of the child.
Mr W records in his last family report dated 27 April 2012:
…[Ms F], with whom the next older sister, [R N] lives, has on several occasions this year arranged for [the child] and [R] to spend time together at her home (near [Town B]) with [the mother]. She strongly supports the view advanced to the writer by [the father] that it would help the situation all round if [J], [Y] and [R] saw their mother at the same time. [Ms F] would be happy for this to take place at her home under her supervision.
If time is unable to be supervised by Ms F, the Mother has the opportunity to organise to spend supervised time with the child at a contact centre.
I accept the submissions of the ICL that orders for communication should require the Father to facilitate one telephone call a week and for the Mother to be able to call at any other times she arranges in order for the child to maintain communication with the Mother.
I therefore make the Orders set out at the commencement of these reasons.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 September 2013.
Associate:
Date: 5 September 2013
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